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 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.

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 Charter 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.

FINN POSCHMANN: True enough, and at the fall 1981 first ministers’ conference Allan Blakeney said the notwithstanding clause would allow “Parliament and legislatures to override a court decision which might affect the basic social institutions of a province or region and this is fully consistent with the sort of argument we have put forward that we need to balance the protection of rights with the existence of our institutions which have served us so will for so many centuries.” Blakeney’s identification of the tradeoff is reasonable as far as it goes. He does not make clear, however, whether he expects societal gains from a constitutionally entrenched Charter. In your view, what have been the gains? How are Canadians better off?

PATRICK MONAHAN: In the long haul, restraint of the executive is where the big gains have been found. An important example is restraint of police practices; without the Charter there would have been little leverage for Canadians seeking to ensure that police forces adhered to Western norms with respect to personal security, privacy or restrictions on search and seizure. Some of the earliest Charter cases were concerned with the manner in which evidence was secured, and Canadians today have a clearer view of their rights in matters such as search and seizure. We would not otherwise have had this clarity.

Another positive development is the discipline the Charter has placed on government decision-making. In other words, the peace, order and good governance directive is a shield for government choices that must be explicitly invoked – governments must explicitly justify restraints on Charter rights, and placing on government of the onus to do so is an important gain. That is what we saw with the Chaoulli decision,² which we should discuss.

FINN POSCHMANN: Before dealing with this recent decision, I would like to take you back to the reason I described Canada’s constitutional arrangement as postmodern. The people who assembled the Charter in the early 1980s regarded many debates about the shape of society and proper modern law as settled. They perceived themselves as part of the triumphant progressive viewpoint; they felt that “we” knew better than the “they” of the past, and could right past wrongs through measures such as affirmative action. Hence Canada’s Charter has 15(2), the section that permits discrimination on otherwise prohibited grounds if such discrimination is intended to achieve currently favoured goals – such as preferential hiring of people of race x or y. Now some of us may believe that stance unwise, even if it has broad approval, and certainly unwise to enshrine constitutionally, with the result that the stance becomes extraordinarily difficult to shift in law.

Contrast this experience with U.S. history, where such pivotal social questions remain open. The relevant example is Bakke, which placed limits on those who would pursue socially approved racial (reverse) discrimination, and subsequent debates over preferences in university admissions in California, Texas and elsewhere. Social pressure successfully reversed a trend toward burgeoning racial preferences and – this is the important thing – there was energetic public debate that resulted in political choices being made (in California for example) that were subsequently sustained by courts. The courts themselves were not agents of social change, in these cases, notwithstanding complaints from U.S. politicians about judicial activism. Coming back to Canada, our constitutional authors saw such core social questions as settled, and the Supreme Court has subsequently seen itself as an agent of change that would implement the progressive vision of the future set in train by the legal elite of the day.

PATRICK MONAHAN: Again, as time goes by, choices do have to be made. The Charter is malleable and you have to remember that it was intentionally made so – and, accordingly, today we have more room for growth and room for changes to public understanding of things that are and are not in Charter.

Consider section 7’s guarantee of life, liberty and security of the person. At the time it was not clear to everyone, including the Justice Minister of the day, what the section added to similar guarantees already contained in the Canadian Bill of Rights (the Diefenbaker Bill), guarantees which were largely limited to procedural rights. Yet by 1988 the Supreme Court had used section 7 to strike down section 251 of the Criminal Code, which had set limits and conditions on access to abortion. There you have an example of the courts giving life and current contextual meaning in a manner not contemplated at the time the Charter was framed.

FINN POSCHMANN: Indeed, the living tree imagery is ubiquitous. But why should the Supreme Court see vested in itself a role in actively nurturing that tree? Why should it be a gardener of social change? The living tree image, a constantly changing world framework, is an inherently progressive image, and there is no mistaking the Court’s belief in progress. Decisions cite Peter Hogg on progressive interpretation of the Charter, and the Chief Justice has been heard to speak as if the only constraint on judicial activism is not wanting to be too far ahead of the broad public in pursuing a progressive vision. Should not the Supreme Court, vital institution that it is, adopt a more sceptical view of progress, seeking instead to cement in place those rights that we collectively are quite certain to be enduring ones? It is, after all, an institution that derives its authority from custom and tradition, whose authority needs to be jealously guarded – for the Court to have the political capital in hand that permits it occasionally to render controversial decisions.

PATRICK MONAHAN: The courts are active at the legal margins, and so they should be in defence of minorities. That is what the Charter is about. Majoritarian or populist views are easily expressed through the political process and ultimately in legislatures. The problem is when those views, or their legal outcomes, begin to infringe on individual rights or what we suspect should legitimately be regarded as Charter rights. If we believe a given right properly belongs on that list, we must rely on the Court ultimately to place it there, exactly because a populist majority might not be so inclined. From the point of view of the popular majority, however, the Court’s actions will be perceived as pushing social boundaries. Again, however, being active at the legal margin is exactly what the Supreme Court must do; courts act against arbitrary actions, in defence of minority rights, exactly because that is their job.

Let me point out, however, that even conservative political scientists like Ted Morton of Alberta use Charter arguments, quite inconsistently in my view. I think you cannot have it both ways – if you want to get your way in court based on Charter arguments, you must accept that the court, if it agrees with you, will assert a position on the margins that is contrary to the one that legislatures, and by extension the population they represent, would otherwise adopt. Were things otherwise, you would not need to assert your case based on the Charter. Hence, in pursuit of Charter rights, we simply must accept, as I said before, that the Supreme Court will from time to time strike down things that elected legislatures have put forward.

