Doucet-Boudreau before the Supreme Court
Court file 28807
IN THE SUPREME COURT OF CANADA
(On Appeal from the Court of Appeal for the Province of Nova Scotia)BETWEEN:
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 LA FÉDÉRATION DES PARENTS ACADIENS DE LA NOUVELLE-ÉCOSSE INC.
Appelants
(Applicants)
and
ATTORNEY GENERAL OF NOVA SCOTIA
Respondent
(Respondent)
and
ATTORNEY GENERAL OF CANADA,
ATTORNEY GENERAL OF BRITISH COLUMBIA,
ATTORNEY GENERAL OF NEW BRUNSWICK
ATTORNEY GENERAL OF NEWFOUNDLAND AND LABRADOR,
ATTORNEY GENERAL OF ONTARIO
COMMISSIONER OF OFFICIAL LANGUAGES FOR CANADA,
CONSEIL SCOLAIRE ACADIEN PROVINCIAL,
FÉDÉRATION DES ASSOCIATIONS DE JURISTES D'EXPRESSION FRANÇAISE, and
FÉDÉRATION NATIONALE DES CONSEILLÈRES ET CONSEILLERS
SCOLAIRES FRANCOPHONES
Interveners
FACTUM OF THE INTERVENER
THE COMMISSIONER OF OFFICIAL LANGUAGES FOR CANADA
| Laura C. Snowball Tel.: (613) 995-4130 | Sylvie Roussel
|
| Subrata Bhattacharjee Tel: (416) 360-2618 |
|
TO: THE REGISTRAR OF THE SUPREME COURT OF CANADA
AND TO:
| Patterson Palmer | Lang Mitchener |
| Department of Justice (N.S.) | MacLaren Corlett |
| Attorney General of Canada |
|
| Ministry of Attorney General (B.C.) | Burke-Robertson |
| Department of Justice (N.B.) | Gowling LaFleur Henderson |
| Ministry of the Attorney General (Ontario) | Burke-Robertson |
| Merrick Holm | Lang Mitchener |
| Roger J.F. Lepage |
|
| Patterson Palmer | Lang Michener |
TABLE OF CONTENTS
Introduction
The Nature of the Proceedings in the Supreme Court of Nova Scotia
Disposition of the Trial Judge
The Reporting Hearings
The Decision of the Nova Scotia Court of Appeal
PART III - THE COMMSSIONER'S ARGUMENT
Introduction
The Special Nature of Section 23 Justified a Flexible, Creative Remedy under Section 24(1)
LeBlanc J Was a Court of Competent Jurisdiction for the Purposes of Section 24(1)
First Question: Whether retaining jurisdiction to hear reports substantially transformed the Nova Scotia Supreme Court
Second Question: Whether the Record before the Nova Scotia Supreme Court would allow the Court to fully assess the circumstances relevant to issuing the remedy
Third Question: Whether requiring section 23 rights holders to bring a separate action for enforcement of the Court's Order would be a denial of an appropriate, just and timely remedy and a disruption of the administration of justice by depriving the Court of effective remedial powers
Conclusion
PART I - FACTS
Introduction
1. This is an appeal of the June 21, 2001 decision of the Nova Scotia Court of Appeal overturning - in part - the June 20, 2000 decision (the "Decision") and subsequent order dated December 14, 2000 (the "Order") of the Supreme Court of Nova Scotia, LeBlanc J presiding (the "Trial Judge").
2. The sole question before the Court of Appeal was whether the Trial Judge had the jurisdiction to retain supervisory jurisdiction over the parties once he had ordered the implementation of homogeneous Francophone education programmes and facilities in certain specified locations by specified dates.
The Nature of the Proceedings in the Supreme Court of Nova Scotia
3. The application before LeBlanc J was for an order directing the Nova Scotia Department of Education (the "Province") and the Conseil scolaire acadien provincial ("CSAP") to provide publicly-funded homogenous French programmes and homogenous facilities at the secondary-school level in five specified locations: Kingston/Greenwood; Chéticamp; Île Madame/Petit-de-Grat; Argyle; and Clare.
4. The crux of the dispute with respect to the facilities was the Province's delay in meeting its constitutional obligations to provide those facilities:
The Department insists that since it is committed to building the facilities, such a commitment is an answer to the applicants' concerns. It agrees that there might be a delay with the construction but delay does not constitute a breach of the provisions of the Charter.
Decision, Appellants' Record (hereinafter, "A.R.") Vol VII, Tab D.1 at para. 16
Disposition of the Trial Judge
5. Following three days of hearings, based in part upon the Province's testimony as to the steps it intended to take to implement section 23 rights in the five locations, LeBlanc J set September 2000 as the deadline for homogeneous facilities in Kingston/Greenwood and Chéticamp, for homogeneous programmes and interim homogeneous facilities in Île Madame/Petit-de-Grat, and for homogeneous programmes in Argyle and in Clare. He ordered that best efforts be exercised in fulfilling these obligations.
Decision, paras. 233-37, 241-42 and 244; Order, A.R. Vol. VII, Tab D.3, paras. 1, 2 and 6
6. Similarly, LeBlanc J set January 2001 as the deadline for a new permanent comprehensive homogeneous facility for Île Madame/Petit-de-Grat, and September 2001 as the deadline for homogeneous facilities in Argyle and in Clare. He ordered that best efforts be exercised in fulfilling these obligations.
Ibid.
7. LeBlanc J also stated that he would retain jurisdiction:
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.
