Ipsofactoj.com: International Cases  Part 11 Case 11 [SCC]
SUPREME COURT OF CANADA
- vs -
(Minister of Education)
6 NOVEMBER 2003
Iacobucci J & Arbour J
This appeal involves the nature of remedies available under s. 24(1) of the Canadian Charter of Rights and Freedoms for the realization of the minority language education rights protected by s. 23 of the Charter. The specific issue is whether a trial judge may, after ordering that a provincial government use its best efforts to build French-language school facilities by given dates, retain jurisdiction to hear reports on the progress of those efforts. The issue of broader and ongoing judicial involvement in the administration of public institutions is not before the Court in this case.
I. BACKGROUND AND JUDICIAL HISTORY
The appellants are Francophone parents living in five school districts in Nova Scotia (Kingston/Greenwood, Chéticamp, Île Madame-Arichat (Petit de Grat), Argyle, and Clare) and La Fédération des parents acadiens de la Nouvelle-Écosse Inc., a non-profit organization that monitors the advancement of educational rights of the Acadian and Francophone minority in Nova Scotia. The Attorney General of Nova Scotia is the respondent, acting on behalf of the Department of Education of Nova Scotia.
Apart from the specific facts of the case, it is most important to note the historical context on which this dispute is centred. As we will discuss below, French-language education in Nova Scotia has not had an enviable record of success. While the situation improved over the rather dismal record of the previous centuries, the twentieth century left much to be achieved. Section 23 of the Charter has been the hope of the French-speaking minority of Nova Scotia to redress the linguistic failings and inequality of history.
It is conceded in this appeal that s. 23 of the Charter entitles the appellant parents to publicly funded French-language educational facilities for their children. For some time, Francophone parents in these five school districts of Nova Scotia had been urging their provincial government to provide homogeneous French-language schools at the secondary level in addition to the existing primary level facilities. The government of Nova Scotia, for its part, agreed: it did not dispute that the number of students warranted the facilities demanded. The government amended the Education Act, S.N.S. 1995-96, c. 1, ss. 11-16, in 1996 to create the Conseil scolaire acadien provincial ("the Conseil"), a province-wide French-language school board, with a view to realizing the Charter's minority language education rights. However, while s. 11(1) empowered the Conseil to deliver and administer all French-language programs, only the Minister, with the approval of the Governor in Council, could construct, furnish and equip schools (see s. 88(1)). Although the government eventually announced the construction of the new French-language school facilities, construction of the promised schools never began. So in 1998, 16 years after the right was entrenched in the Constitution, the appellant parents applied to the Supreme Court of Nova Scotia for an order directing the Province and the Conseil to provide, out of public funds, homogeneous French-language facilities and programs at the secondary school level.
The application was heard before LeBlanc J. in October 1999 ((2000), 185 N.S.R. (2d) 246). LeBlanc J. declared that the applicants were entitled parents under s. 23 of the Charter and that the number of students warranted the provision of French homogeneous secondary school facilities in Chéticamp, Île Madame-Arichat (Petit de Grat), Argyle, and Clare. He noted, however, that the real issue was not the existence and content of the applicants' s. 23 rights, but the date on which the programs and facilities would finally be made available.
LeBlanc J. found that the respondents had not given sufficient attention to the serious rate of assimilation among Acadians and Francophones in Nova Scotia. The Province treated s. 23 rights as if they were but one more demand for educational programs and facilities, and failed to accord them due priority as constitutional rights. Meanwhile, assimilation continued. LeBlanc J. stated that "it is beyond any doubt that it is time that homogeneous programmes and facilities be provided to s. 23 students" (para. 206).
LeBlanc J. considered the state of school programs and facilities, including the progress that had already been made toward complying with s. 23 of the Charter, in each of the five school districts at issue. He directed the Province, which, through the Department of Education, is responsible for providing school facilities, and the Conseil, which is responsible for program provision, to build schools and provide programs by more and less specific deadlines. LeBlanc J. required that the respondents use their "best efforts" to comply with his order. Finally, he retained jurisdiction to hear reports from the respondents on their compliance. The precise wording of the order was as follows:
In Kingston/Greenwood, the entitled parents under Section 23 have a right to a homogenous French program from grades Primary to 12 and the entitled parents have a right to a homogenous French facility for grades Primary to 12 by September 2000.
In Chéticamp, the entitled parents under Section 23 have a right to a homogenous French secondary program in a homogenous French facility by September 2000.
In Île Madame - Arichat (Petit de Grat), the Respondent CSAP shall use its best efforts to provide a homogenous French program for grades 9 through 12 by September 2000 and the Respondent Department of Education shall use its best efforts (a) to provide a homogenous French facility (on an interim basis) for grades 9 through 12 by September 2000 and (b) to provide a permanent homogenous French facility by January 2001.
In Argyle, the Respondent CSAP shall use its best efforts to provide a homogenous French program for grades Primary through 12 by September 2000 and the Respondent Department of Education shall provide a homogenous French facility for grades Primary through 12 by September 2001.
In Clare, the Respondent CSAP shall provide a homogenous French program for grades Primary through 12 by September 2000 and the Respondent Department of Education shall take immediate steps to provide homogenous French facilities for grades Primary through 12 by September 2001.
The Respondents shall use their best efforts to comply with this Order.
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.
The reference to "the Court" in the final paragraph was interpreted by LeBlanc J., and the parties, as a reference to himself sitting as a judge of the provincial supreme court, rather than to the Supreme Court of Nova Scotia generally, which, as a court of first instance, would be competent to hear applications relating to any failure by the respondents to comply with LeBlanc J.'s order and would require no express retention of jurisdiction. LeBlanc J. presided over several of these "reporting hearings" between July 27, 2000, and March 23, 2001. Prior to each reporting session the trial judge directed the Province to file an affidavit from the appropriate official at the Department of Education, setting out the Department's progress in complying with the trial judge's decision. The trial judge permitted the respondent and Conseil to adduce evidence, including rebuttal evidence on various matters relating to compliance with the best efforts order. The Attorney General of Nova Scotia, on behalf of the Department of Education, appealed the part of the order in which LeBlanc J. retained his jurisdiction to hear reports.
The majority at the Nova Scotia Court of Appeal allowed the appeal before the final scheduled reporting hearing took place ((2001), 194 N.S.R. (2d) 323, 2001 NSCA 104). Flinn J.A., writing for the majority, emphasized that the declaration of the parents' rights and the order to provide programs and facilities were not in issue in the appeal (para. 6). Only the trial judge's retention of jurisdiction to hear reports was challenged. Flinn J.A held that the trial judge, having decided the issue between the parties, had no further jurisdiction to remain seized of the case. This opinion was based on the common law principle of functus officio and Flinn J.A.'s view that the Judicature Act, R.S.N.S. 1989, c. 240, not only fails explicitly to authorize the retention of jurisdiction by a trial court after it has decided the issues before it and provided a remedy, but also precludes a trial judge from retaining jurisdiction to determine whether there is compliance with the order. He cited this Court's decision in Mills v The Queen,  1 S.C.R. 863, at pp. 952-53, for the principle that it is for Parliament, and not judges, to fix the jurisdiction of courts and that the Charter was intended to fit in, rather than to alter, the existing scheme of Canadian legal procedure. After reviewing the language rights jurisprudence, Flinn J.A. concluded that there was no authority or precedent supporting the trial judge's decision to order and conduct the reporting sessions. He concluded that, while it is true that courts have broad ranging powers under 24(1) to fashion remedies, and are encouraged to be creative in so doing, the Charter does not extend a court's jurisdiction to permit it to enforce its remedies. Finally, Flinn J.A. expressed a reluctance to open the door to American jurisprudence on the enforcement of mandatory injunctions and a fear that post-trial intervention by trial judges in the enforcement of remedies would undermine the tradition of co-operation between the judiciary and the other branches of government.
Freeman J.A. dissented. In his view, LeBlanc J.'s order was not final and the judge was not functus officio until the continuing supervision was completed; the trial judge was able to keep his decision from being final simply by declaring that he was doing so. Freeman J.A. referred to the order as a "creative blending of declaratory and injunctive relief with a means of mediation" and found it to be "of the very essence of the kind of remedy courts are encouraged to seek pursuant to s. 24(1) to give life to Charter rights" (para. 70). He noted that requiring fresh applications by the parties each time the Province or the Conseil appeared not to be using its best efforts could have dragged matters out interminably, and would have left the matter to a judge with less familiarity with the issues and legal principles involved. Freeman J.A. concluded that the order, meant to "head off the potential for an enforcement nightmare", "got the job done, virtually on time, with a minimum of inconvenience or unnecessary cost" (para. 84).
A preliminary issue raised by the respondent is whether the Court should decline to hear this appeal because it is moot.
The main issue in the appeal is simply this: having found a violation of s. 23 of the Charter and having ordered that the Province make its best efforts to provide homogeneous French-language facilities and programs by particular dates, did the Nova Scotia Supreme Court have the authority to retain jurisdiction to hear reports from the Province on the status of those efforts as part of its remedy under s. 24(1) of the Charter?
Strictly speaking, only the retention of jurisdiction to hear reports, and not the "best efforts" order itself, is at issue in the present appeal. Nonetheless, the best efforts order and the retention of jurisdiction were conceived by the trial judge as two complementary parts of a whole. A full appreciation of the balance and moderation of the trial judge's approach to crafting this remedy requires that the reports respecting the respondents' compliance with the order be viewed and evaluated in the context of the remedy as a whole.
III. CHARTER PROVISIONS
LeBlanc J.'s order was designed to remedy a breach of s. 23 of the Charter which provides:
Citizens of Canada
have the right to have their children receive primary and secondary school instruction in that language in that province.
Citizens of Canada of whom any child has received or is receiving primary or secondary school instruction in English or French in Canada, have the right to have all their children receive primary and secondary school instruction in the same language.
The right of citizens of Canada under subsections (1) and (2) to have their children receive primary and secondary school instruction in the language of the English or French linguistic minority population of a province
LeBlanc J. ordered the remedy challenged in this case pursuant to s. 24(1) of the Charter which provides:
Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.
Before considering the main issue in this case, it is necessary to consider the respondent's argument that this appeal should not be heard because it is moot.
The doctrine of mootness reflects the principle that courts will only hear cases that will have the effect of resolving a live controversy which will or may actually affect the rights of the parties to the litigation except when the courts decide, in the exercise of their discretion, that it is nevertheless in the interest of justice that the appeal be heard (see Borowski v Canada (Attorney General),  1 S.C.R. 342, at p. 353). In our view, the instant appeal is moot. The parties attended several reporting hearings, presented evidence and allowed the deponents of affidavits to be cross-examined. The desired effect has been achieved: the schools at issue have been built. Restoring the validity of the trial judge's order would have no practical effect for the litigants in this case and no further reporting sessions are necessary.
Although this appeal is moot, the considerations in Borowski, supra, suggest that it should be heard. Writing for the Court, Sopinka J. outlined the following criteria for courts to consider in exercising discretion to hear a moot case (at pp. 358-63):
the presence of an adversarial context;
the concern for judicial economy; and
the need for the Court to be sensitive to its role as the adjudicative branch in our political framework.
In this case, the appropriate adversarial context persists. The litigants have continued to argue their respective sides vigorously.
As to the concern for conserving scarce judicial resources, this Court has many times noted that such an expenditure is warranted in cases that raise important issues but are evasive of review (Borowski, supra, at p. 360; International Brotherhood of Electrical Workers, Local Union 2085 v Winnipeg Builders' Exchange,  S.C.R. 628; New Brunswick (Minister of Health and Community Services) v G. (J.),  3 S.C.R. 46). The present appeal raises an important question about the jurisdiction of superior courts to order what may be an effective remedy in some classes of cases. To the extent that the reporting order is effective, it will tend to evade review since parties may rapidly comply with orders before an appeal is heard.
Moreover, in deciding whether to hear a moot case, courts must weigh the expenditure of scarce judicial resources against "the social cost of continued uncertainty in the law" (Borowski, supra, at p. 361). The social cost of uncertainty as to the available Charter remedies is high. The Charter is designed to protect those who are most vulnerable to the dangers of majority rule; this aspect of the Charter's purpose is evident in the provisions protecting official minority language education rights. If the Court leaves this matter undecided and courts are left under a misapprehension as to the tools available to ensure that government behaviour conforms with the Charter, the obvious danger is less than full protection of Charter rights. Thus, the expenditure of judicial resources is warranted in the present case despite the fact that the appeal may be moot. The decision of this Court will provide guidance on the important question of the nature and extent of remedies under s. 24 of the Charter in similar cases.
