University of Alberta Faculty of Law Blog

Ms. Magna Carta's Interview with Dean Paton

For our last substantive post of the semester, we had the opportunity and privilege to interview Dr. Paul Paton, Dean of the University of Alberta Faculty of Law. We would like to thank Dean Paton for his unequivocal enthusiasm and encouragement for our Magna Carta blog. Without such support and dedication from Dean Paton and our Faculty, this project would not have been possible. Dean Paton will be travelling to London this summer, so look forward to a potential guest blog post on his visit to the British Library to see the Magna Carta!

Please see below for our interview with Dean Paton, where he discusses the importance and relevance of the Magna Carta in modern times, along with his thoughts on our Faculty’s unique Law & Social Media course.

 

 

 

The Duo Behind It All

The Magna Carta coming to Canada is a rare, commemorative event - one which no Canadian is likely to experience again. The exhibit has taken great effort by two individuals, Len and Suzy Rodness, the Co-Chairs of Magna Carta Canada. We would like to thank them for their hard work and dedication, which allows Canadians to experience this once-in-a-lifetime opportunity to celebrate and view the 800-year-old document.

We have had the privilege of getting to know both Len and Suzy Rodness over the last few months, and we are grateful for their support and enthusiasm for our project. Mr. Rodness has graciously agreed to be interviewed regarding the Magna Carta and its journey to Canada. Please see below for our interview!

If you would like some more information about the Magna Carta’s visit to Canada, please visit, http://www.magnacartacanada.ca. You can also follow Magna Carta Canada on Twitter @MagnaCartaCAN.

 

1. Why did you decide to initiate efforts to bring a 1225 copy of the Magna Carta, as well the Charter of the Forests, to Canada? What were some challenges that you have faced in bringing the Magna Carta to Canada?

    I would like to be able to say that we conceived of the plan to commemorate the 800th anniversary of the issuance of Magna Carta by bringing an original copy to Canada. That is not quite the case. Rather, we were in the right place at the right time to receive the opportunity to borrow Durham Cathedral’s original copies of both the Magna Carta and the Charter of the Forest and bring them to Canada. But, regardless of how the opportunity arose, the reason why it is such a compelling idea remains the same; the principles contained within Magna Carta from the core principles upon which our governance and society in Canada have been built – no person is above the law, parliamentary democracy, civil rights, human rights and women’s rights. We believed that it was important that Canadians be given the opportunity to participate in the world-wide celebrations of the 800th anniversary in order to help promote a national conversation about issues that are fundamental to who we are as a country and as a society.

    There have been no shortage of challenges in bringing the documents to Canada. The most basic challenge we have faced is a chronic lack of knowledge among Canadians about what the Magna Carta is, and what it represents. A recent MORI survey commissioned by the Magna Carta Trust found that only 44% of Canadians known what the Magna Carta is, and fewer understand what it contains. But this challenge is also our greatest opportunity and provides the core reason for all the work we have been doing. We consider it our mission to help educate Canadians about the importance of Magna Carta to Canada and the world, and to provide them with an unforgettable experience along the way.

2. Why is the Magna Carta important to you, both personally and as a lawyer? How do you think that this document continues to impact our lives today?

    As a lawyer, Magna Carta of course holds a special place of importance given its importance to         several of the foundational elements of our rule of law. While the core principles of Magna Carta which continue today (habeas corpus and the right to trial by a jury of one’s peers) did not originate in Magna Carta, it was through their inclusion in Magna Carta that they came to be entrenched, and expanded upon through history. The insistence on establishment of the rule of law is essential to the orderly growth of any society, Canada included. Personally, I am fascinated by the historical side of the story of how Magna Carta came to be. Originally a peace treaty between King John and his rebelling barons, with neither very interested in upholding its provisions, annulled within weeks by Pope Innocent III, it became through some very fortuitous circumstances (including the infamous death of King John as the result of a ‘surfeit of peaches’) the illustrious document we revere today.

    Magna Carta continues to be relevant today not only for the historical importance of the document itself and the power of its principles, but also for its iconic stature. One only has to look at the recent calls for the creation of a “Magna Carta of the Internet” to promote and ensure freedom of access to and use of the internet to see that the power and prestige of Magna Carta continues to resonate throughout the world. In fact, the term “Magna Carta” has become synonymous with the fight for rights and liberties around the world, and is often cited in such causes.

3. What has been the response to your efforts in bringing the Magna Carta to Canada thus far? As well, do you have any goals for the tour and what do you hope will result from it?

    The response to our project has been tremendous, and has confirmed to us that Canadians do want the opportunity to participate fully in events such as this. From the many people who have e-mailed us with their family histories traced back to some of the barons who were at Runnymede on June 15, 1215, or to King John himself, to the people who have selflessly volunteered thousands of hours to help ensure the success of the project, to young people like yourselves who are engaged in the very debates about the rule of law, democracy, civil rights and human rights we have hoped to encourage, we are constantly amazed by the energy and enthusiasm which this project has attracted.

