In an answer to another question, it is mentioned that the Magna Carta has legal force in Canada but does not have constitutional status, and can therefore be modified by subsequent legislation.

There are three clauses of the Magna Carta that are still in effect in English law. Many other clauses were repealed by the British Parliament. Some of these repeals extended to Canada, namely those passed before the establishment of the Dominion in 1867, and those passed after 1867 but before the Statute of Westminster in 1931 unless the bill in question was stated not to apply to the Dominions. Other clauses would not have been repealed by the British Parliament, but may have been repealed by the Canadian Parliament at some point.

Is there a list somewhere of which clauses of the Magna Carta are still in effect in Canada?

1 Answer 1


While principles from the Magna Carta have become part of Canada's constitutional principles, there are no clauses that are strictly "in force" in the way that term is normally understood. It was the Magna Carta that introduced the constitutional principle that the Crown does not have the prerogative authority to infringe property rights—to do so requires clear statutory authority such as expropriation legislation (Kent McNeil, "The Course, Nature, and Content of the Crown's Underlying Title to Aboriginal Title Lands" (2018)). This constraint is considered a "pillar of democratic constitutionalism" (John Borrows, "(Ab)Originalism and Canada's Constitution" (2012)).

But the Magna Carta itself, has "been largely repealed" and it "does not have constitutional force in Canada" (Christie v. British Columbia, 2005 BCCA 63 (reversed by the Supreme Court of Canada in 2007 SCC 21, but not on this point), citing R. v. Jebbett, 2003 BCCA 69). "[I]n the present day the Magna Carta is a historical document with no remaining legal force in Canada" (AVI v MHVB, 2020 ABQB 489).

It has been suggested that chapter 29 still has force, but I do not see that it has been applied as such.

In Christie, the court said:

One section of the Magna Carta that has not been repealed is chapter 29, which was originally chapter 40. It provides: “We will see to no man, we will not deny or deter to any man either justice or right.”

It was argued at the trial level in Vilardell v. Dunham, 2012 BCSC 748 (subsequently Trial Lawyers Association of British Columbia v. British Columbia (Attorney General), 2014 SCC 59) that chapter 40 of the Magna Carta operated to prohibit the imposition of hearing fees, as this would be "selling justice." Without deciding whether this section actually was "in force" the trial judge held that it did not even have the "absolute meaning ascribed to it." In any case, this was not the line of argument adopted by the Supreme Court of Canada when it found that the hearing fees were unconstitutional, instead relying on the principle of the rule of law and s. 96 of Canada's Constitution Act, 1867.

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