Notes for an address by
The Honourable Peter MacKay, PC, MP
Minister of Justice and Attorney General of Canada
For the Panel Presentation Global Law Summit Session
"Magna Carta and the Development of Law around the World"
London, U.K.: February 25, 2015
Check Against Delivery
Good Morning, Lord Dyson and distinguished fellow panelists, and ladies and gentlemen,
It gives me great pleasure, as the Minister of Justice and Attorney General for Canada, to participate in this prestigious conference panel session and to present you with a Canadian perspective on the significance of Magna Carta to the development of our legal and constitutional system. But first allow me briefly to express my great appreciation and respect to the Right Honourable Chris Grayling, Secretary of State for Justice, and the entire British Government and the friendly team of the Global Law Summit for this outstanding event.
As we have heard countless times over the last few days, whether during addresses, panels or during receptions, the principles behind Magna Carta continue to influence and shape the design of constitutional democracies throughout the Commonwealth and beyond. This is certainly true of Canada.
The fundamental principles which men and women believe were and are enshrined in Magna Carta, continue to breathe life into our modern-day laws; animate the political, social and economic landscape; inspire spirited, informed debate; and, more importantly, if I may so suggest, survive and thrive as a testament to the fundamental desire we all share for a free and democratic world.
The Master of the Rolls, Lord Denning, on the 750th anniversary of Magna Carta in 1956, called it "the greatest constitutional document of all times - the foundation of the freedom of the individual against the arbitrary authority of the despot." Weighty words from one of the great minds of this country.
Magna Carta's influence continues to reverberate to this day in Canada, notably because, as the preamble to the British North America Act - the foundational document of our country, now titled the Constitution Act, 1867 - so solemnly declares, Canada was to be federally united "under the Crown of the United Kingdom ... with a Constitution similar in Principle to that of the United Kingdom." Our founding fathers (backed by mothers) coveted and included Magna Carta principles as ingredients of our Constitution. Sir John A. Macdonald - a Scot and lawyer - knew instinctively from his origins and education the importance of setting the balance in place between government and its electorate, the people.
Magna Carta's preoccupation with limited monarchy under the rule of law, and with setting out certain basic rights and freedoms in a written charter, have been instrumental to the evolution of Canada's justice system and fundamental to our country's legal framework.
Lord Sankey, in his famous dictum in the Edwards case (1930 A.C.), stated that "The British North America Act planted in Canada a 'living tree' that is 'capable of growth within its natural limits.'" We simply can never, no matter how hard we may try - outgrow our roots.
It is this living tree analogy which sums up so well the uniqueness of Canada's constitutional legal framework: with roots in both the British common law and the French civil law, and with an American influence largely due to proximity in geography, Canada has developed its own unique hybrid blend of political and legal constitutionalism - capable of growth and evolution.
Our Canadian Supreme Court put the case eloquently in the Quebec Secession Reference (1998), which dealt with the momentous question of whether a province could secede unilaterally from the Canadian state, or whether secession, to be lawful, would require a constitutional amendment negotiated with the other members of the federation.
The Court stated: "our Constitution is primarily a written one, the product of 131 [now 148] years of evolution. Behind the written word is an historical lineage stretching back through the ages, which aids in the consideration of our underlying constitutional principles."
The Court identified federalism, democracy, constitutionalism and the rule of law, and the protection of minorities, as first amongst those principles.
Canadian federalism is not only characterized by an elastic balance of executive, legislative and judicial powers at each level of government...
...But also by the dynamic and positive creative tensions amongst governments, and the concrete operation of the federal-provincial division of powers set out in the Constitution Act, 1867, which the Court recognized in the Secession Reference as "the primary textual expression of the principle of federalism in our Constitution" and "a legal recognition of the diversity" that exists in Canada.
The Court noted that the "federal structure of our country also facilitates democratic participation by distributing power to the government thought to be most suited to achieving the particular societal objective having regard to this diversity."
Indeed, in the Secession Reference, the Court emphasized that "The evolution of our democratic tradition can be traced back to Magna Carta (1215) and before, through the long struggle for Parliamentary supremacy which culminated in the English Bill of Rights of 1689, the emergence of representative political institutions in the colonial era, the development of responsible government in the 19th century, and eventually, the achievement of Confederation itself in 1867."