Finally, the Court is neither departing from its traditional role as an adjudicator nor intruding upon the legislative or executive sphere by deciding to hear this case (Borowski, supra, at p. 362). The question of what remedies are available under the Charter falls squarely within the expertise of the Court and is not susceptible to legislative or executive pronouncement. Furthermore, unlike in Borowski, supra, at p. 365, the appellants are not seeking an answer to an abstract question on the interpretation of the Charter; they are not "turn[ing] this appeal into a private reference". The Attorney General of Nova Scotia appealed successfully against an order made against it by a superior court. Although the immediate grievances of the appellants have now been addressed, deciding in this case will assist the parties to this action, and others in similar circumstances, in their ongoing relationships.
B. The Retention of Jurisdiction
(1) The Importance of Context: Sections 23 and 24 of the Charter
It is well accepted that the Charter should be given a generous and expansive interpretation and not a narrow, technical, or legalistic one (Hunter v Southam Inc.,  2 S.C.R. 145; R. v Big M Drug Mart Ltd.,  1 S.C.R. 295; Re B.C. Motor Vehicle Act,  2 S.C.R. 486; Reference Re Provincial Electoral Boundaries (Sask.),  2 S.C.R. 158; Vriend v Alberta,  1 S.C.R. 493). The need for a generous interpretation flows from the principle that the Charter ought to be interpreted purposively. While courts must be careful not to overshoot the actual purposes of the Charter's guarantees, they must avoid a narrow, technical approach to Charter interpretation which could subvert the goal of ensuring that right holders enjoy the full benefit and protection of the Charter. In our view, the approach taken by our colleagues LeBel and Deschamps JJ. which appears to contemplate that special remedies might be available in some circumstances, but not in this case, severely undervalues the importance and the urgency of the language rights in the context facing LeBlanc J.
The requirement of a generous and expansive interpretive approach holds equally true for Charter remedies as for Charter rights (Gamble v The Queen,  2 S.C.R. 595; R. v Sarson,  2 S.C.R. 223; R. v 974649 Ontario Inc.,  3 S.C.R. 575, 2001 SCC 81 ("Dunedin")). In Dunedin, McLachlin C.J., writing for the Court, explained why this is so. She stated, at para. 18:
[Section] 24(1), like all Charter provisions, commands a broad and purposive interpretation. This section forms a vital part of the Charter, and must be construed generously, in a manner that best ensures the attainment of its objects .... Moreover, it is remedial, and hence benefits from the general rule of statutory interpretation that accords remedial statutes a "large and liberal" interpretation .... Finally, and most importantly, the language of this provision appears to confer the widest possible discretion on a court to craft remedies for violations of Charter rights. In Mills, McIntyre J. observed at p. 965 that "[i]t is difficult to imagine language which could give the court a wider and less fettered discretion". This broad remedial mandate for s. 24(1) should not be frustrated by a "narrow and technical" reading of the provision ....
Purposive interpretation means that remedies provisions must be interpreted in a way that provides "a full, effective and meaningful remedy for Charter violations" since "a right, no matter how expansive in theory, is only as meaningful as the remedy provided for its breach" (Dunedin, supra, at paras. 19-20). A purposive approach to remedies in a Charter context gives modern vitality to the ancient maxim ubi jus, ibi remedium: where there is a right, there must be a remedy. More specifically, a purposive approach to remedies requires at least two things.
First, the purpose of the right being protected must be promoted: courts must craft responsive remedies.
Second, the purpose of the remedies provision must be promoted: courts must craft effective remedies.
The purpose of s. 23 of the Charter is "to preserve and promote the two official languages of Canada, and their respective cultures, by ensuring that each language flourishes, as far as possible, in provinces where it is not spoken by the majority of the population" (Mahe v Alberta,  1 S.C.R. 342, at p. 362). Minority language education rights are the means by which the goals of linguistic and cultural preservation are achieved (see Reference Re Public Schools Act (Man.),  1 S.C.R. 839, at p. 849-50) ("Schools Reference"). This Court has, on a number of occasions, observed the close link between language and culture. In Mahe, at p. 362, Dickson C.J. stated:
.... any broad guarantee of language rights, especially in the context of education, cannot be separated from a concern for the culture associated with the language. Language is more than a mere means of communication, it is part and parcel of the identity and culture of the people speaking it. It is the means by which individuals understand themselves and the world around them.
A further aspect of s. 23 of the Charter is its remedial nature (see, for example, Mahe, supra, at p. 363; Schools Reference, supra, at p. 850; Arsenault-Cameron v Prince Edward Island,  1 S.C.R. 3, 2000 SCC 1, at para. 26). The section is 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 (Mahe, supra, at p. 363; Schools Reference, supra, at p. 850). Section 23 must therefore be construed "in recognition of previous injustices that have gone unredressed and which have required the entrenchment of protection of minority language rights" (Schools Reference, at p. 850; see also Arsenault-Cameron, supra, at para. 27). This Court has made it clear that the fact that language rights arose from political compromise does not alter their nature and importance; consequently, s. 23 must be given the same large and liberal interpretation as all Charter rights (R. v Beaulac,  1 S.C.R. 768, at para. 25; Arsenault-Cameron, supra, at para. 27).
The minority language education rights protected under s. 23 of the Charter are unique. They are distinctively Canadian, representing "a linchpin in this nation's commitment to the values of bilingualism and biculturalism" (Mahe, supra, at p. 350). Section 23 places positive obligations on governments to mobilize resources and enact legislation for the development of major institutional structures (Mahe, at p. 389). While the rights are granted to individuals (Schools Reference, at p. 865), they apply only if the "numbers warrant", and the specific programs or facilities that the government is required to provide varies depending on the number of students who can potentially be expected to participate (Mahe, supra, at p. 366; Schools Reference, supra, at p. 850; Arsenault-Cameron, supra, at para. 38). This requirement gives the exercise of minority language education rights a unique collective aspect even though the rights are granted to individuals.
Another distinctive feature of the right in s. 23 is that the "numbers warrant" requirement leaves minority language education rights particularly vulnerable to government delay or inaction. For every school year that governments do not meet their obligations under s. 23, there is an increased likelihood of assimilation which carries the risk that numbers might cease to "warrant". Thus, particular entitlements afforded under s. 23 can be suspended, for so long as the numbers cease to warrant, by the very cultural erosion against which s. 23 was designed to guard. In practical, though not legal, terms, such suspensions may well be permanent. If delay is tolerated, governments could potentially avoid the duties imposed upon them by s. 23 through their own failure to implement the rights vigilantly. The affirmative promise contained in s. 23 of the Charter and the critical need for timely compliance will sometimes require courts to order affirmative remedies to guarantee that language rights are meaningfully, and therefore necessarily promptly, protected (see, for example, Marchand v Simcoe County Board of Education (1986), 29 D.L.R. (4th) 596 (Ont. H.C.J.); Marchand v Simcoe County Board of Education (No. 2) (1987), 44 D.L.R. (4th) 171 (Ont. H.C.J.); Lavoie v Nova Scotia (Attorney-General) (1988), 47 D.L.R. (4th) 586 (N.S.T.D.); Conseil des Écoles Séparées Catholiques Romaines de Dufferin et Peel v Ontario (Ministre de l'Éducation et de la Formation) (1996), 136 D.L.R. (4th) 704 (Ont. Ct. (Gen. Div), aff'd (1996), 30 O.R. (3d) 681 (C.A.); Conseil Scolaire Fransaskois de Zenon Park v Saskatchewan,  3 W.W.R. 743 (Sask. Q.B.), aff'd  12 W.W.R. 742 (Sask. C.A.); Assoc. Française des Conseils Scolaires de l'Ontario v Ontario (1988), 66 O.R. (2d) 599 (C.A.); Assoc. des parents francophones de la Colombie-Britannique v British Columbia (1998), 167 D.L.R. (4th) 534 (B.C.S.C.).
To put the matter of judicial remedies in greater context, it is useful to reflect briefly on the role of courts in the enforcement of our laws.
Canada has evolved into a country that is noted and admired for its adherence to the rule of law as a major feature of its democracy. But the rule of law can be shallow without proper mechanisms for its enforcement. In this respect, courts play an essential role since they are the central institutions to deal with legal disputes through the rendering of judgments and decisions. But courts have no physical or economic means to enforce their judgments. Ultimately, courts depend on both the executive and the citizenry to recognize and abide by their judgments.
Fortunately, Canada has had a remarkable history of compliance with court decisions by private parties and by all institutions of government. That history of compliance has become a fundamentally cherished value of our constitutional democracy; we must never take it for granted but always be careful to respect and protect its importance, otherwise the seeds of tyranny can take root.
This tradition of compliance takes on a particular significance in the constitutional law context, where courts must ensure that government behaviour conforms with constitutional norms but in doing so must also be sensitive to the separation of function among the legislative, judicial and executive branches. While our Constitution does not expressly provide for the separation of powers (see Re Residential Tenancies Act, 1979,  1 S.C.R. 714, at p. 728; Douglas/Kwantlen Faculty Assn. v Douglas College,  3 S.C.R. 570, at p. 601; Reference re Secession of Quebec,  2 S.C.R. 217, at para. 15), the functional separation among the executive, legislative and judicial branches of governance has frequently been noted. See, for example, Fraser v Public Service Staff Relations Board,  2 S.C.R. 455, at pp. 469-70). In New Brunswick Broadcasting Co. v Nova Scotia (Speaker of the House of Assembly),  1 S.C.R. 319, McLachlin J. (as she then was) stated, at p. 389:
Our democratic government consists of several branches: the Crown, as represented by the Governor General and the provincial counterparts of that office; the legislative body; the executive; and the courts. It is fundamental to the working of government as a whole that all these parts play their proper role. It is equally fundamental that no one of them overstep its bounds, that each show proper deference for the legitimate sphere of activity of the other.
In other words, in the context of constitutional remedies, courts must be sensitive to their role as judicial arbiters and not fashion remedies which usurp the role of the other branches of governance by taking on tasks to which other persons or bodies are better suited. Concern for the limits of the judicial role is interwoven throughout the law. The development of the doctrines of justiciability, and to a great extent mootness, standing, and ripeness resulted from concerns about the courts overstepping the bounds of the judicial function and their role vis-à-vis other branches of government.
In addition, it is unsurprising, given how the Charter changed the nature of our constitutional structure by requiring that all laws and government action conform to the Charter, that concerns about the limits of the judicial role have animated much of the Charter jurisprudence and commentary surrounding it (see, for example, K. Roach, The Supreme Court on Trial: Judicial Activism or Democratic Dialogue (2001); C. P. Manfredi, Judicial Power and the Charter: Canada and the Paradox of Liberal Constitutionalism (1993); F. L. Morton and R. Knopff, The Charter Revolution and the Court Party (2000); A. Petter, "The Politics of the Charter" (1986), 8 Supreme Court L.R. 473). Thus, in Vriend v Alberta, supra, this Court stated, at para. 136:
In carrying out their duties, courts are not to second-guess legislatures and the executives; they are not to make value judgments on what they regard as the proper policy choice; this is for the other branches. Rather, the courts are to uphold the Constitution and have been expressly invited to perform that role by the Constitution itself. But respect by the courts for the legislature and executive role is as important as ensuring that the other branches respect each others' role and the role of the courts.
Deference ends, however, where the constitutional rights that the courts are charged with protecting begin. As McLachlin J. (as she then was) stated in RJR-MacDonald Inc. v Canada (Attorney General),  3 S.C.R. 199, at para. 136:
Parliament has its role: to choose the appropriate response to social problems within the limiting framework of the Constitution. But the courts also have a role: to determine, objectively and impartially, whether Parliament's choice falls within the limiting framework of the Constitution. The courts are no more permitted to abdicate their responsibility than is Parliament.
Determining the boundaries of the courts' proper role, however, cannot be reduced to a simple test or formula; it will vary according to the right at issue and the context of each case.
