Doucet‑Boudreau v. Nova Scotia (Minister of Education),
[2003] 3 S.C.R. 3, 2003 SCC 62
Glenda Doucet‑Boudreau, Alice Boudreau, Jocelyn Bourbeau,
Bernadette Cormier‑Marchand, Yolande Levert and Cyrille
Leblanc,
in their name and in the name of all Nova Scotia parents who are
entitled to the right, under Section 23 of the Canadian Charter
of
Rights and Freedoms, to have
their children educated in the language
of the minority, namely the French language, in publicly funded
French-language school facilities, and Fédération des parents
acadiens de la Nouvelle‑Écosse Inc. Appellants
v.
Attorney General of Nova Scotia Respondent
and
Attorney General of Canada, Attorney General of Ontario, Attorney
General of New Brunswick, Attorney General of Newfoundland
and Labrador, Commissioner of Official Languages for Canada,
Fédération nationale des conseillères et conseillers scolaires
francophones, Fédération des associations de juristes d’expression
française de Common Law Inc. (FAJEFCL) and Conseil scolaire
acadien provincial (CSAP) Interveners
Indexed as: Doucet‑Boudreau v. Nova Scotia (Minister of Education)
Neutral citation: 2003 SCC
62.
File No.: 28807.
2002: October 4; 2003: November 6.
Present: McLachlin C.J. and Gonthier, Iacobucci, Major, Bastarache,
Binnie, Arbour, LeBel and Deschamps JJ.
on appeal from the court of appeal for nova scotia
Constitutional law — Charter of Rights —
Enforcement — Remedy available for realization of minority language education
rights — Trial judge ordering province to make best efforts to provide
homogeneous French-language facilities and programs by particular dates — Order
further requiring parties to appear before same judge periodically to report on
status of those efforts — Whether trial judge had authority to retain
jurisdiction to hear reports from Province on the status of those efforts as
part of his remedy under s. 24(1) of Canadian Charter of Rights and Freedoms —
Whether reporting order was “appropriate and just in the circumstances” —
Canadian Charter of Rights and Freedoms, ss. 23 , 24(1) .
Appeals — Mootness — Appropriate and
just remedy — Minority language education rights — Appeal raising
important question about jurisdiction of superior courts to order what may be
an effective remedy in some classes of cases — Moot appeal should be
heard to provide guidance in similar cases.
The appellants are Francophone parents living in five
school districts in Nova Scotia. They applied for an order directing the
Province and the Conseil scolaire acadien provincial to provide, out of
public funds, homogeneous French-language facilities and programs at the
secondary school level. The trial judge noted that the government did not deny
the existence or content of the parents’ rights under s. 23 of the Canadian
Charter of Rights and Freedoms but rather failed to prioritize those rights
and delayed fulfilling its obligations, despite clear reports showing that
assimilation was “reaching critical levels”. He found a s. 23 violation
and ordered the Province and the Conseil to use their “best efforts” to provide
school facilities and programs by particular dates. He retained jurisdiction
to hear reports on the status of the efforts. The Province appealed the part
of the order in which the trial judge retained his jurisdiction to hear
reports. The majority of the Court of Appeal allowed the appeal and struck
down the impugned portion of the order. On the basis of the common law
principle of functus officio, the majority held that the trial judge,
having decided the issue between the parties, had no further jurisdiction to
remain seized of the case. They also held that, while courts have broad ranging
powers under s. 24(1) of the Charter to fashion remedies, the Charter
does not extend a court’s jurisdiction to permit it to enforce its remedies.
Held (Major, Binnie,
LeBel and Deschamps JJ. dissenting): The appeal should be allowed and the
trial judge’s order restored.
Per McLachlin C.J. and
Gonthier, Iacobucci, Bastarache and Arbour JJ.: This appeal involves the
nature of remedies available under s. 24(1) of the Charter for the
realization of the minority language education rights protected by s. 23 . A
purposive approach to remedies in a Charter context requires that both
the purpose of the right being protected and the purpose of the remedies
provision be promoted. To do so, courts must issue effective, responsive
remedies that guarantee full and meaningful protection of Charter rights
and freedoms.
Section 23 of the Charter is 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. While the rights are granted to individuals, they apply only if
the “numbers warrant”. For every school year that governments do not meet
their obligations under s. 23 , there is an increased likelihood of
assimilation which carries the risk that numbers might cease to “warrant”. If
delay is tolerated, governments could potentially avoid the duties imposed upon
them by s. 23 . The affirmative promise contained in s. 23 and the
critical need for timely compliance will sometimes require courts to order
affirmative remedies to guarantee that language rights are meaningfully, and
therefore necessarily promptly, protected.
Under s. 24(1) of the Charter , a superior
court may craft any remedy that it considers appropriate and just in the
circumstances. In doing so, it must exercise a discretion based on its careful
perception of the nature of the right and of the infringement, the facts of the
case, and the application of the relevant legal principles. The court must
also be sensitive to its role as judicial arbiter and not fashion remedies
which usurp the role of the other branches of governance. The boundaries of
the courts’ proper role will vary according to the right at issue and the
context of each case.
The nature and extent of remedies available under
s. 24(1) remain limited by the words of the section itself and must be
read in harmony with the rest of our Constitution. While it would be unwise at
this point to attempt to define the expression “appropriate and just”, there
are some broad considerations that judges should bear in mind in evaluating the
appropriateness and justice of a potential remedy. An appropriate and just remedy
in the circumstances of a Charter claim is one that meaningfully
vindicates the rights and freedoms of the claimants and employs means that are
legitimate within the framework of our constitutional democracy. It is a
judicial one which vindicates the right while invoking the function and powers
of a court. An appropriate and just remedy is also fair to the party against
whom the order is made. Since s. 24 is part of a constitutional scheme
for the vindication of fundamental rights and freedoms enshrined in the Charter ,
the judicial approach to remedies must remain flexible and responsive to the
needs of a given case. The meaningful protection of Charter rights, and
in particular the enforcement of s. 23 rights, may thus in some cases
require the introduction of novel remedies. Lastly, the remedial power in
s. 24(1) cannot be strictly limited by statutes or rules of the common
law. However, insofar as the statutory provisions or common law rules express
principles that are relevant to determining what is “appropriate and just in
the circumstances”, they may be helpful to a court choosing a remedy under
s. 24(1) .
Here, the remedy ordered by the trial judge was
appropriate and just in the circumstances. He exercised his discretion to select
an effective remedy that meaningfully vindicated the s. 23 rights of the
appellants in the context of serious rates of assimilation and a history of
delay in the provision of French-language education. The order is a creative
blending of remedies and processes already known to the courts in order to give
life to the rights in s. 23 . Given the critical rate of assimilation
found by the trial judge, it was appropriate for him to grant a remedy that
would in his view lead to prompt compliance. The remedy took into account, and
did not depart unduly or unnecessarily from, the role of the courts in our
constitutional democracy. The remedy vindicated the rights of the parents
while leaving the detailed choices of means largely to the executive. The reporting
order was judicial in the sense that it called on the functions and powers
known to courts. The range of remedial orders available to courts in civil
proceedings demonstrates that constitutional remedies involving some degree of
ongoing supervision do not represent a radical break with the past practices of
courts. Further, although the common law doctrine of functus officio
cannot strictly pre-empt the remedial discretion in s. 24(1), an
examination of the functus question indicates that the trial judge
issued an order that is appropriately judicial. The retention of jurisdiction
did not include any power to alter the disposition of the case and did nothing
to undermine the provision of a stable basis for launching an appeal. Finally,
in the context, the reporting order was not unfair to the government. While,
in retrospect, it would certainly have been advisable for the trial judge to
provide more guidance to the parties as to what they could expect from the
reporting sessions, his order was not incomprehensible or impossible to
follow. It was not vaguely worded so as to render it invalid.
Per Major, Binnie,
LeBel and Deschamps JJ. (dissenting): While superior courts’ powers to craft Charter
remedies may not be constrained by statutory or common law limits, they are
nonetheless bound by rules of fundamental justice and by constitutional
boundaries. Such remedies should be designed keeping in mind the canons of
good legal drafting, the fundamental importance of procedural fairness, and a
proper awareness of the nature of the role of courts in our democratic
political regime. In the context of constitutional remedies, courts fulfill
their proper function by issuing orders precise enough for the parties to know
what is expected of them, and by permitting the parties to execute those
orders. Such orders are final. 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: (1) by attempting to
extend the court’s jurisdiction beyond its proper role, it will breach the
separation of powers principle; (2) by acting after exhausting its
jurisdiction, it will breach the functus officio doctrine.
Here, the drafting of the reporting order was anything
but clear. The order gave the parties no clear notice of their obligations,
the nature of the reports or even the purpose of the reporting hearings. The
uncertainty engendered by the order amounted to a breach of procedural fairness.
For this reason alone, the order can be found to be inappropriate under
s. 24(1) and therefore void. In addition, the reporting order assumed
that the judge could retain jurisdiction at will, after he had finally disposed
of the matter of which he had been seized. As a general rule, courts should
avoid interfering in the management of public administration. Once they have
rendered judgment, they should resist the temptation to directly oversee or
supervise the administration of their orders and operate under a presumption
that judgments of courts will be executed with reasonable diligence and good
faith. In this case, the trial judge assumed jurisdiction over a sphere
traditionally outside the province of the judiciary, and also acted beyond the
jurisdiction with which he was legitimately charged as a trial judge, thereby
breaching the constitutional principle of separation of powers and the functus
officio doctrine. His remedy undermined the proper role of the judiciary
within our constitutional order and unnecessarily upset the balance between the
three branches of government. Since no part of the Constitution can conflict
with another, the trial judge’s order for reporting hearings cannot be
interpreted as appropriate and just under s. 24(1).
The proper development of the law of constitutional
remedies requires that courts reconcile their duty to act within proper
jurisdictional limits with the need to give full effect to the rights of a
claimant. The intrusiveness of the trial judge’s order was in no way
necessary to secure the appellants’ s. 23 Charter interests. In the present case, refusing superior courts the power to order
reporting hearings clearly would not deny claimants’ access to a recognized Charter
remedy and, more importantly, to that which they are guaranteed by s. 23 —
namely, the timely provision of minority language instruction facilities. If,
as suggested by the appellants, the reporting hearings were an incentive for
the government to comply with the best efforts order, it is difficult to see
how they could have been more effective than the construction deadline coupled
with the possibility of a contempt order. Moreover, at the level of
constitutional principles, because this incentive is legal in nature, it would
not have led to the improper politicization of the relationship between the
judiciary and the executive. While a trial judge’s decisions with respect to
remedies are owed deference, this must be tempered when, as here, fundamental legal
principles are threatened. Proper consideration of the principles of
procedural fairness and the separation of powers is required to establish the
requisite legitimacy and certainty essential to an appropriate and just remedy
under s. 24(1) of the Charter .
Cases Cited
By Iacobucci and Arbour JJ.
Referred to: Mills
v. The Queen, [1986] 1 S.C.R. 863; Borowski v. Canada (Attorney General),
[1989] 1 S.C.R. 342; International Brotherhood of Electrical Workers, Local
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Drug Mart Ltd., [1985] 1 S.C.R. 295; Re B.C. Motor Vehicle Act,
[1985] 2 S.C.R. 486; Reference re Prov. Electoral Boundaries (Sask.),
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Gamble, [1988] 2 S.C.R. 595; R. v. Sarson, [1996] 2 S.C.R. 223; R.
v. 974649 Ontario Inc., [2001] 3 S.C.R. 575, 2001 SCC 81; Mahe v.
Alberta, [1990] 1 S.C.R. 342; Reference re Public Schools Act (Man.), s.
79(3), (4) and (7), [1993] 1 S.C.R. 839; Arsenault-Cameron v. Prince
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1 S.C.R. 768; Marchand v. Simcoe County Board of Education (1986), 29
D.L.R. (4th) 596; Marchand v. Simcoe County Board of Education (No. 2)
(1987), 44 D.L.R. (4th) 171; Lavoie v. Nova Scotia (Attorney-General)
(1988), 47 D.L.R. (4th) 586; Conseil des Écoles Séparées Catholiques
Romaines de Dufferin et Peel v. Ontario (Ministre de l’Éducation et de la
Formation) (1996), 136 D.L.R. (4th) 704, aff’d (1996), 30 O.R. (3d) 681; Conseil
Scolaire Fransaskois de Zenon Park v. Saskatchewan, [1999] 3 W.W.R. 743,
aff’d [1999] 12 W.W.R. 742; Assoc. Française des Conseils Scolaires de
l’Ontario v. Ontario (1988), 66 O.R. (2d) 599; Assn. des parents
francophones de la Colombie-Britannique v. British Columbia (1998), 167
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714; Douglas/Kwantlen Faculty Assn. v. Douglas College, [1990] 3 S.C.R.
570; Reference re Secession of Quebec, [1998] 2 S.C.R. 217; Fraser v.
Public Service Staff Relations Board, [1985] 2 S.C.R. 455; New Brunswick
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1 S.C.R. 319; RJR-MacDonald Inc. v. Canada (Attorney General), [1995] 3
S.C.R. 199; Reference re Bill 30, An Act to amend the Education Act (Ont.),
[1987] 1 S.C.R. 1148; Schachter v. Canada, [1992] 2 S.C.R. 679; Nelles
v. Ontario, [1989] 2 S.C.R. 170; MacMillan Bloedel Ltd. v. Simpson,
[1995] 4 S.C.R. 725; Reference re Young Offenders Act (P.E.I.), [1991] 1
S.C.R. 252; Mooring v. Canada (National Parole Board), [1996] 1 S.C.R.
75; Weber v. Ontario Hydro, [1995] 2 S.C.R. 929; R. v. Rahey,
[1987] 1 S.C.R. 588; R. v. Smith, [1989] 2 S.C.R. 1120; Mareva
Compania Naviera S.A. v. International Bulkcarriers S.A., [1975] 2 Lloyd’s
Rep. 509; Anton Piller KG v. Manufacturing Processes Ltd., [1976] 1 Ch.
55; Reference re Manitoba Language Rights, [1985] 1 S.C.R. 721; Re
Manitoba Language Rights Order, [1985] 2 S.C.R. 347; Re Manitoba
Language Rights Order, [1990] 3 S.C.R. 1417; Reference re Manitoba
Language Rights, [1992] 1 S.C.R. 212; British Columbia (Association des
parents francophones) v. British Columbia (1996), 139 D.L.R. (4th) 356; Société
des Acadiens du Nouveau-Brunswick Inc. v. Minority Language School Board
No. 50 (1983), 48 N.B.R. (2d) 361; Attorney-General v. Birmingham,
Tame, and Rea District Drainage Board, [1910] 1 Ch. 48, aff’d [1912] A.C.
