Magna Carta Informs Our Criminal Law - LawNow Magazine

Magna Carta Informs Our Criminal Law

magnacarta-ccMagna 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.

Our Criminal Code now describes proportionality as the “fundamental principle” underlying all of our sentencing laws. 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.

Another principle included in  Magna Carta which continues to play an important role in our system of criminal justice today is that of proportionality.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 Freedoms in 1982, in the Constitution Act, 1982 and in other foundational parts of our constitution and Criminal Code. Specific provisions in the Charter provide examples of this principle: Section 9 ensures we all have the right not to be arbitrarily detained or imprisoned, and Section 7 guarantees that, if we are to be deprived of “life, liberty or security of the person”, this will only take place “in accordance with the principles of fundamental justice”. Furthermore, Section 11(d) provides that if we are charged with an offence we must be tried “according to law” before we can be punished.

Jury Trials

Clause 39 is also important for the other concept it describes: the right of the barons to be judged by their peers. This is, of course, an early description of our modern right to be tried by a jury. By agreeing that “no free man” could be punished in any way “except by the lawful judgment of his equals …” the King conceded that that instead of his officials – including those he appointed as judges – deciding the guilt or innocence of an accused person, that decision would now be made by the peers of the accused.

Today, centuries later, the right of trial by a jury of one’s peers is enshrined in our own Constitution, in Section 11(f) of the Canadian Charter of Rights and Freedoms. The constitutional right to a jury is enshrined for the most serious cases, where the possible punishment is imprisonment for five years or more. The concept of who are one’s “peers” is fairly flexible. In May 2015, the Supreme Court of Canada held that we have the right to a jury which is “representative” of the community, which may or may not be the same as a jury composed of persons who are the accused’s “equals”. In law, all persons are considered equal, but outside of the legal context we know society is composed of many different groups and levels. Thus, when it comes to factors such as social and economic standing, racial or ethnic background, and religious heritage the 12 citizens chosen to sit as a jury in any particular case may share only some – and sometimes, none – of the background characteristics and features of the accused.

Nonetheless, the idea that important questions of guilt or innocence should at least sometimes be decided by members of the community and not always by government-appointed judges, remains a strong protection for the liberty of all of us. It has been observed that tyranny has never succeeded in a country where the right to trial by jury exists. Indeed, in a very real way, despite the personal inconvenience to individual jurors, bringing 12 members of the community into court to make decisions is an essential characteristic of our democracy. Perhaps the most well-known example of this value in action is the repeated acquittals of Dr. Henry Morgentaler by juries in the 1970s and 80s who refused to find him guilty of conducting illegal abortions even though the Criminal Code still contained this offence.

Appointment of Qualified Judges

In the context of criminal law everyone has equal access to the courts without regard for financial standing and without being required to pay the Crown in order to exercise this right. Another part of Magna Carta which foreshadowed an aspect of our present situation which we now take for granted is Clause 45, which stipulated that “only men who know the law of the realm and are minded to keep it well” would be appointed as justices and other law enforcement officials. We now live in a country where only lawyers with several years experience (usually ten) may be appointed as judges, and where other legal officers must usually be educated and trained in the law before they are placed into their positions of authority. And upon taking office, most such officials are required to swear obedience to the law and their duty to uphold it in good faith and to the best of their abilities.

Use of Evidence at Trials

The concept of conducting trials by way of evidence was also mentioned in the Great Charter. In Clause 38, the King agreed that “no official shall place a man on trial upon his own unsupported statement, without producing credible witnesses to the truth of it.” While it sounds somewhat bizarre by today’s standards, the implication of this provision seems to be that until 1215, individuals could be forced to defend themselves against an allegation of misconduct made by a government official, and nothing else.

Now, of course, trials by their very nature involve a hearing where witnesses are called and evidence is introduced by the prosecution in an effort to prove the truth of the allegations being made. To ensure court proceedings are not brought frivolously the charge(s) of wrong-doing must be made under oath or affirmation, and any evidence given can also only be received after the witness has sworn or affirmed that he or she will tell the truth. The accused always has the right to question witnesses who are called to testify against him or her, may call evidence in response to the case introduced by the Crown, and may make submissions and offer argument before the court makes its decision about whether he or she has been proven guilty.

Access to Justice

Clause 40 of Magna Carta also described principles we continue to value and attempt to follow today: in this provision the King agreed not to “sell … deny or delay right or justice.” The barons who were making the agreement with the King were to have equal access to justice and to be able to assert their rights without regard to their financial status and without having to pay for that right. Furthermore, King John apparently agreed that justice should not be delayed and that court hearings should occur within a reasonable time.