    Our goals for the exhibition are simple – to create an experience for Canadians which befits the once in a lifetime opportunity to see an original copy of Magna Carta on Canadian soil, and to build upon that to spark (and continue) a national discussion about the principles and issues I have mentioned above.

U of A Law Students Give Their Take on the Magna Carta Blog

Yesterday we asked several Faculty of Law professors here at the University of Alberta for their perspectives on Ms. Magna Carta’s blog. Today it’s the law students’ turn to share their thoughts on the blog! Thank you to Justin Barrie, Michelle Molineux, Ryan Bencic, David Foster, Jeff Arsenault, Scott Meyer, Samantha Barker, Megan Schaub, Sam Alzaman, Erin Kim for their comments! As well, we are very grateful for the continued support from our fellow students at the Faculty of Law!

 

 

U of A Law Faculty Perspectives on the Ms. Magna Carta Blog

Ms. Magna Carta visited the 4th floor of the Law Building to ask various members of the faculty for their perspectives of our blog. The Faculty of Law professors comment on how the current legal framework is connected to the Magna Carta, discuss the merits of Jay Z’s album, and even reference Game of Thrones! Please see the video below to check out the professors’ take on the Ms. Magna Carta blog!  

Thank you to Eric Adams, Peter Carver, Patricia Paradis, & Ubaka Ogbogu for their comments! We would also like to take this opportunity to thank all professors at the Faculty of law for their support of our project by providing interviews for the blog, and for support via readership and providing information on some of the topics we have covered.

 

Environmental Legislation: A Professor's Perspective

The Magna Carta may be viewed as one of the first codifications for environmental types of protection, however there has clearly been massive revolutions in environmental legislation since 1215. In our previous post we discussed how Fisheries laws can be traced back to the Constitution signed 800 years ago. Although clearly not contemplated by the Magna Carta, Canadian environmental law is vast in scope. We are fortunate and grateful to have Professor Cameron Jefferies respond to some questions about environmental legislation and it's relation to the Magna Carta:

 

Questions: How do you think the 800 year old Magna Carta influences environmental policy today, if at all? Is Canada's current environmental legislation heading in a positive direction, or is there still a significant amount of reform that is necessary in order for the environment to be sustained another 800 years? More specifically, in which areas are laws successfully or unsuccessfully achieving their goals?  

 

    "It may be correct to note that the Magna Carta contained some of the first environmental-type restrictions insofar as it helped to protect Baron’s privately owned forests from Royalty and in that it demanded the removal of Royal fishing weirs from certain watercourses. That said, the environmental problems of the 21^st century are much more complex than those experienced some 800 years ago and, accordingly, they demand a much more sophisticated regulatory response. Can it be said, then, that the Magna Carta influences Canada’s present environmental laws? The answer must be “no” in the conventional sense; however, the Magna Carta does serve as an early and important model of the need to equitably manage competing uses of our natural world.

When the Magna Carta was signed, “the environment” as we currently understand it had yet to be recognized. It wasn’t until the second half of the 20^th century that we started to meaningfully re-conceptualize the natural world and our complicated relationship with it. Therefore, modern environmental law is actually quite a new development and both our appreciation for the natural world and our obligation to preserve and protect it are very much still evolving.

Assessing the efficacy of Canadian environmental law is not an easy task. We like to think of ourselves as world leaders in this regard but the reality is that we are far, far from it. The last 5 years have been particularly troublesome for Canada’s federal environmental law regime. Successive omnibus budget bills have re-shaped longstanding federal environmental laws, significant Executive inaction has hindered progress in administering and implementing existing laws, and we became the first country to formally withdraw from the Kyoto Protocol to the United Nations Framework Convention on Climate Change. In short, there is room for significant improvement and recent events suggest we are committed to proceed in the wrong direction.

Sustaining our world for another 800 years will require significant adjustment to many facets of society. Given the current rapid rate of change and growth and its corresponding environmental degradation, it is hard to imagine that the status quo can persist. If longevity and sustainability is the goal against which we measure the adequacy of today’s environmental regulation, it is obvious that it is wanting and falls woefully short. However, I am confident that significant improvements must and will be made over time and that society’s recognition and appreciation for some of today’s most pressing problems will eventually translate into a robust regulatory scheme that moves us closer to  sustainability and ecological integrity."

 

Thanks to Professor Jefferies for his insight, and stay tuned for future interviews on environmental law topics.