Returning to this appeal, we believe that LeBlanc J. was duly guided by historical and contextual factors in crafting a remedy that would meaningfully protect, indeed implement, the applicants' rights to minority official language education for their children while maintaining appropriate respect for the proper roles of the executive and legislative branches.
As indicated earlier, the history of French-language education in Nova Scotia has been disappointing, resulting in high rates of assimilation that have continued well into the period when this litigation began. While the situation is not what it was in the eighteenth and nineteenth centuries when French-language education in Acadia was for the most part either expressly prohibited or unavailable, the promise of s. 23 had yet to be fulfilled in the five school districts at issue in this appeal when the appellants brought their application demanding homogeneous French-language facilities before the Supreme Court of Nova Scotia in 1998. Through the mid-1990s, s. 23 parents had pressured the government to provide homogeneous French-language facilities in presentations to Legislative Committees and in written and oral submissions to Ministers of Education. They had submitted petitions, letters, and expert analyses on assimilation to the Province. In 1996, amendments to the Education Act provided for a French-language school board, the Conseil scolaire acadien provincial, geared toward the fulfilment of the Province's s. 23 obligations. The school board then decided to provide the facilities at issue in this appeal. From 1997 to 1999, the provincial government announced the construction of homogeneous French-language schools in Petit-de-Grat, Clare, and Argyle. The schools were never built, and the construction projects were officially put on hold in September 1999.
The reason for the delay, broadly speaking, was the government's failure to give due priority to s. 23 rights in educational policy setting. Indeed, LeBlanc J. observed that the real issue between the parties by the time of trial was the date on which the programs ought to be implemented, rather than any question as to whether they were required in the first place. The government cited a lack of consensus in the community, a consequent fear that enrollment would drop, and lack of funds as reasons for its decision to place the previously announced school construction projects on hold pending cost-benefit reviews. LeBlanc J. rightly concluded that none of these reasons justified the government's failure to fulfill its obligations under s. 23. He found that the government had been treating the provision of s. 23 schools no differently from programs or facilities generally, without attention to purposes of s. 23 of the Charter and the role that homogeneous schools play in French linguistic and cultural preservation and flourishing (para. 205). Meanwhile, assimilation continued (para. 210) and enrollment in the Conseil's schools was dropping. Programs were in jeopardy (paras. 229-30).
It is in this urgent context of ongoing cultural erosion that LeBlanc J. crafted his remedy. He was sensitive to the need for timely execution, the limits of the judicial role, and the desirability of allowing the government flexibility in the manner of fulfilling its constitutional obligations when he ordered the government to make best efforts to provide facilities by particular dates and retained jurisdiction to hear progress reports. However, the urgency of the context does not by itself create jurisdiction in a superior court to issue a remedy of unlimited scope under s. 24(1) of the Charter. We now turn to the question of whether LeBlanc J.'s order was within the jurisdiction of a superior court.
(2) The Jurisdiction of a Superior Court to Issue a Remedy Under Section 24 (1) of the Charter
Section 24(1) entrenches in the Constitution a remedial jurisdiction for infringements or denials of Charter rights and freedoms. The respondent makes various arguments suggesting that LeBlanc J. exceeded his jurisdiction by violating constitutional norms, statutory provisions, and common law rules. We will first deal with the extent of the remedial jurisdiction in s. 24(1) and the constitutional limits to that jurisdiction proposed by the respondent. Later we will discuss how statutes and common law rules might be relevant to the choice of remedy under s. 24(1).
Clearly, if there is some constitutional limit to the remedial power either in s. 24(1) or in some other part of the Constitution, the judge ordering a remedy must respect this boundary. As a basic rule, no part of the Constitution can abrogate or diminish another part of the Constitution (New Brunswick Broadcasting, supra, at p. 373, McLachlin J. citing Reference re Bill 30, An Act to amend the Education Act (Ont.),  1 S.C.R. 1148). For example, a court could not compel a provincial government to do something pursuant to s. 24(1) which would exceed the jurisdiction of the province under s. 92 of the Constitution Act, 1867.
A remedy under s. 24(1) is available where there is some government action, beyond the enactment of an unconstitutional statute or provision, that infringes a person's Charter rights (see Schachter v Canada,  2 S.C.R. 679, at pp. 719-20). In the present appeal, the difficulty does not lie with the legislation: no provision or omission in the Education Act prevented the government from providing minority language education as required by the Constitution Act, 1982. On the contrary, the Education Act, as amended in 1996, establishes a French-language school board to provide homogeneous French-language education to children of s. 23 entitled parents. Neither is the problem rooted in any particular government action; rather, the problem was inaction on the part of the provincial government, particularly its failure to mobilize resources to provide school facilities in a timely fashion, as required by s. 23 of the Charter. Section 24(1) is available to remedy this failure.
To repeat its text, s. 24(1) of the Charter provides:
Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.
The purposive reading of s. 24(1) and also the ordinary meaning of the drafter's language make it clear that s. 24(1) guarantees that there must always be a court of competent jurisdiction to hear anyone whose rights or freedoms have been infringed or denied (see Nelles v Ontario,  2 S.C.R. 170, at p. 196, and Mills, supra, at p. 881). The default court of competent jurisdiction is a superior court established under s. 96 of the Constitution Act, 1867. It is also plainly contemplated in s. 24(1) that a court of competent jurisdiction will have the authority to grant a remedy that it considers appropriate and just in the circumstances.
The respondent Attorney General of Nova Scotia suggested that Re Residential Tenancies Act, 1979, supra, and other cases which describe the functions of courts in the context of s. 96 should be read as setting limits on superior courts' remedial power. With respect, that submission must fail. It is true that in Re Residential Tenancies Act, 1979, at pp. 734-35), Dickson J. (as he then was) discussed the nature of the "judicial function" of s. 96 courts. But this discussion occured in the context of a s. 96 challenge to the validity of a statute conferring jurisdiction on an administrative tribunal. Section 96 protects a "core" of superior courts' jurisdiction from being transferred exclusively to provincial inferior courts or administrative tribunals (MacMillan Bloedel Ltd. v Simpson,  4 S.C.R. 725, at para. 15, per Lamer C.J.). These cases safeguarding a core do not trace the limits of superior courts' jurisdiction. There is nothing in s. 96 to limit the inherent jurisdiction of the superior courts or the jurisdiction that can be conferred on them by statute (Reference re Young Offenders Act (P.E.I.),  1 S.C.R. 252, at p. 274) and, a fortiori, nothing to limit the jurisdiction of a superior court under s. 24(1) of the Charter.
In a similar vein, the respondent Attorney General suggests that this Court's decisions in Mills and Dunedin, both supra, which set out a framework for determining when a court or tribunal is competent to grant remedies under s. 24(1) of the Charter, deny the availability of the remedy ordered in this case. In our opinion, this submission rests on a mistaken view of the source of superior courts' power to grant Charter remedies.
In Mills, the Court considered whether a preliminary hearing magistrate given jurisdiction by particular provisions of the Criminal Code was a court of competent jurisdiction for the purposes of entering a stay of proceedings under s. 24(1) of the Charter. The unanimous conclusion of the Court was that a magistrate sitting at preliminary hearing was not competent to provide that remedy. McIntyre J., speaking for the majority on this point, emphasized the limited function of a court sitting in preliminary inquiry, which is to commit the accused to trial where there is sufficient evidence, or discharge the accused where there is not. The role does not include entering acquittals or convictions, imposing penalties, or giving remedies. As such, remedies under s. 24(1) could not be granted by that tribunal. Subsequent cases applying Mills, including Dunedin, supra, Mooring v Canada (National Parole Board),  1 S.C.R. 75, and Weber v Ontario Hydro,  2 S.C.R. 929, considered whether administrative tribunals or judges acting under statutory authority had the power to issue particular Charter remedies under s. 24(1). In each case, the analysis was directed at discerning what kinds of powers the legislator intended the tribunal to exercise in light of the purposes of the Charter as well as the tribunal's function and the practical limits imposed by its structure. This analysis has no application to s. 96 courts which are, of course, not creatures of statute but courts of general inherent jurisdiction.
Thus, when McIntyre J. wrote in Mills, supra, at p. 953, that "the Charter was not intended to turn the Canadian legal system upside down", he meant that s. 24(1) did not confer new jurisdiction on statutory and inferior tribunals beyond that which was intended by the legislator as reflected in the tribunal's function and the practical limits imposed by its structure. The test set out in Mills does not apply to superior courts since, as McIntyre J. pointed out, a superior court will always be a court of competent jurisdiction under s. 24(1) of the Charter (Mills, supra, at p. 956). Superior courts retain "constant, complete, and concurrent jurisdiction" to issue remedies under s. 24(1) (see R. v Rahey,  1 S.C.R. 588, at pp. 603-4 citing Mills, supra, at p. 892, and R. v Smith,  2 S.C.R. 1120, at pp. 1129-30).
The foregoing analysis does not preclude review on appeal of a superior court's choice of remedy under s. 24(1). Rather, it simply forecloses the argument that a given remedy under s. 24 is unavailable in a superior court because of the constitutional limitations on its jurisdiction as proposed by the respondent. The nature and extent of remedies available under s. 24(1) remain limited by the words of the section itself and must be read in harmony with the rest of our Constitution. As McIntyre J. wrote in Mills, supra, at p. 965:
|What remedies are available when an application under s. 24(1) of the Charter succeeds? Section 24(1) again is silent on the question. It merely provides that the appellant may obtain such remedy as the court considers "appropriate and just in the circumstances". It is difficult to imagine language which could give the court a wider and less fettered discretion. It is impossible to reduce this wide discretion to some sort of binding formula for general application in all cases, and it is not for appellate courts to pre-empt or cut down this wide discretion.|
McLachlin C.J. recently endorsed this passage in Dunedin, supra, at para. 18. Consequently, a party seeking to challenge a Charter remedy ordered by a s. 96 court must show that the order is not "appropriate and just in the circumstances".
The power of the superior courts under s. 24(1) to make appropriate and just orders to remedy infringements or denials of Charter rights is part of the supreme law of Canada. It follows that this remedial power cannot be strictly limited by statutes or rules of the common law. We note, however, that statutes and common law rules may be helpful to a court choosing a remedy under s. 24(1) insofar as the statutory provisions or common law rules express principles that are relevant to determining what is "appropriate and just in the circumstances".
(3) The Meaning of "Appropriate and Just in the Circumstances"
What, then, is meant in s. 24(1) by the words "appropriate and just in the circumstances"? Clearly, the task of giving these words meaning in particular cases will fall to the courts ordering the remedies since s. 24(1) specifies that the remedy should be such as the court considers appropriate and just. Deciding on an appropriate and just remedy in particular circumstances calls on the judge to exercise a discretion based on his or her careful perception of the nature of the right and of the infringement, the facts of the case, and the application of the relevant legal principles. Once again, we emphasize McIntyre J.'s words in Mills, supra, at p. 965:
It is difficult to imagine language which could give the court a wider and less fettered discretion. It is impossible to reduce this wide discretion to some sort of binding formula for general application in all cases, and it is not for appellate courts to pre-empt or cut down this wide discretion.
With respect, the approach to s. 24 reflected in the reasons of LeBel and Deschamps JJ. would tend to pre-empt and reduce this wide discretion. Their approach would also, in this case, pre-empt and devalue the constitutional promise respecting language rights in s. 23. 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. The same may be said of common law procedural principles such as functus officio which may to some extent be incorporated in statutes. Rather, as LeBel and Deschamps JJ. appear to recognize at paras. 135 and following, there are situations in which our Constitution requires special remedies to secure the very order it envisages.
While it would be unwise at this point to attempt to define, in detail, the words "appropriate and just" or to draw a rigid distinction between the two terms, there are some broad considerations that judges should bear in mind when evaluating the appropriateness and justice of a potential remedy. These general principles may be informed by jurisprudence relating to remedies outside the Charter context, such as cases discussing the doctrine of functus and overly vague remedies, although, as we have said, that jurisprudence does not apply strictly to orders made under s. 24(1).
First, an appropriate and just remedy in the circumstances of a Charter claim is one that meaningfully vindicates the rights and freedoms of the claimants. Naturally, this will take account of the nature of the right that has been violated and the situation of the claimant. A meaningful remedy must be relevant to the experience of the claimant and must address the circumstances in which the right was infringed or denied. An ineffective remedy, or one which was "smothered in procedural delays and difficulties", is not a meaningful vindication of the right and therefore not appropriate and just (see Dunedin, supra, at para. 20, McLachlin C.J. citing Mills, supra, at p. 882, per Lamer J. (as he then was)).