Clause 39 is also important for the other concept it describes: the right of the barons to be judged by their peers. This is, of course, an early description of our modern right to be tried by a jury.Today, we continue to try to keep delay to a minimum, and Section 11(b) of our Charter of  Rights provides us all with the right to be “tried within a reasonable time.” Our courts recognize that even when the accused is on bail, merely facing charges of criminal wrongdoing saddles him or her with a “cloud of suspicion” in the eyes of others. Bail usually comes with a number of conditions and terms which restrict the freedom of the accused, so delay in the proceedings can unfairly continue these limitations. Society at large also has an interest in avoiding delay: victims of crime face psychological pressures as they wait for their day in court, and the passage of time can mean memories fade and witnesses die or move away.

However, the realities of modern life are such that what is a “reasonable time” is a fairly elastic concept: much depends on the complexity of the case, the seriousness of the charges, and the number of witnesses to be called. Nonetheless, even with serious charges, proceedings may not be drawn out indefinitely, and there have been cases under the Charter in which even murder prosecutions have been halted by judges who have ruled that the Crown has taken too long to bring the allegations to trial.

In the context of criminal law, everyone has equal access to the courts without regard for financial standing and without being required to pay the Crown in order to exercise this right. Complainants who make allegations of criminal activity, and accused persons who must respond to such charges, are able to do so without paying fees or court charges of any kind. Those who wish the assistance of a lawyer and who cannot pay for one themselves usually have a form of Legal Aid to ensure their rights are protected and they can defend themselves in court. Police investigations and criminal prosecutions are funded by the state and do not depend upon financial contribution or payments by individual persons. Indeed, it is a serious criminal offence to offer or pay a bribe to a police officer, prosecutor or any other public official in order to have them investigate or prosecute a case, and attempting to influence a decision-maker by way of such improper inducements is an equally serious crime.


Another principle included in Magna Carta which continues to play an important role in our system of criminal justice today is that of proportionality. Clause 20 provided that “for a trivial offence a free man shall be fined only in proportion to the degree of his offence, and for a serious offence correspondingly…” and Clause 21 went on to provide for earls and barons that they too would only “be fined by their equals, and in proportion to the gravity of their offence.”

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.For many years after 1215, the criminal system in England continued to impose punishments which were grossly disproportionate to the offences committed. For centuries, death remained the sentence for many offences: until the early 1800s, capital punishment was still the penalty for even fairly minor crimes such as theft, forgery and counterfeiting. Drawing and quartering was the punishment for treason until 1867. In Canada, whipping remained a lawful form of punishment until the 1970s for offences as varied as sexual crimes, strangling, some forms of burglary, and for breaching rules of prison discipline. Nonetheless, the idea that a punishment to be imposed for an offence should be proportionate to the crime itself has remained with us. Section 12 of the Charter of Rights prohibits “any cruel and unusual treatment or punishment”, which the courts have said prevents sentences which are “grossly disproportionate” and contrary to community standards of decency. Our Criminal Code now describes proportionality as the “fundamental principle” underlying all of our sentencing laws. We reject “revenge” as a sentencing principle or factor as being contrary to our values and practices. The principle of “proportionality” directs our judges to fashion punishments which are a measured, restrained response to criminal conduct based upon the degree of responsibility of the offender, and the gravity of the offence itself.


When they forced King John to sign Magna Carta, the barons were motivated mainly by their own self-interest: they wanted to secure and protect their own rights and positions, and were not aiming to guarantee the rights of others in English society at the time. In fact, Magna Carta contains some clauses which are shocking in their anti-Semitic content, while others are clearly aimed at subjugating women and denying them many rights we now take for granted. In the 800 years since that day on the field at Runnymede when the document was signed there have been many situations in which those values have been openly rejected and violated by the sovereign of the day. But despite – and through – all of that, these ideas have survived, and have evolved to become some of the most important aspects of our modern day criminal justice system. It is now unthinkable that our criminal legal and court system would exist without these basic principles at its heart.

Authorities considered: Salhany, The Origin of Rights (1986) and Bauslaugh, The Secret Power of Juries (2013) as well as various on-line sources and articles.


Charles Davison
Charles Davison is the Senior Criminal Defence Counsel with the Somba K’e office of the Legal Services Board in Yellowknife, NWT.

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