Doucet-Boudreau, dialogue and judicial activism: tempest in a teapot?

AuthorRouleau, Paul S.

In Doucet Boudreau v. Nova Scotia (Minister of Education), the Supreme Court of Canada upheld a trial judge's order that the parties attend a series of reporting hearings to update the court on their progress in implementing an order that certain schools be built. Critics of the decision argued that in allowing judges the authority to supervise implementation of their orders, the Supreme Court of Canada stepped away from principles of dialogue and mutual respect between the branches of the State. This paper suggests that, in the right case, a remedial order such as the one crafted by the trial judge is Doucet-Boudreau may actually serve to strengthen the dialogue between the courts and the executive. The experience of other common law jurisdictions suggests that such orders can be a useful and even necessary tool in guaranteeing respect for constitutional rights. Further, when compared to the other remedies available to enforce section 23 rights--principally detailed mandatory orders enforceable by contempt and detailed interlocutory orders--supervisory orders show greater deference by leaving detailed choices regarding policy implementation to other branches of government. Although this paper does not propose a definitive test to determine the rare cases in which a supervisory order will be necessary or appropriate, it does suggest several factors that may be relevant to such analysis.

Dans l'arret Doucet Boudreau c. Nouvelle-Ecosse (Ministre de 1'Education), la Cour supreme du Canada a confirme une ordonnance rendue par un juge de premiere instance a l'effet d'enjoindre las parties a se presenter devant le tribunal pour rendre compte des efforts deployes en ce sens. Des critiques ont soutenu qu'en conferant aux juges le pouvoir de superviser la mise en oeuvre-de leurs ordonnances, la Cour supreme du Canada s'est ecartee des principes bien etablis de dialogue et de respect mutuel entre les differentes branches de l'Etat. Dans ce texte, on fait observer qu'une ordonnance corrective comme celle qu'a rendue le juge de premiere instance dans l'affaire Doucet-Boudreau pourrait en fait renforcer le dialogue entre le pouvoir judiciaire et l'executif. Selon l'experience d'autres ressorts de common law, des ordonnances de ce type peuvent etre utiles et meme constituer un outil necessaire pour garantir l'observance de droits constitutionnels. En outre, lorsqu'on les compare avec d'autres mesures disponibles pour-faire appliquer les droits vises a l'article 23--et surtout les ordonnances mandatoires precises et executoires au moyen de procedures en matiere d'outrage au tribunal ainsi que les ordonnances interlodutoires specifiques--les ordonnances de surveillance revelent une plus grande deference vis-a-vis des autres branches du gouvernement en laissant au pouvoir executif le soin de choisir les moyens precis pour mettre en oeuvre la politique visee. Bien que cet article ne propose pas de critere definitif en vue de determiner le bien-fonde de rendre une ordonnance de surveillance dans une cause donnee, il recommande la prise en compre d'un certain nombre de facteurs susceptibles de convenir a ce type d'analyse.

Table of Contents I. THE GENESIS OF DOUCET-BOUDREAU II. DOUCET-BOUDREAU, DIALOGUE AND JUDICIAL ACTIVISM A. What is Institutional Dialogue? B. Differing Views: The Impact of Doucet Boudreau on Dialogue and the Principle of Mutual Respect C. Dialogue and Democracy III. CASE LAWTRENDS IN REMEDIAL ORDERS ENFORCING SECTION 23 RIGHTS A. Detailed Mandatory Orders Enforceable by Contempt B. Flexible Mandatory Orders With Supervisory Jurisdiction C. Detailed Interlocutory Orders IV. THE "RIGHT CASE" FOR RETAINING JURISDICTION A. Reticence B. Urgency C. One-Stop Shop Remedies D. Policy Consensus E. Supervision of Legislative Processes F. Nature of the Right G. Application V. CONCLUSION "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." (1)

It has been ten years since a group of French-speaking parents in Nova Scotia, frustrated with ongoing government delays, stood before the court hoping to realize their constitutional right to send their children to school in French. Little did they know at the time, their case would be headed to Ottawa and would result in one of the sharpest divisions ever between the nine judges of the Supreme Court of Canada.