Ethics and Social Media

Last week we posted about ethics within the legal profession (here and here), and discussed how lawyers are regulated by the Law Society of Alberta and must follow the rules of the Code of Conduct. The Code of Conduct, however, makes no direct mention to ethics on social media, nor has there been any direct guidance from the Canadian Judicial Council. American case law has provided Canadians some direction as to how social media misconduct should be disciplined, but there is no Canadian disciplinary decisions to this bloggers knowledge. After combining multiple sources and reviewing the Code of Conduct, several rules are applicable in the social media context.

Rule 2.01 - 2.02 – Competence

• Lawyers must know and apply the law and keep abreast of changes in the law. That would include social media sites – knowing how they function and the nuances of those sites

Rule 4.01(1)-(3) – Communication with tribunals

• Lawyers cannot communicate (directly or indirectly) with a tribunal respecting a matter at bar, nor can a lawyer appear before a judicial officer when she has a personal or business relationship with that officer that might give rise or appear to give rise to pressure or influence. Contact via social media, potentially even posts not directed to the tribunal, may be considered communication.

Rule 2.02(9), 4.03, 6.02(8), 6.02(10) – Communication with opposing parties

• Lawyers can communicate with a complainant or potential complainant to obtain factual information. For witnesses and unrepresented persons the lawyer must disclose her interest and be careful not to deceive. For represented persons, lawyers may not communicate with that person directly but must communicate via that person’s counsel (unless the counsel permits direct communication). Communication has the potential to extend to “friending” an individual on a social media site in attempt to gain access to private information.

Rule 4.05(1) – Communication with Juries

• Lawyers can investigate a juror or prospective juror, but cannot directly or indirectly communicate with that person. Again, communication has the potential to extend to friending an individual on a social media site, and could include viewing the profile on LinkedIn (which would notify the jury member of who is viewing their page)

The Law Society of British Columbia has created a model social media & social networking policy which also provides some general guidance. Overall, a conservative approach should be maintained until there is official direction on communication appropriateness for the above listed groups. Always remember that everything online is public, and it is written in ink. 

 

References:

http://www.lawyersweekly-digital.com/lawyersweekly/3425?pg=27#pg27

http://wiki.modern-courts.ca/images/f/f1/Issues_arising_from_the_Use_of_Social_Media.pdf

http://www.slaw.ca/2011/08/12/friend-is-now-a-verb-judicial-ethics-and-the-new-social-media/

http://digitalcommons.tourolaw.edu/cgi/viewcontent.cgi?article=1138&context=lawreview

http://www.stmaryslawjournal.org/pdfs/Browning_final.pdf

http://www.abajournal.com/magazine/article/seduced_for_lawyers_the_appeal_of_social_media_is_obvious_dangerous

http://www.cba.org/CBA/cbaclc2014/SECURE_PDF/F3.%20Social%20Media%20and%20Civil%20Litigation%20-%20Field%20LLP.pdf

Police Body Cameras: A Second Set of Eyes

The Magna Carta is regarded as one of most influential documents in the world. It is arguably the foundation to many of the rights and freedoms that we enjoy today. However, it also must be acknowledged that our world looks much different than it did 800 years ago. With advancements in technology, it can be said that our reality is turning into a digital universe. This begs the question, what would a Magna Carta look like in today’s digital world? What clauses would such a Magna Carta contain?

Principles of privacy are one potential area that could be explored in a new Magna Carta scheme. As technology evolves our privacy rights are infringed more and more, and the danger with this is that we may get used to it.  Just like any human system, technology also needs to be regulated.

The introduction of police worn body camera technology is an example of the benefits of law enforcement, and the risks of a possible infringement on privacy. Currently the Edmonton Police Service is testing this technology.[1] If proper policies and procedures are not in place, this type of technology has the potential to cause serious violations of the privacy rights of not only citizens but also police officers. The use of “body cameras means police capture lots of video and audio of their interactions with the public-mostly identifiable individuals. That means they contain personal information, and must comply with Canadian privacy laws governing the protection of peoples information.” [2] According to privacy commissioners, there are many concerns that need to be addressed such as, “warning citizens they are being recorded, deciding when or if recordings will be made in private spaces like homes, protecting the privacy rights of officers whose every word could be captured by the devices, and ensuring the security of the recordings.” [3]

On another note, police body cameras also pose many other challenges. This technology can add many costs and time constraints to an already burdened system, which may potentially result in charges being withdrawn or an individual’s right to a speedy trial being infringed. For example the devices, software licenses, maintenance, warranties, and storage, costs in the tens of thousands. As well,  the request for full disclosure of all video footage can also “create a crippling workload for agencies with limited staff and technology…video files can amount to hundreds of hours of footage and often need to be redacted to blur faces and other sensitive information, or to mute audio.” [4]