Second, an appropriate and just remedy must employ means that are legitimate within the framework of our constitutional democracy. As discussed above, a court ordering a Charter remedy must strive to respect the relationships with and separation of functions among the legislature, the executive and the judiciary. This is not to say that there is a bright line separating these functions in all cases. A remedy may be appropriate and just notwithstanding that it might touch on functions that are principally assigned to the executive. The essential point is that the courts must not, in making orders under s. 24(1), depart unduly or unnecessarily from their role of adjudicating disputes and granting remedies that address the matter of those disputes.
Third, an appropriate and just remedy is a judicial one which vindicates the right while invoking the function and powers of a court. It will not be appropriate for a court to leap into the kinds of decisions and functions for which its design and expertise are manifestly unsuited. The capacities and competence of courts can be inferred, in part, from the tasks with which they are normally charged and for which they have developed procedures and precedent.
Fourth, an appropriate and just remedy is one that, after ensuring that the right of the claimant is fully vindicated, is also fair to the party against whom the order is made. The remedy should not impose substantial hardships that are unrelated to securing the right.
Finally, it must be remembered that s. 24 is part of a constitutional scheme for the vindication of fundamental rights and freedoms enshrined in the Charter. As such, s. 24 because of its broad language and the myriad of roles it may play in cases should be allowed to evolve to meet the challenges and circumstances of those cases. That evolution may require novel and creative features when compared to traditional and historical remedial practice because tradition and history cannot be barriers to what reasoned and compelling notions of appropriate and just remedies demand. In short, the judicial approach to remedies must remain flexible and responsive to the needs of a given case.
(4) Application to this Case: the Remedy Ordered by the Trial Judge Was Appropriate and Just in the Circumstances
(a) The Reporting Order Effectively Vindicated the Rights of the Parents
LeBlanc J. exercised his discretion to select an effective remedy that meaningfully vindicated the s. 23 rights of the appellants in the context of serious rates of assimilation and a history of delay in the provision of French-language education in Kingston (Greenwood, Chéticamp, Île Madame-Arichat (Petit de Grat), Argyle, and Clare). The facts as found by LeBlanc J. disclosed that continued delay could imperil the already vulnerable s. 23 rights, their exercise depending as it does on the numbers of potential students. As Freeman J.A. noted in dissent in the Court of Appeal, the reporting hearings were aimed at identifying difficulties with the timely implementation of the trial judge's order as they arose, instead of requiring fresh applications by the appellants every time it appeared that a party was not using its best efforts to comply with the judge's order.
In the absence of reporting hearings, the appellant parents would have been forced to respond to any new delay by amassing a factual record by traditional means disclosing whether the parties were nonetheless using their best efforts. A new proceeding would be required and this might be heard by another judge less familiar with the case than LeBlanc J. All of this would have taken significant time and resources from parents who had already waited too long and dedicated much energy to the cause of realizing their s. 23 rights. The order of reporting hearings was, as Freeman J.A. wrote "a pragmatic approach to getting the job done expeditiously" (para. 74). LeBlanc J.'s order is a creative blending of remedies and processes already known to the courts in order to give life to the right in s. 23.
In assessing the extent to which LeBlanc J.'s remedy was appropriate and just in the circumstances, it is useful to examine the options before the trial judge. In doing so we are not intending to usurp the role and discretion of the trial judge but only to gain a fuller understanding of the situation he faced. LeBlanc J. could have limited the remedy to a declaration of the rights of the parties, as the Court considered prudent in Mahe, supra, at pp. 392-93. In Mahe, however, the primary issues before the Court concerned the scope and content of s. 23 of the Charter, including the degree of management of control of schools to be accorded to s. 23 parents, and the determination of when the numbers are sufficient to warrant given programs and facilities. After clarifying the content and scope of the s. 23 rights at issue, the Court chose the remedy of ordering a declaration of those rights. It did so to allow the government the greatest flexibility to fashion a response suited to the circumstances (p. 393). The assumption underlying this choice of remedy is that governments will comply with the declaration promptly and fully.
After Mahe, litigation to vindicate minority language education rights has entered a new phase. The general content of s. 23 in many cases is now largely settled (Mahe, Schools Reference, Arsenault-Cameron, all supra). In the present case, for example, it was clear to and accepted by the parties from the start that the government was required to provide the homogeneous French-language facilities at issue. The entitled parents sought the assistance of the court in enforcing the full and prompt vindication of their rights after a lengthy history of government inaction.
Our colleagues LeBel and Deschamps JJ. state at para. 140 of their reasons that the trial judge was not faced with a government which had understood its obligations but refused to comply with them. Our colleagues suggest that there was some issue as to what s. 23 demanded in the situation. With respect, this portrayal is directly at odds with the findings of fact made by the trial judge. At para. 198 of his reasons, the trial judge wrote:
It is apparent that the real issue between the parties is the date on which these programs and facilities are to be implemented. The Department, in its submissions, does not challenge the applicants' right and entitlement to these programs and facilities but point [sic] to a number of factors which ought to satisfy the applicants. The Conseil opposes the applicants' claim for an earlier implementation of the transition plan but supports the applicants in its [sic] demand for declaration that the Department ought to be directed to provide homogeneous facilities.
LeBlanc J. further noted that the Department of Education did not provide either statistical or financial evidence with respect to the "numbers warrant" test and that, in any case, the number of children of s. 23 parents were greater than the number in the case of Mahe, supra, decided by this Court (paras. 200-201). Instead, the government argued at trial that it should be allowed to delay its obligations because of a lack of consensus in the Acadian and Francophone communities (para. 202) and because the political compromise in s. 23 required a "go-slowly approach" (para. 214). According to the trial judge, the government did not deny the existence or content of the s. 23 rights of the parents but rather failed to prioritize those rights and delayed fulfilling its obligations. The government "did not give sufficient priority to the serious rate of assimilation occurring among Acadians and Francophones in Nova Scotia and the fact that rights established in s. 23 are individual rights" (para. 204) despite clear reports showing that assimilation was "reaching critical levels" (para. 215). These are the findings of fact which can only be made by a judge who has heard all the evidence at trial. These findings are not on appeal and it is not open for appellate judges to reverse these findings without proper justification. LeBlanc J. properly took account of the factual circumstances within which he exercised his discretion to select a remedy which was appropriate and just.
LeBlanc J. obviously considered that, given the Province's failure to give due priority to the s. 23 rights of its minority Francophone populations in the five districts despite being well aware of them, there was a significant risk that such a declaration would be an ineffective remedy. Parents such as the appellants should not be forced continually to seek declarations that are essentially restatements of the declaration in Mahe. Where governments have failed to comply with their well understood constitutional obligations to take positive action in support of the right in s. 23, the assumption underlying a preference for declarations may be undermined. In Mahe, supra, at p. 393, Dickson C.J. recognized this possibility:
As the Attorney General for Ontario submits, the government should have the widest possible discretion in selecting the institutional means by which its s. 23 obligations are to be met; the courts should be loath to interfere and impose what will be necessarily procrustean standards, unless that discretion is not exercised at all, or is exercised in such a way as to deny a constitutional right. Once the Court has declared what is required in Edmonton, then the government can and must do whatever is necessary to ensure that these appellants, and other parents in their situation, receive what they are due under s. 23.
This Court's judgment in Mahe speaks to all provincial and territorial governments. LeBlanc J. was entitled to conclude that he was not limited to declaring the appellant parents' rights and could take into consideration that the case before him was different from those in which declarations had been considered appropriate and just.
Our colleagues LeBel and Deschamps JJ. suggest that the reporting order in this case was not called for since any violation of a simple declaratory remedy could be dealt with in contempt proceedings against the Crown. We do not doubt that contempt proceedings may be available in appropriate cases. The threat of contempt proceedings is not, in our view, inherently more respectful of the executive than simple reporting hearings in which a linguistic minority could discover in a timely way what progress was being made towards the fulfilment of their s. 23 rights. More importantly, given the critical rate of assimilation found by the trial judge, it was appropriate for him to grant a remedy that would in his view lead to prompt compliance. Viewed in this light, LeBlanc J. selected a remedy that reduced the risk that the minority language education rights would be smothered in additional procedural delay.
(b) The Reporting Order Respected the Framework of our Constitutional Democracy
The remedy granted by LeBlanc J. took into account, and did not depart unduly or unnecessarily from, the role of the courts in our constitutional democracy. LeBlanc J. considered the government's progress toward providing the required schools and services (see, e.g., paras. 233-34). Some flexibility was built into the "best efforts" order to allow for unforeseen difficulties. It was appropriate for LeBlanc J. to preserve and reinforce the Department of Education's role in providing school facilities as mandated by s. 88 of the Education Act, as this could be done without compromising the entitled parents' rights to the prompt provision of school facilities.
To some extent, the legitimate role of the court vis-à-vis various institutions of government will depend on the circumstances. In these circumstances, it was appropriate for LeBlanc J. to craft the remedy so that it vindicated the rights of the parents while leaving the detailed choices of means largely to the executive.
Our colleagues LeBel and Deschamps JJ. appear to consider that the issuance of an injunction against the government under s. 24(1) is constitutionally suspect and represents a departure from a consensus about Charter remedies (see para. 134 of the dissent). With respect, it is clear that a court may issue an injunction under s. 24(1) of the Charter. The power of courts to issue injunctions against the executive is central to s. 24(1) of the Charter which envisions more than declarations of rights. Courts do take actions to ensure that rights are enforced, and not merely declared. Contempt proceedings in the face of defiance of court orders, as well as coercive measures such as garnishments, writs of seizure and sale and the like are all known to courts. In this case, it was open to the trial judge in all the circumstances to choose the injunctive remedy on the terms and conditions that he prescribed.
(c) The Reporting Order Called on the Function and Powers of a Court
Although it may not be common in the context of Charter remedies, the reporting order issued by LeBlanc J. was judicial in the sense that it called on the functions and powers known to courts. In several different contexts, courts order remedies that involve their continuing involvement in the relations between the parties (see R. J. Sharpe, Injunctions and Specific Performance (2nd ed. (loose-leaf)), at paras. 1.260-1.490). Superior courts, which under the Judicature Acts possess the powers of common law courts and courts of equity, have "assumed active and even managerial roles in the exercise of their traditional equitable powers" (K. Roach, Constitutional Remedies in Canada (loose-leaf), at para. 13.60). A panoply of equitable remedies are now available to courts in support of the litigation process and the final adjudication of disputes. For example, prejudgment remedies developed in such cases as Mareva Compania Naviera, S.A. v International Bulkcarriers, S.A.,  2 Lloyd's Rep. 509 (C.A.), and Anton Piller KG v Manufacturing Processes Ltd.,  1 Ch. 55 (C.A.), involve the court in the preservation of evidence and the management of parties' assets prior to trial. In bankruptcy and receivership matters, courts may be called on to supervise fairly complex and ongoing commercial transactions relating to debtors' assets. Court-appointed receivers may report to and seek guidance from the courts and in some cases must seek the permission of the courts before disposing of property (see F. Bennett, Bennett on Receiverships (2nd ed. 1999), at pp. 21-37, 443-45). Similarly, the courts' jurisdiction in respect of trusts and estates may sometimes entail detailed and continuing supervision and support of their administration (see D. W. M. Waters, Law of Trusts in Canada (2nd ed. 1984), at pp. 904-9; Oosterhoff on Wills and Succession (5th ed. 2001), at pp. 27-28). Courts may also retain an ongoing jurisdiction in family law cases to order alterations in maintenance payments or parenting arrangements as circumstances change. Finally, this Court has in the past remained seized of a matter so as to facilitate the implementation of constitutional language rights: see Reference Re Manitoba Language Rights,  1 S.C.R. 721; Reference Re Manitoba Language Rights,  2 S.C.R. 347 (Order No. 1); Reference Re Manitoba Language Rights,  3 S.C.R. 1417 (Order No. 2); Reference Re Manitoba Language Rights,  1 S.C.R. 212 (Order No. 3). Lower courts have also retained jurisdiction in s. 23 cases: British Columbia (Association des parents francophones) v British Columbia (1996), 139 D.L.R. (4th) 356 (B.C.S.C.), at p. 380; Lavoie, supra, at pp. 593-95; Société des Acadiens du Nouveau-Brunswick Inc. v Minority Language School Board No. 50 (1983), 48 N.B.R. (2d) 361 (Q.B.), at para. 109.
