Doucet-Boudreau v. Nova Scotia (Minister of Education )

Nature of the case

Constitutional challenge by the government of Nova Scotia to a remedial order under ss. 23 and 24(1) of the Canadian Charter requiring prioritized development of minority language French education with periodic reporting to court;  Right to (minority language) education; Positive obligations; Ongoing judicial supervision of the implementation of remedy; Right to an effective remedy to ESC rights violations.

Summary

Francophone parents in five school districts applied for an order that French-language facilities and programs be provided at the secondary school level as required by s. 23 of the Canadian Charter of Rights and Freedoms.   The trial judge found a s. 23 violation because Province had failed to prioritize these obligations and ordered “best efforts” to provide school facilities and programs by particular dates.  Supreme Court had previously found in Mahe that Section 23 places positive obligations on governments to mobilize resources and enact legislation for the development of major institutional structures.  The trial judge retained jurisdiction to hear reports on the status of the efforts made over time. The Province appealed the part of the order in which the trial judge retained his jurisdiction to hear reports. The Court of Appeal allowed the appeal, finding that the Charter does not extend a court’s jurisdiction to enforce its remedies.

The Supreme Court of Canada allowed the appeal and restored the trial judge’s remedial order.  The majority held that courts must issue effective, responsive remedies that guarantee full and meaningful protection of Charter rights. The boundaries of the courts’ proper role will vary according to the right at issue and may in some cases require the introduction of novel remedies.  The Court found that the remedy, in this case, was properly judicial, vindicating the rights of the parents while leaving the detailed choices of means largely to the executive.

Enforcement of the decision and other outcomes

The Supreme Court of Canada recognized that the appeal before it was moot.  The schools at issue had already been built, the desired effect of the trial judge’s order had thus already been achieved and no further reporting sessions were necessary. However, the appeal was heard based on the fact that it would provide guidance regarding the nature and the extent of remedies under the Charter while assisting parties in similar circumstances as the appellant.

Significance of the case

The decision is important for its defense of effective judicial remedies for violations of progressive realization of social and economic rights.  The previous decision of the Court of Appeal to strike down the supervisory order was cited by the South African Constitutional Court as support for limiting the use of supervisory orders in Minister of Health v Treatment Action Campaign (No 2) 2002, so advocates in South Africa have since relied on the reversal by the Supreme Court to argue for a wider use of such orders.