As society progresses so will technology, and we need to ensure that our fundamental rights are not slowly being eroded. As a continuance of this example, do you think the web needs its own Magna Carta? Tim Berners-Lee, the inventor of the World Wide Web sure thinks so. Mr. Berners-Lee stated in a conference last year, “the freedom of the internet is under threat by governments and corporations interested in controlling the web. What sort of web do we want. How about we decide, these are, in a way, becoming fundamental rights, the right to communicate with whom I want. What would be on your list for that Magna Carta? Let's crowdsource a Magna Carta for the web." [5]

 

[1]http://www.edmontonpolice.ca/News/BWV.aspx

[2]http://www.cbc.ca/news/technology/police-body-cameras-flagged-by-privacy-commissioners-1.2962041 

[3] https://www.priv.gc.ca/information/pub/gd_bwc_201502_e.asp

[4] http://crosscut.com/2014/11/body-cams-washington-seattle-privacy-disclosure/ 

[5]https://www.ted.com/talks/tim_berners_lee_a_magna_carta_for_the_web/transcript?language=en

 

Freeman on the Land & the Magna Carta

Over the past few months, we have praised the Magna Carta again and again for its plentiful contributions to the law as we understand it today. We have the Magna Carta to thank for habeas corpus, rule of law, human rights, environmental legislation, and the list goes on. We understand the Magna Carta to be a document which inspired much of our current legislation, including our Charter of Rights and Freedoms. But not all people think of the Magna Carta as just a model for present day legislation. Many arguments have been brought to the courts which seek to rely on the provisions of the Magna Carta as currently operating and governing law!

For example, in Harper v Atchison, the plaintiff filed a statement of claim which alleged that prior to being arrested by the defendants (police) for failing to respond to notices of traffic violations, he had given notice to each defendant “that by the terms of the Magna Carta, he was a ‘freeman on the land’ and consequently immune from ‘all statutory restraints, obligations and restrictions’” [1]. His allegations were of negligence and breach of duty because the defendants arrested him in spite of the “treaty”.

What exactly is a “freeman on the land”? Chief Justice Rooke of the Alberta Court of Queen’s Bench explains, “Freemen-on-the-Land believe they can ‘opt out’ of societal obligations and do as they like.... A common theme in Freeman arguments is that state and court action requires the target’s consent” [2]. He goes on to state that “Courts have encountered claims that Freeman-on-the-Land status, or the Magna Carta nullifies government or court authority” [3].

Clause 61 of the Magna Carta (which was only included in the original document and not revised editions) allowed 25 barons to distrain the King’s property if he was determined to have breached the Magna Carta. Purported to stem from Clause 61 of the Magna Carta is the concept used by freeman on the land of lawful rebellion: “Lawful rebellion in British freeman theory holds that one can lawfully choose to cease abiding by the laws, rules and statutes of a country by simply opting out of society” [4].

So how did the plaintiff in Harper fare? The justice on the case explained that while many arguments have been raised which rely on provisions of the Magna Carta as law, the courts:

have been unanimous in determining that the Magna Carta, albeit an important historical step in the development of the rule of law as practised in our parliamentary democracy, has no independent legal significance or legislative weight in the scheme of current Canadian legislation. Consequently claims asserting rights arising from the Magna Carta have not succeeded [5].

Before striking the plaintiff’s statement of claim, he goes on to hold that, “[i]n any event even the most generous reading of the Magna Carta does not lead to an interpretation that individuals may declare themselves free from all governmental and legislative restraint as is sought by way of relief by this plaintiff” [6]. Despite multiple attempts to rely on the Magna Carta in the courts, it cannot be cited to legal arguments, even though it is credited with developments in modern law,   

[1] 2011 SKQB 38 at para 6 [Harper].

[2] Meads v Meads, 2012 ABQB 571 at para 174 [citations omitted].

[3] Ibid at para 407 [citations omitted].

[4] http://rationalwiki.org/wiki/Freeman_on_the_land.

[5] Harper at para 9.

[6] Ibid at para 14.

 

Law & Ethics: A Practitioner's Perspective

In a previous post we discussed the ethical standards that lawyers in Alberta must adhere to, and how that obligation can be traced back to the Magna Carta of 1215. We also discussed how in modern times, the profession is self-regulating in regard to the "discipline, admission, and regulation of lawyers" [1]. In follow up to that post, we are privileged and grateful to have Brian Kash, a law professor at the University of Alberta & practicing lawyer, weigh in on the value of self regulation within the legal profession, along with the importance for those within the profession to maintain a high standard of integrity.

 

Question: What are the benefits and pitfalls of self-regulation?

          Benefits:

In many ways – Lawyers are the best choice to govern Lawyers.  Who understands Lawyers better than other Lawyers?  There is a certain logic that people who understand the business of Lawyers (ie other Lawyers) are best equipped to monitor and guide other Lawyers and their conduct. By analogy, we don’t want a group of lay-people / non-Doctors evaluating the conduct of how a Doctor removed a spleen; we want people who themselves know how to remove a spleen – evaluating and monitoring a doctor’s conduct.  The same logic applies to Lawyer’s governing other Lawyers.