The difficulties of ongoing supervision of parties by the courts have sometimes been advanced as a reason that orders for specific performance and mandatory injunctions should not be awarded. Nonetheless, courts of equity have long accepted and overcome this difficulty of supervision where the situations demanded such remedies (see Sharpe, Injunctions and Specific Performance, supra, at paras. 1.260-1.380; Attorney-General v Birmingham, Tame, and Rea District Drainage Board,  1 Ch. 48 (C.A.), aff'd  A.C. 788 (H.L.); Kennard v Cory Brothers & Co.,  1 Ch. 265, aff'd  2 Ch. 1 (C.A.)).
As academic commentators have pointed out, the range of remedial orders available to courts in civil proceedings demonstrates that constitutional remedies involving some degree of ongoing supervision do not represent a radical break with the past practices of courts (see W. A. Bogart, "`Appropriate and Just': Section 24 of the Canadian Charter of Rights and Freedoms and the Question of Judicial Legitimacy" (1986), 10 Dalhousie L.J. 81, at pp. 92-94; N. Gillespie, "Charter Remedies: The Structural Injunction" (1989-90), 11 Advocates' Q. 190, at pp. 217-18; Roach, Constitutional Remedies in Canada, supra, at paras. 13.50-13.80; Sharpe, Injunctions and Specific Performance, supra, at paras. 1.260-1.490). The change announced by s. 24 of the Charter is that the flexibility inherent in an equitable remedial jurisdiction may be applied to orders addressed to government to vindicate constitutionally entrenched rights.
The order in this case was in no way inconsistent with the judicial function. There was never any suggestion in this case that the court would, for example, improperly take over the detailed management and co-ordination of the construction projects. Hearing evidence and supervising cross-examinations on progress reports about the construction of schools are not beyond the normal capacities of courts.
The respondent argues that the reporting order issued by LeBlanc J. violated the common law doctrine of functus officio. As we have said, statutes or common law rules cannot strictly pre-empt the remedial discretion in s. 24(1). Nonetheless, the doctrine of functus officio properly speaks to the functions and powers of courts. Therefore, an examination of the functus question is useful in deciding whether LeBlanc J. issued an order that is appropriately judicial.
Flinn J.A. for the majority in the Court of Appeal decided that the trial judge, having issued the best efforts order, had no further jurisdiction with respect to the parties and was therefore precluded from retaining jurisdiction to hear reports on its implementation (para. 21). This view is based on a mis-characterization of the reporting portion of the order as somehow separate from and additional to the best efforts injunctions. On the contrary, in our view, the reporting sessions formed an integral part of the remedy fashioned by LeBlanc J. Moreover, the functus doctrine has no application where the trial judge does not purport to alter a final judgment. There was no indication that the retention of jurisdiction included any power to alter the disposition of the case.
A closer examination of the doctrine is helpful. The Oxford Companion to Law (1980), at p. 508, provides the following definition:
Functus officio (having performed his function). Used of an agent who has performed his task and exhausted his authority and of an arbitrator or judge to whom further resort is incompetent, his function being exhausted.
But how can we know when a judge's function is exhausted? Sopinka J., writing for the majority in Chandler v Alberta Association of Architects,  2 S.C.R. 848, at p. 860, described the purpose and origin of the doctrine in the following words:
The general rule that a final decision of a court cannot be reopened derives from the decision of the English Court of Appeal in In re St. Nazaire Co. (1879), 12 Ch. D. 88. The basis for it was that the power to rehear was transferred by the Judicature Acts to the appellate division.
It is clear that the principle of functus officio exists to allow finality of judgments from courts which are subject to appeal (see also Reekie v Messervey,  1 S.C.R. 219, at pp. 222-23). This makes sense: if a court could continually hear applications to vary its decisions, it would assume the function of an appellate court and deny litigants a stable base from which to launch an appeal. Applying that aspect of the functus doctrine to s. 23(1), we face the question of whether the ordering of progress reports denied the respondents a stable basis from which to appeal.
In our view, LeBlanc J.'s retention of jurisdiction to hear reports did nothing to undermine the provision of a stable basis for launching an appeal. He did not purport to retain a power to change the decision as to the scope of the s. 23 rights in question, to alter the finding as to their violation, or to modify the original injunctions. The decision, including the best efforts order and the order to appear at reporting sessions, was final and appealable.
In any case, the rules of practice in Nova Scotia and other provinces allow courts to vary or add to their orders so as to carry them into operation or even to provide other or further relief than originally granted (Nova Scotia Civil Procedure Rules, Rule 15.08(d) and (e); Ontario Rules of Civil Procedure, Rule 59.06(2)(c) and (d); Alberta Rules of Court, Alta. Reg. 390/68, Rule 390(1)). This shows that the practice of providing further direction on remedies in support of a decision is known to our courts, and does not undermine the availability of appeal. Moreover, the possibility of such proceedings may facilitate the process of putting orders into operation without requiring resort to contempt proceedings.
The respondent relies on the Nova Scotia's Judicature Act to support its argument that the ordered reporting hearings were improper. However, even if that Act could have the effect of limiting the jurisdiction granted by s. 24(1) of the Charter, nothing in the Judicature Act appears to remove from a trial judge the power to hear reports on the implementation of his or her order. Section 33 of the Judicature Act provides that proceedings in the Supreme Court of Nova Scotia shall be "heard, determined and disposed of" by a single judge, but this does not limit the powers of the court to order reporting hearings. Section 34(d) of the Judicature Act allows a presiding judge to reserve judgment for a maximum of six months, but in our view, judgment was not reserved in this case since LeBlanc J. delivered his judgment within the six-month period. Section 38 of the Judicature Act provides that "an appeal lies to the Court of Appeal from any decision, verdict, judgment or order" of a judge of the Supreme Court of Nova Scotia. LeBlanc J. did nothing that would preclude the appeal of his decision or choice of remedy.
(d) The Reporting Order Vindicated the Right by Means that Were Fair
In the context, the reporting order was one which, after vindicating the entitled parents' rights, was not unfair to the respondent government. The respondent argues that it was subject to an overly vague remedy. In our opinion, the reporting order was not vaguely worded so as to render it invalid. While, in retrospect, it would certainly have been advisable for LeBlanc J. to provide more guidance to the parties as to what they could expect from the reporting sessions, his order was not incomprehensible or impossible to follow. In our view, the "reporting" element of LeBlanc J. remedy was not unclear in a way that would render it invalid.
Doubtless, as LeBel and Deschamps JJ. point out, the initial retention of jurisdiction by LeBlanc J. could have been more specific in its terms so as to give parties a precise understanding of the procedure at reporting sessions. Nonetheless, the respondent knew it was required to present itself to the court to report on the status of its efforts to provide the facilities as ordered by LeBlanc J. LeBlanc J.'s written order is satisfactory and clearly communicates that the obligation on government was simply to report. The fact that this was the subject of questions later in the process suggests that future orders of this type could be more explicit and detailed with respect to the jurisdiction retained and the procedure at reporting hearings.
It should be remembered that LeBlanc J. was crafting a fairly original remedy in order to provide flexibility to the executive while vindicating the s. 23 right. It may be expected that in future cases judges will be in a better position to ensure that the contents of their orders are clearer. In addition, the reporting order chosen by LeBlanc J. is not the only tool of its kind. It may be more helpful in some cases for the trial judge to seek submissions on whether to specify a timetable with a right of the government to seek variation where just and appropriate to do so.
Once again, we emphasize that s. 24(1) gives a court the discretion to fashion the remedy that it considers just and appropriate in the circumstances. The trial judge is not required to identify the single best remedy, even if that were possible. In our view, the trial judge's remedy was clearly appropriate and just in the circumstances.
Section 24(1) of the Charter requires that courts issue effective, responsive remedies that guarantee full and meaningful protection of Charter rights and freedoms. The meaningful protection of Charter rights, and in particular the enforcement of s. 23 rights, may in some cases require the introduction of novel remedies. A superior court may craft any remedy that it considers appropriate and just in the circumstances. In doing so, courts should be mindful of their roles as constitutional arbiters and the limits of their institutional capacities. Reviewing courts, for their part, must show considerable deference to trial judges' choice of remedy, and should refrain from using hindsight to perfect a remedy. A reviewing court should only interfere where the trial judge has committed an error of law or principle.
The remedy crafted by LeBlanc J. meaningfully vindicated the rights of the appellant parents by encouraging the Province's prompt construction of school facilities, without drawing the court outside its proper role. The Court of Appeal erred in wrongfully interfering with and striking down the portion of LeBlanc J.'s order in which he retained jurisdiction to hear progress reports on the status of the Province's efforts in providing school facilities by the required dates.
In the result, we would allow the appeal, set aside the judgment of the Court of Appeal, and restore the order of the trial judge.
We would award full costs to the appellants on a solicitor-client basis throughout, including the costs for the reporting hearings. The appellants are parents who have, despite their numerous efforts, been consistently denied their Charter rights. The Province failed to meet its corresponding obligations to the appellant parents despite its clear awareness of the appellants' rights. Accordingly, in looking at all the circumstances, our view is that solicitor-client costs should be awarded.
LeBel J & Deschamps J
(Major J & Binnie J joined, dissenting)
The devil is in the details. Awareness of the critical importance of effectively enforcing constitutional rights should not lead to forgetfulness about the need to draft pleadings, orders and judgments in a sound manner, consonant with the basic rules of legal writing, and with an understanding of the proper role of courts and of the organizing principles of the legal and political order of our country. Court orders should be written in such a way that parties are put on notice of what is expected of them. Courts should not unduly encroach on areas which should remain the responsibility of public administration and should avoid turning themselves into managers of the public service. Judicial interventions should end when and where the case of which a judge is seized is brought to a close.
In our respectful view, without putting in any doubt the desire of the trial judge to fashion an effective remedy to address the consequences of a long history of neglect of the rights of the Francophone minority in Nova Scotia, the drafting of his so-called reporting order was seriously flawed. It gave the parties no clear notice of their obligations, the nature of the reports or even the purpose of the reporting hearings. In addition, the reporting order assumed that the judge could retain jurisdiction at will, after he had finally disposed of the matter of which he had been seized, thereby breaching the constitutional principle of separation of powers. The order did so by reason of the way it was framed and the manner in which it was implemented. In our opinion, the reporting order was void, as the Court of Appeal of Nova Scotia found, and the appeal should be dismissed.
II. THE NATURE OF THE ISSUES
This appeal raises the sole question of the validity of the reporting order made by LeBlanc J. ((2000), 185 N.S.R. (2d) 246). In this context, we do not intend to engage in a full review of the factual background and of the judicial history of this case. For the purposes of our reasons, we are content to rely on their extensive review in the reasons of our colleagues. We will only add such details about the reporting order and its implementation as might be of assistance to our analysis of the legal questions at stake in this appeal.
At the outset, we wish to emphasize that we fully agree with our colleagues in their analysis of the nature and fundamental importance of language rights in the Canadian Constitution, as well as on the need for efficacy and imagination in the development of constitutional remedies. Indeed, we dissent because we believe that constitutional remedies should be designed keeping in mind the canons of good legal drafting, the fundamental importance of procedural fairness, and a proper awareness of the nature of the role of courts in our democratic political regime, a key principle of which remains the separation of powers. This principle protects the independence of courts. It also flexibly delineates the domain of court action, particularly in the relationship of courts not only with legislatures but also with the executive branch of government or public administration.
As to the other issues such as mootness, immunities and mandatory injunctions, we are in broad agreement with our colleagues and do not intend to comment any further on them. We turn now to an analysis of the issues which lie at the root of our disagreement with the majority as to the final disposition of this appeal.
