Doucet-Boudreau, Dialogue and Judicial Activism: Tempest in a Teapot?

“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.” 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. 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 s. 23 of the Charter. 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. In the academic literature, some scholars have suggested that the majority’s decision represents an exception to an established pattern of judicial restraint under s. 24(1) of the Charter. 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.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?

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