The alternative to self-governing is a state governed model.  Self-governing allows for our system to operate with less political influence than if our profession was state governed.

One of the benefits of self-governing is consistency. Although Alberta may be the wrong province for this example because the same political party has governed for a very long time; however, in theory, if the political power changed regularly and there was a state governed model in place, then how this model would be administrated could change with each changing of whichever party is in power.  Self-governing avoids this issue.

          Pitfalls:

There are public perception issues with self-governing.  The public often believes that Lawyers will protect other Lawyers and that a self- governed system will not protect the client’s interests only the Lawyer's interests.

There is a perceived inherent conflict of interest when Lawyers govern Lawyers. Whether there is an actual conflict, may be less relevant.

 

 

Question: Why is it important for Lawyers in particular to maintain a high ethical standard?

Most people are Lawyers because they want to help others.  When you break down what a Lawyer does into the simplest terms, you see that the profession is a helping profession.   This puts Lawyers in a position of trust and power with clients who are dealing with legal issues.  As Spiderman fans will all know "with great power comes great responsibility".   Because of this position of trust and a Lawyer's "power" in the legal system, a Lawyer's conduct must be of the highest ethical standard.  This position of trust and power brings with it certain duties that are owed to clients; these duties do not sit in isolation; they sit in a balancing act of a Lawyer's duty to himself or herself, the Law Society, to other Lawyers, to the public and society, to the Courts, and to all participants in the legal system.  The balancing of these duties can only be achieved, if a Lawyer maintains a high ethical standard.

The topic of Lawyers maintaining high ethical standards fits in well with the debate about self-governing.  Recently, in jurisdictions where Lawyers have been accused of not meeting this high ethical standard or where this high ethical standard was not enforced by the self- governing body, there has been a shift to removing Lawyer's ability to self-govern.  Recently, parts of Australia moved from a self-governing model to a state regulated model.  Jurisdictions in the United Kingdom are also looking at this type of a move.

In my view, if Lawyers want to have the trust of the public, then ALL Lawyers must – without exception – conduct themselves with the utmost integrity and in compliance with the code of conduct.  If a Lawyer does not, then the self-governing body must act and the public needs to see the swift actions of the governing body.  This is critical for self -governing to continue and is a critical element for the public to have confidence in Lawyer’s ability to self-govern themselves.

 

 

 

[1] Alice Woolley et al, Lawyers' Ethics and Professional Regulation, (Toronto: LexisNexis, 2008) at 52

Loyola High School Decision of the Supreme Court of Canada

The Supreme Court of Canada released today its long-awaited decision in the Loyola High School case, 2015 SCC 12, and I’m looking forward to an informal discussion on the case this afternoon with some University of Alberta faculty colleagues during one of the latter days of my visit here.  And there will be much discussion of this case in the time ahead, but I am going to put down some preliminary thoughts right now:

In the case, the Supreme Court holds that there was a violaton of religious freedom rights when Quebec refused to grant an exemption to a Catholic high school from a requirement to teach a secular religion and ethics course in an entirely neutral manner.  The case marks a significant vindication for religious freedom in a case where many were not sure where the Supreme Court would go in light of its own past decision in S.L. concerning a differently framed challenge by individuals in a public school to the same legislation.

However, there is a complex split in the case, with the reasoning split between a four-judge majority judgment of Justice Abella (with LeBel, Cromwell, and Karakatsanis JJ. suporting it) and a three-judge concurring judgment by Chief Justice McLachlin and Justice Moldaver (with Rothstein J. supporting their judgment). [As a footnote, I might note that the case was heard in March 2014 a few days after the Court had ruled Justice Nadon’s appointment to their Court invalid, so the Court had no reasonable option but to sit as a panel of seven – what would have happened with nine justices will remain forever unknown.]

The ways the two groups diverge are complex, interesting, and may impact on future cases (and require more argument to sort through):

(1)   Justice Abella is able to strongly reaffirm her previous case law in support of a collective dimension to religious freedom with extra material in support (passage around para. 60), while the other judgment is trying to piece through various strands of case law, including Justice Abella’s previous dissent, to try to show that they are reaffirming a support for collective dimensions to religious freedom (around 92-93).

(2)   However, Justice Abella does not go so far as to recognize religious freedom held by corporations, suggesting that this is unnecessary to decide for the case (33), while McLachlin CJ and Moldaver J are ready to affirm that some corporations hold religious freedom rights (95), though subject to a test that offers this right mainly to corporations with a religious purpose and acting in accord with that religious purpose (100, with 138 making clear they don’t necessarily see other corporations having such rights).