The living tree has been characterized by gradual, incremental growth and constant evolution, through our formal and informal constitutional arrangements and mechanisms for federal, provincial and territorial coordination and cooperation.
Amongst the most famous clauses of Magna Carta are the 39th and 40th articles which, again, have been highlighted many times over the past few days, including the eloquent address of US Attorney General Eric Holder, who opened this conference.
Those guarantees of legal rights and fundamental justice, so cherished by the common law tradition, are enshrined in Canada's modern constitutional and quasi-constitutional documents: the Canadian Bill of Rights, enacted by the Parliament of Canada in 1960, and in the Canadian Charter of Rights and Freedoms, which is entrenched as part of the Constitution Act, 1982.
Canada would never have achieved a constitutionally-entrenched Charter of Rights without the experience gained from the prior statutory enactment of the Canadian Bill of Rights, which the Right Honorable John Diefenbaker had championed as a personal cause for more than twenty years prior to becoming Prime Minister of Canada.
"It became my abiding purpose," he later stated in his memoirs, "to see every Canadian not only secure in his liberty, but secure in the knowledge of his fundamental rights and freedoms."
As a young defence counsel from the province of Saskatchewan, he had been "an unsworn enemy of injustice, particularly against the weak. The individual, uncertain of his rights, with limited means," required "the belief that justice would be done him."
He wrote: "My determination to see the Bill of Rights a reality was increased by experiences during and after the Second World War."
Canada's own body of fundamental legislative enactments has also evolved in keeping with the unique Canadian experience of our linguistic duality, multicultural and Aboriginal heritage and provincial diversity. We have the unique experience different from the UK of having more geography than country - that which we do have was largely borrowed.
Our laws are still infused, however, with the basic need to protect the individual against the arbitrary authority of the despot, to return to Lord Denning's observation.
It is with this in mind that, in April 2014, I had the honour, as Minister of Justice and Attorney General of Canada, to introduce Bill C-32, a proposed piece of comprehensive legislation that would enact the Canadian Victims Bill of Rights, and would make a series of significant amendments to the Criminal Code and other enactments to ensure that victims' rights are considered throughout the criminal justice process.
Much like Prime Minister Diefenbaker before me, my personal experience as a Crown prosecutor and as a defence counsel showed me time and again the necessity to have the right tools to protect the most vulnerable members of our society and to carefully wield and weigh the power of the state versus the interests of the accused.
And more significantly, to ensure that the voices of victims - too often silenced in our judicial systems - are heard more loudly.
The proposed Victims Bill of Rights includes rights relating to information, protection, participation and restitution, as well as other remedial measures.
This bill would entrench the rights of victims into federal law for the first time in Canadian history.
This will, in my view, be transformative for victims,who are seeking a sense of greater inclusion in our justice system.
...And in the same vein of the principles found in that 800-year-old Magna Carta, this bill will further protect individuals and bring a much- needed recalibration to the criminal justice system - something I would suggest, if I can be so bold - that other systems might consider as well.
Balancing individual freedoms and security, is a theme we are all increasingly facing on the world stage - whether it be economic security or national security, governments must take measured approaches to protect their citizens.
It was with this theme in mind that our government recently introduced Bill C-51, the Anti-terrorism Act, 2015.
The proposed legislation would enact the Security of Canada Information Sharing Act, the Secure Air Travel Act and important amendments to the Criminal Code, the Canadian Security Intelligence Service Act and other enactments.
Our government is committed to the rule of law, respect for fundamental freedoms and the security of the Canadian public.
Indeed, peace, order, security, and good government are essential for freedom to flourish.
The world's law-abiding and freedom-loving democracies must and shall prevail over the vicious perpetrators of terrorist acts and barbaric atrocities.
This anniversary of Magna Carta marks eight centuries of evolution in the history of lawful and limited government, and it has particular resonance for members of the Commonwealth, which share the United Kingdom's constitutional heritage and enduring values. And for that I know Canadians are eternally grateful.
Might I once again offer my thanks in my capacity as Canada's Minister of Justice. I am honoured to be here and thank you for providing me this opportunity to share but a few examples on how Canadian law has been shaped by Magna Carta, now and for centuries to come.
Thank you.
