Doucet-Boudreau v Nova Scotia (Minister of Education) [2003] 3 S.C.R. 3, 2003 SCC 62, was a decision of the Supreme Court of Canada which followed the Nova Scotia Supreme Court's finding that a delay in building French language schools in Nova Scotia violated the claimants' minority language educational rights under section 23 of the Canadian Charter of Rights and Freedoms. This finding led to an important debate regarding the scope of section 24(1) of the Charter, which provides for remedies for those whose rights are infringed, and the applicability of the common law doctrine of functus officio. While the Supreme Court of Canada split on what constitutes an appropriate usage of section 24(1), the majority favoured a section 24(1) with broad, flexible capabilities.
Background
According to the Supreme Court of Canada, Nova Scotia's past had not been marked by a great deal of governmental action for providing education in French. After 1982, however, section 23 was added to the Constitution of Canada, thus creating a right for Francophone and Acadian Nova Scotians to schooling in their own language, provided that they were of a sufficient number. Several Francophone families in five school districts, Kingston/Greenwood, Chéticamp, Île Madame-Arichat (Petit-de-Grat), Argyle, and Clare, tried to invoke that right, requesting new buildings or programs for primary and secondary education, and the provincial government responded with affirmation that section 23 did indeed mandate that this request be fulfilled. This affirmation was, however, followed by delay, and in 1998, with no schools having been built, the minority language community turned to the Supreme Court of Nova Scotia to move the government to meet its obligation.
The court heard the case in October 1999. The court was led by Justice LeBlanc, who found that section 23 required new schools and programs for the families. Moreover, he ruled that the delay in construction also constituted an infringement of the claimants' section 23 rights. He reached the latter conclusion by pointing out that French language Nova Scotians were increasingly being absorbed into the English-language community. Hence, any further delay would eventually jeopardize the existence of the French community. Since the French community's requests were also anchored on a constitutional principle, they also deserved priority. Accordingly, LeBlanc used section 24(1) of the Charter to set deadlines and demand that the government report to him as construction progressed.
The obligation of the provincial government to report to Justice LeBlanc was disputed, as it was considered a violation of functus officio, in which a judge makes a ruling and afterwards has no authority. The Nova Scotia Court of Appeal sided with the government and overturned the requirement of reporting, citing concerns about moving Canada towards United States-style injunctions and upsetting the relationship between the Canadian court system and the government. The argument that section 23 gave the claimants a right to French programs and schools, however, was not questioned.
Decision
While construction had been completed by the time the minority language families appealed their case to the Supreme Court of Canada, Justices Frank Iacobucci and Louise Arbour, writing for the majority of the Court, declined to set aside the case for mootness. They went on to vindicate the position of Justice LeBlanc and overturn the Court of Appeal.
Section 23
The majority of the Supreme Court approved the creative method for enforcing section 23 partly by emphasizing the importance of section 23 and how it was always meant to be an enforceable right. Section 23, they wrote, has a "remedial nature... 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." Hence, section 23 is a positive right requiring government action.