courts are doing their job, The

Inroads, Winter 2006 by Poschmann, Finn

A discussion with Patrick Monahan

Patrick Monahan, LLB (Osgoode), LLM (Harvard), has been a member of Osgoode Hall Law School's faculty since 1982 and Dean since July 2003. Between 1986 and 1990 he was senior policy adviser to the Attorney General and Premier of Ontario and played a key role in negotiating the 1987 Meech Lake Accord. Professor Monahan was also a driving force behind the Clarity Act that established the Quebec government's duties in any referendum on secession, and in 2004 argued before the Supreme Court on behalf of a group of senators who intervened in the groundbreaking Chaoulli case that has reframed provinces' health care responsibilities. He spoke with Toronto policy analyst and Inroads associate editor Finn Poschmann in the summer of 2005.

FINN POSCHMANN: A generation of Canadians has now grown up with a Charter of Rights and Freedoms grafted onto a postmodern Canadian constitution. And today we are amid a flurry of major cases in Canada and the United States that test the relationship among the courts, governments and society. It seems time for a retrospective look at Canada's experience with a written bill of rights, a Charter that has elevated and solidified the role of the courts. Admittedly, it remains incomplete, as it must until the Province of Quebec agrees to sign. The Charter is also somewhat tentative, in fact an oddity among Western democracies, in having retained a notwithstanding clause (section 33) that permits governments to abrogate recognized Charter rights should they explicitly choose to do so.

PATRICK MONAHAN: I had an excellent view of the patrialion process, working as I was as a Supreme Court law clerk at the time of the Pat nation Reference.1 In fact, I was clerking for the late Justice Brian Dickson, and his position was that an accommodation needed to be made. I was certainly sceptical about the Charier - sceptical about the implications of transferring power from the legislatures to the courts. Ultimately though it is a matter of accommodation and tradeoffs; the provinces were rightly jealous of their legal powers and hesitant about yielding more room to courts in shaping the law. securing an agreement meant striking a balance that reflected those accommodations, and section 33 was pari of that balance.

FINN POSCHMANN: The obvious question is: Did Canadians get what we expected? There was much public debate in the runup to April 1982 - the public and the premiers certainly had a set of expectations about the course we were setting on. Did they expect that course to lead, for instance, to events like provincial courts instructing legislatures on who would be permitted to marry?

PATRICK MONAHAN: While that particular question would not have occurred to anyone in 1982, if the issue is. Did legislators understand that this involved a major transfer of power to the courts?, 1 think the answer to that is yes.

FINN POSCHMANN: Let us try to look at that straightforward answer through a 1981 filter. As I mentioned, there was a huge amount of public debate on the specific content of the Charter. This included close argument over the grounds under which discrimination would be forbidden - the hot-button example of the day was whether a private landlord could be required to rent premises to a homosexual couple even if he or she passionately disapproved. The answer given by provincial premiers was no, sexual orientation would not be listed among protected grounds, and in fact of course it was not. Yet Canadians learned very quickly, after April 1982, about the concept of like grounds, and discovered that the courts had a broad view of the degree to which the list of protected grounds could or should be given expansive reading. More expansive, at least, than most voters surely expected.

PATRICK MONAHAN: All the same, the premiers were concerned about these issues at the time, and the wording they agreed to was broadly written. That was not an accident, and of course the list of covered grounds in section 15 was intended to be read in a nonexhaustive fashion.

FINN POSCHMANN: But did Alberta Premier Peter Lougheed nonetheless expect the result?

PATRICK MONAHAN: Premier Lougheed was certainly aware of voters' sensibilities, and that is why he pursued the notwithstanding clause. That clause permits governments to override the fundamental rights discussed in Charter sections 2 and 7 through 15, provided they expressly do so in legislation, which in turn requires reenactment after a five-year sunset, if legislatures so wish. However, Lougheed may not have had a proper understanding of the political difficulty of using the section 33 override. What he and other premiers have since found is that the popular opposition to using the notwithstanding clause to abrogate Charier rights is in fact quite formidable.

Moreover, as you suggested, there were public debates on just these issues, and the bill ultimately reflected those and the various governments' efforts to accommodate the concerns that were raised. We need today to take seriously that we made those tradeoffs, with eyes wide open, in pursuit of a Charter that did the things we wanted it to do. Hence today we should not be surprised that laws are struck down from time to time; we created the Charter explicitly to empower individuals in exercising their basic rights and to give the courts the tools to ensure that Canadians could exercise those rights.