788; Kennard v. Cory Brothers and Co., [1922] 1 Ch. 265, aff’d [1922] 2
Ch. 1; Chandler v. Alberta Association of Architects, [1989] 2 S.C.R.
848; Reekie v. Messervey, [1990] 1 S.C.R. 219.
By LeBel and Deschamps JJ. (dissenting)
Sonoco Ltd. v. Local 433 (1970), 13 D.L.R. (3d) 617; Sporting Club du Sanctuaire Inc. v.
2320-4365 Québec Inc., [1989] R.D.J. 596; Supermarchés Jean Labrecque
Inc. v. Flamand, [1987] 2 S.C.R. 219; MacMillan Bloedel Ltd. v. Simpson,
[1995] 4 S.C.R. 725; Ocean Port Hotel Ltd. v. British Columbia (General
Manager, Liquor Control and Licensing Branch), [2001] 2 S.C.R. 781, 2001
SCC 52; Bell Canada v. Canadian Telephone Employees Association, [2003]
1 S.C.R. 884, 2003 SCC 36; New Brunswick Broadcasting Co. v. Nova Scotia
(Speaker of the House of Assembly), [1993] 1 S.C.R. 319; Reference re
Remuneration of Judges of the Provincial Court of Prince Edward Island,
[1997] 3 S.C.R. 3; Fraser v. Public Service Staff Relations Board,
[1985] 2 S.C.R. 455; Mackin v. New Brunswick (Minister of Finance),
[2002] 1 S.C.R. 405, 2002 SCC 13; In re St. Nazaire Co. (1879), 12 Ch.
D. 88; In re Swire (1885), 30 Ch. D. 239; Paper Machinery Ltd. v. J.
O. Ross Engineering Corp., [1934] S.C.R. 186; Chandler v. Alberta
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Statutes and Regulations Cited
Alberta Rules of Court, Alta. Reg. 390/68, r. 390(1).
Canadian Charter of Rights and
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Civil Procedure Rules (Nova Scotia), rr.
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Constitution Act, 1867, ss. 92 , 96 .
Constitution Act, 1982 .
Education Act, S.N.S. 1995-96, c. 1, ss. 11-16, 88(1).
Judicature Act, R.S.N.S. 1989, c. 240, ss. 33, 34(d), 38.
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APPEAL from a judgment of the Nova Scotia Court of
Appeal (2001), 203 D.L.R. (4th) 128, 194 N.S.R. (2d) 323, 85 C.R.R. (2d) 189,
[2001] N.S.J. No. 240 (QL), 2001 NSCA 104, setting aside a decision of the Nova
Scotia Supreme Court (2000), 185 N.S.R. (2d) 246, 575 A.P.R. 246, [2000] N.S.J.
No. 191 (QL). Appeal allowed, Major, Binnie, LeBel and Deschamps JJ.
dissenting.
Joel E. Fichaud, Q.C., and Melanie S. Comstock, for the
appellants.
Alexander M. Cameron, for the respondent.
Bernard Laprade
and Christopher Rupar, for the intervener the Attorney General of
Canada.
Janet E. Minor and Vanessa Yolles, for the intervener the Attorney
General of Ontario.
Gabriel Bourgeois,
Q.C., for the intervener the Attorney General of New Brunswick.
Written submissions only by Deborah Paquette,
for the intervener the Attorney General of Newfoundland and Labrador.
Laura C. Snowball and Subrata Bhattacharjee, for the intervener the
Commissioner of Official Languages for Canada.
Michel Doucet and Christian E. Michaud,
for the intervener Fédération nationale des conseillères et conseillers
scolaires francophones.
Roger J. F. Lepage and Peter T. Bergbusch, for the intervener
Fédération des associations de juristes d’expression française de Common Law
Inc.
Noella Martin and Janet M. Stevenson,
for the intervener Conseil scolaire acadien provincial.
The judgment of McLachlin C.J. and Gonthier, Iacobucci,
Bastarache and Arbour JJ. was delivered by
1
Iacobucci and Arbour JJ. —
This appeal involves the nature of remedies available under s. 24(1) of the Canadian
Charter of Rights and Freedoms for the realization of the minority language
education rights protected by s. 23 of the Charter . The specific issue
is whether a trial judge may, after ordering that a provincial government use
its best efforts to build French-language school facilities by given dates,
retain jurisdiction to hear reports on the progress of those efforts. The issue
of broader and ongoing judicial involvement in the administration of public
institutions is not before the Court in this case.
I. Background and Judicial History
2
The appellants are Francophone parents living in five school districts
in Nova Scotia (Kingston/Greenwood, Chéticamp, Île Madame-Arichat
(Petit-de-Grat), Argyle, and Clare) and Fédération des parents acadiens de la
Nouvelle-Écosse Inc., a non‑profit organization that monitors the
advancement of educational rights of the Acadian and Francophone minority in
Nova Scotia. The Attorney General of Nova Scotia is the respondent, acting on
behalf of the Department of Education of Nova Scotia.
3
Apart from the specific facts of the case, it is most important to note
the historical context on which this dispute is centred. As we will discuss
below, French‑language education in Nova Scotia has not had an enviable
record of success. While the situation improved over the rather dismal record
of the previous centuries, the twentieth century left much to be achieved.
Section 23 of the Charter has been the hope of the French-speaking
minority of Nova Scotia to redress the linguistic failings and inequality of
history.
4
It is conceded in this appeal that s. 23 of the Charter entitles
the appellant parents to publicly funded French‑language educational
facilities for their children. For some time, Francophone parents in these
five school districts of Nova Scotia had been urging their provincial
government to provide homogeneous French-language schools at the secondary
level in addition to the existing primary level facilities. The government of
Nova Scotia, for its part, agreed: it did not dispute that the number of students
warranted the facilities demanded. The government amended the Education Act,
S.N.S. 1995-96, c. 1, ss. 11-16, in 1996 to create the Conseil scolaire acadien
provincial (the “Conseil”), a province-wide French-language school board, with
a view to realizing the Charter ’s minority language education rights.
However, while s. 11(1) empowered the Conseil to deliver and administer
all French-language programs, only the Minister, with the approval of the
Governor in Council, could construct, furnish and equip schools (see s.
88(1)). Although the government eventually announced the construction of the
new French-language school facilities, construction of the promised schools
never began. So in 1998, 16 years after the right was entrenched in the
Constitution, the appellant parents applied to the Supreme Court of Nova Scotia
for an order directing the Province and the Conseil to provide, out of public
funds, homogeneous French-language facilities and programs at the secondary
school level.
5
The application was heard before LeBlanc J. in October 1999. LeBlanc J.
declared that the applicants were entitled parents under s. 23 of the Charter
and that the number of students warranted the provision of French homogeneous
secondary school facilities in Chéticamp, Île Madame-Arichat (Petit-de-Grat),
Argyle, and Clare: (2000), 185 N.S.R. (2d) 246. He noted, however, that the
real issue was not the existence and content of the applicants’ s. 23 rights,
but the date on which the programs and facilities would finally be made
available.
6
LeBlanc J. found that the respondents had not given sufficient attention
to the serious rate of assimilation among Acadians and Francophones in Nova
Scotia. The Province treated s. 23 rights as if they were but one more demand
for educational programs and facilities, and failed to accord them due priority
as constitutional rights. Meanwhile, assimilation continued. LeBlanc J.
stated that “[i]t is beyond any doubt that it is time that homogeneous programs
and facilities be provided to s. 23 students” (para. 206).
7
LeBlanc J. considered the state of school programs and facilities,
including the progress that had already been made toward complying with s. 23
of the Charter , in each of the five school districts at issue. He directed
the Province, which, through the Department of Education, is responsible for
providing school facilities, and the Conseil, which is responsible for program
provision, to build schools and provide programs by more and less specific
deadlines. LeBlanc J. required that the respondents use their “best efforts”
to comply with his order. Finally, he retained jurisdiction to hear reports
from the respondents on their compliance. The precise wording of the order was
as follows:
1. In Kingston/Greenwood, the entitled parents
under Section 23 have a right to a homogeneous French program from grades
Primary to 12 and the entitled parents have a right to a homogeneous French
facility for grades Primary to 12 by September 2000.
2. In Cheticamp, the entitled parents under
Section 23 have a right to a homogeneous French secondary program in a
homogeneous French facility by September 2000.
3. In Île Madame‑Arichat
(Petit-de-Grat), the Respondent CSAP shall use its best efforts to provide a
homogeneous French program for grades 9 through 12 by September 2000 and the
Respondent Department of Education shall use its best efforts (a) to provide a
homogeneous French facility (on an interim basis) for grades 9 through 12 by
September 2000 and (b) to provide a permanent homogeneous French facility by
January 2001.
4. In Argyle, the Respondent CSAP shall use
its best efforts to provide a homogeneous French program for grades Primary
through 12 by September 2000 and the Respondent Department of Education shall
provide a homogeneous French facility for grades Primary through 12 by
September 2001.
5. In Clare,
the Respondent CSAP shall provide a homogeneous French program for grades
Primary through 12 by September 2000 and the Respondent Department of Education
shall take immediate steps to provide homogeneous French facilities for grades
Primary through 12 by September 2001.
6. The Respondents shall use their best efforts to
comply with this Order.
7. 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.
8
The reference to “the Court” in the final paragraph was interpreted by
LeBlanc J., and the parties, as a reference to himself sitting as a judge of
the provincial supreme court, rather than to the Supreme Court of Nova Scotia
generally, which, as a court of first instance, would be competent to hear
applications relating to any failure by the respondents to comply with LeBlanc
J.’s order and would require no express retention of jurisdiction. LeBlanc J.
presided over several of these “reporting hearings” between July 27, 2000, and
March 23, 2001. Prior to each reporting session the trial judge directed the
Province to file an affidavit from the appropriate official at the Department
of Education, setting out the Department’s progress in complying with the trial
judge’s decision. The trial judge permitted the respondent and Conseil to
adduce evidence, including rebuttal evidence on various matters relating to
compliance with the best efforts order. The Attorney General of Nova Scotia,
on behalf of the Department of Education, appealed the part of the order in
which LeBlanc J. retained his jurisdiction to hear reports.
9
The majority at the Nova Scotia Court of Appeal allowed the appeal
before the final scheduled reporting hearing took place ((2001), 194 N.S.R.
(2d) 323, 2001 NSCA 104). Flinn J.A., writing for the majority, emphasized
that the declaration of the parents’ rights and the order to provide programs
and facilities were not in issue in the appeal (para. 6). Only the trial
judge’s retention of jurisdiction to hear reports was challenged. Flinn J.A.
held that the trial judge, having decided the issue between the parties, had no
further jurisdiction to remain seized of the case. This opinion was based on
the common law principle of functus officio and Flinn J.A.’s view that
the Judicature Act, R.S.N.S. 1989, c. 240, not only fails explicitly to
authorize the retention of jurisdiction by a trial court after it has decided
the issues before it and provided a remedy, but also precludes a trial judge
from retaining jurisdiction to determine whether there is compliance with the
order. He cited this Court’s decision in Mills v. The Queen, [1986] 1
S.C.R. 863, at pp. 952-53, for the principle that it is for Parliament, and not
judges, to fix the jurisdiction of courts and that the Charter was
intended to fit in, rather than to alter, the existing scheme of Canadian legal
procedure. After reviewing the language rights jurisprudence, Flinn J.A.
concluded that there was no authority or precedent supporting the trial judge’s
decision to order and conduct the reporting sessions. He concluded that, while
it is true that courts have broad ranging powers under s. 24(1) to fashion
remedies, and are encouraged to be creative in so doing, the Charter
does not extend a court’s jurisdiction to permit it to enforce its remedies.
Finally, Flinn J.A. expressed a reluctance to open the door to American
jurisprudence on the enforcement of mandatory injunctions and a fear that
post-trial intervention by trial judges in the enforcement of remedies would
undermine the tradition of co-operation between the judiciary and the other
branches of government.
10
Freeman J.A. dissented. In his view, LeBlanc J.’s order was not final
and the judge was not functus officio until the continuing supervision
was completed; the trial judge was able to keep his decision from being final
simply by declaring that he was doing so. Freeman J.A. referred to the order
as a “creative blending of declaratory and injunctive relief with a means of
mediation” and found it to be “of the very essence of the kind of remedy courts
are encouraged to seek pursuant to s. 24(1) to give life to Charter
rights” (para. 70). He noted that requiring fresh applications by the parties
each time the Province or the Conseil appeared not to be using its best efforts
could have dragged matters out interminably, and would have left the matter to
a judge with less familiarity with the issues and legal principles involved.
Freeman J.A. concluded that the order, meant to “head off the potential for an
enforcement nightmare”, “got the job done, virtually on time, with a minimum of
inconvenience or unnecessary cost” (para. 84).
II. Issues
11
A preliminary issue raised by the respondent is whether the Court should
decline to hear this appeal because it is moot.
12
The main issue in the appeal is simply this: having found a violation of
s. 23 of the Charter and having ordered that the Province make its
best efforts to provide homogeneous French-language facilities and programs by
particular dates, did the Nova Scotia Supreme Court have the authority to
retain jurisdiction to hear reports from the Province on the status of those
efforts as part of its remedy under s. 24(1) of the Charter ?
13
Strictly speaking, only the retention of jurisdiction to hear reports,
and not the “best efforts” order itself, is at issue in the present appeal.
Nonetheless, the best efforts order and the retention of jurisdiction were
conceived by the trial judge as two complementary parts of a whole. A full
appreciation of the balance and moderation of the trial judge’s approach to
crafting this remedy requires that the reports respecting the respondents’
compliance with the order be viewed and evaluated in the context of the remedy
as a whole.
III. Charter Provisions
14
LeBlanc J.’s order was designed to remedy a breach of s. 23 of the Charter
which provides:
23. (1) Citizens of Canada
(a) whose first language learned and still understood is that of
the English or French linguistic minority population of the province in which
they reside, or
(b) who have received their primary school instruction in Canada
in English or French and reside in a province where the language in which they
received that instruction is the language of the English or French linguistic
minority population of the province,
have the right to have their children receive primary and secondary
school instruction in that language in that province.
(2) Citizens of Canada of whom any child has
received or is receiving primary or secondary school instruction in English or
French in Canada, have the right to have all their children receive primary and
secondary school instruction in the same language.
(3) The right of citizens of Canada under
subsections (1) and (2) to have their children receive primary and secondary
school instruction in the language of the English or French linguistic minority
population of a province
(a) applies wherever in the province the number of children of
citizens who have such a right is sufficient to warrant the provision to them out
of public funds of minority language instruction; and
(b) includes, where the number of those children so warrants,
the right to have them receive that instruction in minority language
educational facilities provided out of public funds.