Decision, para. 245
8. The Order provided that:
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.
Order, para. 7
9. The Record before the Trial Judge included the Affidavit of Yvonne Lombard, which was admitted into evidence without cross-examination. Comparing numbers of children eligible for minority language instruction pursuant to section 23 of the Charter (hereinafter "section 23") to the mother tongue of those children, a 1991 report by the Commissioner of Official Languages noted data on the assimilation of Nova Scotia children showing "that the equivalent of only one child in three who had a French mother tongue parent learned French in the home."
Reasons for Decision, paras. 38 to 40, citing Angeline Martel, Official Language Minority Education Rights in Canada: From Instruction to Management (Ottawa: Office of the Commissioner of Official Languages, 1991), being Exhibit "3" to the Affidavit of Yvonne Lombard (translation), sworn April 18, 1999 [A.R. Vol. V, tab C.1; Book of Authorities of the Commissioner of Official Languages for Canada, Tab 20]
10. Also admitted into evidence without cross-examination was Exhibit "B" to the Affidavit of Maurice Beaudin, which detailed cross-Canada growth/assimilation rates for the period 1991 to 1996. Despite localised growth in New Brunswick, Nova Scotia and P.E.I., assimilation rates were as high as 47.7%, 67.4% and 57.4% respectively. For Newfoundland and Labrador, the rate was 50.3%. In Ontario, despite a growth rate exceeding 25% in some parts of the province, assimilation rates were as high as 58.2%. Manitoba, Saskatchewan and Alberta assimilation rates were as high as 53.2%, 67.2% and 64.5% respectively. Notwithstanding localised growth rates of up to 17.3%, British Columbia's assimilation rate was 69%.
Maurice Beaudin, Francophone Minorities in Canada: A Difficult Reality to Grasp, presented March 12, 1998 at the Symposium « Données linguistiques sur les minorités de langue officielle », being Exhibit "B" to the Affidavit of Maurice Beaudin, sworn April 12, 1999 [A.R. Vol. V, Tab C.15]
11. The Trial Judge's conclusions turned on his findings of fact that between 1982 and 1997 the Province had failed to meet its clear and unmistakable obligations under section 23 of the Charter, and that Nova Scotia's "near critical" 1982 levels of assimilation continued into the 1990's, increased between 1991 and 1996, and were directly related to a lack of homogeneous facilities.
Decision, paras. 210, 215-18 and 231
12. The Trial Judge concluded that it was "beyond any doubt" that it was time that the defendants provide homogeneous programmes and facilities. The number of eligible children in each of the five regions was sufficient to engage the section 23's guarantee of homogeneous programmes and facilities at the secondary level.
Decision, paras. 197 and 206
13. The Trial Judge found that the Province and CSAP had failed to give priority to the serious rate of assimilation of Acadians and Francophones in the province, failed to take into account the key role of homogeneous school facilities in preventing further assimilation and erred in subordinating the section 23 rights of individual Francophone and Acadian parents to the pursuit of a consensus within the minority language community.
Decision, paras. 204, 205, 212 and 213
The Reporting Hearings
14. Three of the four reporting hearings scheduled before the Trial Judge actually took place. The date set for the fourth hearing was after the Court of Appeal overturned LeBlanc J's retention of jurisdiction over the parties.
15. The Trial Judge maintained consistently that he had retained jurisdiction in order to learn what steps had been taken by the Province in complying with the Decision. He observed, however, that it was beyond his retained jurisdiction to order construction of a school on a specific plan, to designate a specific private classroom, or to direct how an interim facility was to be implemented. Nor did he have the authority to rule on the substantive equality of the proposed homogeneous facilities in relation to the facilities provided to the majority school population.
A.R. Vol III, pp. 720 and 850; Vol. V, pp. 1052 and 1071
16. Throughout the three reporting hearings, a consistent theme emerged from the reports heard by the Trial Judge: not only was the Province in default of the Trial Judge's Order; it had also failed to take steps it testified at trial would be taken. Tenders were issued too late to meet construction deadlines. The target date for the new Île Madame/Petit-de-Grat school was delayed, its plans subsequently curtailed and its construction ultimately cancelled. Mere weeks before school was to begin at Île Madame/Petit-de-Grat, no concrete steps had been taken to secure interim facilities. Successive delays in starting construction of the promised new Clare school for relocated Anglophone students totalled some 18 months.
A.R. Vol. III, p. 902; Vol. IV, p. 787; Vol. V, p. 1510; Vol. VI, pp. 1509-10 (para. 6); Vol. VII, pp. 1687-88
17. Indeed, the Trial Judge observed at the first reporting hearing that he had relied on the Province's assurances that the permanent Île Madame/Petit-de-Grat facility would be available in January 2001, and that the Decision might have been different had he known the Île Madame/Petit-de-Grat school would not be available until September 2001.
A.R. Vol III, pp. 855, 859-60 and 971-72
The Decision of the Nova Scotia Court of Appeal
18. The majority of the Court of Appeal, Freeman J.A. dissenting, overturned the Supreme Court's "retention" of jurisdiction, holding that the combined operation of the Nova Scotia Judicature Act and the common law doctrine of functus officio precluded LeBlanc J from doing so.
