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Every step you take, I'll be watching you!

Some argue that it is merely the use of a judicial power that has always existed. Some argue that it is a dangerous and insidious expansion of judicial activism. Some think of it as a necessary and logical exercise of a judge's role. Certainly, the recent decision of the Supreme Court of Canada in the case of Doucet-Boudreau v. Nova Scotia (Minister of Education) has generated lots of controversy. The Supreme Court judges themselves had difficulty with this case, issuing a five to four split decision.

The case involved a number of francophone Nova Scotia families who asked the Nova Scotia government to provide French-language school programs and facilities for their secondary school children. While the government did not deny that it had a Charter-based obligation to provide the schooling, the trial judge found that the Ministry had failed to prioritize these rights and delayed in fulfilling its obligations to the francophone students. He ordered that the Nova Scotia government must use its best efforts to provide French-language programs by given dates. No real controversy there. However, the trial judge went on to rule "The Court shall retain jurisdiction to hear reports from the Respondents respecting the Respondents' compliance with this Order. The Respondents shall report to this Court on March 23, 2001 at 9:30 a.m. or on such other date as the Court may determine." In making this ruling, the trial judge relied on s. 24(1) of the Charter, which provides "Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances."

The Nova Scotia government appealed only that part of the trial judge's order which dealt with his continuing supervision. The majority of the Nova Scotia Court of Appeal allowed the government's appeal, agreeing that the trial judge had no further jurisdiction to remain involved in the case once he had made his order. The parents then went to the Supreme Court of Canada.

In reaching its conclusion, the five-judge majority opinion made a number of interesting observations.

* The Charter of Rights should be given a generous and expansive interpretation and not a narrow, technical, or legalistic one.

* This generous interpretive approach should apply to the remedies provisions, since "a right, no matter how expansive in theory, is only as meaningful as the remedy provided for its breach." Proper remedies for the protection of the rule of law through compliance must exist; otherwise "the seeds of tyranny can take root."

* Compliance is significant in the constitutional law context because courts must ensure that government behaviour meets constitutional standards, but in doing so must be sensitive to the separation of functions among the executive, legislative, and judicial branches. Determining the boundaries of the Court's proper role cannot be reduced to a simple test or formula; it will vary according to the right at issue and the context in each case.

The majority then turned to s. 24(1) of the Charter and examined the meaning of the words "appropriate and just in the circumstances" in the context of remedies. They concluded that an appropriate and just remedy in a Charter claim

* vindicates the rights and freedoms of the claimants

* employs means that are legitimate within the framework of our constitutional democracy, respecting the separation of functions among the legislature, executive, and judiciary

* is a judicial remedy which vindicates the right while invoking the function and powers of a court

* is fair to the party against whom the order is made

* is flexible and responsive to the needs off given case.

The majority concluded "S.24 (1) of the Charter requires that courts issue effective responsive remedies that guarantee full and meaningful protection of Charter rights and freedoms. The meaningful protection of Charter rights ... may in some cases require the introduction of novel remedies. A superior court may craft any remedy that it considers appropriate and just in the circumstances. In doing so, courts should be mindful of their roles as constitutional arbiters and the limits of their constitutional capacities." The majority ruled that the trial judge had appropriately exercised his powers under s. 24, "meaningfully vindicated the rights of the appellant parents by encouraging the Province's prompt construction of school facilities, without drawing the court outside its proper role."

The minority on the Court had a strikingly different concept of the role of a court. Justices LeBel and Deschamps wrote "Courts should not unduly encroach on areas which should remain the responsibility of public administration and should avoid turning themselves into managers of the public service. Judicial interventions should end when and where the case of which a judge is seized is brought to a close ... A court purporting to retain jurisdiction to oversee the implementation of a remedy, after a final order has been issued, will likely be acting inappropriately on two levels. First, by attempting to extend the court's jurisdiction beyond its proper role, it will breach the separation of powers principle. Second, by acting after exhausting its jurisdiction, it will breach the functus officio (discharge of duty) doctrine."

What can we make of this case? Should judges actively supervise how their judgments are carried out, or is this too much judicial intervention? Is this decision merely a logical application of the remedial powers clearly set our in the Charter? Can judges order governments to report to them directly, and on such terms and conditions as a judge sees fit, but if they do, does this not blur the important boundaries among the three branches of government? The Supreme Court of Canada, and public opinion in Canada are deeply divided on these questions.

Doucet-Boudreau v. Nova Scotia (Minister of Education) 2003 SCC 62
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Title Annotation:Today's trial; Doucet-Boudreau v. Nova Scotia (Minister of Education)
Author:Mitchell, Teresa
Geographic Code:1CANA
Date:Feb 1, 2004
Previous Article:Manipulating the public.
Next Article:Who what when and why? Capacity decisions.

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