In this analysis, we will first review the nature of the reporting order and we will determine whether it can be considered consistent with the principle of procedural fairness. We will then discuss the principles of separation of powers and functus officio; we will demonstrate that the question of whether the trial judge had jurisdiction to issue the order is germane to the determination of whether the trial judge breached the separation of powers. In both discussions, the appropriateness of the remedy will be called into question. In the former, we will assess the appropriateness of the order for reporting hearings from the perspective of the parties subject to it, while in the latter, we will analyse the appropriateness of the order, by taking into consideration the proper role of courts within our constitutional order.
III. THE DRAFTING OF THE ORDER AND THE PRINCIPLE OF PROCEDURAL FAIRNESS
The drafting of applications asking for injunctive relief, or of orders granting such remedies, can be a serious challenge for counsel and judges. The exercise of the court power to grant injunctions may lead, from time to time, to situations of non-compliance where it may be necessary to call upon the drastic exercise of courts' powers to impose civil or criminal penalties, including imprisonment (R. J. Sharpe, Injunctions and Specific Performance (2nd ed. (loose-leaf)), at p. 6-7). Therefore, proper notice to the parties of the obligations imposed upon them and clarity in defining the standard of compliance expected of them must be essential requirements of a court's intervention. Vague or ambiguous language should be strictly avoided (Sonoco Ltd. v Local 433 (1970), 13 D.L.R. (3d) 617 (B.C.C.A.), at p. 621; Sporting Club du Sanctuaire Inc. c. 2320-4365 Québec Inc.,  R.D.J. 596 (C.A.).
Unfortunately, the drafting of the present reporting order was anything but clear. Its brevity and apparent simplicity belie its actual complexity and the state of confusion and uncertainty in which it left not only all of the parties, but the trial judge himself at times. This order was final, not interim, and it was tied to the "best efforts order", which was not couched in terms liable to shed much light on the nature of the obligations of the respondents. Given that this part of the order was not challenged on appeal, we will not discuss it at length, but instead, will focus exclusively on the reporting order which is the object of this appeal.
At first, when judgment was rendered, the reporting order read, at para. 245:
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.
This drafting was slightly modified in the final order, dated December 14, 2000:
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.
As Flinn J.A. observed in his reasons in the Court of Appeal (2001), 194 N.S.R. (2d) 323, 2001 NSCA 104, nobody knew the exact nature of these reports. Their form and content were undefined. There was no indication as to whether they should be delivered orally or in writing or both nor as to how detailed they should be and what kind of supporting documents, if any, would be needed. The order also provided for hearings, but again, it left the parties in the dark as to the procedure, purpose or nature of these sessions of the court. The parties learned only shortly before these hearings that affidavits needed to be filed and deponents made available for cross-examination. Further, there seemed to be little direction, if any at all, as to what sort of evidence was required to be included for the purpose of the hearings. The nature of these hearings, as the process developed, appeared to become a cross between a mini-trial, an informal meeting with the judge and some kind of mediation session, for the purpose of monitoring the execution of the school-building program for Francophone students.
The trial judge himself seemed unsure about the nature of the hearings he had ordered and of the process he had initiated. At first, he appeared to lean towards the view that those hearings were regular sessions of the court, that he had not issued a final order and that additional relief could be requested. For example, in the July 27, 2000 hearing, the trial judge stated that in the hearings, he "would have the opportunity to determine if the Respondents were indeed making every or best efforts to comply" (appellants' record, at p. 762). This a reiteration of a claim made earlier in that hearing (appellants' record, at p. 720). Similarly, in the August 9, 2000 hearing, the trial judge stated: "the amount of room I have with respect to a decision or direction or comment is very limited" (appellants' record, at pp. 997-98); this statement implies that the trial judge had the power, albeit limited, to make orders. However, after the setting down of his formal order, at the last hearing in March 2001, he commented that he could not grant further relief, that he had fully disposed of the matter in his order and accompanying reasons, which were released the previous summer. He added that the sessions had a solely informational purpose.
In the meantime, schools were built or renovated and made available to Francophone students. It is difficult to determine whether those sessions accomplished anything in this respect. What these sessions certainly did was sow confusion, doubt and uncertainty about the obligations of the respondents and about the nature of a process that went on over several months. The trial judge appeared to view this process as open ended and indeterminate, with more sessions being scheduled as he wished. Nobody really knew when it all would come to an end.
The uncertainty engendered by the reporting order was not merely inconvenient for the parties. In our view it amounted to a breach of the parties' interest in procedural fairness. One essential feature of a fair procedural rule is that its contents are clearly defined, and known in advance by the parties subject to it (Supermarchés Jean Labrecque Inc. v Flamand,  2 S.C.R. 219, at pp. 233-36; see also: D. J. Mullan, Administrative Law (2001), at p. 233; R. Dussault and L. Borgeat, Administrative Law: A Treatise (2nd ed. 1985), vol. 4, at pp. 279-82; S. A. de Smith, H. Woolf and J. L. Jowell, Judicial Review of Administrative Action (5th ed. 1995 & Cum. Supp. 1998), at pp. 432-36).
Moreover, as we noted above, the trial judge in his initial characterization of the order seemed to believe, and certainly gave the impression, that he had the power to make further orders based on what was presented to him at the reporting sessions. In other words, he purported to have available the coercive power of the state to compel the parties to act, and suggested that he could do so based on conclusions that he would draw from the evidence placed before him. In the result, the parties found themselves before a trial judge who purported to exercise judicial functions and powers, and who provided almost nothing by way of procedural guidelines. The parties were denied notice which, as L'Heureux-Dubé J. has noted, is a rule "so fundamental in our legal system that I do not think there is any necessity to discuss it at length" (Supermarchés Jean Labrecque, supra, at p. 233). For this reason alone, the trial judge's order can be found to be inappropriate under s. 24(1) and therefore void. Nonetheless, we turn now to a discussion of the principles of separation of powers and functus officio. Consideration of these principles will aid in assessing the appropriateness of the remedy, in light of the judiciary's proper role within our constitutional order.
IV. THE APPROPRIATE ROLE OF THE JUDICIARY
While superior courts' powers to craft Charter remedies may not be constrained by statutory or common law limits, they are nonetheless bound by rules of fundamental justice, as we have shown above, and by constitutional boundaries, as we shall see below. In the context of constitutional remedies, courts fulfill their proper function by issuing orders precise enough for the parties to know what is expected of them, and by permitting the parties to execute those orders. Such orders are final. A court purporting to retain jurisdiction to oversee the implementation of a remedy, after a final order has been issued, will likely be acting inappropriately on two levels. First, by attempting to extend the court's jurisdiction beyond its proper role, it will breach the separation of powers principle. Second, by acting after exhausting its jurisdiction, it will breach the functus officio doctrine. We will look at each of these breaches in turn.
1. The Separation of Powers
Courts are called upon to play a fundamental role in the Canadian constitutional regime. When needed, they must be assertive in enforcing constitutional rights. At times, they have to grant such relief as will be required to safeguard basic constitutional rights and the rule of law, despite the sensitivity of certain issues or circumstances and the reverberations of their decisions in their societal environment. Despite - or, perhaps, because of - the critical importance of their functions, courts should be wary of going beyond the proper scope of the role assigned to them in the public law of Canada. In essence, this role is to declare what the law is, contribute to its development and to give claimants such relief in the form of declarations, interpretation and orders as will be needed to remedy infringements of constitutional and legal rights by public authorities. Beyond these functions, an attitude of restraint remains all the more justified, given that, as the majority reasons acknowledge, Canada has maintained a tradition of compliance by governments and public servants with judicial interpretations of the law and court orders.
Given the nature of the Canadian parliamentary system, the existence of a true doctrine of separation of powers in Canada was sometimes put in doubt. (see: P. W. Hogg, Constitutional Law of Canada (loose-leaf ed.), at p. 7-24; MacMillan Bloedel Ltd. v Simpson,  4 S.C.R. 725, at para. 52). It is true that Canadians have never adopted a watertight system of separation of judicial, legislative and executive functions. In the discharge of their functions, courts have had to strike down laws, regulations or administrative decisions. They have imposed liability on the Crown or public bodies and have awarded damages against them. Forms of administrative justice or adjudication have grown out of the development of executive functions (Ocean Port Hotel Ltd. v British Columbia (General Manager, Liquor Control and Licensing Branch),  2 S.C.R. 781, 2001 SCC 52; Bell Canada v Canadian Telephone Employees Association, 2003 SCC 36). Such developments may be said to have blurred theoretical distinctions between government functions. Nevertheless, in a broad sense, a separation of powers is now entrenched as a cornerstone of our constitutional regime.
More particularly, the distinction clearly stands out in respect of the relationship of courts on one side and of the legislatures and executive or public administration on the other (H. Brun & G .Tremblay, Droit constitutionnel (4th ed. 2002), at pp. 756-57). Our Court has acknowledged the fundamental nature of the separation of powers, although some of its pronouncements emphasize its functional nature (New Brunswick Broadcasting Co. v Nova Scotia (Speaker of the House of Assembly),  1 S.C.R. 319). Indeed, our Court has recently characterized this principle as a defining feature of the Canadian Constitution (Reference re Remuneration of Judges of the Provincial Court of Prince Edward Island,  3 S.C.R. 3 ("Provincial Court Judges Reference"); see also: Fraser v Public Service Staff Relations Board,  2 S.C.R. 455, at pp. 469-70).
Our Court has strongly emphasized and vigorously applied the principle of separation of powers in order to uphold the independence of the judiciary (see for example: Provincial Court Judges Reference, supra; see also Mackin v New Brunswick (Minister of Finance),  1 S.C.R. 405, 2002 SCC 13). In that context, the principle was viewed as a shield designed to protect the judiciary in order to allow it to discharge its duties under the Constitution with complete independence and impartiality. Nothing less was required to maintain the normative ordering of the Canadian legal system.
However, the principle of separation of powers has an obverse side as well, which equally reflects the appropriate position of the judiciary within the Canadian legal system. Aside from their duties to supervise administrative tribunals created by the executive and to act as vigilant guardians of constitutional rights and the rule of law, courts should, as a general rule, avoid interfering in the management of public administration.
More specifically, once they have rendered judgment, courts should resist the temptation to directly oversee or supervise the administration of their orders. They should generally operate under a presumption that judgments of courts will be executed with reasonable diligence and good faith. Once they have declared what the law is, issued their orders and granted such relief as they think is warranted by circumstances and relevant legal rules, courts should take care not to unnecessarily invade the province of public administration. To do otherwise could upset the balance that has been struck between our three branches of government.
This is what occurred in the present case. When the trial judge attempted to oversee the implementation of his order, he not only assumed jurisdiction over a sphere traditionally outside the province of the judiciary, but also acted beyond the jurisdiction with which he was legitimately charged as a trial judge. In other words, he was functus officio and breached an important principle which reflects the nature and function of the judiciary in the Canadian constitutional order, as we shall see now.
2. Functus Officio
Canadian doctrinal and judicial writing on functus officio is sparse, even though the rule itself derives from an old case of the English Court of Appeal (In re St. Nazaire Co. (1879), 12 Ch. D. 88). Essentially, the rule is that the court has no jurisdiction to reopen or amend a final decision, except in two cases: (1) where there has been a slip in drawing up the judgment, or (2) where there has been error in expressing the manifest intention of the court (see In re Swire (1885), 30 Ch. D. 239 (C.A.); Paper Machinery Ltd. v J.O. Ross Engineering Corp.,  S.C.R. 186). More recently, this Court affirmed that this rule need not always be rigidly applied to tribunals in the administrative law context when the policy reasons for it are not present (Chandler v Alberta Association of Architects,  2 S.C.R 848).
The existence and scope of a right of appeal has often been made the focus of analytical attention in applying the functus doctrine. Such was the case when the power of the Court of Chancery to rehear cases was extinguished by the Judicature Acts in 1873 by fusing common law and equity jurisdictions into one court and providing for a single appeal to a newly created Court of Appeal (In re St. Nazaire, supra). Originally, this was also the focus of the functus analysis for administrative tribunals that had rights of appeal tightly constrained by statute (see Grillas v Minister of Manpower & Immigration,  S.C.R. 577). However, the underlying rationale for the doctrine is clearly more fundamental: that for the due and proper administration of justice, there must be finality to a proceeding to ensure procedural fairness and the integrity of the judicial system. The point is plainly made by Sopinka J. in Chandler, supra, at pp. 861-62:
As a general rule, once .... a tribunal has reached a final decision in respect to the matter that is before it in accordance with its enabling statute, that decision cannot be revisited because the tribunal has changed its mind, made an error within jurisdiction or because there has been a change of circumstances ....