In Doucet-Boudreau v. Nova Scotia (Minister of Education), the Supreme Court upheld the trial judge's order that the province and school boards provide homogeneous French language facilities and programs to secondary school students and, more controversially, that they attend a series of reporting hearings to update the court on their progress. (2) The trial judge considered these reporting hearings necessary to ensure that the provincial government and French language school board implemented the substance of the order, which required them to comply with their constitutional obligations under section 23 of the Canadian Charter of Rights and Freedoms. (3)

If the trial judge's order to retain jurisdiction in Doucet-Boudreau caused a stir, the Supreme Court's 5-4 decision to affirm that order caused a tempest. (4) In the academic literature, some scholars have suggested that the majority's decision represents an exception to an established pattern of judicial restraint under subsection 24(1) of the Charter. (5) It has been argued that in sanctioning supervisory jurisdiction as a legitimate constitutional remedy, the Supreme Court in Doucet Boudreau stepped away from well-established principles of "dialogue" and mutual respect between the various branches of government and stepped directly into the exclusive territory of the executive. (6)

This paper suggests that, in fact, the opposite may be true. That is, in the right case, a remedial order such as the one crafted by the trial judge in Doucet-Boudreau may actually serve to strengthen the dialogue between the courts and the executive. In contrast to a detailed mandatory order enforceable through contempt proceedings, flexible orders like the one in Doucet-Boudreau ensure compliance with constitutional obligations while leaving detailed choices regarding implementation to the executive. Further, looking to the experiences in other common law jurisdictions, it may be argued that there is a relationship between the need for supervisory orders and the health of the democratic process and its institutions.

In fleshing out this view, the first part of this paper will review the decision in Doucet-Boudreau and highlight key elements of both the majority and dissenting opinions. Second, this paper will consider the competing views on the importance of Doucet-Boudreau to the dialogue metaphor and questions of judicial activism. This section also considers and explains similar experiences in the United States, India and South Africa. The third part of the paper considers the benefits and drawbacks of three types of orders commonly made in minority language rights cases: (1) detailed mandatory orders enforceable by contempt, (2) flexible mandatory orders with supervisory jurisdiction and (3) detailed interlocutory orders. Finally, the fourth part discusses the daunting question raised by the aftermath of Doucet-Boudreau: What is the right case for retaining jurisdiction as a constitutional remedy?


    In Doucet-Boudreau, a group of francophone parents brought an application pursuant to section 23 of the Charter asking the court to order the Nova Scotia Department of Education and the Conseil scolaire acadien provincial ("Conseil scolaire") to provide homogeneous French language programs and facilities at the secondary school level in five regions of the province. For many years, the parents had been urging the government to provide the required programs and facilities to high school students, in addition to those already being provided to primary school students. The problem in Doucet-Boudreau was not legislative--section 23 of the Charter clearly provided the applicants with a right to have their children educated in French and there seemed to be little debate that the "numbers warrant" test was met. (7) Indeed, in 1996, the Nova Scotia government created the Conseil scolaire for the purpose of implementing the parents' section 23 rights. Rather, the problem was one of government (in)actio-notwithstanding promises to do so, homogenous French-language facilities were never built. In 1998, sixteen years after minority language education rights were enshrined in the Charter, the parents were compelled to seek assistance from the court in realizing their constitutional rights.

    Against this backdrop of systemic delay, and in view of the "assimilation of the minority into the English-speaking majority ... reaching critical levels," (8) the trial judge ordered the government to use its best efforts to provide French language facilities and programs by specific dates and to report back to him on its progress in scheduled reporting sessions.

    Several reporting hearings were held between July 2000 and March 2001. Prior to each session, the trial judge directed the province to file an affidavit from an official at the Department of Education, outlining the Department's progress in implementing the order. The trial judge also allowed the parents and the Conseil scolaire to file rebuttal evidence.

    Before the final scheduled reporting session, the Nova Scotia Court of Appeal allowed the government's appeal of the order on the basis that"[t]he continuous post-trial intervention by the trial judge, in this case, into the area of the administrative branch of government is both unnecessary and unwarranted." (9) In the view of that court, the trial judge's decision to retain jurisdiction under subsection 24(1) of the Charter "is the very kind of intervention that could lead to an...

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