FINN POSCHMANN: Yes, and sometimes the Court does wisely defer on important social questions. And the Supreme Court, on the surface anyway, sought to do so in the case of the recent same-sex marriage reference, punting back to the federal Parliament the core question of whether legislation should define marriage as requiring representation from precisely two sexes between two partners. At the same time, lower courts had ruled on Charter grounds, and the Supreme Court so hinted, that the elected government had no such power. And, quoting progressive, “living tree” interpretations of the Charter, the Prime Minister said it was his understanding that the courts would rule such legislation to be unconstitutional, and that he would not thereafter invoke the notwithstanding clause. Through this dance, the courts were able to establish new Charter ground without taking a stand or making a ruling, and the Prime Minister was able to claim that the courts effectively forced his hand. The result was another progressive outcome for which no one was required to accept political responsibility. Is this not an example of the Charter permitting elite political actors to effect a progressive social agenda without first achieving a political mandate for doing so?

PATRICK MONAHAN: Well, the train really left that station with Halpern in 2003, which was successful in establishing in Ontario that the province could not withhold marriage licences from couples solely because they were of the same sex.³ That case ultimately set the course for legal recognition of gay marriage, and if provinces or the federal government did not aggressively defend the rearguard case for the status quo at that time, then the result could hardly be surprising. The governments of the day argued as they saw fit, and no attorney general appealed Halpern. No room for surprise then in 2005 when things proceeded as they did; the Supreme Court had very little to do by the time the case arrived before it.

FINN POSCHMANN: Hence in the case of the gay marriage reference, you see the Court reflecting an evolving understanding of key rights with respect to nondiscrimination. Now, in the Chaoulli case the Supreme Court told Quebec that it must deliver particular health services in a manner sufficiently timely to suit the Court’s pleasure. Here the Court seems to have extended rights talk well into the policy arena. One might say substantive due process has been extended not merely to the writing of law, but to the policy outcome. You must be uncomfortable with that.

PATRICK MONAHAN: I was surprised by the result, delighted and surprised by it because I certainly did not expect it. I am pleased that it has reopened debate about governments’ responsibilities to their citizens when they place restrictions on individuals’ choices. That is the tradeoff or the onus the Charter places on governments. Provincial law has restricted access to private insurance, plainly a restraint on individuals’ ordinary activities, and that restraint needs to be justified under the Charter.

Stanley Hartt and I laid out the section 7 arguments that underpinned the Chaoulli decision in a 2002 paper for the C.D. Howe Institute. In it we explained that when ill Canadians are prevented from using private insurance markets to arrange medically necessary services, at the same time as being denied timely access to public health services, there is a clear violation of section 7’s guarantee of liberty and security of the person. Laws that limit private insurance are intended to protect a public health system so that it, in turn, can deliver needed health services. If it does not do so, if the public system fails to deliver the timely care needed to keep people alive and healthy, the law has failed in its stated purpose, and that is inconsistent with the principles of fundamental justice.

The best part of the Chaoulli result is that provinces cannot fail to respond. Either they find ways to provide appropriate health services, or they must permit individuals to find their own ways of doing so, but governments cannot have it both ways. Governments cannot prohibit one person from using his or her own resources to purchase necessary health services on the grounds that someone else cannot afford to do so, and then fail to provide the needed services to either. That would be an ideological pursuit, serving to treat people as objects rather than as living humans.

FINN POSCHMANN: And yet it seems a worrisome excursion into policy, and potentially an open-ended one. We have seen this in the United States, where high courts have forced states – in a more or less logical extension of the egalitarian reasoning of Brown v. Board of Education⁴– to equalize local school board spending. The result, years later, is courts’ continuing to closely inspect state and school board spending to ensure that they are spending enough and in a fashion that the courts deem necessary. Are we not facing the prospect of Canada’s Supreme Court inspecting provincial budgets and choosing among priorities, in pursuit of our own egalitarian health vision? Certainly I have heard your coauthor Hartt and others speak of Chaoulli as having established the framework for a “health care guarantee.”

PATRICK MONAHAN: The important thing is that there will be different responses among the provinces. The Court is not telling them what to do or forcing particular choices. Chaoulli is instead another example of requiring governments to explicitly justify restrictions on Charter freedoms. The response provinces choose is up to them – some provinces will opt to improve health services and offer a health care guarantee; others will allow or encourage private insurance markets, as some do already. From this perspective, the policy incursion is modest to the point of nonexistence. The Supreme Court in Chaoulli is simply clarifying a section 7 right in the context of provincial restrictions on health financing, with potential gains for Canadians’ freedom – and their health.

FINN POSCHMANN: Thank you for your thoughts.

Notes

¹ Reference re Resolution to Amend the Constitution, 1 S.C.R. 753 .

² Chaoulli v. Quebec (Attorney General), 2005 SCC 35.

³ Halpern v. Canada (Attorney General), (2003) 65 O.R. (3rd) 161 (C.A.).

⁴ Brown v. Board of Education of Topeka, 347 U.S. 483 (1954), which invalidated the “separate but equal” defence for school segregation; the case was argued by Thurgood Marshall, who subsequently joined the Court as Justice.