Reasons for Judgment ("Reasons"), A.R. Vol. VII, Tab D.5 at para. 24
19. The majority also expressed its views on the application of sections 23 and 24 of the Charter. In particular, the majority (per Flinn J.A.) observed that retention of jurisdiction was a matter of enforcement rather than remedy, and therefore section 24(1) of the Charter (hereinafter "section 24(1)") was irrelevant to whether the Trial Judge had the authority to retain jurisdiction. In any event, retaining jurisdiction was unnecessary because it was generally to be assumed that a government litigant would comply with court orders directed towards it, because there had been no evidence that the government of Nova Scotia would not comply, and because the applicants could apply for an order of non-compliance if the Province did not implement the programmes and facilities at the times and places specified by the Trial Judge.
Reasons at paras. 39 and 50
20. In dissent, Freeman J.A. concluded:
In my view Justice LeBlanc drew upon his familiarity with the facts and the attitudes of the parties before him to craft an exemplary remedy.... If he had misread the degree of co-operation he could expect from the players, there was a risk of failure. The order only called for the best efforts of the respondents, and retention of jurisdiction was meant to head off the potential for an enforcement nightmare. The stakes were high but his order got the job done, virtually on time, with a minimum of inconvenience or unnecessary cost. It was a well-balanced remedy, mild and unobtrusive but effective. .... By providing it, Justice LeBlanc remedied a deprivation of important Charter rights that had been festering for almost two decades. In my view the court of appeal should not interfere.
Reasons (Dissent of Freeman J.A.) at para. 84
PART II - MATTERS IN ISSUE
21. The Intervener the Commissioner of Official Languages for Canada submits that:
- Section 24(1) must be interpreted and applied in a purposive manner reflecting the special remedial nature of section 23;
- Section 24(1) authorises a court of competent jurisdiction to render judgment including retention of jurisdiction over the parties to monitor the parties' implementation of the judgment;
- As a Superior Court of inherent jurisdiction, the Trial Judge in the instant case was a court of competent jurisdiction for the purposes of section 24(1) and the retention of jurisdiction;
- A narrow reading of section 24(1) would fatally undermine the constitutional rights guaranteed by section 23 by denying rights-holders timely, and therefore full, effective and meaningful implementation of their section 23 victories before our courts.
PART III - ARGUMENT
Introduction
22. The question before the Court below was whether, having found a violation of the applicant's section 23 Charter rights by the Province and having ordered the Province to exercise best efforts in furnishing homogeneous instruction and facilities, the Trial Judge could retain jurisdiction and direct the parties to report back periodically on the Order's implementation.
23. In concluding that the Trial Judge could not retain jurisdiction, the majority of the Court of Appeal found implicitly that the Trial Judge was not a "court of competent jurisdiction" for the purposes of section 24(1).
24. It is respectfully submitted that, contrary to the decision of the Court below, section 24(1) authorises superior courts of record, such as the Trial Judge, to retain supervisory jurisdiction over the implementation of orders made pursuant to section 23 and that the facts of the instant case justified the exercise of such remedial authority.
25. It is also respectfully submitted that even though the information acquired via the reporting hearings may provide retrospective support for the Trial Judge's decision to retain jurisdiction, the principal issue in this appeal is the Trial Judge's retention of jurisdiction simpliciter. This appeal is not properly the forum for discussion of the propriety of the conduct of those reporting hearings. The Special Nature of Section 23 Justified a Flexible, Creative Remedy under Section 24(1)
26. This Court has held that section 24(1) must be interpreted in a manner that provides a full, effective and meaningful remedy for Charter violations.
R. v. 974649 Ontario Inc., 2001 SCC 81 ("Dunedin") at para. 19
27. It is submitted that the nature of such "full, effective and meaningful remedy" must itself be determined in relation to the particular Charter right in issue. Accordingly, the questions before this Court cannot be resolved without consideration of the nature of section 23 and its relationship with the remedies available under section 24(1).
28. Section 23 is remedial in nature, and is intended to correct, on a national scale, the progressive erosion of minority official language groups and to give effect to the concept of the 'equal partnership' of the two official language groups in the context of education.
Mahé et al. v. Alberta et al., [1990] 1 S.C.R. 342 at 364 ("Mahé")
29. In responding to demonstrated and unjustified violations of section 23 rights, our courts have, on occasion, seen fit to issue declarations describing the provinces' obligations in general terms, leaving public authorities some discretion in satisfying those requirements:
... Once the Court has declared what is required... then the government can and must do whatever is necessary to ensure that these appellants, and other parents in their situation, receive what is due under s. 23.
Mahé at 393, cited in Reference re Public Schools Act (Man.), [1993] 1 S.C.R. 839 at 864 ("Manitoba Public Schools")
30. It is submitted, however, that because of the looming and progressive nature of the assimilation and cultural erosion that section 23 is meant to correct, section 23 litigation is characterised by urgency. In many cases, the risk of provincial inaction may be such that a simple declaration by the court presiding will be insufficient.
31. In the present case, as Freeman J.A. observed in dissent, the trial judge faced evidence of the "frustration of Acadian and Francophone parents watching the assimilation of their children in a manner contrary to the core Canadian values expressed in the Charter". A declaration alone was not sufficient to address this situation. As a result, the Trial Court chose "a creative blending of declaratory and injunctive relief with a means of mediation."
