On June 23, 2010, in the middle of a session of the Senate of Canada, an earthquake measuring 5.0 on the Richter scale struck the capital city of Ottawa. As the chamber shook, the senators quickly left the Parliament building and gathered anxiously on the East lawn on Parliament Hill. The sitting, needless to say, was suspended under these alarming circumstances, but the gathered group of senators still had to discuss and agree upon the appropriate procedure for adjournment and recall. This concern for proper procedure, set against the outdoor backdrop of a summertime field and with tensions running high, prompted some to remark upon the scene’s resemblance to a certain historical event, involving a king, his barons, a scrap of sheepskin parchment, and an idea about basic rights that changed the world.
The American Declaration of Independence and the United States Constitution, the French Declaration of the Rights of Man and of the Citizen, the United Nations Universal Declaration of Human Rights, the Canadian Charter of Rights and Freedoms—all of these important legal instruments, and others like them, inspire citizens of many countries with their promises that all people should share in the same fundamental rights, which should in turn be protected by the rule of law. In the thirteenth century, an early articulation of this concept was written out in Latin and became known as Magna Carta (the “Great Charter”). The idea that no person is above the law, and that the law itself should be based on rules that apply to all rather than the arbitrary decree of a despotic ruler, took hold in the kingdom of England and was eventually brought to North America where it became firmly entrenched in the constitutions of the United States and Canada. These three countries, among many others, share the 800-year-old legacy arising from a peace agreement between a distrusted king and his rebellious barons that has become a symbol for justice and the protection of basic rights around the world.
History of Magna Carta
In medieval England, the king held almost absolute power and was at the top of a feudal society, while the serfs had virtually no power and were at the bottom. In between these extremes were the nobility, the Church, and the “free men” who were not tied to the land as serfs. These latter groups had expectations about their traditional privileges and rights, and King John was an unpopular monarch who was failing to show deference to them. Many of England’s barons thought him untrustworthy, having witnessed his capricious and often vindictive sense of justice. His military campaigns to hold on to his land possessions in France were expensive failures. When he sought to impose yet another heavy tax to continue them, many barons revolted. When they gained the upper hand in the conflict, King John was forced to seek conciliation and negotiate. The barons proposed a legal charter that set out 63 “liberties, rights, and concessions” that were to be “granted” by the king. The king placed his seal upon this document on June 15, 1215.
Magna Carta is filled with rules for a medieval society, covering topics such as marriage, inheritance, custody, and wardship that were designed to limit the king’s self-interested interference in such matters. It addressed rent payments, the use of forests, and the freedom of movement of merchants. It ensured the “ancient liberties and free customs” of the City of London and the freedom of the English Church. It also included provisions to secure peace and sought to create a council of barons who would ensure that the terms of Magna Carta were kept.
Respect for the law stands as one of Magna Carta’s enduring ideals. While the barons may have been motivated by their desire to decrease the king’s power in order to increase their own, Magna Carta was intended to reform England’s justice system and extend rights beyond just self-interest. The passage that has most resonated through the years is Chapter 39, which states that “no freeman” should be arrested, imprisoned or exiled or in any way brought to ruin without “the lawful judgment of his peers or by the law of the land.” The Supreme Court of Canada has referred to this as the “ancient and venerable principle that no person shall lose his or her liberty without due process according to the law” (United States of America v. Ferras; United States of America v. Latty,  S.C.J. No. 33).
The phrase “lawful judgment of his peers” has come to mean trial by jury and the “law of the land” to mean the “rule of law” and “due process.” Chapter 39 came to be associated with habeas corpus and the principle that any person under arrest must be brought before a judge or into court to determine the legality of his or her detention. Where there is a lack of cause or evidence to make a case, the arrested person should be freed. Chapter 40 sought to ensure that the king would provide justice for everyone and cease the practice of charging high sums for certain legal writs that only the rich could afford. It stated: “To no one will we sell, to no one will we refuse or delay, right or justice.” In other chapters, judges were also to visit the shires of England four times a year and the court of common pleas was to be held in a fixed place, rather than traveling with the king. This established a tradition of continuity and stability with respect to judicial bodies and access to justice, which evolved over centuries into the court systems we have today in many countries, including Canada and the United States.
Although copies of Magna Carta were sent around the kingdom to spread the word that the king had recognized that his authority was subject to the law, the Great Charter failed to bring about the peace the barons desired. King John had no intention of letting his power be restricted and monitored by a council of barons, and he claimed that he had only agreed to it under duress. Magna Carta was a threat to established power, including the papacy that conferred legitimacy on the king’s rule. It was quickly nullified by Pope Innocent III, who thought it was a “shameful and demeaning agreement, forced upon the king by violence and fear.” However, after King John died, Magna Carta was reissued by his successor and again with revisions over the years by subsequent monarchs. Its ideals had taken hold in the minds of the English. They would be further articulated by later generations, including the drafters of England’s Bill of Rights in 1689, and eventually carried across the ocean to inspire the constitutions of the United States and Canada. Today, these ideals resonate throughout the world. The United Nations Universal Declaration of Human Rights boldly echoes the Magna Carta in stating that: “Whereas it is essential, if man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression, that human rights should be protected by the rule of law.”
The Canadian Charter of Rights and Freedoms
Similar to the United States, rights and freedoms are guaranteed in Canada’s Constitution; more specifically, in the Canadian Charter of Rights and Freedoms. Canada’s Charter sets out fundamental freedoms, including freedom of expression and freedom of religion; democratic rights, such as the right to vote; and equality rights that guarantee that every individual is equal before the law. The rights contained in the Charter are not absolute and may be balanced with other rights or broader public interests. Any limits placed on them must however be “reasonable,” “prescribed by law,” and “demonstrably justified in a free and democratic society.” There is, however, a “notwithstanding clause” that may be used by a legislature as an override (though this has only been used in a few exceptional cases).