(3)   Justice Abella tries to deal with the case in terms of the Doré analysis of uses of statutory discretion (36ff), while Chief Justice McLachlin and Justice Moldaver go directly to a freedom of religion analysis of the decision made (113).

(4)   Justice Abella would actually allow more balancing of considerations and suggests that a requirement to teach about other religion in a neutral way may not actually be unconstitutional in every circumstance (71) whereas Chief Justice McLachlin and Justice Moldaver see a requirement that Catholics teach about Catholicism neutrally as a more direct freedom of religion violation (143).

(5)   As a result of these differences, Justice Abella would send matters back to the Quebec Minister for reconsideration in light of the reasons, whereas Chief Justice McLachlin and Justice Moldaver would immediately grant an exemption for Loyola High School so as not to impose further delay on it having a remedy (165).

There will be more to sort out in the time ahead, but these are some thoughts on some differences in the judgments.  That said, importantly, all the justices are effectively aligned in strongly affirming that a religious community has a right within freedom of religion to continue its existence through education and teaching and that a secular state must respect religious communities.

The Universal Declaration of Human Rights

The Universal Declaration of Human Rights is a “milestone document in the history of human rights” that continues to have a profound impact around the world [1]. On December 10, 1948, the UN General Assembly adopted the Universal Declaration of Human Rights. The impetus for the creation of this document was World War II, as the “international community vowed never again to allow atrocities like those of that conflict happen again” [2]. World leaders were determined that the creation of the Universal Declaration of Human Rights would serve as a method whereby such tragedies would be prevented from reoccurring. Moreover, they intended for this document to be a “road map to guarantee the rights of every individual everywhere” [3].

 

The Universal Declaration of Human Rights is known for being the “foundation of international human rights law” [4]. This document outlines many principles of international human rights, which include “universality, interdependence and indivisibility, equality and non-discrimination, and that human rights simultaneously entail both rights and obligations from duty bearers and rights owners” [5]. The specific rights recognized in the thirty articles of the Universal Declaration of Human Rights include political, civil, social, cultural and economic rights [6]. As a “bulwark against oppression and discrimination”, the Universal Declaration of Human Rights recognizes that the rights and freedoms found within this document apply to every individual in the world [7]. No one is exempt from its protections.

 

It is evident that the Universal Declaration of Human Rights is essential to the basic rights and freedoms that we all enjoy today, but what is its connection to the Magna Carta? The legacy of the Magna Carta reaches far beyond its initial purpose as a peace treaty. Similar to the Universal Declaration of Human Rights, the Magna Carta played a vital role in the development of human rights and freedoms. Many of our basic rights and freedoms have roots in the Magna Carta, and likewise, many of our international human rights have their roots in the Universal Declaration of Human Rights. The Universal Declaration of Human Rights expands on those rights recognized in the Magna Carta, by applying them to a broader audience. In fact, it applies them to the broadest audience possible, namely, all human beings around the world. Thus, not only is this document connected to the Magna Carta by virtue of its recognition of human rights, Eleanor Roosevelt described it as “a Magna Carta for all mankind” [8] - and like the Magna Carta, its legacy is destined to last for generations to come.

[1] http://www.ohchr.org/EN/UDHR/Pages/Introduction.aspx

[2] http://www.un.org/en/documents/udhr/history.shtml

[3] Ibid.

[4] http://www.un.org/en/documents/udhr/hr_law.shtml

[5] Ibid.

[6] http://www.un.org/rights/HRToday/declar.htm

[7] Ibid.

[8]http://www.telegraph.co.uk/culture/books/11310696/Magna-Carta-an-idiots-guide-by-historian-Dan-Jones.html

Drop that bass!

Every spring, there is an 8 week period which may feel like an eternity for some individuals – it is the time when fishing in bodies of water is not permitted due to spawning. The disallowance of pleasure or sport fishing during this time is necessary to ensure the healthy growth of a valuable natural resource. In the prairie area of southern Alberta, most lakes close on March 16th and reopen on May 8th; In the eastern slopes area lakes close on April 1st and reopen on May 31st; and in the boreal areas of northern Alberta, lakes generally close on April 1st and reopen on May 31st [1].

 

While it often seems that environmental protections are a new concern, the 1215 Magna Carta  appears to have also recognized the need for such limitations. When the Magna Carta was signed, Clause 33 forced the removal of all fish weirs (traps) other than those on the sea coast. The 1215 constitution, and it’s revisions in 1217 and 1225, also contained provisions that were interpreted by judges in the 17th and 18th century to provide for the public right to fish in tidal waters [2].