Reasons (Dissent of Freeman J.A.), at paras. 77 and 70 respectively
32. Section 24(1) contemplates a wide range of remedies to address breaches of Charter rights, including the retention of jurisdiction. In the particular case of section 23 rights, the courts have repeatedly fashioned creative remedies under section 24(1), including the retention of jurisdiction:
Association française des Conseils scolaires de l'Ontario et al. v. Ontario (1988), 66 O.R. (2d) 599 (C.A.); Marchand v. Simcoe County Board of Education et al. (1986), 29 D.L.R. (4th) 596 (Ont. H.C.J.); (1987), 44 D.L.R. (4th) 171 (Ont. H.C.J.); L'Association des parents francophones de la Colombie-Britannique v. British Columbia (1996), 139 D.L.R. (4th) 356 (S.C.)
See also: Auton (Guardian ad litem of) v. British Columbia (Attorney General) (2001), 197 D.L.R. (4th) 165 (B.C.S.C.)
LeBlanc J Was a Court of Competent Jurisdiction for the Purposes of Section 24(1)
33. As noted above, the majority of the Nova Scotia Court of Appeal held that the common law doctrine of functus officio, coupled with certain provisions in the Nova Scotia Judicature Act, precluded the retention of jurisdiction to hear reports on the implementation of the Order, implicitly holding that the Trial Judge was not a "court of competent jurisdiction" for the purposes of section 24(1).
34. Section 24(1) provides that anyone whose right or freedom has been infringed may apply to a court of competent jurisdiction for a remedy that is appropriate and just in the circumstances.
35. As noted above, this Court held in Dunedin that section 24(1) "must be interpreted in a manner that provides a full, effective and meaningful remedy for Charter violations" since "to the extent that it is difficult or impossible to obtain remedies for Charter breaches, the Charter ceases to be an effective instrument for maintaining the rights of Canadians."
Dunedin at paras. 19 and 1 respectively
36. In this appeal, only the third and final characteristic of a "court of competent jurisdiction" under section 24(1) is in issue, namely, whether the Trial Judge possessed the jurisdiction to grant the remedy sought.
See: Dunedin at para. 15
37. This Court has on numerous occasions considered the meaning of section 24(1)'s "court of competent jurisdiction" in relation to statutory courts or superior courts exercising a function explicitly circumscribed by statute.
Mills v. The Queen, [1986] 1 S.C.R. 863 ("Mills"); Weber v. Ontario Hydro, [1995] 2 S.C.R. 929; Mooring v. Canada (National Parole Board), [1996] 1 S.C.R. 75; Dunedin; and R. v. Hynes, 2001 SCC 82 ("Hynes")
38. The Respondent characterises this Court's analysis in those cases such that the section 24(1) remedial powers of superior courts are significantly restricted. With respect, however, it is submitted that consideration of those cases in their respective contexts does not yield the conclusion argued by the Respondent. In particular:
- this Court's observation in Dunedin that "[t]he framers of the Charter did not intend to erase the constitutional distinctions between different types of courts" (para. 23, per McLachlin C.J.C.) arose in discussion of the remedies available to a statutorily-created provincial offences court, as opposed to a superior court;
cf. Respondent's factum at para. 63 - In Mills, McIntyre J. observed (at 953) that:
... In attacking these problems, that of jurisdiction and that of remedy, the courts are embarking on a novel exercise. ... The task of the court will simply be to fit the application into the existing jurisdictional scheme of the courts in an effort to provide a direct remedy, as contemplated in s. 24(1). It is important, in my view, that this be borne in mind. 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. There is no need for special procedures and rules to give it full and adequate effect. [emphasis added]
cf. Respondent's factum at paras. 63 and 64 - the "existing jurisdictional scheme" in Mills resulted from the legislative distinction between a court conducting a preliminary inquiry and one conducting a criminal trial so that the "wholesale invention of a parallel system for the administration of Charter rights over and above the machinery already available for the administration of justice" which La Forest J. sought to avoid (at 971) was the duplication resulting from the conduct of Charter proceedings at the preliminary inquiry stage that would be repeated at trial;
cf. Respondent's factum at para. 64 - this Court's observation in Dunedin that "it remains the role of Parliament and the legislatures, and not the judiciary, to assign jurisdiction to the various courts and tribunals comprising our legal system" (para. 26, per McLachlin C.J.C.) clearly addresses courts that are strictly statutory in origin:
[....] Where, as here, the tribunal in question is a creature of statute, this power must derive from its enabling legislation. It is a fundamental principle that statutory bodies may perform only those tasks assigned to them by Parliament or one of the provincial legislatures, and in performing those tasks they have at their disposal only those powers granted to them expressly or impliedly [citations omitted]. [emphasis added]
cf. Respondent's factum at para. 65 - this Court's comments at paras. 49, 54, and 58 of Dunedin that stress problems of incompatibility between the remedy sought and the court's institutional competence explicitly evoke the Mills decision and the particular facts of that case, i.e., a court with a limited role as compared to the larger role at trial of a court of general criminal jurisdiction;
cf. Respondent's factum at paras. 68 and 69 - finally, although this Court observed in Dunedin at para. 66 that a legislated limit of the remedial authority of a statutory court is an important consideration in determining the remedial powers of that court under the Charter, this Court concluded that the function of the provincial offences court as a quasi-criminal court of first instance weighed in favour of recognising a s. 24(1) remedy in costs even though the relevant provincial offences legislation did not explicitly address such a remedy.