15
LeBlanc J. ordered the remedy challenged in this case pursuant to s.
24(1) of the Charter which provides:
24. (1) 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.
IV. Analysis
A. Mootness
16
Before considering the main issue in this case, it is necessary to
consider the respondent’s argument that this appeal should not be heard because
it is moot.
17
The doctrine of mootness reflects the principle that courts will only
hear cases that will have the effect of resolving a live controversy which will
or may actually affect the rights of the parties to the litigation except when
the courts decide, in the exercise of their discretion, that it is nevertheless
in the interest of justice that the appeal be heard (see Borowski v. Canada
(Attorney General), [1989] 1 S.C.R. 342, at p. 353). In our view, the
instant appeal is moot. The parties attended several reporting hearings,
presented evidence and allowed the deponents of affidavits to be
cross-examined. The desired effect has been achieved: the schools at issue have
been built. Restoring the validity of the trial judge’s order would have no
practical effect for the litigants in this case and no further reporting
sessions are necessary.
18
Although this appeal is moot, the considerations in Borowski, supra,
suggest that it should be heard. Writing for the Court, Sopinka J. outlined
the following criteria for courts to consider in exercising discretion to hear
a moot case (at pp. 358-63):
(1) the presence of an adversarial context;
(2) the concern for judicial economy; and
(3) the need for the Court to be sensitive to its role as the
adjudicative branch in our political framework.
19
In this case, the appropriate adversarial context persists. The
litigants have continued to argue their respective sides vigorously.
20
As to the concern for conserving scarce judicial resources, this Court
has many times noted that such an expenditure is warranted in cases that raise
important issues but are evasive of review (Borowski, supra, at
p. 360; International Brotherhood of Electrical Workers, Local Union 2085 v.
Winnipeg Builders’ Exchange, [1967] S.C.R. 628; New Brunswick (Minister
of Health and Community Services) v. G. (J.), [1999] 3 S.C.R. 46). The
present appeal raises an important question about the jurisdiction of superior
courts to order what may be an effective remedy in some classes of cases. To
the extent that the reporting order is effective, it will tend to evade review
since parties may rapidly comply with orders before an appeal is heard.
21
Moreover, in deciding whether to hear a moot case, courts must weigh the
expenditure of scarce judicial resources against “the social cost of continued
uncertainty in the law” (Borowski, supra, at p. 361). The social
cost of uncertainty as to the available Charter remedies is high. The Charter
is designed to protect those who are most vulnerable to the dangers of majority
rule; this aspect of the Charter ’s purpose is evident in the provisions
protecting official minority language education rights. If the Court leaves
this matter undecided and courts are left under a misapprehension as to the
tools available to ensure that government behaviour conforms with the Charter ,
the obvious danger is less than full protection of Charter rights. Thus,
the expenditure of judicial resources is warranted in the present case despite
the fact that the appeal may be moot. The decision of this Court will provide
guidance on the important question of the nature and extent of remedies under
s. 24 of the Charter in similar cases.
22
Finally, the Court is neither departing from its traditional role as an
adjudicator nor intruding upon the legislative or executive sphere by deciding
to hear this case (Borowski, supra, at p. 362). The question of
what remedies are available under the Charter falls squarely within the
expertise of the Court and is not susceptible to legislative or executive
pronouncement. Furthermore, unlike in Borowski, supra, at p.
365, the appellants are not seeking an answer to an abstract question on the
interpretation of the Charter ; they are not “turn[ing] this appeal into
a private reference”. The Attorney General of Nova Scotia appealed
successfully against an order made against it by a superior court. Although
the immediate grievances of the appellants have now been addressed, deciding in
this case will assist the parties to this action, and others in similar
circumstances, in their ongoing relationships.
B. The Retention of Jurisdiction
(1) The Importance of Context: Sections 23
and 24 of the Charter
23
It is well accepted that the Charter should be given a generous
and expansive interpretation and not a narrow, technical, or legalistic one (Hunter
v. Southam Inc., [1984] 2 S.C.R. 145; R. v. Big M Drug Mart Ltd.,
[1985] 1 S.C.R. 295; Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486; Reference
re Prov. Electoral Boundaries (Sask.), [1991] 2 S.C.R. 158; Vriend v.
Alberta, [1998] 1 S.C.R. 493). The need for a generous interpretation flows
from the principle that the Charter ought to be interpreted purposively.
While courts must be careful not to overshoot the actual purposes of the Charter ’s
guarantees, they must avoid a narrow, technical approach to Charter
interpretation which could subvert the goal of ensuring that right holders
enjoy the full benefit and protection of the Charter . In our view, the
approach taken by our colleagues 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.
24
The requirement of a generous and expansive interpretive approach holds
equally true for Charter remedies as for Charter rights (R. v.
Gamble, [1988] 2 S.C.R. 595; R. v. Sarson, [1996] 2 S.C.R.
223; R. v. 974649 Ontario Inc., [2001] 3 S.C.R. 575, 2001 SCC 81 (“Dunedin”)).
In Dunedin, McLachlin C.J., writing for the Court, explained why this is
so. She stated, at para. 18:
[Section] 24(1), like all Charter provisions, commands a broad
and purposive interpretation. This section forms a vital part of the Charter ,
and must be construed generously, in a manner that best ensures the attainment
of its objects . . . . Moreover, it is remedial, and hence
benefits from the general rule of statutory interpretation that accords
remedial statutes a “large and liberal” interpretation . . . .
Finally, and most importantly, the language of this provision appears to confer
the widest possible discretion on a court to craft remedies for violations of Charter
rights. In Mills, McIntyre J. observed at p. 965 that “[i]t is
difficult to imagine language which could give the court a wider and less
fettered discretion”. This broad remedial mandate for s. 24(1) should not be
frustrated by a “(n)arrow and technical” reading of the provision . .
. . [Reference omitted.]
25
Purposive interpretation means that remedies provisions must be
interpreted in a way that provides “a full, effective and meaningful remedy for
Charter violations” since “a right, no matter how expansive in theory,
is only as meaningful as the remedy provided for its breach” (Dunedin, supra,
at paras. 19-20). A purposive approach to remedies in a Charter context
gives modern vitality to the ancient maxim ubi jus, ibi remedium: where
there is a right, there must be a remedy. More specifically, a purposive
approach to remedies requires at least two things. First, the purpose of the
right being protected must be promoted: courts must craft responsive
remedies. Second, the purpose of the remedies provision must be promoted:
courts must craft effective remedies.
26
The purpose of s. 23 of the Charter is “to preserve and promote
the two official languages of Canada, and their respective cultures, by
ensuring that each language flourishes, as far as possible, in provinces where
it is not spoken by the majority of the population” (Mahe v. Alberta,
[1990] 1 S.C.R. 342, at p. 362). Minority language education rights are the
means by which the goals of linguistic and cultural preservation are achieved
(see Reference re Public Schools Act (Man.), s. 79(3), (4) and (7),
[1993] 1 S.C.R. 839, at p. 849-50 (“Schools Reference”)). This Court
has, on a number of occasions, observed the close link between language and
culture. In Mahe, at p. 362, Dickson C.J. stated:
. . . any broad guarantee of language rights, especially in
the context of education, cannot be separated from a concern for the culture
associated with the language. Language is more than a mere means of
communication, it is part and parcel of the identity and culture of the people
speaking it. It is the means by which individuals understand themselves and the
world around them.
27
A further aspect of s. 23 of the Charter is its remedial nature
(see, for example, Mahe, supra, at p. 363; Schools Reference,
supra, at p. 850; Arsenault-Cameron v. Prince Edward Island,
[2000] 1 S.C.R. 3, 2000 SCC 1, at para. 26). The section is 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 (Mahe, supra, at p. 363; Schools Reference, supra,
at p. 850). Section 23 must therefore be construed “in recognition of previous
injustices that have gone unredressed and which have required the entrenchment
of protection of minority language rights” (Schools Reference, at p.
850; see also Arsenault-Cameron, supra, at para. 27). This Court
has made it clear that the fact that language rights arose from political
compromise does not alter their nature and importance; consequently, s. 23 must
be given the same large and liberal interpretation as all Charter rights
(R. v. Beaulac, [1999] 1 S.C.R. 768, at para. 25; Arsenault-Cameron,
supra, at para. 27).
28
The minority language education rights protected under s. 23 of the Charter
are unique. They are distinctively Canadian, representing “a linchpin in this
nation’s commitment to the values of bilingualism and biculturalism” (Mahe,
supra, at p. 350). Section 23 places positive obligations on
governments to mobilize resources and enact legislation for the development of
major institutional structures (Mahe, at p. 389). While the rights are
granted to individuals (Schools Reference, at p. 865), they apply only
if the “numbers warrant”, and the specific programs or facilities that the
government is required to provide varies depending on the number of students
who can potentially be expected to participate (Mahe, supra, at
p. 366; Schools Reference, supra, at p. 850; Arsenault-Cameron,
supra, at para. 38). This requirement gives the exercise of minority
language education rights a unique collective aspect even though the rights are
granted to individuals.
29
Another distinctive feature of the right in s. 23 is that the “numbers
warrant” requirement leaves minority language education rights particularly
vulnerable to government delay or inaction. For every school year that
governments do not meet their obligations under s. 23 , there is an increased
likelihood of assimilation which carries the risk that numbers might cease to
“warrant”. Thus, particular entitlements afforded under s. 23 can be suspended,
for so long as the numbers cease to warrant, by the very cultural erosion
against which s. 23 was designed to guard. In practical, though not legal,
terms, such suspensions may well be permanent. If delay is tolerated,
governments could potentially avoid the duties imposed upon them by s. 23
through their own failure to implement the rights vigilantly. The affirmative
promise contained in s. 23 of the Charter and the critical need for
timely compliance will sometimes require courts to order affirmative remedies
to guarantee that language rights are meaningfully, and therefore necessarily
promptly, protected (see, for example, Marchand v. Simcoe County Board of
Education (1986), 29 D.L.R. (4th) 596 (Ont. H.C.); Marchand v. Simcoe
County Board of Education (No. 2) (1987), 44 D.L.R. (4th) 171 (Ont. H.C.); Lavoie
v. Nova Scotia (Attorney-General) (1988), 47 D.L.R. (4th) 586
(N.S.S.C.T.D.); Conseil des Écoles Séparées Catholiques Romaines de Dufferin
et Peel v. Ontario (Ministre de l’Éducation et de la Formation) (1996), 136
D.L.R. (4th) 704 (Ont. Ct. (Gen. Div.)), aff’d (1996), 30 O.R. (3d) 681 (C.A.);
Conseil Scolaire Fransaskois de Zenon Park v. Saskatchewan, [1999] 3
W.W.R. 743 (Sask. Q.B.), aff’d [1999] 12 W.W.R. 742 (Sask. C.A.); Assoc.
Française des Conseils Scolaires de l’Ontario v. Ontario (1988), 66 O.R.
(2d) 599 (C.A.); Assn. des parents francophones de la Colombie-Britannique
v. British Columbia (1998), 167 D.L.R. (4th) 534 (B.C.S.C.)).
30
To put the matter of judicial remedies in greater context, it is useful
to reflect briefly on the role of courts in the enforcement of our laws.
31
Canada has evolved into a country that is noted and admired for its
adherence to the rule of law as a major feature of its democracy. But the rule
of law can be shallow without proper mechanisms for its enforcement. In this
respect, courts play an essential role since they are the central institutions
to deal with legal disputes through the rendering of judgments and decisions.
But courts have no physical or economic means to enforce their judgments.
Ultimately, courts depend on both the executive and the citizenry to recognize
and abide by their judgments.
32
Fortunately, Canada has had a remarkable history of compliance with
court decisions by private parties and by all institutions of government. That
history of compliance has become a fundamentally cherished value of our
constitutional democracy; we must never take it for granted but always be
careful to respect and protect its importance, otherwise the seeds of tyranny
can take root.
33
This tradition of compliance takes on a particular significance in the
constitutional law context, where courts must ensure that government behaviour
conforms with constitutional norms but in doing so must also be sensitive to
the separation of function among the legislative, judicial and executive branches.
While our Constitution does not expressly provide for the separation of powers
(see Re Residential Tenancies Act, 1979, [1981] 1 S.C.R. 714, at p. 728;
Douglas/Kwantlen Faculty Assn. v. Douglas College, [1990] 3 S.C.R. 570,
at p. 601; Reference re Secession of Quebec, [1998] 2 S.C.R. 217, at
para. 15), the functional separation among the executive, legislative and
judicial branches of governance has frequently been noted. (See, for example, Fraser
v. Public Service Staff Relations Board, [1985] 2 S.C.R. 455, at pp.
469-70.) In New Brunswick Broadcasting Co. v. Nova Scotia (Speaker of the
House of Assembly), [1993] 1 S.C.R. 319, McLachlin J. (as she then was)
stated, at p. 389:
Our democratic government consists of several branches: the Crown, as
represented by the Governor General and the provincial counterparts of that
office; the legislative body; the executive; and the courts. It is fundamental
to the working of government as a whole that all these parts play their proper
role. It is equally fundamental that no one of them overstep its bounds, that
each show proper deference for the legitimate sphere of activity of the other.
34
In other words, in the context of constitutional remedies, courts must
be sensitive to their role as judicial arbiters and not fashion remedies which
usurp the role of the other branches of governance by taking on tasks to which
other persons or bodies are better suited. Concern for the limits of the
judicial role is interwoven throughout the law. The development of the doctrines
of justiciability, and to a great extent mootness, standing, and ripeness
resulted from concerns about the courts overstepping the bounds of the judicial
function and their role vis-à-vis other branches of government.
35
In addition, it is unsurprising, given how the Charter changed
the nature of our constitutional structure by requiring that all laws and
government action conform to the Charter , that concerns about the limits
of the judicial role have animated much of the Charter jurisprudence and
commentary surrounding it (see, for example, K. Roach, The Supreme Court on
Trial: Judicial Activism or Democratic Dialogue (2001); C. P. Manfredi, Judicial
Power and the Charter: Canada and the Paradox of Liberal Constitutionalism
(1993); F. L. Morton and R. Knopff, The Charter Revolution and the Court
Party (2000); A. Petter, “The Politics of the Charter ” (1986), 8 Supreme
Court L.R. 473). Thus, in Vriend, supra, this Court stated,
at para. 136:
In carrying out their duties, courts are not to second-guess
legislatures and the executives; they are not to make value judgments on what
they regard as the proper policy choice; this is for the other branches.