Like Magna Carta, Canada’s Charter is also a product of its time. It includes special rights that serve as a window on Canadian culture in 1982, the year it was adopted. The Charter was the result of a negotiation process that was at times concerned as much with the sharing of political power and how the prescribed rights would place limits on Canadian legislatures. There are sections that con-cern equalization payments between Canadian provinces, guarantees for Aboriginal people’s rights, and special rights for Canada’s two official languages, French and English. Rights to property and to bear arms are not included, indicating that these were not as important to Canadians in the way that they were to Americans when their constitution was drafted.
Where Canada’s Charter most reflects the legacy of Chapters 39 and 40 of Magna Carta is in its statement of “Legal Rights.” These provisions state that “everyone” has the “right not to be arbitrarily detained or imprisoned,” and when arrested or detained “to have the validity of the detention determined by way of habeas corpus and to be released if the detention is not lawful.” The right to a trial by jury is also included, but only where the maximum punishment is five or more years. The “right to life, liberty and security of the person” is qualified by adding that a person shall not be deprived of this right except in accordance with “the principles of fundamental justice.” This is similar to the Fifth and Fourteenth Amendments of the U.S. Constitution, which provide that no person shall be deprived of “life, liberty, or property, without due process of law.”
As Magna Carta sought to create a council of barons to ensure that the King respected the law, so in Canada and the United States, the judges of the Supreme Courts are tasked with the role of being the ultimate arbiters of government constitutional compliance. Canada’s principles of fundamental justice have been gradually articulated over the years by judges in their decisions. The Supreme Court of Canada has broadly referred to these principles as being “found in the basic tenets of the legal system” (Reference re Section 94(2) of the Motor Vehicle Act,  2 S.C.R. 486). Though judges, politicians, and legal experts have not always agreed on how to define these principles, they are understood to hold legislators to certain standards that must be met when passing laws.
The principles that have been articulated to date include that a law should not be too vague, arbitrary, or overly broad, and its effects should not be grossly disproportionate to the state’s objective in passing it. A recent Supreme Court of Canada decision, Canada (Attorney General) v. Bedford,  3 S.C.R. 1101, involved a challenge to Canada’s prostitution laws wherein it was successfully argued that these deprived prostitutes of their rights to security of the person in a manner that is not in accordance with the principles of fundamental justice. While prostitution itself is not illegal in Canada, Canada’s Criminal Code prohibits some of the activities associated with it, such as living off the avails of prostitution, running a bawdy house and communicating in public for the purposes of prostitution. The court found that these Criminal Code provisions infringed the rights of prostitutes by preventing them from taking measures to increase their safety, whether by screening potential clients or hiring bodyguards and drivers who could help them.
The Court found that the effects of the Criminal Code provisions in question were not sufficiently connected to their objective of preventing the exploitation of prostitutes. They were overbroad and arbitrary because they failed to distinguish between a pimp and a person hired to protect the prostitute. Their effect was in fact to make conditions less safe for prostitutes. The Court’s decision was to give the government a year to pass new laws. The Court added that this “does not mean that Parliament is precluded from imposing limits on where and how prostitution may be conducted, as long as it does so in a way that does not infringe the constitutional rights of prostitutes.”
In another recent example, Canada (Citizenship and Immigration) v. Harkat, 2014 SCC 37, the Supreme Court of Canada heard an appeal by Mohamed Harkat, a noncitizen who was alleged to have come to Canada for the purpose of engaging in terrorism. Since September 11, 2001, Canada has passed antiterrorism measures and developed a security certificate scheme under its immigration laws whereby someone suspected of terrorism could be detained indefinitely without being permitted to see evidence against him that could harm national security. In a previous case that also involved Harkat, Charkaoui v. Canada (Citizenship and Immigration),  1 S.C.R. 350, an earlier version of the security certificate was found to be unconstitutional. The Supreme Court held that further to the principles of fundamental justice, an accused person must be provided with a fair process, including the right to “be informed of the case against him or her, and be permitted to respond to that case” and the right to have a decision made by the judge on the facts and the law. These security certificate cases engage the same basic legal principles as Chapter 39 of Magna Carta and habeas corpus.
Harkat was first arrested under the old scheme and then again under a new scheme that granted a judge the discretion to fashion a fair process and to create “special advocates.” These are preapproved persons whose role in security certificate proceedings is to review the government’s secret evidence and protect the interests of the named person. In May 2014, the Supreme Court determined that the revised law did not violate Harkat’s right to know and meet the case against him. It added that the law was “an imperfect substitute for full disclosure in an open court,” but that the discretion conferred on judges to ensure a fair process and the special advocates ensured the law was constitutional. The Court found that the decision to declare Harkat inadmissible to Canada was reasonable.
In both of these decisions, the Supreme Court’s analysis focused on upholding both the rule of law and the basic legal rights of Canadians. They are examples of how these fundamental ideas continue to be explored and defined to meet contemporary challenges. As such, they exist as part of a tradition that can be traced back to those discussions at Runnymede in England when the barons delivered to King John a charter that wrote out the legal principles they expected him to endorse. This tradition continued to develop and has inspired the drafting of constitutions and human rights treaties around the world. It was considered to be strong enough that in 1982, the drafters of Canada’s Charter had only to make reference to “the principles of fundamental justice,” as if these were sufficiently understood already. And yet, as new threats to public safety emerge and as our society grapples with how to recognize the rights of traditionally marginalized groups, the law of the land and the scope of human rights continue to be debated and further redefined.