To this extent, the principle of functus officio applies. It is based, however, on the policy ground which favours finality of proceedings rather than the rule which was developed with respect to formal judgments of a court whose decision was subject to a full appeal.
If a court is permitted to continually revisit or reconsider final orders simply because it has changed its mind or wishes to continue exercising jurisdiction over a matter, there would never be finality to a proceeding, or, as G. Pépin and Y. Ouellette have perceptively termed it, the providing of [translation] "legal security" for the parties (Principes de contentieux administratif (2nd ed. 1982), at p. 221). This concern for finality is evident in the definition of functus officio [translation]:
Qualifies a court or tribunal, a public body or an official that is no longer seized of a matter because it or he or she has discharged the office. E.g. A judge who has pronounced a final judgment is functus officio.
(H. Reid, Dictionnaire de droit québécois et canadien (2001), at p. 253)
The principle ensures that subject to an appeal, parties are secure in their reliance on the finality of superior court decisions.
This common law rule is further reflected in modern rules of civil procedure (see, e.g., Nova Scotia Civil Procedure Rules, Rule 15.07) and the interpretation of criminal appeal provisions (see R. v H. (E.F.); R. v Rhingo (1997), 115 C.C.C. (3d) 89 (Ont. C.A.), considering s. 675 of the Criminal Code). Whether in its common law or statutory form, the doctrine of functus officio provides that only in strictly limited circumstances can a court revisit an order or judgment (see Nova Scotia Civil Procedure Rules, Rule 15.08). If it were otherwise, there would be, to paraphrase Charron J.A. in R. v H. (E.F.), supra, at p. 101, the recurring danger of the trial process becoming or appearing to become a "never closing revolving door" through which litigants could come and go as they pleased.
In addition to this concern with finality, the question of whether a court is clothed with the requisite authority to act raises concerns related to the separation of powers, a principle that transcends procedural and common law rules. In our view, if a court intervenes, as here, in matters of administration properly entrusted to the executive, it exceeds its proper sphere and thereby breaches the separation of powers. By crossing the boundary between judicial acts and administrative oversight, it acts illegitimately and without jurisdiction. Such a crossing of the boundary cannot be characterized as relief that is "appropriate and just in the circumstances" within the meaning of s. 24(1) of the Charter.
V. APPLICATION OF THE RELEVANT PRINCIPLES TO THE PRESENT CASE
When the above principles are applied to the present facts, it is evident that McIntyre J.'s admonition in Mills v The Queen,  1 S.C.R. 863, that s. 24(1) "was not intended to turn the Canadian legal system upside down" is à propos (p. 953). In our view, the trial judge's remedy undermined the proper role of the judiciary within our constitutional order, and unnecessarily upset the balance between the three branches of government. As a result, the trial judge in the present circumstances acted inappropriately, and contrary to s. 24(1).
As we noted above, the trial judge equivocated on the question of whether his purported retention of jurisdiction empowered him to make further orders. Regardless of which position is taken, the separation of powers was still breached. On the one hand, if he did purport to be able to make further orders, based on the evidence presented at the reporting hearings, he was functus officio. We find it difficult to imagine how any subsequent order would not have resulted in a change to the original final order. This necessarily falls outside the narrow exceptions provided by functus officio, and breaches that rule.
Such a breach would also have resulted in a violation of the separation of powers principle. By purporting to be able to make subsequent orders, the trial judge would have assumed a supervisory role which included administrative functions that properly lie in the sphere of the executive. These functions are beyond the capacities of courts. The judiciary is ill equipped to make polycentric choices or to evaluate the wide-ranging consequences that flow from policy implementation. This Court has recognized that courts possess neither the expertise nor the resources to undertake public administration. In Eldridge v British Columbia (Attorney General),  3 S.C.R. 624, at para. 96, it was held that in light of the "myriad options" available to the government to rectify the unconstitutionality of the impugned system, it was "not this Court's role to dictate how this is to be accomplished".
In addition, if he purported to adopt a managerial role, the trial judge undermined the norm of co-operation and mutual respect that not only describes the relationship between the various actors in the constitutional order, but defines its particularly Canadian nature, and invests each branch with legitimacy. In Vriend v Alberta,  1 S.C.R. 493, Iacobucci J. noted that "respect by the courts for the legislature and the executive role is as important as ensuring that the other branches respect each others' role and the role of the courts" (para. 136). He discussed the wording of provisions of the Charter that expressed this norm of mutual respect (para. 137), and remarked that this norm has "the effect of enhancing the democratic process" (para. 139).
Similarly, McLachlin J. (as she then was) in the 1990 Weir Memorial Lecture reviewed the elements of our legal culture - including our political climate, our tradition of judicial restraint, and the system of references - that have contributed to a spirit of co-operation, rather than confrontation among the branches of government (McLachlin, B. M., "The Charter: A New Role for the Judiciary?" (1991), 29 Alta. L. Rev 540, at pp. 554-56). Moreover, referring to her reasons in Dixon v British Columbia (Attorney General) (1989), 59 D.L.R. (4th) 247 (B.C.S.C.), she spoke to the importance of considerations of institutional legitimacy for a court crafting a remedy (at p. 557):
It was not for me, I felt, to dictate to the Legislature what sort of law they should enact; that was the responsibility of the elected representatives. But, again following a time-honoured judicial tradition, I offered advice on what limits on the principle of one person-one vote, might be acceptable.
McLachlin J. expressed this concern for the principle of democratic legitimacy in respect of the relationship between the judiciary and the legislature, but the principle extends to that between the judiciary and the executive. This Court has recognized that in the Canadian parliamentary system, the executive is inextricably tied to the legislative branch. The Court in Attorney General of Quebec v Blaikie,  1 S.C.R. 312, at p. 320, observed that "[t]here is thus a considerable degree of integration between the Legislature and the Government". In Wells v Newfoundland,  3 S.C.R. 199, at para. 53, the Court held: "On a practical level, it is recognized that the same individuals control both the executive and legislative branches of government."
Therefore, just as the legislature should, after a judicial finding of a Charter breach retain independence in writing its legislative response, the executive should after a judicial finding of a breach, retain autonomy in administering government policy that conforms with the Charter. In our constitutional order, the legislature and the executive are intimately interrelated and are the principal loci of democratic will. Judicial respect for that will should extend to both branches.
Thus, if the trial judge's initial suggestion that he could continue to make orders, and thereby effectively engage in administrative supervision and decision making accurately characterizes the nature of the reporting sessions, the order for reporting sessions breached the constitutional principle of separation of powers. Since no part of the Constitution can be interpreted to conflict with another, that order cannot be considered appropriate and just in the circumstances, under s. 24(1). The trial judge's order for reporting sessions should also be considered inappropriate because it put into question the Canadian tradition of mutual respect between the judiciary and the institutions that are the repository of democratic will.
If, however, the trial judge's statement in the last session that he could not make further orders correctly characterized his remedial order, then he breached the separation of powers in another way. When considered in light of this constitutional principle and applied to the present facts, McLachlin C.J.'s proposition that "s. 24 should not be read so broadly that it endows courts and tribunals with powers that they were never intended to exercise" (R. v 974649 Ontario Inc.,  3 S.C.R. 575, 2001 SCC 81 ("Dunedin"), at para. 22) leads to the conclusion that the trial judge's remedy was not appropriate and just in the circumstances.
The appellants argued that the trial judge retained jurisdiction only to hear reports, and that these hearings had purely "suasive" value. They also argued that the hearings were designed to hold "the Province's feet to the fire" (SCC hearing transcripts). They further suggested that the threat of having to report to the trial judge functioned as an incentive for the government to comply with the best efforts order. In the words of the Attorney General of Nova Scotia:
Is it a coincidence that, after a nine month delay (October 1999 to July 2000) the Province called for tenders eight days before the reporting hearing and "fast tracked" the school? The Province knew it would have to report on July 27. The Province ensured that a call for tenders and a construction schedule were in place for July 27.
If this characterization of the trial judge's activity is accurate, then the order for reporting sessions did not result in the exercise of adjudicative, or any other, functions that traditionally define the ambit of a court's proper sphere. Moreover, it resulted in activity that can be characterized as political. According to the appellants' characterization, a primary purpose of the hearings was to put public pressure on the government to act. This kind of pressure is paradigmatically associated with political actors. Indeed, the practice of publicly questioning a government on its performance, without having any legal power to compel it to alter its behaviour, is precisely that undertaken by an opposition party in the legislature during question period.
In the above, we reasoned that the trial judge, by breaching the separation of powers, would have put in question the norm of co-operation that defines the relationship between the branches of government in Canada. We will presently demonstrate how the trial judge, by improperly altering the relationship between the judiciary and the executive, would have breached the separation of powers.
In Provincial Court Judges Reference, supra, Lamer C.J. described the separation of powers as providing that "the relationships between the different branches of government should have a particular character" (para. 139 (emphasis in original)). In particular, according to him, the separation of powers doctrine requires that these relationships be depoliticized (para. 140 (emphasis in original)).
In that case, Lamer C.J. remarked that the legislature and the executive cannot exert, and cannot appear to exert political pressure on the judiciary (para. 140). The reciprocal proposition applies to the immediate case. With the reporting hearings, the trial judge may have sought to exert political or public pressure on the executive, and at least appeared to do so. In our view, such action would tend to politicize the relationship between the executive and the judiciary.
If the reporting hearings were intended to hold "the Province's feet to the fire", the character of the relationship between the judiciary and the executive was improperly altered and, as per the Provincial Court Judges Reference, the constitutional principle of separation of powers was breached. Once again, since no part of the Constitution can conflict with another, the trial judge's order for reporting hearings cannot be interpreted as appropriate and just under s. 24(1).
We would reiterate, at this point, the importance of clarity and certainty in the provisions of a court order. If the trial judge had precisely defined the terms of the remedy, in advance, then the ensuing confusion surrounding his role may not have occurred. Moreover, by complying with this essential element of fair procedure, he may have been able to avoid the constitutional breach of the separation of powers that followed.
VI. NEITHER A BREACH OF PROCEDURAL FAIRNESS NOR OF THE SEPERATION OF POWERS WAS APPROPRIATE
We noted above that this Court in Eldridge recognized the appropriateness of judicial restraint in issuing a remedy under s. 24(1), given the variety of choices open to the executive in administering policy. Implicit in the declaratory remedy ordered in that case was the presumption that the government will act in good faith in rectifying Charter wrongs and the recognition that legislatures and executives, not the courts, are in the best position to decide exactly how this should be done. Turning to the present case then, the trial judge's decision to provide injunctive relief already represented a departure from the cooperative norm that defines and shapes the relationships among the branches of the Canadian constitutional order. We do not deny that in the appropriate factual circumstances, injunctive relief may become necessary. However, the trial judge's order for reporting sessions then purported to go even further, and breached both a fundamental principle of procedural fairness and the constitutional principle of separation of powers.
One might argue that such a breach is appropriate where it is the only way that a claimant's rights can be vindicated. Alternatively, one might suggest that if a government has ignored previous, less intrusive judicial measures, and thereby put into question their efficacy, a court might be justified in abandoning the presumption of governmental good will that we referred to above. In our view, the present case gave rise to neither of these arguments.
Turning to the first argument, if the hearings were aimed at ensuring the vindication of the claimants' rights by providing them with the opportunity to enforce or alter the remedy, there were alternatives available. If the claimants felt that the government was not complying with any part of the order, then they could have brought an application for contempt. The majority seems to suggest that contempt proceedings would have been less effective in this case in ensuring timely performance of the order, without being any more respectful of the separation of powers. However, we would note that expedited applications are possible in Nova Scotia and other jurisdictions to deal with cases quickly and efficiently. In addition, the reporting order at issue in this case precluded applying to any other judge for relief and was, in this way, even more limiting than a contempt proceeding. Most importantly, contempt proceedings are more consistent with our adversarial system, which is based on the common law norm of giving the parties primary control over the proceedings (see J. I. H. Jacob, The Fabric of English Civil Justice (1987), at p.13). In contrast, the present order for reporting sessions placed the trial judge in an inappropriate, ongoing supervisory and investigative role despite the availability of the equally effective, well-established, and minimally intrusive alternative of contempt relief.