Rather, the courts are to uphold the Constitution and have been expressly
invited to perform that role by the Constitution itself. But respect by the
courts for the legislature and executive role is as important as ensuring that
the other branches respect each others’ role and the role of the courts.
36
Deference ends, however, where the constitutional rights that the courts
are charged with protecting begin. As McLachlin J. stated in RJR‑MacDonald
Inc. v. Canada (Attorney General), [1995] 3 S.C.R. 199, at para. 136:
Parliament has its role: to choose the appropriate
response to social problems within the limiting framework of the Constitution.
But the courts also have a role: to determine, objectively and impartially,
whether Parliament’s choice falls within the limiting framework of the
Constitution. The courts are no more permitted to abdicate their
responsibility than is Parliament.
Determining
the boundaries of the courts’ proper role, however, cannot be reduced to a
simple test or formula; it will vary according to the right at issue and the
context of each case.
37
Returning to this appeal, we believe that LeBlanc J. was duly guided by historical and contextual
factors in crafting a remedy that would meaningfully protect, indeed implement,
the applicants’ rights to minority
official language education for their children while maintaining
appropriate respect for the proper roles of the executive and legislative
branches.
38
As indicated earlier, the history of French-language education in Nova
Scotia has been disappointing, resulting in high rates of assimilation that
have continued well into the period when this litigation began. While the
situation is not what it was in the eighteenth and nineteenth centuries when
French-language education in Acadia was for the most part either expressly
prohibited or unavailable, the promise of s. 23 had yet to be fulfilled in the
five school districts at issue in this appeal when the appellants brought their
application demanding homogeneous French-language facilities before the Supreme
Court of Nova Scotia in 1998. Through the mid-1990s, s. 23 parents had
pressured the government to provide homogeneous French-language facilities in
presentations to Legislative Committees and in written and oral submissions to
Ministers of Education. They had submitted petitions, letters, and expert
analyses on assimilation to the Province. In 1996, amendments to the Education
Act provided for a French-language school board, the Conseil scolaire
acadien provincial, geared toward the fulfilment of the Province’s s. 23
obligations. The school board then decided to provide the facilities at issue
in this appeal. From 1997 to 1999, the provincial government announced the
construction of homogeneous French-language schools in Petit-de-Grat, Clare,
and Argyle. The schools were never built, and the construction projects were
officially put on hold in September 1999.
39
The reason for the delay, broadly speaking, was the government’s failure
to give due priority to s. 23 rights in educational policy setting. Indeed,
LeBlanc J. observed that the real issue between the parties by the time of
trial was the date on which the programs ought to be implemented, rather than
any question as to whether they were required in the first place. The
government cited a lack of consensus in the community, a consequent fear that
enrollment would drop, and lack of funds as reasons for its decision to place
the previously announced school construction projects on hold pending
cost-benefit reviews. LeBlanc J. rightly concluded that none of these reasons
justified the government’s failure to fulfill its obligations under s. 23 . He
found that the government had been treating the provision of s. 23 schools no
differently from programs or facilities generally, without attention to purposes
of s. 23 of the Charter and the role that homogeneous schools play in
French linguistic and cultural preservation and flourishing (para. 205).
Meanwhile, assimilation continued (para. 210) and enrollment in the Conseil’s
schools was dropping. Programs were in jeopardy (paras. 229-30).
40
It is in this urgent context of ongoing cultural erosion that LeBlanc J.
crafted his remedy. He was sensitive to the need for timely execution, the
limits of the judicial role, and the desirability of allowing the government
flexibility in the manner of fulfilling its constitutional obligations when he
ordered the government to make best efforts to provide facilities by particular
dates and retained jurisdiction to hear progress reports. However, the urgency
of the context does not by itself create jurisdiction in a superior court to
issue a remedy of unlimited scope under s. 24(1) of the Charter . We now
turn to the question of whether LeBlanc J.’s order was within the jurisdiction
of a superior court.
(2) The Jurisdiction of a Superior Court to
Issue a Remedy Under Section 24(1) of the Charter
41
Section 24(1) entrenches in the Constitution a remedial jurisdiction for
infringements or denials of Charter rights and freedoms. The respondent
makes various arguments suggesting that LeBlanc J. exceeded his jurisdiction by
violating constitutional norms, statutory provisions, and common law rules. We
will first deal with the extent of the remedial jurisdiction in s. 24(1) and
the constitutional limits to that jurisdiction proposed by the respondent.
Later we will discuss how statutes and common law rules might be relevant to
the choice of remedy under s. 24(1) .
42
Clearly, if there is some constitutional limit to the remedial power
either in s. 24(1) or in some other part of the Constitution, the judge
ordering a remedy must respect this boundary. As a basic rule, no part of the
Constitution can abrogate or diminish another part of the Constitution (New
Brunswick Broadcasting, supra, at p. 373, McLachlin J. citing Reference
re Bill 30, An Act to amend the Education Act (Ont.), [1987] 1 S.C.R.
1148). For example, a court could not compel a provincial government to do
something pursuant to s. 24(1) which would exceed the jurisdiction of the
province under s. 92 of the Constitution Act, 1867 .
43
A remedy under s. 24(1) is available where there is some government
action, beyond the enactment of an unconstitutional statute or provision, that
infringes a person’s Charter rights (see Schachter v. Canada,
[1992] 2 S.C.R. 679, at pp. 719-20). In the present appeal, the difficulty does
not lie with the legislation: no provision or omission in the Education Act prevented
the government from providing minority language education as required by the Constitution
Act, 1982 . On the contrary, the Education Act, as amended in 1996,
establishes a French-language school board to provide homogeneous
French-language education to children of s. 23 entitled parents. Neither is
the problem rooted in any particular government action; rather, the problem was
inaction on the part of the provincial government, particularly its
failure to mobilize resources to provide school facilities in a timely fashion,
as required by s. 23 of the Charter . Section 24(1) is available to
remedy this failure.
44
To repeat its text, s. 24(1) of the Charter 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.
45
The purposive reading of s. 24(1) and also the ordinary meaning of the
drafter’s language make it clear that s. 24(1) guarantees that there must
always be a court of competent jurisdiction to hear anyone whose rights or
freedoms have been infringed or denied (see Nelles v. Ontario, [1989] 2
S.C.R. 170, at p. 196, and Mills, supra, at p. 881). The default
court of competent jurisdiction is a superior court established under s. 96 of
the Constitution Act, 1867 . It is also plainly contemplated in s. 24(1)
that a court of competent jurisdiction will have the authority to grant a
remedy that it considers appropriate and just in the circumstances.
46
The respondent Attorney General of Nova Scotia suggested that Re
Residential Tenancies Act, 1979, supra, and other cases which
describe the functions of courts in the context of s. 96 should be read as
setting limits on superior courts’ remedial power. With respect, that
submission must fail. It is true that in Re Residential Tenancies Act, 1979,
at pp. 734-35, Dickson J. (as he then was) discussed the nature of the
“judicial function” of s. 96 courts. But this discussion occured in the context
of a s. 96 challenge to the validity of a statute conferring jurisdiction on an
administrative tribunal. Section 96 protects a “core” of superior courts’
jurisdiction from being transferred exclusively to provincial inferior courts
or administrative tribunals (MacMillan Bloedel Ltd. v. Simpson, [1995] 4
S.C.R. 725, at para. 15, per Lamer C.J.). These cases safeguarding a
core do not trace the limits of superior courts’ jurisdiction. There is nothing
in s. 96 to limit the inherent jurisdiction of the superior courts or the
jurisdiction that can be conferred on them by statute (Reference re Young
Offenders Act (P.E.I.), [1991] 1 S.C.R. 252, at p. 274) and, a fortiori,
nothing to limit the jurisdiction of a superior court under s. 24(1) of the Charter .
47
In a similar vein, the respondent Attorney General suggests that this
Court’s decisions in Mills and Dunedin, both supra, which
set out a framework for determining when a court or tribunal is competent to
grant remedies under s. 24(1) of the Charter , deny the availability of
the remedy ordered in this case. In our opinion, this submission rests on a
mistaken view of the source of superior courts’ power to grant Charter
remedies.
48
In Mills, the Court considered whether a preliminary hearing
magistrate given jurisdiction by particular provisions of the Criminal Code
was a court of competent jurisdiction for the purposes of entering a stay of
proceedings under s. 24(1) of the Charter . The unanimous conclusion of
the Court was that a magistrate sitting at preliminary hearing was not
competent to provide that remedy. McIntyre J., speaking for the majority on
this point, emphasized the limited function of a court sitting in preliminary
inquiry, which is to commit the accused to trial where there is sufficient
evidence, or discharge the accused where there is not. The role does not
include entering acquittals or convictions, imposing penalties, or giving
remedies. As such, remedies under s. 24(1) could not be granted by that
tribunal. Subsequent cases applying Mills, including Dunedin, supra,
Mooring v. Canada (National Parole Board), [1996] 1 S.C.R. 75, and Weber
v. Ontario Hydro, [1995] 2 S.C.R. 929, considered whether administrative
tribunals or judges acting under statutory authority had the power to issue
particular Charter remedies under s. 24(1) . In each case, the analysis
was directed at discerning what kinds of powers the legislator intended the
tribunal to exercise in light of the purposes of the Charter as well as
the tribunal’s function and the practical limits imposed by its structure. This
analysis has no application to s. 96 courts which are, of course, not creatures
of statute but courts of general inherent jurisdiction.
49
Thus, when McIntyre J. wrote in Mills, supra, at p. 953,
that “the Charter was not intended to turn the Canadian legal system upside
down”, he meant that s. 24(1) did not confer new jurisdiction on statutory and
inferior tribunals beyond that which was intended by the legislator as
reflected in the tribunal’s function and the practical limits imposed by its
structure. The test set out in Mills does not apply to superior courts
since, as McIntyre J. pointed out, a superior court will always be a court of
competent jurisdiction under s. 24(1) of the Charter (Mills, supra,
at p. 956). Superior courts retain “constant, complete and concurrent
jurisdiction” to issue remedies under s. 24(1) (see R. v. Rahey, [1987]
1 S.C.R. 588, at pp. 603-4, citing Mills, supra, at p. 892, and R.
v. Smith, [1989] 2 S.C.R. 1120, at pp. 1129-30).
50
The foregoing analysis does not preclude review on appeal of a superior
court’s choice of remedy under s. 24(1) . Rather, it simply forecloses the
argument that a given remedy under s. 24 is unavailable in a superior court
because of the constitutional limitations on its jurisdiction as proposed by
the respondent. The nature and extent of remedies available under s. 24(1)
remain limited by the words of the section itself and must be read in harmony
with the rest of our Constitution. As McIntyre J. wrote in Mills, supra,
at p. 965:
What remedies are available when an application
under s. 24(1) of the Charter succeeds? Section 24(1) again is silent on
the question. It merely provides that the appellant may obtain such remedy as
the court considers “appropriate and just in the circumstances”. It is difficult
to imagine language which could give the court a wider and less fettered
discretion. It is impossible to reduce this wide discretion to some sort of
binding formula for general application in all cases, and it is not for
appellate courts to pre‑empt or cut down this wide discretion.
McLachlin C.J.
recently endorsed this passage in Dunedin, supra, at para. 18.
Consequently, a party seeking to challenge a Charter remedy ordered by a
s. 96 court must show that the order is not “appropriate and just in the
circumstances”.
51
The power of the superior courts under s. 24(1) to make appropriate and
just orders to remedy infringements or denials of Charter rights is part
of the supreme law of Canada. It follows that this remedial power cannot be
strictly limited by statutes or rules of the common law. We note, however,
that statutes and common law rules may be helpful to a court choosing a remedy
under s. 24(1) insofar as the statutory provisions or common law rules express
principles that are relevant to determining what is “appropriate and just in
the circumstances”.
(3) The Meaning of “Appropriate and Just in
the Circumstances”
52
What, then, is meant in s. 24(1) by the words “appropriate and just in
the circumstances”? Clearly, the task of giving these words meaning in
particular cases will fall to the courts ordering the remedies since s. 24(1)
specifies that the remedy should be such as the court considers
appropriate and just. Deciding on an appropriate and just remedy in particular
circumstances calls on the judge to exercise a discretion based on his or her
careful perception of the nature of the right and of the infringement, the
facts of the case, and the application of the relevant legal principles. Once
again, we emphasize McIntyre J.’s words in Mills, supra, at p.
965:
It is difficult to imagine language which could give the court a wider
and less fettered discretion. It is impossible to reduce this wide discretion
to some sort of binding formula for general application in all cases, and it is
not for appellate courts to pre‑empt or cut down this wide discretion.
53
With respect, the approach to s. 24 reflected in the reasons of LeBel
and Deschamps JJ. would tend to pre-empt and reduce this wide discretion.
Their approach would also, in this case, pre-empt and devalue the
constitutional promise respecting language rights in s. 23 . In our view,
judicial restraint and metaphors such as “dialogue” must not be elevated to the
level of strict constitutional rules to which the words of s. 24 can be
subordinated. The same may be said of common law procedural principles such as
functus officio which may to some extent be incorporated in statutes.
Rather, as LeBel and Deschamps JJ. appear to recognize at paras. 135 and
following, there are situations in which our Constitution requires
special remedies to secure the very order it envisages.
54
While it would be unwise at this point to attempt to define, in detail,
the words “appropriate and just” or to draw a rigid distinction between the two
terms, there are some broad considerations that judges should bear in mind
when evaluating the appropriateness and justice of a potential remedy. These
general principles may be informed by jurisprudence relating to remedies
outside the Charter context, such as cases discussing the doctrine of functus
and overly vague remedies, although, as we have said, that jurisprudence does
not apply strictly to orders made under s. 24(1) .
55
First, an appropriate and just remedy in the circumstances of a Charter
claim is one that meaningfully vindicates the rights and freedoms of the
claimants. Naturally, this will take account of the nature of the right that
has been violated and the situation of the claimant. A meaningful remedy must
be relevant to the experience of the claimant and must address the
circumstances in which the right was infringed or denied. An ineffective
remedy, or one which was “smothered in procedural delays and difficulties”, is
not a meaningful vindication of the right and therefore not appropriate and
just (see Dunedin, supra, at para. 20, McLachlin C.J. citing Mills,
supra, at p. 882, per Lamer J. (as he then was)).
56
Second, an appropriate and just remedy must employ means that are
legitimate within the framework of our constitutional democracy. As discussed
above, a court ordering a Charter remedy must strive to respect the
relationships with and separation of functions among the legislature, the
executive and the judiciary. This is not to say that there is a bright line
separating these functions in all cases. A remedy may be appropriate and just notwithstanding
that it might touch on functions that are principally assigned to the
executive. The essential point is that the courts must not, in making orders
under s. 24(1) , depart unduly or unnecessarily from their role of adjudicating
disputes and granting remedies that address the matter of those disputes.
