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The courts are doing their job

7-Patrick-Monahan-printA 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 patriation process, working as I was as a Supreme Court law clerk at the time of the Patriation 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 Charter – 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 part 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?, I think the answer to that is yes.

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About the Author

Finn Poschmann
Finn Poschmann is Vice President, Research, of the C.D. Howe Institute and an Inroads columnist and editorial board member.


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