Doucet-Boudreau v. Nova Scotia (Minister of Education)
Encyclopedia
Doucet-Boudreau v. Nova Scotia (Minister of Education) [2003] 3 S.C.R. 3, 2003 SCC 62, was a decision of the Supreme Court of Canada
Supreme Court of Canada
The Supreme Court of Canada is the highest court of Canada and is the final court of appeals in the Canadian justice system. The court grants permission to between 40 and 75 litigants each year to appeal decisions rendered by provincial, territorial and federal appellate courts, and its decisions...

 which followed the Nova Scotia Supreme Court
Nova Scotia Supreme Court
The Nova Scotia Supreme Court is a superior court in the province of Nova Scotia.The Court comprises the Chief Justice , the Associate Chief justice, twenty-one judges and six supernumerary Justices, who sit in 18 different locations around the province.-Jurisdiction:As with all superior courts...

's finding that a delay in building French language
French language
French is a Romance language spoken as a first language in France, the Romandy region in Switzerland, Wallonia and Brussels in Belgium, Monaco, the regions of Quebec and Acadia in Canada, and by various communities elsewhere. Second-language speakers of French are distributed throughout many parts...

 school
School
A school is an institution designed for the teaching of students under the direction of teachers. Most countries have systems of formal education, which is commonly compulsory. In these systems, students progress through a series of schools...

s in Nova Scotia
Nova Scotia
Nova Scotia is one of Canada's three Maritime provinces and is the most populous province in Atlantic Canada. The name of the province is Latin for "New Scotland," but "Nova Scotia" is the recognized, English-language name of the province. The provincial capital is Halifax. Nova Scotia is the...

 violated the claimants' minority language
Minority language
A minority language is a language spoken by a minority of the population of a territory. Such people are termed linguistic minorities or language minorities.-International politics:...

 education
Education in Canada
Education in Canada is for the most part provided publicly, funded and overseen by federal, provincial, and local governments. Education is within provincial jurisdiction and the curriculum is overseen by the province. Education in Canada is generally divided into primary education, followed by...

al rights under section 23
Section Twenty-three of the Canadian Charter of Rights and Freedoms
Section Twenty-three of the Canadian Charter of Rights and Freedoms is the section of the Charter that constitutionally guarantees minority language educational rights to French-speaking communities outside Quebec, and, to a lesser extent, English-speaking minorities in Quebec...

 of the Canadian Charter of Rights and Freedoms
Canadian Charter of Rights and Freedoms
The Canadian Charter of Rights and Freedoms is a bill of rights entrenched in the Constitution of Canada. It forms the first part of the Constitution Act, 1982...

. This finding led to an important debate regarding the scope of section 24(1)
Section Twenty-four of the Canadian Charter of Rights and Freedoms
Section Twenty-four of the Canadian Charter of Rights and Freedoms provides for remedies available to those whose Charter rights are shown to be violated...

 of the Charter, which provides for remedies for those whose rights are infringed, and the applicability of the common law
Common law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...

 doctrine of functus officio
Functus officio
Functus officio, Latin for "having performed his office," is a legal term used to describe a public official, court, governing body, statute, or other legal instrument that retains no legal authority because his or its duties and functions have been completed...

. While the Supreme Court of Canada split on what constitutes an appropriate usage of section 24(1), the majority favoured a section 24(1) with broad, flexible capabilities.

Background

According to the Supreme Court of Canada, Nova Scotia's past had not been marked by a great deal of governmental action for providing education in French. After 1982, however, section 23 was added to the Constitution of Canada
Constitution of Canada
The Constitution of Canada is the supreme law in Canada; the country's constitution is an amalgamation of codified acts and uncodified traditions and conventions. It outlines Canada's system of government, as well as the civil rights of all Canadian citizens and those in Canada...

, thus creating a right for Francophone and Acadian
Acadian
The Acadians are the descendants of the 17th-century French colonists who settled in Acadia . Acadia was a colony of New France...

 Nova Scotians to schooling in their own language
Language
Language may refer either to the specifically human capacity for acquiring and using complex systems of communication, or to a specific instance of such a system of complex communication...

