Monahan, Hutchinson debate need for charter on Law Day

Two York faculty members took part in the Great Law Day Debate 2005, held at Toronto’s historic Osgoode Hall, to answer the question: “Do we really need the charter?” Patrick Monahan, dean of Osgoode Hall Law School at York, and Professor Allan Hutchinson joined a team of legal experts for the event, which will be broadcast on Court TV Canada at a future date.

 Patrick Monahan  Allan Hutchinson

The Great Law Day Debate is a program of the Ontario Justice Education Network developed to complement the broad range of Law Day activities, which are organized to celebrate and commemorate the signing of the Charter of Rights and Freedoms. Targeted at secondary school teachers, the Great Debate is a forum that brings together academics, legal professionals and educators for challenging discussions on a featured legal issue. The speakers don’t debate alone however, as audience members are encouraged to engage in the dialogue by posing questions and interacting directly with the speakers.

The 2005 debate asked the question, Do we really need the charter? It was a topical question to pose on the 20th anniversary of the coming into force of Section 15 of the charter – the equality section. Opening remarks were made by the Hon. R. Roy McMurtry and the debate was moderated by lawyer and television host Lorne Honickman. The debate was held on April 13 in the courtrooms of historic Osgoode Hall, home of the Ontario Court of Appeal, with an audience of primarily high-school teachers.

Monahan and Hutchinson were joined by fellow panellists Ted Morton, past political science professor at the University of Calgary and currently a member of Alberta’s Legislative Assembly for Foothills-Rocky View, and Lorraine Weinrib, professor in the Faculty of Law at the University of Toronto. Monahan and Weinrib spoke in favour of the charter, while Hutchinson and Morton challenged the need for, and the usefulness of, the charter.

Morton advanced the view that the charter was unnecessary as Canada already had a strong human rights record prior to it and that the charter allowed the courts rather than the elected parliament to govern the lives of Canadians. Hutchinson argued that the charter had a poor record of protecting Canadians’ substantive rights, such as social and economic rights. Both Hutchinson and Morton submitted that the charter empowered an unelected judiciary to take precedence over an elected government. Weinrib took issue with this noting there has been no abuse of power by the judiciary with the charter and pointing out that Canada leads the way as a model for other nations through its use of the charter. Monahan elaborated on the discussion that pitted judiciary against government, arguing that the charter was in fact a beneficial tool for tempering the political actions of government. He used the FLQ crisis of the 1970s as an example of the government overstepping its authority with the War Measures Act, something he argued could not have happened with the charter.

Audience members, speakers and members of the judiciary continued the debate well into the evening at a reception hosted by the Law Society of Upper Canada. Comments from those attending the debate included: “fascinating”, “informative”, and “engaging”. DVD copies of the debate will be available to teachers for educational purposes through the Ontario Justice Education Network.

For more information on Law Day in Ontario and the debate, visit the Web sites of the Law Society of Upper Canada and the OJEN.