Dunedin at paras. 94 and 95
cf. Respondent's factum at para. 68
39. That said, it is submitted that this Court's analysis of the "court of competent jurisdiction" issue in relation to statutory courts may be applied - by analogy - to the instant case of a superior court of inherent jurisdiction. This Court has held that the ability of statutory courts to issue a remedy not expressly allocated to them by Parliament or the legislature depends upon a "functional and structural" analysis. In particular, this Court's recent functional and structural analysis in Dunedin and in Hynes raised certain questions that are particularly relevant to the case at hand:
- whether maintaining jurisdiction to hear reports would substantially transform the court in question;
Dunedin at paras. 80 and 85; Hynes at paras. 37 and 39
- whether the court would have a full account of the facts available so that it could fully assess the circumstances relevant to issuing the remedy;
Dunedin at paras. 79 and 91; cf. Hynes at paras. 38, 41, 42 and 49
- whether requiring aggrieved rights holders to bring a separate action for their Charter remedy would amount to a denial of an appropriate, just and timely remedy and disrupt the administration of justice by depriving the court of effective remedial powers.
Dunedin at paras. 79, 81-82 and 88
First Question:
Whether retaining jurisdiction to hear reports substantially transformed the Nova Scotia Supreme Court
40. The retention of jurisdiction by the Trial Judge did not substantially transform this Court, as it was within his inherent jurisdiction to hear reports. In this regard, the majority of the Nova Scotia Court of Appeal erred in its assessment of the remedial powers and jurisdictional reach of the Trial Judge as a superior court of inherent jurisdiction.
41. The "inherent" jurisdiction of a court enables the court to fulfil its role as a court of law, properly and effectively. As a general rule, a superior court of record (such as, in this instance, the Supreme Court of Nova Scotia) exercises the full plentitude of judicial power in all matters concerning the general administration of justice within its territorial limits, and enjoys unrestricted and unlimited powers in all matters of substantive law. A superior court's inherent jurisdiction may, however, be curtailed by explicit statutory enactment.
Halsbury's Laws of England, vol. 37, 4th ed. (London: Butterworths, 2001) at para. 12
42. Superior courts have resorted to their inherent jurisdiction in order to regulate court process and proceedings, control abuse of process or compel observance of process.
I.H. Jacob, "The Inherent Jurisdiction of the Court", [1970] C.L.P. 23 at 51
43. The presence of legislative measures addressing the subject matter of an exercise of inherent jurisdiction does not oust that jurisdiction. Rather, inherent jurisdiction and such legislation (whether, for example, a provincial Judicature Act or Rules of Court) supplement and reinforce each other.
Ibid., at 50
44. It has also been recognised and confirmed that inherent jurisdiction provides superior courts with the authority to "award new remedies as necessary to achieve justice between the parties."
80 Wellesley St. East Ltd. v. Fundy Bay Builders Ltd. et al., [1972] 2 O.R. 280 (C.A.) at 283
45. Similarly, this Court has observed that:
Courts having a competence to make an order in the first instance have long been found competent to make such additional orders or to impose terms or conditions in order to make the primary order effective.
A.G. Canada v. Law Society of B.C., [1982] 2 S.C.R. 307 at 330
46. LeBlanc J's reasons for decision clearly reflect evidence of an 18-year history of inattention, incomprehension and default by the Province with respect to its section 23 obligations. It is submitted that, based on such evidence, the Trial Judge could reasonably have concluded that the Province's timely implementation of the Trial Judge's substantive order under section 23 was uncertain. From this perspective, LeBlanc J's retention of jurisdiction is properly understood as a necessary regulation of that Court's process and proceedings and a means of compelling compliance with the substance of his Order.
47. Nonetheless, from time to time our courts decline to exercise their inherent jurisdiction where another forum has been designated for the applicant's claim.
See, for example: Peel (Regional Municipality) v. Great Atlantic & Pacific Co. of Canada Ltd. (1990), 74 O.R. (2d) 161 (C.A.); Clemons v. Winnipeg (City) (1995), 100 Man. R. (2d) 64 (C.A.); and O'Brien v. Whitehorse Christian Bible Fellowship, [1993] Y.J. No. 80 (Y.T. S.C.)
48. However, where government implementation of court-recognised section 23 rights is at issue, fresh contempt proceedings cannot be an effective and meaningful alternative forum. Section 23 rights are rights diminished with the passage of time and the quasi-criminal penalty entailed by contempt proceedings cannot directly compel implementation of an existing section 23 judgment.
See argument infra at paras. 66 and 67
49. It is submitted that the majority of the Court below erred in its conclusion that section 33 and subsection 34(d) of the Nova Scotia Judicature Act precluded the exercise of the Trial Judge's inherent jurisdiction to monitor compliance with his Order:
- properly understood, LeBlanc J's retention of jurisdiction over the parties for reporting purposes was part of the disposition envisaged by section 33's rule that every proceeding in the Court and all business arising out of such proceeding must be "heard, determined and disposed of" before a single judge; and
- subsection 34(d)'s requirement that judgment must be rendered within six months of reservation by the Trial Judge was met, since LeBlanc J issued his reasons and an Order reflective of those reasons within that time-frame and the Trial Judge's retention of jurisdiction for reporting did not entail any further reserve judgments.
50. It is also submitted that the Trial Judge's retention of jurisdiction to hear reports was wholly consistent with the authority conferred on it by section 96 of the Constitution Act, 1867. As Professor Hogg has noted:
Section 96 and the other judicature provisions of the Constitution Act, 1867 do not impose any constraints on the jurisdiction that can be conferred on a superior court. A superior court is, of course, subject to the maximum constitutional protection. Therefore, there is no constitutional objection to the conferral on a superior court of a novel jurisdiction, or a jurisdiction traditionally exercised by inferior courts.