, provided that they were of a sufficient number. Several Francophone families in five school district
School district
School districts are a form of special-purpose district which serves to operate the local public primary and secondary schools.-United States:...

s, Kingston/Greenwood, Chéticamp, Île Madame-Arichat (Petit-de-Grat), Argyle, and Clare, tried to invoke that right, requesting new buildings or programs for primary
Primary education
A primary school is an institution in which children receive the first stage of compulsory education known as primary or elementary education. Primary school is the preferred term in the United Kingdom and many Commonwealth Nations, and in most publications of the United Nations Educational,...

 and secondary education
Secondary education
Secondary education is the stage of education following primary education. Secondary education includes the final stage of compulsory education and in many countries it is entirely compulsory. The next stage of education is usually college or university...

, and the provincial government responded with affirmation that section 23 did indeed mandate that this request be fulfilled. This affirmation was, however, followed by delay, and in 1998, with no schools having been built, the minority language community turned to the Supreme Court of Nova Scotia to move the government to meet its obligation.

The court heard the case in October 1999. The court was led by Justice LeBlanc, who found that section 23 required new schools and programs for the families. Moreover, he ruled that the delay in construction
Construction
In the fields of architecture and civil engineering, construction is a process that consists of the building or assembling of infrastructure. Far from being a single activity, large scale construction is a feat of human multitasking...

 also constituted an infringement of the claimants' section 23 rights. He reached the latter conclusion by pointing out that French language Nova Scotians were increasingly being absorbed into the English language
English language
English is a West Germanic language that arose in the Anglo-Saxon kingdoms of England and spread into what was to become south-east Scotland under the influence of the Anglian medieval kingdom of Northumbria...

 community. Hence, any further delay would eventually jeopardize the existence of the French community. Since the French community's requests were also anchored on a constitutional principle, they also deserved priority. Accordingly, LeBlanc used section 24(1) of the Charter to set deadlines and demand that the government report to him as construction progressed.

The obligation of the provincial government to report to Justice LeBlanc was disputed, as it was considered a violation of functus officio, in which a judge makes a ruling and afterwards has no authority. The Nova Scotia Court of Appeal
Nova Scotia Court of Appeal
The Court of Appeal for Nova Scotia is the highest appeal court in the province of Nova Scotia, Canada. There are currently seven Justices and one Chief Justice. The court sits in Halifax, which is the capital of Nova Scotia...

 sided with the government and overturned the requirement of reporting, citing concerns about moving Canada towards United States
United States
The United States of America is a federal constitutional republic comprising fifty states and a federal district...

-style injunction
Injunction
An injunction is an equitable remedy in the form of a court order that requires a party to do or refrain from doing certain acts. A party that fails to comply with an injunction faces criminal or civil penalties and may have to pay damages or accept sanctions...

s and upsetting the relationship between the Canadian court system and the government. The argument that section 23 gave the claimants a right to French programs and schools, however, was not questioned.

Decision

While construction had been completed by the time the minority language families appealed their case to the Supreme Court of Canada, Justices Frank Iacobucci
Frank Iacobucci
Frank Iacobucci, CC was a Puisne Justice on the Supreme Court of Canada from 1991 to 2004 when he retired from the bench. He is an expert in business and tax law.-Early career:...

 and Louise Arbour
Louise Arbour
Louise Arbour, is the former UN High Commissioner for Human Rights, a former justice of the Supreme Court of Canada and the Court of Appeal for Ontario and a former Chief Prosecutor of the International Criminal Tribunals for the former Yugoslavia and Rwanda...

, writing for the majority of the Court, declined to set aside the case for mootness
Mootness
In American law, a matter is moot if further legal proceedings with regard to it can have no effect, or events have placed it beyond the reach of the law...

. They went on to vindicate the position of Justice LeBlanc and overturn the Court of Appeal.

Section 23

The majority of the Supreme Court approved the creative method for enforcing section 23 partly by emphasizing the importance of section 23 and how it was always meant to be an enforceable right. Section 23, they wrote, has a "remedial nature... designed to correct past injustices not only by halting the progressive erosion of minority official language cultures across Canada, but also by actively promoting their flourishing." Hence, section 23 is a positive right
Negative and positive rights
Philosophers and political scientists make a distinction between negative and positive rights . According to this view, positive rights permit or oblige action, whereas negative rights permit or oblige inaction. These permissions or obligations may be of either a legal or moral character...

 requiring government action.

Section 24

Regarding section 24, the majority cited past Charter cases such as R. v. Big M Drug Mart Ltd.
R. v. Big M Drug Mart Ltd.
R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295, is a landmark decision by Supreme Court of Canada where the Court struck down the Lord's Day Act for violating section 2 of the Canadian Charter of Rights and Freedoms...