57
Third, an appropriate and just remedy is a judicial one which vindicates
the right while invoking the function and powers of a court. It will not be
appropriate for a court to leap into the kinds of decisions and functions for
which its design and expertise are manifestly unsuited. The capacities and
competence of courts can be inferred, in part, from the tasks with which they
are normally charged and for which they have developed procedures and
precedent.
58
Fourth, an appropriate and just remedy is one that, after ensuring that
the right of the claimant is fully vindicated, is also fair to the party
against whom the order is made. The remedy should not impose substantial
hardships that are unrelated to securing the right.
59
Finally, it must be remembered that s. 24 is part of a constitutional
scheme for the vindication of fundamental rights and freedoms enshrined in the Charter .
As such, s. 24 , because of its broad language and the myriad of roles it may
play in cases, should be allowed to evolve to meet the challenges and
circumstances of those cases. That evolution may require novel and creative
features when compared to traditional and historical remedial practice because
tradition and history cannot be barriers to what reasoned and compelling
notions of appropriate and just remedies demand. In short, the judicial
approach to remedies must remain flexible and responsive to the needs of a
given case.
(4) Application to this Case: the Remedy
Ordered by the Trial Judge Was Appropriate and Just in the Circumstances
(a) The Reporting Order Effectively Vindicated the Rights of the
Parents
60
LeBlanc J. exercised his discretion to select an effective remedy that
meaningfully vindicated the s. 23 rights of the appellants in the context of
serious rates of assimilation and a history of delay in the provision of
French-language education in Kingston (Greenwood, Chéticamp, Île Madame-Arichat
(Petit-de-Grat), Argyle, and Clare). The facts as found by LeBlanc J.
disclosed that continued delay could imperil the already vulnerable s. 23
rights, their exercise depending as it does on the numbers of potential
students. As Freeman J.A. noted in dissent in the Court of Appeal, the
reporting hearings were aimed at identifying difficulties with the timely
implementation of the trial judge’s order as they arose, instead of requiring
fresh applications by the appellants every time it appeared that a party was
not using its best efforts to comply with the judge’s order.
61
In the absence of reporting hearings, the appellant parents would have
been forced to respond to any new delay by amassing a factual record by
traditional means disclosing whether the parties were nonetheless using their
best efforts. A new proceeding would be required and this might be heard by
another judge less familiar with the case than LeBlanc J. All of this would
have taken significant time and resources from parents who had already waited
too long and dedicated much energy to the cause of realizing their s. 23
rights. The order of reporting hearings was, as Freeman J.A. wrote “a
pragmatic approach to getting the job done expeditiously” (para. 74). LeBlanc
J.’s order is a creative blending of remedies and processes already known to
the courts in order to give life to the right in s. 23 .
62
In assessing the extent to which LeBlanc J.’s remedy was appropriate and
just in the circumstances, it is useful to examine the options before the trial
judge. In doing so we are not intending to usurp the role and discretion of the
trial judge but only to gain a fuller understanding of the situation he faced.
LeBlanc J. could have limited the remedy to a declaration of the rights of the
parties, as the Court considered prudent in Mahe, supra, at pp.
392-93. In Mahe, however, the primary issues before the Court concerned
the scope and content of s. 23 of the Charter , including the degree of
management of control of schools to be accorded to s. 23 parents, and the
determination of when the numbers are sufficient to warrant given programs and
facilities. After clarifying the content and scope of the s. 23 rights at
issue, the Court chose the remedy of ordering a declaration of those rights. It
did so to allow the government the greatest flexibility to fashion a response
suited to the circumstances (p. 393). The assumption underlying this choice of
remedy is that governments will comply with the declaration promptly and fully.
63
After Mahe, litigation to vindicate minority language education
rights has entered a new phase. The general content of s. 23 in many cases is
now largely settled (Mahe, Schools Reference, Arsenault-Cameron,
all supra). In the present case, for example, it was clear to and
accepted by the parties from the start that the government was required to
provide the homogeneous French-language facilities at issue. The entitled
parents sought the assistance of the court in enforcing the full and prompt
vindication of their rights after a lengthy history of government inaction.
64
Our colleagues LeBel and Deschamps JJ. state at para. 140 of their
reasons that the trial judge was not faced with a government which had
understood its obligations but refused to comply with them. Our colleagues
suggest that there was some issue as to what s. 23 demanded in the situation.
With respect, this portrayal is directly at odds with the findings of fact made
by the trial judge. At para. 198 of his reasons, the trial judge wrote:
It is apparent that the real issue between the
parties is the date on which these programs and facilities are to be
implemented. The Department, in its submissions, does not challenge the
applicants’ right and entitlement to these programs and facilities but point [sic]
to a number of factors which ought to satisfy the applicants. The Conseil
opposes the applicants’ claim for an earlier implementation of the transition
plan but supports the applicants in its [sic] demand for declaration
that the Department ought to be directed to provide homogeneous facilities.
65
LeBlanc J. further noted that the Department of Education did not
provide either statistical or financial evidence with respect to the “numbers
warrant” test and that, in any case, the number of children of s. 23 parents
were greater than the number in the case of Mahe, supra, decided
by this Court (paras. 200-201). Instead, the government argued at trial that
it should be allowed to delay its obligations because of a lack of consensus in
the Acadian and Francophone communities (para. 202) and because the political
compromise in s. 23 required a “go-slowly approach” (para. 214). According to
the trial judge, the government did not deny the existence or content of the s.
23 rights of the parents but rather failed to prioritize those rights and
delayed fulfilling its obligations. The government “did not give sufficient
priority to the serious rate of assimilation occurring among Acadians and Francophones
in Nova Scotia and the fact that rights established in s. 23 are individual
rights” (para. 204) despite clear reports showing that assimilation was
“reaching critical levels” (para. 215). These are the findings of fact
which can only be made by a judge who has heard all the evidence at trial.
These findings are not on appeal and it is not open for appellate judges to
reverse these findings without proper justification. LeBlanc J. properly took
account of the factual circumstances within which he exercised his discretion
to select a remedy which was appropriate and just.
66
LeBlanc J. obviously considered that, given the Province’s failure to
give due priority to the s. 23 rights of its minority Francophone populations
in the five districts despite being well aware of them, there was a significant
risk that such a declaration would be an ineffective remedy. Parents such as
the appellants should not be forced continually to seek declarations that are
essentially restatements of the declaration in Mahe. Where governments
have failed to comply with their well-understood constitutional obligations to
take positive action in support of the right in s. 23 , the assumption
underlying a preference for declarations may be undermined. In Mahe, supra,
at p. 393, Dickson C.J. recognized this possibility:
As the Attorney General for Ontario submits, the government should have
the widest possible discretion in selecting the institutional means by which
its s. 23 obligations are to be met; the courts should be loath to interfere
and impose what will be necessarily procrustean standards, unless that
discretion is not exercised at all, or is exercised in such a way as to deny a
constitutional right. Once the Court has declared what is required in
Edmonton, then the government can and must do whatever is necessary to ensure
that these appellants, and other parents in their situation, receive what they
are due under s. 23 . [Emphasis added.]
This Court’s
judgment in Mahe speaks to all provincial and territorial governments.
LeBlanc J. was entitled to conclude that he was not limited to declaring the
appellant parents’ rights and could take into consideration that the case
before him was different from those in which declarations had been considered
appropriate and just.
67
Our colleagues LeBel and Deschamps JJ. suggest that the reporting order
in this case was not called for since any violation of a simple declaratory
remedy could be dealt with in contempt proceedings against the Crown. We do
not doubt that contempt proceedings may be available in appropriate cases. The
threat of contempt proceedings is not, in our view, inherently more respectful
of the executive than simple reporting hearings in which a linguistic minority
could discover in a timely way what progress was being made towards the
fulfilment of their s. 23 rights. More importantly, given the critical rate of
assimilation found by the trial judge, it was appropriate for him to grant a
remedy that would in his view lead to prompt compliance. Viewed in this light,
LeBlanc J. selected a remedy that reduced the risk that the minority language
education rights would be smothered in additional procedural delay.
(b) The Reporting Order Respected the
Framework of our Constitutional Democracy
68
The remedy granted by LeBlanc J. took into account, and did not depart
unduly or unnecessarily from, the role of the courts in our constitutional
democracy. LeBlanc J. considered the government’s progress toward providing
the required schools and services (see, e.g., paras. 233‑34). Some
flexibility was built into the “best efforts” order to allow for unforeseen
difficulties. It was appropriate for LeBlanc J. to preserve and reinforce the
Department of Education’s role in providing school facilities as mandated by s.
88 of the Education Act, as this could be done without compromising the
entitled parents’ rights to the prompt provision of school facilities.
69
To some extent, the legitimate role of the court vis‑à‑vis
various institutions of government will depend on the circumstances. In these
circumstances, it was appropriate for LeBlanc J. to craft the remedy so that it
vindicated the rights of the parents while leaving the detailed choices of
means largely to the executive.
70
Our colleagues LeBel and Deschamps JJ. appear to consider that the
issuance of an injunction against the government under s. 24(1) is
constitutionally suspect and represents a departure from a consensus about Charter
remedies (see para. 134 of the dissent). With respect, it is clear that a
court may issue an injunction under s. 24(1) of the Charter . The power
of courts to issue injunctions against the executive is central to s. 24(1) of
the Charter which envisions more than declarations of rights. Courts do
take actions to ensure that rights are enforced, and not merely declared.
Contempt proceedings in the face of defiance of court orders, as well as
coercive measures such as garnishments, writs of seizure and sale and the like
are all known to courts. In this case, it was open to the trial judge in all
the circumstances to choose the injunctive remedy on the terms and conditions
that he prescribed.
(c) The Reporting Order Called on the
Function and Powers of a Court
71
Although it may not be common in the context of Charter remedies,
the reporting order issued by LeBlanc J. was judicial in the sense that it
called on the functions and powers known to courts. In several different
contexts, courts order remedies that involve their continuing involvement in
the relations between the parties (see R. J. Sharpe, Injunctions and
Specific Performance (2nd ed. (loose‑leaf)), at paras. 1.260-1.490).
Superior courts, which under the Judicature Acts possess the powers of common
law courts and courts of equity, have “assumed active and even managerial roles
in the exercise of their traditional equitable powers” (K. Roach, Constitutional
Remedies in Canada (loose-leaf), at para. 13.60). A panoply of equitable
remedies are now available to courts in support of the litigation process and
the final adjudication of disputes. For example, prejudgment remedies
developed in such cases as Mareva Compania Naviera S.A. v. International
Bulkcarriers S.A., [1975] 2 Lloyd’s Rep. 509 (C.A.), and Anton Piller KG
v. Manufacturing Processes Ltd., [1976] 1 Ch. 55 (C.A.), involve the court
in the preservation of evidence and the management of parties’ assets prior to
trial. In bankruptcy and receivership matters, courts may be called on to
supervise fairly complex and ongoing commercial transactions relating to
debtors’ assets. Court-appointed receivers may report to and seek guidance from
the courts and in some cases must seek the permission of the courts before
disposing of property (see Bennett on Receiverships (2nd ed. 1999), at
pp. 21-37, 443-45). Similarly, the courts’ jurisdiction in respect of trusts
and estates may sometimes entail detailed and continuing supervision and
support of their administration (see D. W. M. Waters, Law of Trusts in
Canada (2nd ed. 1984), at pp. 904-9; Oosterhoff on Wills and Succession
(5th ed. 2001), at pp. 27-28). Courts may also retain an ongoing jurisdiction
in family law cases to order alterations in maintenance payments or parenting
arrangements as circumstances change. Finally, this Court has in the past
remained seized of a matter so as to facilitate the implementation of
constitutional language rights: see Reference re Manitoba Language Rights,
[1985] 1 S.C.R. 721; Re Manitoba Language Rights Order, [1985] 2 S.C.R.
347; Re Manitoba Language Rights Order, [1990] 3 S.C.R. 1417; Reference
re Manitoba Language Rights, [1992] 1 S.C.R. 212. Lower courts have also
retained jurisdiction in s. 23 cases: British Columbia (Association des
parents francophones) v. British Columbia (1996), 139 D.L.R. (4th) 356
(B.C.S.C.), at p. 380; Lavoie, supra, at pp. 593-95; Société
des Acadiens du Nouveau-Brunswick Inc. v. Minority Language School Board No. 50
(1983), 48 N.B.R. (2d) 361 (Q.B.), at para. 109.
72
The difficulties of ongoing supervision of parties by the courts have
sometimes been advanced as a reason that orders for specific performance and
mandatory injunctions should not be awarded. Nonetheless, courts of equity
have long accepted and overcome this difficulty of supervision where the
situations demanded such remedies (see Sharpe, supra, at paras.
1.260-1.380; Attorney-General v. Birmingham, Tame, and Rea District Drainage
Board, [1910] 1 Ch. 48 (C.A.), aff’d [1912] A.C. 788 (H.L.); Kennard v.
Cory Brothers and Co., [1922] 1 Ch. 265, aff’d [1922] 2 Ch. 1 (C.A.)).
73
As academic commentators have pointed out, the range of remedial orders
available to courts in civil proceedings demonstrates that constitutional remedies
involving some degree of ongoing supervision do not represent a radical break
with the past practices of courts (see W. A. Bogart, “‘Appropriate and Just’:
Section 24 of the Canadian Charter of Rights and Freedoms and the Question of
Judicial Legitimacy” (1986), 10 Dalhousie L.J. 81, at pp. 92-94; N.
Gillespie, “Charter Remedies: The Structural Injunction” (1989-90), 11 Advocates’
Q. 190, at pp. 217-18; Roach, Constitutional Remedies in Canada, supra,
at paras. 13.50-13.80; Sharpe, supra, at paras. 1.260-1.490). The
change announced by s. 24 of the Charter is that the flexibility
inherent in an equitable remedial jurisdiction may be applied to orders
addressed to government to vindicate constitutionally entrenched rights.
74
The order in this case was in no way inconsistent with the judicial
function. There was never any suggestion in this case that the court would,
for example, improperly take over the detailed management and co-ordination of
the construction projects. Hearing evidence and supervising cross-examinations
on progress reports about the construction of schools are not beyond the normal
capacities of courts.
75
The respondent argues that the reporting order issued by LeBlanc J.
violated the common law doctrine of functus officio. As we have said,
statutes or common law rules cannot strictly pre-empt the remedial discretion
in s. 24(1) . Nonetheless, the doctrine of functus officio properly
speaks to the functions and powers of courts. Therefore, an examination of the
functus question is useful in deciding whether LeBlanc J. issued an
order that is appropriately judicial.