 

The federal government has the authority to enact regulations and restrictions, but only to the extent that the activities intended to be regulated are harmful to fish. Proprietary fishery rights remain within the jurisdiction of the province [3]. In addition, Canada is a party to treaties attempting to regulate control of fishing in the high seas [4]. Currently, the federal Fisheries Act provides most of the regulations for public use of waterways for fishing. Provincial legislation, such as the Alberta Fishery Regulations and the Fisheries (Alberta) Act, provide catch limits, restrictions during specified periods, licensing, officers, and punishment for contraventions of either Act [5]. An Alberta sport fishing license is required to fish in most areas of Alberta for most individuals (youths, seniors, and Aboriginals are exempt), and failure to present proof of license results in a fine. National Parks are an exception, and require a national park fishing permit. Certain types of fish, such as Walleye, also require a special license which must  be obtained through a draw. There are also restrictions on the amount and size of Walleye each individual can obtain.

 

It appears that the Magna Carta, in giving the power back to the people, also had the public interest in mind by preserving a valuable resource from being exploited. Similarly, Canada’s and Alberta’s current legislation provides that damage to fish populations is an interference with a public right (except to the extent that the damage affects a private proprietary interest) [6]. Fisheries regulations are intended to preserve the national resource, while controlling the fish population in an adequate way.

 

Environmental legislation in Canada is extensive, and well beyond the scope of this blog, but Ms Magna Carta would like to hear what you think about the current Fisheries legislation - Is it inadequate, just right, or does it go too far? Let us know what you think in the comments below, or send us a tweet @msmagnacarta !

 

 

 

[1] Alberta Fishery Regulations, 1998 SOR/98-246; Fisheries (Alberta) Act, RSA 2000, c F-16 at schedule 3

[2] Aboriginal Rights, Magna Carta and Exclusive Rights to Fisheries in the Waters of Upper Canada by Mark D Walters, (1998) 23 Queens LJ 301  

[3] Halsbury’s Laws of Canada, Environment, “Federal Jurisdiction over the Environment” (I.3.(1)(b)(b)) at HEN-7 “Federal Authority”

[4] Halsbury’s Laws of Canada, Environment, “International Treaty Obligations” (II.3.(2).(b)) at HEN-42 “Fisheries”

[5] Supra note 1

[6] Halsbury’s Laws of Canada, Environment, “Civil Liability for Environmental Damage” (IV.2.(2).(b)) at HEN-351 “Requirement for Special Damage”

 

Law & Ethics

Yesterday, we were privileged to interview Brett Wilson regarding his views on the Magna Carta, and the effect it had on both the government and individuals.

 

The Magna Carta laid the groundwork for countless modern policies, attitudes, and moral and ethical standards. More specifically, Clause 45 of the 1215 Magna Carta may be seen as the first codification of ethical obligations of those practicing law: “we will appoint as justices, constables, sheriffs, or other officials, only men that know the law of the realm and are minded to keep it well”. Currently, the Alberta Law Society regulates legal professionals within the province by setting compulsory standards and directive guidelines. Essentially, lawyers regulate lawyers in Alberta (and all other provinces also follow the same method). But what are the ethical standards that lawyers must adhere to?

 

Lawyers in Alberta must adhere to the Code of Conduct, and violations of the Code can lead to both formal and informal sanctions [1]. Lawyers do not only have obligations to their clients – but also to other lawyers and the legal profession, to the general public and society, and to themselves. Similar to the obligation in the 1215 Magna Carta which required lawyers to be knowledgeable of the law, lawyers today must be competent and provide a standard of service that at least matches other lawyers in similar situations. As well, lawyers today are “minded to keep [the law] well”, in that they are expected to maintain awareness of developments in the law. While perfection isn’t expected, lawyers must understand both legal principles and how those principles are to be effectively applied. Above all else, lawyers are expected to act with integrity to ensure the legal profession sustains an honorable reputation.

 

Although the Alberta Code of Conduct is lengthier than Clause 45 of the Magna Carta, the basic standards found in the Magna Carta have been maintained, and new rules have since been codified in order to preserve the integrity of the practice of law.

 

 

[1] http://www.lawsociety.ab.ca/lawyers/regulations/code.aspx

 

Interview with W. Brett Wilson on the Magna Carta Part II

Welcome back! As promised, here is Part II of our interview with W. Brett Wilson on the Magna Carta!

 

 

Interview with W. Brett Wilson on the Magna Carta Part I

Please see the below video for Part I of our exclusive interview with W. Brett Wilson, where he discusses his views on the Magna Carta. We are very excited to share this interview with you. Mr. Wilson has done many interviews on many different topics, however this is a topic that Mr. Wilson has never discussed before, and he has a very interesting and informative opinion on the matter. We would also like to take this opportunity to thank him for taking the time to speak with us about the Magna Carta. Check back this afternoon for Part II of our interview!