Constitutional Law of Canada, 4th ed. (Loose-leaf Edition), (Scarborough: Carswell) at section 7.3(d), citing Reference Re Young Offenders Act (P.E.I.), [1991] 1 S.C.R. 252 at 264
51. Indeed, this Court has confirmed that our superior courts enjoy a core or inherent jurisdiction that is "integral to their operations" and that "the power of superior courts to fully control their own process is, in our system where the superior court of general jurisdiction is central, essential to the maintenance of the rule of law itself".
MacMillan Bloedel Ltd. v. Simpson, [1995] 4 S.C.R. 725 ("MacMillan Bloedel"), per Lamer C.J.C., citing Re Young Offenders Act at 264
52. In general, where this Court has been asked to interpret and apply section 96, the issue has been whether and in what circumstances functions encompassed by the core or inherent jurisdiction of a section 96 court may be assigned by statute to an administrative tribunal. In the result, this Court has devised the three-part test for determining the court-like powers that can legitimately be exercised by a statutory tribunal.
Re Residential Tenancies Act, 1979, [1981] 1 S.C.R. 714; MacMillan Bloedel at 737
53. The purpose of the Residential Tenancies test is to ensure the protection of the inherent jurisdiction and powers of section 96 courts. The test was clearly not intended to be applied to limit such jurisdiction.
54. As an aside, it should be noted that even if section 96 did prohibit superior courts from exercising powers similar to those allocated to statutory courts and tribunals by Parliament or the legislatures, certain generally accepted "supervisory" superior court practices would be fatally undermined. These include the retention of jurisdiction to oversee and issue supervisory remedies in relation to receivership matters, and superior court case management and mediation.
See: R.J. Sharpe, Injunctions and Specific Performance (Aurora: Canada Law Book, 1998) at p. 3-71-72, paras. 3.1410-20
55. Finally, it should also be noted that the "separation of powers" doctrine in Canadian law operates principally to guarantee the core jurisdiction of superior courts against legislative encroachment. Like the three-part Residential Tenancies test for statutory tribunals, the separation of powers doctrine should not be turned on its head to limit section 96 courts strictly to their protected core jurisdiction.
Cooper v. Canada (Human Rights Commission), [1996] 3 S.C.R. 854 at para. 11 (cf. Respondent's factum at paras. 84 and 85 citing Bell v. Canada (CHRC))
56. In the alternative, supposing a strict constitutional protection of the executive from the judiciary, LeBlanc J's retention of jurisdiction to hear reports should not be understood as encroaching upon the functions of the executive branch of government. In short, LeBlanc J retained jurisdiction to learn whether the Province implemented its section 23 obligations as ordered, within the prescribed time-frames. LeBlanc did not retain jurisdiction to direct the Province's choices amongst discretionary decisions falling within the parameters of the Order.
Second Question:
Whether the Record before the Nova Scotia Supreme Court would allow the Court to fully assess the circumstances relevant to issuing the remedy
57. It is respectfully submitted that, as a general rule, any court adjudicating a section 23 claim for programmes or facilities will have the fullest possible appreciation of the facts before it for determining whether, upon issuing an Order to the province to comply with its section 23 obligations, an Order retaining jurisdiction for reports will assist in ensuring timely compliance.
58. In this particular case, LeBlanc J was fully apprised that despite virtually critical levels of rates of Francophone assimilation in 1982, the Province had failed to determine whether "numbers warranted" homogeneous facilities in any of the five regions and had failed to establish construction priorities consistent with its section 23 obligations. He was fully apprised of the Province's history of apparently dealing with its section 23 obligations as if they were political issues rather than constitutional imperatives. LeBlanc J was also fully apprised of the assimilation-driven critical and urgent need for homogeneous programmes and facilities in order to preserve and promote the French language and culture in the five locations.
Third Question:
Whether requiring section 23 rights holders to bring a separate action for enforcement of the Court's Order would be a denial of an appropriate, just and timely remedy and a disruption of the administration of justice by depriving the Court of effective remedial powers
59. In the four years following the coming-into-force of the Charter in 1982, provincial implementation of their section 23 obligations was sporadic at best, occurring in isolated instances or in response to a court victory by the rights-holders of that particular province. Left to their own devices, it did not appear that the provinces would fully and promptly fulfil their section 23 obligations.
See: Pierre Foucher, "Les droits linguistiques en matière scolaire", in Michel Bastarache et al., Les Droits linguistiques au Canada (Montreal: Yvon Blais, 1986) 269 at pp. 273 and 280
60. By the early 1990's, this Court had clearly established the rights of minority language parents to homogeneous instruction and homogeneous education facilities where numbers warrant and clear indications of exactly when numbers would so warrant and what those facilities entailed in its Mahé and Manitoba Public Schools decisions.
Mahé at 365-69 and 384-89; Manitoba Public Schools at 852-56
61. In Manitoba Public Schools, this Court was asked to provide guidance on the application of the Mahé decision in Manitoba, in particular with respect to homogeneous facilities and governance rights. While providing that clarification, this Court remarked nonetheless on the province's admitted default under section 23:
In response to Alberta's timetable in developing a proper French-language educational system, the Court stated the following in Mahé (at p. 393): "Section 23 of the Charter imposes on provincial legislatures the positive obligation of enacting precise legislative schemes providing for minority language instruction and educational facilities where numbers warrant. To date, the legislature of Alberta has failed to discharge that obligation. It must delay no longer in putting into place the appropriate minority language education scheme." I would echo these remarks in the case of the Manitoba Government, which has, by its own admission, failed to live up to its constitutional obligation since the release of Mahé in 1990.