76
Flinn J.A. for the majority in the Court of Appeal decided that the
trial judge, having issued the best efforts order, had no further jurisdiction
with respect to the parties and was therefore precluded from retaining
jurisdiction to hear reports on its implementation (para. 21). This view is
based on a mis-characterization of the reporting portion of the order as
somehow separate from and additional to the best efforts injunctions. On the
contrary, in our view, the reporting sessions formed an integral part of the
remedy fashioned by LeBlanc J. Moreover, the functus doctrine has no
application where the trial judge does not purport to alter a final judgment.
There was no indication that the retention of jurisdiction included any power
to alter the disposition of the case.
77
A closer examination of the doctrine is helpful. The Oxford Companion
to Law (1980), at p. 508, provides the following definition:
Functus officio (having performed his function). Used of an
agent who has performed his task and exhausted his authority and of an
arbitrator or judge to whom further resort is incompetent, his function being
exhausted.
78
But how can we know when a judge’s function is exhausted? Sopinka J.,
writing for the majority in Chandler v. Alberta Association of Architects,
[1989] 2 S.C.R. 848, at p. 860, described the purpose and origin of the
doctrine in the following words:
The general rule that a final decision of a court
cannot be reopened derives from the decision of the English Court of Appeal in In
re St. Nazaire Co. (1879), 12 Ch. D. 88. The basis for it was that the
power to rehear was transferred by the Judicature Acts to the appellate
division.
79
It is clear that the principle of functus officio exists to allow
finality of judgments from courts which are subject to appeal (see also Reekie
v. Messervey, [1990] 1 S.C.R. 219, at pp. 222-23). This makes sense: if a
court could continually hear applications to vary its decisions, it would
assume the function of an appellate court and deny litigants a stable base from
which to launch an appeal. Applying that aspect of the functus doctrine
to s. 23(1), we face the question of whether the ordering of progress reports
denied the respondents a stable basis from which to appeal.
80
In our view, LeBlanc J.’s retention of jurisdiction to hear reports did
nothing to undermine the provision of a stable basis for launching an appeal.
He did not purport to retain a power to change the decision as to the scope of
the s. 23 rights in question, to alter the finding as to their violation, or to
modify the original injunctions. The decision, including the best efforts
order and the order to appear at reporting sessions, was final and appealable.
81
In any case, the rules of practice in Nova Scotia and other provinces
allow courts to vary or add to their orders so as to carry them into operation
or even to provide other or further relief than originally granted (Nova Scotia
Civil Procedure Rules, Rule 15.08(d) and (e); Ontario Rules of Civil
Procedure, R.R.O. 1990, Reg. 194, Rule 59.06(2)(c) and (d); Alberta
Rules of Court, Alta. Reg. 390/68, Rule 390(1)). This shows that the
practice of providing further direction on remedies in support of a decision is
known to our courts, and does not undermine the availability of appeal.
Moreover, the possibility of such proceedings may facilitate the process of
putting orders into operation without requiring resort to contempt proceedings.
82
The respondent relies on the Nova Scotia’s Judicature Act to
support its argument that the ordered reporting hearings were improper.
However, even if that Act could have the effect of limiting the jurisdiction
granted by s. 24(1) of the Charter , nothing in the Judicature Act
appears to remove from a trial judge the power to hear reports on the
implementation of his or her order. Section 33 of the Judicature Act
provides that proceedings in the Supreme Court of Nova Scotia shall be “heard,
determined and disposed of” by a single judge, but this does not limit the
powers of the court to order reporting hearings. Section 34(d) of the Judicature
Act allows a presiding judge to reserve judgment for a maximum of six
months, but in our view, judgment was not reserved in this case since LeBlanc
J. delivered his judgment within the six-month period. Section 38 of the Judicature
Act provides that “an appeal lies to the Court of Appeal from any decision,
verdict, judgment or order” of a judge of the Supreme Court of Nova Scotia.
LeBlanc J. did nothing that would preclude the appeal of his decision or choice
of remedy.
(d) The Reporting Order Vindicated the Right
by Means that Were Fair
83
In the context, the reporting order was one which, after vindicating the
entitled parents’ rights, was not unfair to the respondent government. The
respondent argues that it was subject to an overly vague remedy. In our
opinion, the reporting order was not vaguely worded so as to render it invalid.
While, in retrospect, it would certainly have been advisable for LeBlanc J. to
provide more guidance to the parties as to what they could expect from the
reporting sessions, his order was not incomprehensible or impossible to
follow. In our view, the “reporting” element of LeBlanc J. remedy was not
unclear in a way that would render it invalid.
84
Doubtless, as LeBel and Deschamps JJ. point out, the initial retention
of jurisdiction by LeBlanc J. could have been more specific in its terms so as
to give parties a precise understanding of the procedure at reporting
sessions. Nonetheless, the respondent knew it was required to present itself
to the court to report on the status of its efforts to provide the facilities
as ordered by LeBlanc J. LeBlanc J.’s written order is satisfactory and
clearly communicates that the obligation on government was simply to report.
The fact that this was the subject of questions later in the process suggests
that future orders of this type could be more explicit and detailed with
respect to the jurisdiction retained and the procedure at reporting hearings.
85
It should be remembered that LeBlanc J. was crafting a fairly original
remedy in order to provide flexibility to the executive while vindicating the
s. 23 right. It may be expected that in future cases judges will be in a
better position to ensure that the contents of their orders are clearer. In
addition, the reporting order chosen by LeBlanc J. is not the only tool of its
kind. It may be more helpful in some cases for the trial judge to seek
submissions on whether to specify a timetable with a right of the government to
seek variation where just and appropriate to do so.
86
Once again, we emphasize that s. 24(1) gives a court the
discretion to fashion the remedy that it considers just and appropriate
in the circumstances. The trial judge is not required to identify the single
best remedy, even if that were possible. In our view, the trial judge’s remedy
was clearly appropriate and just in the circumstances.
(5) Conclusion
87
Section 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, and in particular the enforcement of s. 23 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 institutional capacities. Reviewing courts, for their part, must
show considerable deference to trial judges’ choice of remedy, and should
refrain from using hindsight to perfect a remedy. A reviewing court should
only interfere where the trial judge has committed an error of law or
principle.
88
The remedy crafted by LeBlanc J. 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 Court
of Appeal erred in wrongfully interfering with and striking down the portion of
LeBlanc J.’s order in which he retained jurisdiction to hear progress reports
on the status of the Province’s efforts in providing school facilities by the
required dates.
V. Disposition
89
In the result, we would allow the appeal, set aside the judgment of the
Court of Appeal, and restore the order of the trial judge.
90
We would award full costs to the appellants on a solicitor-client basis
throughout, including the costs for the reporting hearings. The appellants are
parents who have, despite their numerous efforts, been consistently denied
their Charter rights. The Province failed to meet its corresponding
obligations to the appellant parents despite its clear awareness of the
appellants’ rights. Accordingly, in looking at all the circumstances, our view
is that solicitor-client costs should be awarded.
The reasons of Major, Binnie, LeBel and Deschamps JJ. were delivered by
LeBel and Deschamps JJ.
(dissenting) —
I. Introduction
91
The devil is in the details. Awareness of the critical importance of effectively enforcing constitutional rights
should not lead to forgetfulness about the need to draft pleadings, orders and
judgments in a sound manner, consonant with the basic rules of legal writing,
and with an understanding of the proper role of courts and of the organizing
principles of the legal and political order of our country. Court orders
should be written in such a way that parties are put on notice of what is
expected of them. 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.
92
In our respectful view, without putting in any doubt the desire of the
trial judge to fashion an effective remedy to address the consequences of a
long history of neglect of the rights of the Francophone minority in Nova
Scotia, the drafting of his so-called reporting order
was seriously flawed. It gave the
parties no clear notice of their
obligations, the nature of the reports or even the
purpose of the reporting hearings. In addition, the reporting order assumed that the judge could
retain jurisdiction at will, after he had finally disposed of the matter of which he had been seized, thereby breaching
the constitutional principle of separation of powers. The order did so by
reason of the way it was framed and the manner in which it was implemented. In
our opinion, the reporting order was
void, as the Court of Appeal of Nova Scotia found,
and the appeal should be dismissed.
II. The Nature of the Issues
93
This appeal raises the sole question of the validity of the reporting order made by LeBlanc J.
((2000), 185 N.S.R. (2d) 246). In this context, we do not intend to engage in
a full review of the factual background and of the judicial history of this
case. For the purposes of our reasons, we are content to rely on their
extensive review in the reasons of our colleagues. We will only add such
details about the reporting order and its implementation as might be of
assistance to our analysis of the legal questions at stake in this appeal.
94
At the outset, we wish to emphasize that we fully agree with our
colleagues in their analysis of the nature and fundamental importance of
language rights in the Canadian Constitution, as well as on the need for
efficacy and imagination in the development of constitutional remedies.
Indeed, we dissent because we believe that constitutional remedies should be
designed keeping in mind the canons of good legal drafting, the fundamental importance of procedural fairness,
and a proper awareness of the nature of the role of courts in our
democratic political regime, a key principle of which remains the separation of
powers. This principle protects the independence of courts. It also flexibly
delineates the domain of court action, particularly in the relationship of
courts not only with legislatures but also with the executive branch of
government or public administration.
95
As to the other issues such as mootness, immunities and mandatory
injunctions, we are in broad agreement with our colleagues and do not intend to
comment any further on them. We turn now to an analysis of the issues which
lie at the root of our disagreement with the majority as to the final
disposition of this appeal.
96
In this analysis, we will first review the nature of the reporting order
and we will determine whether it can be considered
consistent with the principle of procedural fairness. We will then
discuss the principles of separation of powers and functus officio; we
will demonstrate that the question of whether the trial judge had jurisdiction
to issue the order is germane to the determination of whether the trial judge
breached the separation of powers. In both discussions, the appropriateness of
the remedy will be called into question.
In the former, we will assess the appropriateness of the order for reporting
hearings from the perspective of the parties subject to it, while in the
latter, we will analyse the appropriateness of the order, by taking into
consideration the proper role of courts within our constitutional order.
III. The Drafting of the Order and the Principle of Procedural Fairness
97
The drafting of applications asking for injunctive relief, or of orders
granting such remedies, can be a serious challenge for counsel and judges. The exercise of the court power
to grant injunctions may lead, from
time to time, to situations of
non-compliance where it may be necessary to
call upon the drastic exercise of
courts’ powers to impose civil or criminal penalties, including imprisonment
(R. J. Sharpe, Injunctions and Specific Performance (2nd ed.
(loose-leaf)), at p. 6-7). Therefore, proper notice
to the parties of the obligations imposed upon them
and clarity in defining the standard of compliance expected of them must be essential requirements of a
court’s intervention. Vague or ambiguous language should be strictly avoided (Sonoco Ltd. v. Local 433
(1970), 13 D.L.R. (3d) 617 (B.C.C.A.), at p. 621; Sporting Club du
Sanctuaire Inc. v. 2320-4365 Québec Inc., [1989] R.D.J. 596 (Que. C.A.)).
98
Unfortunately, the drafting of the present reporting order was anything
but clear. Its brevity and apparent simplicity belie its actual complexity and
the state of confusion and uncertainty in which it left not only all of the
parties, but the trial judge himself at times. This order was final, not interim, and it was tied to the “best efforts order”, which was not couched in terms liable to
shed much light on the nature of the obligations of the respondents. Given
that this part of the order was not challenged on
appeal, we will not discuss it at length, but
instead, will focus exclusively on the reporting order which is the object of
this appeal.
99
At first, when judgment was rendered, the reporting order read, at para.
245:
The applicants have requested that I should maintain jurisdiction. I
agree to do so. I am scheduling a further appearance for Thursday, July 27,
2000 at 1:30 p.m., and at that time the respondents will report on the status
of their efforts. I am requesting the respondents to utilize their best efforts
to comply with this decision.
This drafting
was slightly modified in the final order, dated December 14, 2000:
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.
100
As Flinn J.A. observed in his reasons in the Court of Appeal ((2001),
194 N.S.R. (2d) 323, 2001 NSCA 104), nobody knew
the exact nature of these reports.
Their form and content were undefined.
There was no indication as to whether
they should be delivered orally or in writing or both nor as to how detailed
they should be and what kind of supporting documents, if any, would be needed.
The order also provided for hearings, but
again, it left the parties in the dark as to the procedure, purpose or
nature of these sessions of the court. The parties learned only shortly before
these hearings that affidavits needed to be
filed and deponents made available for cross-examination. Further,
there seemed to be little direction, if any at all, as to what sort of evidence
was required to be included for the purpose of the hearings. The nature of
these hearings, as the process developed, appeared to become a cross between a
mini-trial, an informal meeting with the judge and
some kind of mediation session, for the
purpose of monitoring the execution of the school-building program for
Francophone students.
101
The trial judge himself seemed unsure about the nature of the hearings
he had ordered and of the process he had initiated. At first, he appeared to
lean towards the view that those hearings were regular sessions of the court,
that he had not issued a final order and that additional relief could be requested. For example, in the July 27, 2000
hearing, the trial judge stated that in the hearings, he “would have the
opportunity to determine if the Respondents were indeed making every or best
efforts to comply” (appellants’ record, at p. 762). This was a reiteration of
a claim made earlier in that hearing (appellants’ record, at p. 720).
Similarly, in the August 9, 2000 hearing, the trial judge stated: “the amount
of room I have with respect to a decision or direction or comment is very
limited” (appellants’ record, at pp. 997-98); this statement implies that the
trial judge had the power, albeit limited, to make orders. However, after the setting down of his formal
order, at the last hearing in March 2001, he commented that he could not grant
further relief, that he had fully disposed of the matter in his order and
accompanying reasons, which were released the previous summer. He added that
the sessions had a solely informational purpose.
102
In the meantime, schools were built or renovated and made available to
Francophone students. It is difficult to determine whether those sessions
accomplished anything in this respect. What these sessions certainly did was
sow confusion, doubt and uncertainty about the obligations of the respondents
and about the nature of a process that
went on over several months. The trial judge appeared to view this process as
open ended and indeterminate, with more sessions being scheduled as he wished.
Nobody really knew when it all would come to an end.
103
The uncertainty engendered by the reporting order was not merely
inconvenient for the parties. In our view it amounted to a breach of the
parties’ interest in procedural fairness. One essential feature of a fair
procedural rule is that its contents are clearly defined, and known in advance
by the parties subject to it (Supermarchés Jean Labrecque Inc. v. Flamand,
[1987] 2 S.C.R. 219, at pp. 233-36; see
also: D. J. Mullan, Administrative
Law (2001), at p. 233; R. Dussault
and L. Borgeat, Administrative Law:
A Treatise (2nd ed. 1990), vol. 4, at pp. 279-82; S. A. de Smith, H. Woolf and J.