(1986), Re B.C. Motor Vehicle Act
Re B.C. Motor Vehicle Act
Reference re Section 94 of the Motor Vehicle Act, [1985] 2 S.C.R. 486 was a landmark reference submitted to the Supreme Court of Canada regarding the constitutionality of the British Columbia Motor Vehicle Act...

(1985), and Vriend v. Alberta
Vriend v. Alberta
Vriend v. Alberta [1998] 1 S.C.R. 493 is an important Supreme Court of Canada case that determined that a legislative omission can be the subject of a Charter violation...

(1998) to point out that the courts have approached the Charter with a "generous and expansive interpretation and not a narrow, technical, or legalistic one." This style of interpretation, the majority felt, was just as applicable for remedies as rights, and they observed the broad wording of section 24(1), which merely dictates that the court will award a "remedy as the court considers appropriate and just in the circumstances." Since section 23 must be enforced, section 24(1) must be "responsive" to an infringement of the right, and since section 24(1) is itself an important part of the Charter, the remedy must be "effective." While judicial restraint is important, it is limited by the obligation of the Court to enforce constitutional rights.

The circumstances, which included the threat that the French language would eventually disappear, were judged to require a remedy that would ensure the right would be met in a reasonable amount of time. The section 24(1) phrase limiting remedies, requiring that they be "appropriate and just in the circumstances", was defined partly as giving the courts themselves the right to determine what was appropriate and just, although judges should be aware of doctrines such as functus officio. The Supreme Court also defined an "appropriate and just remedy," as being one that upholds the right, including with regard to circumstances. It is also appropriate and just to remember that as part of the constitution, and with broad wording, section 24 can "evolve to meet the challenges and circumstances of those cases" and can have "novel and creative features." The Court should avoid taking functions it could not hold and should be fair to the government, but in this case hearing reports was judged to allow the court to exercise its constitutional function to enforce rights. In addition, the court would not "improperly take over the detailed management and co-ordination of the construction projects."

With regard to functus officio, the Court ruled that this common law
Common law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...

 principle cannot invalidate section 24, although it is an important consideration. The Court ultimately concluded functus officio was not violated because the reports did not "alter a final judgment." While LeBlanc could see reports, he could not change his decision to further define section 23.

Dissent

The justices who did not side with Iacobucci and Arbour did not dispute the applicability or importance of section 23. Instead, a dissent regarding the usage of section 24(1) was written by Justices Louis LeBel
Louis LeBel
Louis LeBel is a puisne justice on the Supreme Court of Canada.LeBel was born in Quebec City. He was the son of lawyer Paul LeBel, Q.C. He went to school at the Collège des Jésuites, graduating with a BA in 1958 from College des Jesuites. He earned his law degree at Université Laval in 1962 and...

 and Marie Deschamps
Marie Deschamps
Marie Deschamps is a puisne justice on the Supreme Court of Canada.-Education:She studied law at the Université de Montréal, graduating in 1974 and completing a Masters in 1983 at McGill.-Career:...

. They justified their dissent on the grounds that in order for the courts to "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." In their view, Justice LeBlanc seeing reports amounted to overseeing the construction, which violated functus officio and the separation of powers
Separation of powers
The separation of powers, often imprecisely used interchangeably with the trias politica principle, is a model for the governance of a state. The model was first developed in ancient Greece and came into widespread use by the Roman Republic as part of the unmodified Constitution of the Roman Republic...

, which could, in turn, threaten judicial independence
Judicial independence
Judicial Independence is the idea that the judiciary needs to be kept away from the other branches of government...

. The dissenting justices also felt Justice LeBlanc had an option not to require reports, and section 23 still could have been enforced.

Justice LeBlanc's expectations, moreover, were not judged to be clear enough to the government. Fundamental justice
Fundamental justice
Fundamental justice is a legal term that signifies a dynamic concept of fairness underlying the administration of justice and its operation, whereas principles of fundamental justice are specific legal principles that command "significant societal consensus" as "fundamental to the way in which the...

was thus seen as having been violated.

The majority responded to these concerns by arguing that "the approach taken by... LeBel and Deschamps JJ. which appears to contemplate that special remedies might be available in some circumstances, but not in this case, severely undervalues the importance and the urgency of the language rights in the context facing LeBlanc J."

External links

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