  

Life Without Parole

The Conservative government has introduced a new Bill - the Life Means Life Bill - designed to change the way we treat certain classes of murderer.  This proposed change has received a fair bit of media play, as the concept of life without parole is extremely controversial.  The Bill itself is fairly complex in operation, so in this Video Blog, I explain how the Bill would work if enacted - assuming it survives constitutional scrutiny.  I also discuss how the Bill has the intended or unintended consequence of creating a powerful tool for the Crown in plea bargaining.

 

Happy Pi Day

I hope you all enjoy a happy Pi Day.

Alberta Court of Appeal Responds to SCC on Stare Decisis

I’m currently on a two-week visit at the University of Alberta Faculty of Law, and while here, my eye was caught by a recent Alberta Court of Appeal decision on an application for leave to appeal and for reconsideration of a decision.

 In R. v. Caswell, 2015 ABCA 97 (link below), the majority of the Court of Appeal panel that considered the application takes on the Supreme Court of Canada’s recent moves away from adherence to precedent and its encouragement of anticipatory overruling by the lower courts, trying to bring some coherence to their application.

In dissent, Justice Veldhuis was inclined to revisit a prior right to counsel case on the basis of the Supreme Court’s rule in Bedford and Carter that the courts can revisit an issue “based on developments in the law and a change in circumstances that fundamentally shifts the parameters of the debate” (para. 15).  The applicant had framed this into an argument that the courts should engage in “appropriate modernization of legal principles where circumstances require it”.

However, in a judgment carrying Justice Wakeling to make up a majority, Justice Brown skilfully dissects the Supreme Court’s recent moves away from stare decisis and tries to offer a route forward.  Justice Brown highlights that Bedford has fundamentally changed the rules to allow anticipatory overruling beyond the old per incuriam situation required for lower courts to engage in the practice.  He is concerned, though, that Bedford not be seen as “a declaration of open season on stare decisis” or the courts will be put in the impossible position of constantly reconsidering extensive bodies of precedent on the purported basis that “it’s different now”.

Justice Brown develops the argument that making sense of the Bedford rule on precedent requires a strict application of the threshold of genuinely fundamental change in the parameters of debate before the courts can start taking shots at precedents.  In this analysis, for instance, something needs to have changed in the law or legislative facts that genuinely invalidates a starting premise of the rationale for the prior rule.

There is enormous wisdom in Justice Brown’s approach.  The Supreme Court of Canada’s seeming invitation to the lower courts to engage in anticipatory overruling had opened an enormous Pandora’s box, and Justice Brown has started to find a way to control the potentially ensuing problems that the Supreme Court's slimly articulated approach would otherwise cause.  This decision will not end the stream of applications the lower courts are going to be forced to deal with in light of recent Supreme Court activism, but Justice Brown's analysis provides a means of overcoming the problems. 

 For more, see R. v. Caswell, http://www.canlii.org/en/ab/abca/doc/2015/2015abca97/2015abca97.html 

Interview with Mr. David Stam

Over the past couple months, we have explored the various ways that the Magna Carta continues to affect our lives. Today, we are excited to share a new perspective on the Magna Carta regarding how this document impacts our legal landscape, how it affects the role of government, whether we may need a new Manga Carta and why it is important for us to learn about it today. We are thankful to have had the opportunity to interview Mr. David Stam, a sessional professor at the University of Alberta Faculty of Law, on these issues. Please check out the below link to watch our interview! 

 

 

Comparing the Dower Act to the Magna Carta, with Realtor Luciano Anselmo

On Tuesday we discussed several clauses of the Magna Carta that involve women’s rights. Today we will pick up where we left off, with a focus on Clause 7 and the comparable legislation which exists in Alberta today. Clause 7 states that “[a] widow, after the death of her husband, shall immediately and without difficulty have her marriage portion and inheritance. She shall not give anything for her marriage portion, dower, or inheritance which she and her husband held on the day of his death, and she may remain in her husband’s house for forty days after his death, within which time her dower shall be assigned to her.”

The spirit of protecting a spouse from falling into an adverse housing situation upon the partner’s death lives on today in Alberta in the form of the Dower Act. The Dower Act differs from the Magna Carta in that it applies to both spouses. This two-way protection would not have been necessary in the times of the Magna Carta because men were the primary property owners, with the exclusion of dower and inheritances.

However, the Dower Act is very similar to Clause 7 in it’s protection of a widow or widower. The Act ensures that the surviving spouse will have a roof over his or her head. For example, consider the hypothetical family of John, Joan, and Bobby Smith. If John Smith dies and leaves his (only) home to his son Bobby in the will, the Dower Act dictates that Bobby’s right to possession of the home is postponed, and Joan Smith may live in the home for the duration of her life. If John owned 3 homes at the time of his death, Joan gets to choose which house she will claim this “life estate” on, so long as it is a house that the couple dwells in.

The Dower Act also sets out requirements for married persons involved in home sales. Check out the interview with Remax realtor Luciano Anselmo to find out more!