L. Jowell, Judicial Review of Administrative Action (5th ed. 1995
& Cum. Supp. 1998), at pp. 432-36).
104
Moreover, as we noted above, the trial judge in his initial
characterization of the order seemed to believe, and certainly gave the
impression, that he had the power to make further orders based on what was
presented to him at the reporting sessions. In other words, he purported to
have available the coercive power of the state to compel the parties to act,
and suggested that he could do so based on conclusions that he would draw from
the evidence placed before him. In the result, the parties found themselves
before a trial judge who purported to exercise judicial functions and powers,
and who provided almost nothing by way of procedural guidelines. The parties
were denied notice which, as L’Heureux-Dubé J. has noted, is a rule “so
fundamental in our legal system that I do not think there is any necessity to
discuss it at length” (Supermarchés Jean Labrecque, supra, at p.
233). For this reason alone, the trial judge’s order can be found to be
inappropriate under s. 24(1) of the Canadian Charter of Rights and Freedoms
and therefore void. Nonetheless, we turn now to a discussion of the principles
of separation of powers and functus officio. Consideration of these
principles will aid in assessing the appropriateness of the remedy, in light of
the judiciary’s proper role within our constitutional order.
IV. The Appropriate Role of the Judiciary
105
While superior courts’ powers to craft Charter remedies may not
be constrained by statutory or common
law limits, they are nonetheless bound by rules of fundamental justice, as we
have shown above, and by constitutional boundaries, as we shall see below. In
the context of constitutional remedies, courts fulfill their proper function by
issuing orders precise enough for the parties to know what is expected of them,
and by permitting the parties to execute those orders. Such orders are
final. 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 doctrine. We will look at each of these
breaches in turn.
1. The Separation of Powers
106
Courts are called upon to play a fundamental role in the Canadian
constitutional regime. When needed, they must be assertive in enforcing
constitutional rights. At times, they have to grant such relief as will be
required to safeguard basic constitutional rights and the rule of law, despite
the sensitivity of certain issues or circumstances and the reverberations of
their decisions in their societal environment. Despite — or, perhaps, because
of — the critical importance of their functions, courts should be wary of going
beyond the proper scope of the role assigned to them in the public law of
Canada. In essence, this role is to declare what the law is, contribute to its
development and to give claimants such relief in the form of declarations,
interpretation and orders as will be needed to remedy infringements of
constitutional and legal rights by public authorities. Beyond these functions,
an attitude of restraint remains all the more justified, given that, as the
majority reasons acknowledge, Canada has maintained a tradition of compliance
by governments and public servants with judicial interpretations of the law and
court orders.
107
Given the nature of the Canadian parliamentary system, the existence of
a true doctrine of separation of powers in Canada was sometimes put in doubt
(see P. W. Hogg, Constitutional Law of Canada (loose-leaf ed.), at p.
7-24; MacMillan Bloedel Ltd. v. Simpson, [1995] 4 S.C.R. 725, at
para. 52). It is true that Canadians have never adopted a watertight system of
separation of judicial, legislative and executive functions. In the discharge
of their functions, courts have had to strike down laws, regulations or
administrative decisions. They have imposed liability on the Crown or public
bodies and have awarded damages against them. Forms of administrative justice
or adjudication have grown out of the development of executive functions (Ocean
Port Hotel Ltd. v. British Columbia (General Manager, Liquor Control and
Licensing Branch), [2001] 2 S.C.R. 781, 2001 SCC 52; Bell Canada
v. Canadian Telephone Employees Association, [2003] 1 S.C.R. 884, 2003 SCC
36). Such developments may be said to have blurred theoretical distinctions
between government functions. Nevertheless, in a broad sense, a separation of
powers is now entrenched as a cornerstone of our constitutional regime.
108
More particularly, the distinction clearly stands out in respect of the
relationship of courts on one side and of the legislatures and executive or
public administration on the other (H. Brun and G. Tremblay, Droit
constitutionnel (4th ed. 2002), at pp. 756-57). Our Court has acknowledged the fundamental nature of the separation of powers, although some of
its pronouncements emphasize its functional nature (New Brunswick
Broadcasting Co. v. Nova Scotia (Speaker of the House of Assembly), [1993]
1 S.C.R. 319). Indeed, our Court has recently characterized this principle as a defining feature of the
Canadian Constitution (Reference re
Remuneration of Judges of the Provincial Court of Prince Edward Island,
[1997] 3 S.C.R. 3 (“Provincial Court Judges Reference”); see
also Fraser v. Public Service Staff Relations Board, [1985] 2 S.C.R.
455, at pp. 469-70).
109
Our Court has strongly emphasized and vigorously applied the principle of separation of powers in order to
uphold the independence of the judiciary (see for example: Provincial Court
Judges Reference, supra; see
also Mackin v. New Brunswick (Minister of Finance), [2002] 1 S.C.R. 405,
2002 SCC 13). In that context, the
principle was viewed as a shield designed to protect the judiciary in
order to allow it to discharge its duties under the Constitution with complete
independence and impartiality. Nothing less was required to maintain the
normative ordering of the Canadian legal system.
110
However, the principle of
separation of powers has an obverse side as
well, which equally reflects the
appropriate position of the judiciary within the Canadian legal system. Aside
from their duties to supervise administrative tribunals created by the
executive and to act as vigilant guardians of constitutional rights and the
rule of law, courts should, as a general rule, avoid interfering in the
management of public administration.
111
More specifically, once they have rendered judgment, courts should
resist the temptation to directly oversee or supervise the administration of
their orders. They should generally operate under a presumption that judgments
of courts will be executed with reasonable diligence and good faith. Once they
have declared what the law is, issued their orders and granted such relief as
they think is warranted by circumstances and relevant legal rules, courts
should take care not to unnecessarily invade
the province of public administration. To do otherwise could upset the balance
that has been struck between our three branches of government.
112
This is what occurred in the present case. When the trial judge
attempted to oversee the implementation of his order, he not only assumed
jurisdiction over a sphere traditionally outside the province of the judiciary,
but also acted beyond the jurisdiction with which he was legitimately charged
as a trial judge. In other words, he was functus officio and breached an important principle which
reflects the nature and function of the judiciary in the Canadian
constitutional order, as we shall see now.
2. Functus Officio
113
Canadian doctrinal and judicial writing on
functus officio is sparse, even though the rule itself
derives from an old case of the English Court of Appeal (In re St. Nazaire
Co. (1879), 12 Ch. D. 88). Essentially, the rule is that the court has no
jurisdiction to reopen or amend a final decision, except in two cases: (1)
where there has been a slip in drawing up the judgment, or (2) where there has
been error in expressing the manifest intention of the court (see In re
Swire (1885), 30 Ch. D. 239 (C.A.); Paper Machinery Ltd. v. J. O. Ross
Engineering Corp., [1934] S.C.R. 186). More recently, this Court
affirmed that this rule need not always be rigidly applied to tribunals in the
administrative law context when the policy reasons for it are not present (Chandler
v. Alberta Association of Architects, [1989] 2 S.C.R. 848).
114
The existence and scope of a right of appeal has often been made the
focus of analytical attention in applying the functus doctrine. Such
was the case when the power of the Court of Chancery to rehear cases was
extinguished by the Judicature Acts in 1873 by fusing common law and
equity jurisdictions into one court and providing for a single appeal to a
newly created Court of Appeal (In re St. Nazaire, supra).
Originally, this was also the focus of the functus analysis for
administrative tribunals that had rights of appeal tightly constrained by
statute (see Grillas v. Minister of Manpower and Immigration, [1972]
S.C.R. 577). However, the underlying rationale for the doctrine is clearly
more fundamental: that for the due and proper administration of justice, there
must be finality to a proceeding to ensure procedural fairness and the
integrity of the judicial system. The point is plainly made by Sopinka J. in Chandler,
supra, at pp. 861-62:
As a general rule, once . . . a
tribunal has reached a final decision in respect to the matter that is before
it in accordance with its enabling statute, that decision cannot be revisited
because the tribunal has changed its mind, made an error within jurisdiction or
because there has been a change of circumstances. . . .
To this extent,
the principle of functus officio applies. It is based, however, on
the policy ground which favours finality of proceedings rather than the rule
which was developed with respect to formal judgments of a court whose decision
was subject to a full appeal.
115
If a court is permitted to continually revisit or reconsider final
orders simply because it has changed its mind or wishes to continue exercising
jurisdiction over a matter, there would never be finality to a proceeding, or,
as G. Pépin and Y. Ouellette have perceptively
termed it, the providing of [translation]
“legal security” for the parties (Principes de contentieux administratif (2nd
ed. 1982), at p. 221). This concern for finality is evident in the definition
of functus officio:
[translation] Qualifies a
court or tribunal, a public body or an official that is no longer seized of a
matter because it or he or she has discharged the office. E.g. A judge who has
pronounced a final judgment is functus officio.
(H. Reid, Dictionnaire de droit québécois et canadien (2001), at
p. 253)
The principle
ensures that subject to an appeal, parties are
secure in their reliance on the finality of superior court decisions.
116
This common law rule is further reflected
in modern rules of civil procedure (see, e.g., Nova Scotia Civil Procedure
Rules, Rule 15.07) and the interpretation
of criminal appeal provisions (see R. v. H. (E.F.) (1997), 115 C.C.C.
(3d) 89 (Ont. C.A.), considering s. 675 of the Criminal Code ). Whether
in its common law or statutory form, the doctrine
of functus officio provides that only in strictly limited
circumstances can a court revisit an order or judgment (see Nova Scotia Civil
Procedure Rules, Rule 15.08). If it were otherwise, there would be, to
paraphrase Charron J.A. in H. (E.F.), supra, at
p. 101, the recurring danger of the trial process becoming or appearing to
become a “never closing revolving door” through which litigants could come and
go as they pleased.
117
In addition to this concern with finality, the question of whether a
court is clothed with the requisite authority to act raises concerns related to
the separation of powers, a principle that transcends procedural and common law
rules. In our view, if a court intervenes, as here, in matters of
administration properly entrusted to the executive, it exceeds its proper
sphere and thereby breaches the separation of powers. By crossing the boundary
between judicial acts and administrative oversight, it acts illegitimately and
without jurisdiction. Such a crossing of the boundary cannot be characterized
as relief that is “appropriate and just in the circumstances” within the
meaning of s. 24(1) of the Charter .
V. Application of the Relevant Principles to
the Present Case
118
When the above principles are applied to the present facts, it is
evident that McIntyre J.’s admonition in Mills v. The Queen, [1986]
1 S.C.R. 863, that s. 24(1) “was not intended to turn the Canadian legal
system upside down” is apropos (p. 953). In our view, the trial judge’s remedy
undermined the proper role of the judiciary within our constitutional order,
and unnecessarily upset the balance between the three branches of government.
As a result, the trial judge in the present circumstances acted
inappropriately, and contrary to s. 24(1) .
119
As we noted above, the trial judge equivocated on the question of
whether his purported retention of jurisdiction empowered him to make further
orders. Regardless of which position is taken, the separation of powers was
still breached. On the one hand, if he did purport to be able to make further
orders, based on the evidence presented at the reporting hearings, he was functus
officio. We find it difficult to imagine how any subsequent order would
not have resulted in a change to the original
final order. This necessarily falls
outside the narrow exceptions provided by functus officio, and breaches that rule.
120
Such a breach would also have
resulted in a violation of the separation of powers principle. By purporting
to be able to make subsequent orders, the trial judge would have assumed a
supervisory role which included administrative functions that properly lie in
the sphere of the executive. These functions are beyond the capacities of
courts. The judiciary is ill equipped to make polycentric choices or to
evaluate the wide-ranging consequences that flow from policy implementation.
This Court has recognized that courts possess neither the expertise nor the
resources to undertake public administration. In Eldridge v. British
Columbia (Attorney General), [1997] 3 S.C.R. 624, at para. 96, it
was held that in light of the “myriad options” available to the government to
rectify the unconstitutionality of the impugned system, it was “not this
Court’s role to dictate how this is to be accomplished”.
121
In addition, if he purported to adopt a managerial role, the trial judge
undermined the norm of co-operation and mutual
respect that not only describes the relationship between the various
actors in the constitutional order, but defines its particularly Canadian
nature, and invests each branch with legitimacy. In Vriend v. Alberta,
[1998] 1 S.C.R. 493, Iacobucci J. noted that “respect by the courts for
the legislature and executive role is as important as ensuring that the other
branches respect each others’ role and the role of the courts” (para. 136). He
discussed the wording of provisions of the Charter that expressed this
norm of mutual respect (para. 137), and remarked that this norm has “the effect
of enhancing the democratic process” (para. 139).
122
Similarly, McLachlin J. (as she then was) in the 1990 Weir Memorial
Lecture reviewed the elements of our legal culture — including our political
climate, our tradition of judicial restraint, and the system of references —
that have contributed to a spirit of co-operation, rather than confrontation
among the branches of government (B. M.
McLachlin, “The Charter : A New Role for the Judiciary?” (1991), 29 Alta. L. Rev. 540, at pp. 554-56).
Moreover, referring to her reasons in Dixon v. British Columbia (Attorney-General)
(1989), 59 D.L.R. (4th) 247 (B.C.S.C.), she spoke to the importance of
considerations of institutional legitimacy for a court crafting a remedy (at p.
557):
It was not for me, I felt, to dictate to the
Legislature what sort of law they should enact; that was the responsibility of
the elected representatives. But, again following a time-honoured judicial
tradition, I offered advice on what limits on the principle of one person-one
vote, might be acceptable.
123
McLachlin J. expressed this concern for the principle of democratic
legitimacy in respect of the relationship between the judiciary and the
legislature, but the principle extends to that between the judiciary and the
executive. This Court has recognized that in the Canadian parliamentary
system, the executive is inextricably tied to the legislative branch. The
Court in Attorney General of Quebec v. Blaikie, [1981] 1 S.C.R. 312, at
p. 320, observed that “[t]here is thus a considerable degree of integration
between the Legislature and the Government”. In Wells v. Newfoundland,
[1999] 3 S.C.R. 199, at para. 53, the Court held: “On a practical level, it is
recognized that the same individuals control both the executive and legislative
branches of government.”
124
Therefore, just as the legislature should, after a judicial finding of a
Charter breach retain independence in writing its legislative response,
the executive should after a judicial finding of a breach, retain autonomy in
administering government policy that conforms with the Charter . In our
constitutional order, the legislature and the executive are intimately
interrelated and are the principal loci of democratic will. Judicial
respect for that will should extend to both branches.