Manitoba Public Schools at 859 (per Lamer C.J.C.)
62. Similarly, despite the Franco-Albertans' clear victory in Mahé, provincial implementation came slowly. Years later, counsel for the parents observed:
L'interprétation judiciaire des droit consacrés par l'article 23 de la Charte a également provoqué certains développements politiques; cependant, la population francophone de l'Alberta attend depuis plus de trois ans et demie les mesures législatives qui lui accorderont la gestion scolaire. Enfin, le 10 novembre 1993, l'Assemblée législative de l'Alberta a adopté la Loi 8 [citation omitted] laquelle accorde la gestion scolaire aux francophones dans trois régions de la province.
Mary T. Moreau, L'Efficacité du litige linguistique, in Linguistic Rights in Canada: Collusions or Collisions?, Sylvie Léger, ed. (Ottawa: Canadian Centre for Linguistic Rights, 1995), 359 at 367
63. It is submitted that this Court's decisions in Mahé and Manitoba Public Schools ought reasonably have been expected to bring an end to minority language parents propelling their respective governments to, and through, the courts to secure full implementation of section 23 rights, certainly with respect to homogeneous instruction and facilities where numbers clearly warrant. Rather, notwithstanding the clarity and national scope of the Mahé and Manitoba Public Schools decisions, the last decade has seen minority language parents across Canada continuing to resort to the courts for orders confirming their rights to minority language instruction and facilities.
Conseil des écoles séparées catholiques romaines de Dufferin et Peel v. Ontario, (1996), 30 O.R. (3d) 681. (Gen.Div.)
Comité de sauvegarde de l'École la Découverte de Saint-Sauveur v. Nouveau-Brunswick (1997), 191 N.B.R. (2d) 139 (Q.B.)
Conseil scolaire fransaskois de Zenon Park v. Saskatchewan (1998), 170 Sask. R. 103 (Q.B.)
Arsenault-Cameron v. P.E.I., [2000] 1 S.C.R. 3, reversing 162 Nfld. & P.E.I.R. 329 and 500 A.P.R. 329 (C.A.), reversing 147 Nfld. & P.E.I.R. 308 and 459 A.P.R. 308 (T.D.)
Doucet-Boudreau v. Nova Scotia, [2001] N.S.J. no. 240 (C.A.), reversing [2000] N.S.J. no. 191 (S.C.)
64. In light of this history, it would be entirely reasonable for such minority language parents to conclude - as the Appellants must have done in the instant case - that such general provincial reluctance to act on section 23 obligations would reappear post-judgment in reluctance to fully respect a court declaration of section 23 rights.
65. Indeed, the true debate before the Trial Judge between the Applicants and Respondent was not whether the Province was constitutionally obligated to provide homogeneous instruction and facilities in the five locations; the question was the legitimacy of the Province's claim that it could delay in implementing those constitutional obligations without putting itself in breach of section 23.
Decision at para. 16 (see also: para. 4 above)
66. Absent the retention of jurisdiction which entailed a compulsory airing of progress reports on the Province's implementation of the Order, the Appellant parents' victory before the Trial Judge would have been a hollow one. In the event the delay that had plagued their dealings with the Province reoccurred, their closest recourse would be to a different judge for a contempt order, but only once they had gathered convincing evidence that the Order's deadlines would not be met.
67. At best, a contempt order would reiterate the Trial Judge's directions to the Province, perhaps fining the Province for its default. However, the negative impact of the intervening delay upon the vitality of the minority language community could not be corrected in any meaningful way. Delay in implementing minority language facilities therefore deprives the community of one of its key weapons against the historically progressive erosion that undermines the community's ability simply to meet the upper end of the "where numbers warrant" threshold specified by section 23.
68. It is therefore submitted that the Trial Judge's principal section 23 mandate was to take steps to put an end to that delay, and the Trial Judge's decision to monitor the outcome of his order by retaining jurisdiction to hear reports was the practical solution to the essential nature of the problem before him, namely delay.
69. Retention of jurisdiction by the Trial Judge could be expected to encourage the Province's compliance with its obligations. As Professor Roach comments:
Retention of jurisdiction by the judge who has found the unjustified Charter violation should also give governments an additional incentive to respond to the decision promptly and to include the successful Charter litigant in the formulation of the government's response.
Kent Roach, "Remedial Consensus and Dialogue under the Charter: General Declarations and Delayed Declarations of Invalidity", [2002] U.B.C.L. Rev. [forthcoming] at pp. 257-58
70. It is respectfully submitted that the same rationale applies to the general case of superior courts adjudicating section 23 claims, so that our superior courts must have the authority to retain jurisdiction over the parties to monitor the government's compliance with the resulting section 23 orders.
71. In the event that section 23 parents must commence a separate action or contempt proceedings to obtain timely and complete implementation of rights they have already defended successfully in court, the result is a denial of an appropriate just and timely constitutional remedy. The administration of justice is seriously undermined: if effective remedies for recognised rights depend on multiple actions and applications, our minority language communities cannot reasonably be expected to battle on as assimilation continues to take its toll. This is particularly so in light of the strain that language rights litigation places on the minority language community:
Language litigation is adversarial. It pits minority groups against an easily incensed majority, often in a bitter struggle for minority survival. In order to fight the battle, linguistic minority groups have to retain lawyers, usually from the majority's elite. Minorities must contest the struggle before the judiciary - usually drawn from the majority community as well. Even in cases where minority groups have won at trial, court orders have gone unenforced because of government intransigence [citing, inter alia, R. v. Forest (1976), 74 D.L.R. (3d) 704]. This means more trips to court are required. Still nothing happens. The experience is alienating and frightening. The minority's resources and strength as a community are dissipated.
