Magna Carta informs our criminal law.

• Author: Davison, Charles

Magna Carta was signed in June 1215 in an effort to end an internal conflict between King John and a group of barons who were opposed to his conduct as sovereign. Much of the document (also known by its English name, "The Great Charter") addresses the rights of the church and of businessmen and property owners, but included within its terms are a number of ideas and principles which have evolved over the last eight centuries to become key elements of our modern criminal court system.

The original was in Latin, and was a single "run on" document (that is, it was written as a single sentence several hundred words in length). The words and clause numbers I will use in this article are taken from an English translation found on the website of the British Library, which is now the home to two of the four remaining copies of the Charter.

Perhaps the underlying theme of those parts of Magna Carta which is most relevant to this discussion can be summarized as follows: prosecution and imprisonment based upon the arbitrary whim of the sovereign was to be ended, and would now take place only according to law. While English history after the signing in 1215 is full of examples where this principle was clearly not followed, nonetheless, a number of the clauses recognized fundamental protections which went some distance towards ending arbitrariness. There remained centuries of struggle--both armed and otherwise--to lead us to where we stand today, but in 1215 this general theme found voice in a number of the terms of the Great Charter.

The Rule of Law

Clause 39 of the document provided that "no free man" (at the time, this mainly meant the barons) could be imprisoned, lose his possessions or be "deprived of his standing in any way ... except by the lawful judgment of his equals or by the law of the land".

Its concluding phrase--that no one could be punished or penalized except "... by the law of the land"--is perhaps the most significant of all, both in relation to criminal law and indeed, to our entire system of governance. This concept describes the Rule of Law, which underlies our form of democracy and law: the government, at whatever level and through whatever agency, may only act against a citizen where the law gives it authority to do so. Most important for criminal law, these words meant the state could only imprison or otherwise punish individuals where properly enacted legal provisions say this is possible. Arbitrary and illegal detention and imprisonment would not be tolerated any longer; citizens were no longer subject to being locked up simply because the king or queen took a disliking to their words or actions.

Today, this finds expression in our basic constitutional law: in the principles recognized by the courts as forming part of our "unwritten" constitution prior to the enactment of the Canadian Charter of Rights and...