125
Thus, if the trial judge’s initial suggestion that he could continue to
make orders, and thereby effectively engage in administrative supervision and
decision making accurately characterizes the nature of the reporting sessions,
the order for reporting sessions breached the constitutional principle of
separation of powers. Since no part of the Constitution can be interpreted to
conflict with another, that order cannot be considered appropriate and just in
the circumstances, under s. 24(1) . The trial judge’s order for reporting
sessions should also be considered inappropriate because it put into question
the Canadian tradition of mutual respect between the judiciary and the
institutions that are the repository of democratic will.
126
If, however, the trial judge’s
statement in the last session that he could not make further orders correctly
characterized his remedial order, then he breached the separation of powers in
another way. When considered in light of this constitutional principle and
applied to the present facts, McLachlin C.J.’s proposition that “s. 24 should
not be read so broadly that it endows courts and tribunals with powers that
they were never intended to exercise” (R. v. 974649 Ontario Inc., [2001]
3 S.C.R. 575, 2001 SCC 81 (“Dunedin”), at para. 22) leads to the
conclusion that the trial judge’s remedy was not appropriate and just in the
circumstances.
127
The appellants argued that the trial judge retained jurisdiction only
to hear reports, and that these hearings had purely “suasive” value. They also
argued that the hearings were designed to hold “the Province’s feet to the
fire” (SCC hearing transcripts). They further suggested that the threat of
having to report to the trial judge functioned as an incentive for the
government to comply with the best efforts order. In the words of the
appellants:
Is it a coincidence that, after a nine month delay
(October 1999 to July 2000) the Province called for tenders eight days before
the reporting hearing and “fast tracked” the school? The Province knew that it
would have to report on July 27. The Province ensured that a call for tenders
and a construction schedule were in place for July 27.
128
If this characterization of the trial judge’s activity is accurate, then
the order for reporting sessions did not result in the exercise of
adjudicative, or any other, functions that traditionally define the ambit of a
court’s proper sphere. Moreover, it resulted in activity that can be
characterized as political. According to the appellants’ characterization, a
primary purpose of the hearings was to put public pressure on the government to
act. This kind of pressure is paradigmatically associated with political
actors. Indeed, the practice of publicly questioning a government on its
performance, without having any legal power to compel it to alter its
behaviour, is precisely that undertaken by an opposition party in the
legislature during question period.
129
In the above, we reasoned that the trial judge, by breaching the
separation of powers, would have put in question the norm of co-operation that
defines the relationship between the branches of government in Canada. We will
presently demonstrate how the trial judge, by improperly altering the
relationship between the judiciary and the executive, would have breached the
separation of powers.
130
In Provincial Court Judges Reference, supra, Lamer C.J.
described the separation of powers as providing that “the relationships between
the different branches of government should have a particular character”
(para. 139 (emphasis in original)). In particular, according to him, the
separation of powers doctrine requires that these relationships be depoliticized
(para. 140 (emphasis in original)).
131
In that case, Lamer C.J. remarked that the legislature and the executive
cannot exert, and cannot appear to exert political pressure on the judiciary
(para. 140). The reciprocal proposition applies to the immediate case. With
the reporting hearings, the trial judge may have sought to exert political or
public pressure on the executive, and at least appeared to do so. In our
view, such action would tend to politicize the relationship between the
executive and the judiciary.
132
If the reporting hearings were intended to hold “the Province’s feet to
the fire”, the character of the relationship between the judiciary and the
executive was improperly altered and, as per the Provincial Court Judges
Reference, the constitutional principle of separation of powers was
breached. Once again, since no part of the Constitution can conflict with
another, the trial judge’s order for reporting hearings cannot be interpreted
as appropriate and just under s. 24(1) .
133
We would reiterate, at this point, the importance of clarity and
certainty in the provisions of a court order. If the trial judge had precisely
defined the terms of the remedy, in advance, then the ensuing confusion
surrounding his role may not have occurred. Moreover, by complying with this
essential element of fair procedure, he may have been able to avoid the
constitutional breach of the separation of powers that followed.
VI. Neither a Breach of Procedural Fairness nor of the Separation of
Powers Was Appropriate
134
We noted above that this Court in Eldridge recognized the
appropriateness of judicial restraint in issuing a remedy under s. 24(1) , given
the variety of choices open to the executive in administering policy. Implicit in the declaratory remedy ordered in that
case was the presumption that the government will act in good faith in
rectifying Charter wrongs and the recognition that legislatures and
executives, not the courts, are in the best position to decide exactly how this
should be done. Turning to the present case then, the trial judge’s decision to provide injunctive relief already represented a departure from the
cooperative norm that defines and shapes the relationships among the branches
of the Canadian constitutional order. We do not deny that in the appropriate factual circumstances, injunctive relief may
become necessary. However, the trial judge’s order for reporting sessions then purported to go even further, and
breached both a fundamental principle of procedural fairness and the
constitutional principle of separation of powers.
135
One might argue that such a breach is appropriate
where it is the only way that a claimant’s rights can be vindicated.
Alternatively, one might suggest that if a government has ignored previous,
less intrusive judicial measures, and thereby put into question their efficacy,
a court might be justified in abandoning the presumption of governmental good
will that we referred to above. In our view, the present case gave rise to
neither of these arguments.
136
Turning to the first argument,
if the hearings were aimed at ensuring the vindication of the claimants’ rights
by providing them with the opportunity to enforce or alter the remedy, there
were alternatives available. If the claimants felt that the government was
not complying with any part of the order,
then they could have brought an application for contempt. The majority seems
to suggest that contempt proceedings would have been less effective in this
case in ensuring timely performance of the order, without being any more
respectful of the separation of powers. However, we would note that expedited
applications are possible in Nova Scotia and other jurisdictions to deal with
cases quickly and efficiently. In addition, the reporting order at issue in
this case precluded applying to any other judge for relief and was, in this
way, even more limiting than a contempt proceeding. Most importantly, contempt
proceedings are more consistent with our adversarial system, which is based on
the common law norm of giving the parties
primary control over the proceedings (see J. I. H. Jacob, The
Fabric of English Civil Justice (1987), at p. 13). In contrast, the
present order for reporting sessions placed the trial judge in an
inappropriate, ongoing supervisory and
investigative role despite the availability of the equally effective,
well-established, and minimally intrusive alternative of contempt relief.
137
Consequently, it is clear that
the order for reporting hearings was not the
only means of vindicating the claimants’ rights, and
that recourse to a readily available alternative would have been
consistent with a defining feature of our
legal system. Recourse to this alternative would not have resulted in
an interpretation of the court’s remedial powers that was so broad as to
purport to endow the court with powers that it was “never intended to exercise”
(Dunedin, supra, at para. 22).
It is important to stress that in the present case, it is not clear that actual
recourse to a contempt application would have been necessary. The point is
simply that if judicial enforcement of the deadlines in question were
necessary, recourse to this alternative would not have overextended the court’s
powers.
138
On a last note, we find it difficult to imagine circumstances
where a breach of one party’s fundamental right to notice would aid in the
vindication of another’s Charter rights. In any event, the present
facts do not present such a case. The intrusiveness of the trial judge’s order
was in no way necessary to secure the claimants’ s. 23 interests. Given the
absence of any causal connection between the breach of the parties’ right to
notice and the effectiveness of the purported remedy, we would conclude that
the breach cannot be considered appropriate for the purposes of s. 24(1) .
139
The second argument is simply not
applicable in this case. The facts here do not require us to decide whether
previous government non-compliance can ever justify remedial orders that breach
principles of procedural fairness and the separation of powers. The Government
of Nova Scotia did not refuse to comply with either a prior remedial order or a
declaration with respect to its particular obligations in the fact-situation at
hand. No such order was made and it is impossible to determine whether the
government would have responded in the present case to either a declaration of
rights, or the injunction to meet the deadline as these measures were combined
with the order purporting to retain jurisdiction to oversee the reporting
sessions. Therefore, it cannot be asserted that the trial judge’s order has succeeded where less intrusive remedial
measures failed.
140
Moreover, what was required by the Government of Nova Scotia to comply
with its obligations pursuant to s. 23 was not self-evident at trial. The
trial judge was not faced with a government which was cognizant of how it
should fulfill its obligations, but refused to do so. Indeed, at issue before
the trial judge was precisely the question of what compliance with s. 23
involved. The present order, therefore, did not overcome governmental
recalcitrance in the face of a clear understanding of what s. 23 required in
the circumstances of the case. Remedies must be chosen in light of the nature
and structure of the Canadian constitutional order, an important feature of
which is the presumption of co‑operation between the branches of
government. Therefore, unless it is established that this constitutional
balance has been upset by the executive’s clear defiance of a directly
applicable judicial order, increased judicial intervention in public
administration will rarely be appropriate.
141
In choosing and reviewing s. 24(1) remedies, it is important to remember
that the inquiry into the appropriateness of a remedy should be undertaken from
an ex ante perspective. The simple fact that a desired result occurs
after a remedial order is issued is not relevant to determining the question of
the order’s appropriateness. In our view, an adequate ex ante
assessment must consider the risks that attend a given remedy. In the present
case, as Freeman J.A. noted in dissent, if the trial judge “misread the degree
of co-operation he could expect from the players, there was a risk of failure”
(para. 84). That the present remedy’s susceptibility to failure was tied to
the capacities of a particular judge should in itself give pause. In our view,
whether a remedy is appropriate should be assessed with reference to the remedy
itself and not the particular capacities of a given judge to manage that remedy.
More importantly, where a thorough ex ante assessment of a remedy
reveals that it will certainly be inconsistent with basic legal principles and
constitutional doctrines, such a remedy should not be considered appropriate.
Available remedies that do not result in such breaches should, a contrario,
be considered to be more appropriate.
142
The question of the relevant time frame for the inquiry into a remedy’s
appropriateness is tied to the more general question of remedial
effectiveness. It is important to remember the context in which this Court
considered the issue of effectiveness in Dunedin, supra. The issue was whether a
justice of the peace acting as a trial justice under the Ontario Provincial
Offences Act, R.S.O. 1990, c. P.33, was a court of competent jurisdiction
to direct an order for costs against the Crown for a Charter breach.
The Court held that if provincial offences courts were deprived of this remedy,
an accused may be denied access to a recognized means of remedying a Charter
breach (para. 82).
143
In the present case, refusing superior courts the power to order
reporting hearings clearly would not deny claimants’ access to a recognized Charter
remedy, as such an order is entirely idiosyncratic. More importantly, refusing
superior courts this power would not deprive claimants of access to that which
they are guaranteed by s. 23 , namely, the timely provision of minority
language instruction facilities. Indeed, if the appellants’ characterization
of the reporting hearings’ purpose is correct, it is difficult to see how they
could have been more effective than the
construction deadline coupled with the possibility of a contempt order. In our
view, the availability of this legal sanction for non-compliance with the order
to meet the construction deadline would have provided at least as much
incentive for the government to remedy the s. 23 breach as would have
reporting hearings, in which the presiding judge was without the power to make
further orders. Moreover, at the level of constitutional principle, because
this incentive is legal in nature, it would not have led to the improper
politicization of the relationship between the judiciary and the executive.
144
Also, it should be noted that the trial judge’s order was not consistent
with this Court’s retention of jurisdiction in the Reference re Manitoba
Language Rights, [1985] 1 S.C.R. 721. Far from purporting to supervise
compliance with a remedy, the Court in that case retained jurisdiction to ask
for the government’s assistance in fashioning it. The Court did not thereby
exceed its constitutional role by purporting to oversee administrative action.
The Court was ultimately respectful of the executive’s capacity to make the
policy choices necessary to comply with constitutional requirements.
VII. Conclusion
145
In the result, the trial judge breached both a principle of procedural fairness and the constitutional
principle of separation of powers, and it is not clear that alternative, less-intrusive remedial measures, would not
have achieved the ends sought. While a trial judge’s decisions with respect to
remedies are owed deference, we believe that this must be tempered when
fundamental legal principles are threatened. In light of these principles,
and in the presence of untested alternative remedies, we would find that the
present trial judge’s retention of jurisdiction was not appropriate and just
under s. 24(1) . The Court of Appeal was correct in declaring that the order to
retain jurisdiction for the purposes of reporting sessions was of no force and
effect.
146
In closing, we recur to the underlying purpose of s. 24(1) , by referring
to a passage in Mills, supra, at pp. 952-53, in which McIntyre J.
wrote:
To begin with, it
must be recognized that the jurisdiction of the various courts of Canada is
fixed by the Legislatures of the various provinces and by the Parliament of
Canada. It is not for the judge to assign jurisdiction in respect of any
matters to one court or another. This is wholly beyond the judicial reach. . . .
. . . The absence of jurisdictional provisions and
directions in the Charter confirms the view that the Charter was
not intended to turn the Canadian legal system upside down. What is required
rather is that it be fitted into the existing scheme of Canadian legal
procedure.
147
The proper development of the law of constitutional remedies requires
that courts reconcile their duty to act within proper jurisdictional limits with
the need to give full effect to the rights of a claimant. To read into s.
24(1) a judicial carte blanche would not only “turn the Canadian legal
system upside down”, but would also be an injustice to the parties who come
before the court to have their disputes resolved in accordance with basic legal
principles. In our view, proper consideration of the principles of procedural
fairness and the separation of powers is required to establish the requisite
legitimacy and certainty essential to an appropriate and just remedy under s.
24(1) of the Charter .
Appeal allowed with costs, Major,
Binnie, LeBel and Deschamps JJ. dissenting.
Solicitors for the appellants: Patterson Palmer, Halifax.
Solicitor for the respondent: Attorney General of Nova Scotia, Halifax.
Solicitor for the intervener the Attorney General of Canada:
Attorney General of Canada, Ottawa.
Solicitor for the intervener the Attorney General of Ontario:
Attorney General of Ontario, Toronto.
Solicitor for the intervener the Attorney General of New Brunswick:
Attorney General of New Brunswick, Fredericton.
Solicitor for the intervener the Attorney General of Newfoundland
and Labrador: Attorney General of Newfoundland and Labrador, St. John’s.
Solicitor for the intervener the Commissioner of Official Languages
for Canada: Office of the Commissioner of Official Languages, Ottawa.
Solicitors for the intervener Fédération nationale des conseillères
et conseillers scolaires francophones: Patterson Palmer, Moncton.
Solicitors for the intervener Fédération des associations de
juristes d’expression française de Common Law Inc.: Balfour Moss, Regina.
Solicitors for the intervener Conseil scolaire acadien provincial:
Merrick Holm, Halifax.