Joseph E. Magnet, Official Languages of Canada (Cowansville: Yvon Blais, 1995) at 279
Conclusion
72. It is respectfully submitted that the Trial Judge and superior courts in general are "courts of competent jurisdiction" under section 24(1) for the purpose of retaining monitoring jurisdiction over the parties as part of a judgment recognising the province's positive obligations towards its minority language community pursuant to section 23. Retention of jurisdiction is part and parcel of a full, effective and meaningful section 24(1) remedy precisely because delay in the implementation of section 23 rights and judgments recognising those rights can be expected to compound the very mischief section 23 is meant to correct, namely the historically progressive erosion of our minority language communities.
PART IV - ORDER SOUGHT
73. The Intervener the Commissioner of Official Languages of Canada, respectfully requests that this Honourable Court:
- allow the appeal; and
- reinstate the Decision and Order of LeBlanc J in full.
ALL OF WHICH IS RESPECTFULLY SUBMITTED this 12th day of August, 2002
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PART V - LIST OF AUTHORITIES
1. Arsenault-Cameron v. P.E.I., [2000] 1 S.C.R. 3
2. Cooper v. Canada (Human Rights Commission), [1996] 3 S.C.R. 854.
3. Mooring v. Canada (National Parole Board), [1996] 1 S.C.R. 75.
4. MacMillan Bloedel Ltd. v. Simpson, [1995] 4 S.C.R. 725.
5. Reference Re Young Offenders Act (P.E.I.), [1991] 1 S.C.R. 252.
6. Weber v. Ontario Hydro, [1995] 2 S.C.R. 929.7. A.G. Canada v. Law Society of B.C., [1982] 2 S.C.R. 307.
8. Re Residential Tenancies Act, 1979, [1981] 1 S.C.R. 714
9. Auton (Guardian ad litem of) v. British Columbia (Attorney General)
(2001), 197 D.L.R. (4th) 165 (B.C.S.C.).
10. Arsenault-Cameron v. P.E.I. (1998),
162 Nfld. & P.E.I.R. 329 and 500 A.P.R. 329 (C.A.)
11. Conseil scolaire fransaskois de Zenon Park v. Saskatchewan (1998),
170 Sask.R. 103 (Q.B.).
12. Arsenault-Cameron v. P.E.I. (1997),
147 Nfld. & P.E.I.R. 308 and 459 A.P.R. 308 (T.D.).
13. Comité de sauvegarde de l'École la Découverte de Saint-Sauveur v. New Brunswick (1997), 191 N.B.R. (2d) 139. (Q.B.).
14. Conseil des écoles séparées catholiques romaines de Dufferin et Peel
v. Ontario (1996), 30 O.R. (3d) 681. (Gen.Div.).
15. Clemons v. Winnipeg (City), (1995) 100 Man. R. (2d) 64 (C.A.).
16. O'Brien v. Whitehorse Christian Bible Fellowship, [1993] Y.J. No. 80 (Y.T. S.C.)
17. Peel (Regional Municipality) v. Great Atlantic & Pacific Co. of Canada Ltd. (1990), 74 O.R. (2d) 161 (C.A.).
18. Re Association française des Conseils scolaires de l'Ontario et al. and The Queen in Right of Ontario et al. (1988), 66 O.R. (2d) 599 (C.A.).
19. 80 Wellesley St. East Ltd. v. Fundy Bay Builders Ltd. et al., [1972] 2 O.R. 280 (C.A.).
20. Angeline Martel, Official Language Minority Education Rights in Canada:
From Instruction to Management. (Ottawa: Office of the Commissioner of
Official Languages, 1991), being Exhibit "3" to the Affidavit of Yvonne
Lombard (translation), sworn April 18, 1999 [Appellant's Record ("A.R."),
vol. V, tab C.1].
21. Halsbury's Laws of England, vol. 37, 4th ed. (London: Butterworths, 2001).
22. I.H. Jacob, "The Inherent Jurisdiction of the Court", [1970] Current Legal Problems 3.
23. Peter W. Hogg, Constitutional Law of Canada. 4th ed. ( Loose-leaf Edition),
(Scarborough: Carswell, 1997).
24. R.J. Sharpe, Injunctions and Specific Performance. (Aurora: Canada Law Book, 1998).
25. Pierre Foucher, "Les droits linguistiques en matière scolaire", in Michel Bastarache et al., Les Droits linguisitiques au Canada. (Montreal: Yvon Blais, 1986).
26. Mary T. Moreau, "L'Efficacité du litige linguistique", in Linguistic Rights in Canada: Collusions or Collisions?, Sylvie Léger, ed. (Ottawa: Canadian Centre for Linguistic Rights, 1995).
27. Kent Roach, "Remedial Consensus and Dialogue under the Charter: General
Declarations and Delayed Declarations of Invalidity". [2002] U.B.C.L.Rev. [forthcoming]
28. Joseph E. Magnet, Official Languages of Canada. (Cowansville: Yvon Blais, 1995).
29. Canadian Charter of Rights and Freedoms, Part I of the Constitution Act,
1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11.
30. Judicature Act, R.S.N.S., 1989, c. 240.