Consequently, it is clear that the order for reporting hearings was not the only means of vindicating the claimants' rights, and that recourse to a readily available alternative would have been consistent with a defining feature of our legal system. Recourse to this alternative would not have resulted in an interpretation of the court's remedial powers that was so broad as to purport to endow the court with powers that it was "never intended to exercise" (Dunedin, supra, at para. 22). It is important to stress that in the present case, it is not clear that actual recourse to a contempt application would have been necessary. The point is simply that if judicial enforcement of the deadlines in question were necessary, recourse to this alternative would not have overextended the court's powers.
On a last note, we find it difficult to imagine circumstances where a breach of one party's fundamental right to notice would aid in the vindication of another's Charter rights. In any event, the present facts do not present such a case. The intrusiveness of the trial judge's order was in no way necessary to secure the claimants' s. 23 interests. Given the absence of any causal connection between the breach of the parties' right to notice and the effectiveness of the purported remedy, we would conclude that the breach cannot be considered appropriate for the purposes of s. 24(1).
The second argument is simply not applicable in this case. The facts here do not require us to decide whether previous government non-compliance can ever justify remedial orders that breach principles of procedural fairness and the separation of powers. The Government of Nova Scotia did not refuse to comply with either a prior remedial order or a declaration with respect to its particular obligations in the fact-situation at hand. No such order was made and it is impossible to determine whether the government would have responded in the present case to either a declaration of rights, or the injunction to meet the deadline as these measures were combined with the order purporting to retain jurisdiction to oversee the reporting sessions. Therefore, it cannot be asserted that the trial judge's order has succeeded where less intrusive remedial measures failed.
Moreover, what was required by the Government of Nova Scotia to comply with its obligations pursuant to s. 23 was not self-evident at trial. The trial judge was not faced with a government which was cognizant of how it should fulfill its obligations, but refused to do so. Indeed, at issue before the trial judge was precisely the question of what compliance with s. 23 involved. The present order, therefore, did not overcome governmental recalcitrance in the face of a clear understanding of what s. 23 required in the circumstances of the case. Remedies must be chosen in light of the nature and structure of the Canadian constitutional order, an important feature of which is the presumption of co-operation between the branches of government. Therefore, unless it is established that this constitutional balance has been upset by the executive's clear defiance of a directly applicable judicial order, increased judicial intervention in public administration will rarely be appropriate.
In choosing and reviewing s. 24(1) remedies, it is important to remember that the inquiry into the appropriateness of a remedy should be undertaken from an ex ante perspective. The simple fact that a desired result occurs after a remedial order is issued is not relevant to determining the question of the order's appropriateness. In our view, an adequate ex ante assessment must consider the risks that attend a given remedy. In the present case, as Freeman J.A. noted in dissent, if the trial judge "misread the degree of co-operation he could expect from the players, there was a risk of failure" (para. 84). That the present remedy's susceptibility to failure was tied to the capacities of a particular judge should in itself give pause. In our view, whether a remedy is appropriate should be assessed with reference to the remedy itself and not the particular capacities of a given judge to manage that remedy. More importantly, where a thorough ex ante assessment of a remedy reveals that it will certainly be inconsistent with basic legal principles and constitutional doctrines, such a remedy should not be considered appropriate. Available remedies that do not result in such breaches should, a contrario, be considered to be more appropriate.
The question of the relevant time frame for the inquiry into a remedy's appropriateness is tied to the more general question of remedial effectiveness. It is important to remember the context in which this Court considered the issue of effectiveness in Dunedin, supra. The issue was whether a justice of the peace acting as a trial justice under the Ontario Provincial Offences Act, R.S.O. 1990, c. P.33, was a court of competent jurisdiction to direct an order for costs against the Crown for a Charter breach. The Court held that if provincial offences courts were deprived of this remedy, an accused may be denied access to a recognized means of remedying a Charter breach (para. 82).
In the present case, refusing superior courts the power to order reporting hearings clearly would not deny claimants' access to a recognized Charter remedy, as such an order is entirely idiosyncratic. More importantly, refusing superior courts this power would not deprive claimants of access to that which they are guaranteed by s. 23, namely, the timely provision of minority language instruction facilities. Indeed, if the appellants' characterization of the reporting hearings' purpose is correct, it is difficult to see how they could have been more effective than the construction deadline coupled with the possibility of a contempt order. In our view, the availability of this legal sanction for non-compliance with the order to meet the construction deadline would have provided at least as much incentive for the government to remedy the s. 23 breach as would have reporting hearings, in which the presiding judge was without the power to make further orders. Moreover, at the level of constitutional principle, because this incentive is legal in nature, it would not have led to the improper politicization of the relationship between the judiciary and the executive.
Also, it should be noted that the trial judge's order was not consistent with this Court's retention of jurisdiction in the Reference re Manitoba Language Rights,  1 S.C.R. 721. Far from purporting to supervise compliance with a remedy, the Court in that case retained jurisdiction to ask for the government's assistance in fashioning it. The Court did not thereby exceed its constitutional role by purporting to oversee administrative action. The Court was ultimately respectful of the executive's capacity to make the policy choices necessary to comply with constitutional requirements.
In the result, the trial judge breached both a principle of procedural fairness and the constitutional principle of separation of powers, and it is not clear that alternative, less-intrusive remedial measures, would not have achieved the ends sought. While a trial judge's decisions with respect to remedies are owed deference, we believe that this must be tempered when fundamental legal principles are threatened. In light of these principles, and in the presence of untested alternative remedies, we would find that the present trial judge's retention of jurisdiction was not appropriate and just under s. 24(1). The Court of Appeal was correct in declaring that the order to retain jurisdiction for the purposes of reporting sessions was of no force and effect.
In closing, we recur to the underlying purpose of s. 24(1), by referring to a passage in Mills, supra, at pp. 952-53, in which McIntyre J. wrote:
To begin with, it must be recognized that the jurisdiction of the various courts of Canada is fixed by the Legislatures of the various provinces and by the Parliament of Canada. It is not for the judge to assign jurisdiction in respect of any matters to one court or another. This is wholly beyond the judicial reach ....
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.
The proper development of the law of constitutional remedies requires that courts reconcile their duty to act within proper jurisdictional limits with the need to give full effect to the rights of a claimant. To read into s. 24(1) a judicial carte blanche would not only "turn the Canadian legal system upside down", but would also be an injustice to the parties who come before the court to have their disputes resolved in accordance with basic legal principles. In our view, proper consideration of the principles of procedural fairness and the separation of powers is required to establish the requisite legitimacy and certainty essential to an appropriate and just remedy under s. 24(1) of the Charter.
Mills v The Queen,  1 S.C.R. 863; Borowski v Canada (Attorney General),  1 S.C.R. 342; International Brotherhood of Electrical Workers, Local Union 2085 v Winnipeg Builders' Exchange,  S.C.R. 628; New Brunswick (Minister of Health and Community Services) v G. (J.),  3 S.C.R. 46; Hunter v Southam Inc.,  2 S.C.R. 145; R. v Big M Drug Mart Ltd.,  1 S.C.R. 295; Re B.C. Motor Vehicle Act,  2 S.C.R. 486; Reference Re Provincial Electoral Boundaries (Sask.),  2 S.C.R. 158; Vriend v Alberta,  1 S.C.R. 493; Gamble v The Queen,  2 S.C.R. 595; R. v Sarson,  2 S.C.R. 223; R. v 974649 Ontario Inc.,  3 S.C.R. 575, 2001 SCC 81; Mahe v Alberta,  1 S.C.R. 342; Reference Re Public Schools Act (Man.),  1 S.C.R. 839; Arsenault-Cameron v Prince Edward Island,  1 S.C.R. 3, 2000 SCC 1; R. v Beaulac,  1 S.C.R. 768; Marchand v Simcoe County Board of Education (1986), 29 D.L.R. (4th) 596; Marchand v Simcoe County Board of Education (No. 2) (1987), 44 D.L.R. (4th) 171; Lavoie v Nova Scotia (Attorney-General) (1988), 47 D.L.R. (4th) 586; Conseil des Écoles Séparées Catholiques Romaines de Dufferin et Peel v Ontario (Ministre de l'Éducation et de la Formation) (1996), 136 D.L.R. (4th) 704, aff'd (1996), 30 O.R. (3d) 681; Conseil Scolaire Fransaskois de Zenon Park v Saskatchewan,  3 W.W.R. 743, aff'd  12 W.W.R. 742; Assoc. Française des Conseils Scolaires de l'Ontario v Ontario (1988), 66 O.R. (2d) 599; Assoc. des parents francophones de la Colombie-Britannique v British Columbia (1998), 167 D.L.R. (4th) 534; Re Residential Tenancies Act, 1979,  1 S.C.R. 714; Douglas/Kwantlen Faculty Assn. v Douglas College,  3 S.C.R. 570; Reference re Secession of Quebec,  2 S.C.R. 217; Fraser v Public Service Staff Relations Board,  2 S.C.R. 455; New Brunswick Broadcasting Co. v Nova Scotia (Speaker of the House of Assembly),  1 S.C.R. 319; RJR-MacDonald Inc. v Canada (Attorney General),  3 S.C.R. 199; Reference re Bill 30, An Act to amend the Education Act (Ont.),  1 S.C.R. 1148; Schachter v Canada,  2 S.C.R. 679; Nelles v Ontario,  2 S.C.R. 170; MacMillan Bloedel Ltd. v Simpson,  4 S.C.R. 725; Reference re Young Offenders Act (P.E.I.),  1 S.C.R. 252; Mooring v Canada (National Parole Board),  1 S.C.R. 75; Weber v Ontario Hydro,  2 S.C.R. 929; R. v Rahey,  1 S.C.R. 588; R. v Smith,  2 S.C.R. 1120; Mareva Compania Naviera, S.A. v International Bulkcarriers, S.A.,  2 Lloyd's Rep. 509; Anton Piller KG v Manufacturing Processes Ltd.,  1 Ch. 55; Reference Re Manitoba Language Rights,  1 S.C.R. 721; Re Manitoba Language Rights Order,  2 S.C.R. 347; Re Manitoba Language Rights Order,  3 S.C.R. 1417; Reference Re Manitoba Language Rights,  1 S.C.R. 212; British Columbia (Association des parents francophones) v British Columbia (1996), 139 D.L.R. (4th) 356; Société des Acadiens du Nouveau-Brunswick Inc. v Minority Language School Board No. 50 (1983), 48 N.B.R. (2d) 361; Attorney-General v Birmingham, Tame, and Rea District Drainage Board,  1 Ch. 48, aff'd  A.C. 788; Kennard v Cory Brothers and Co.,  1 Ch. 265, aff'd  2 Ch. 1; Chandler v Alberta Association of Architects,  2 S.C.R. 848; Reekie v Messervey,  1 S.C.R. 219; Sonoco Ltd. v Local 433 (1970), 13 D.L.R. (3d) 617; Sporting Club du Sanctuaire Inc. v 2320-4365 Québec Inc.,  R.D.J. 596; Supermarchés Jean Labrecque Inc. v Flamand,  2 S.C.R. 219; Ocean Port Hotel Ltd. v British Columbia (General Manager, Liquor Control and Licensing Branch),  2 S.C.R. 781, 2001 SCC 52; Bell Canada v Canadian Telephone Employees Association, 2003 SCC 36; Reference re Remuneration of Judges of the Provincial Court of Prince Edward Island,  3 S.C.R. 3; Mackin v New Brunswick (Minister of Finance),  1 S.C.R. 405, 2002 SCC 13; In re St. Nazaire Co. (1879), 12 Ch. D. 88; In re Swire (1885), 30 Ch. D. 239; Paper Machinery Ltd. v J.O. Ross Engineering Corp.,  S.C.R. 186; Chandler v Alberta Association of Architects,  2 S.C.R. 848; Grillas v Minister of Manpower and Immigration,  S.C.R. 577; R. v H. (E.F.); R. v Rhingo (1997), 115 C.C.C. (3d) 89; Eldridge v British Columbia (Attorney General),  3 S.C.R. 624; Vriend v Alberta,  1 S.C.R. 493; Dixon v British Columbia (Attorney-General) (1989), 59 D.L.R. (4th) 247; Attorney General of Quebec v Blaikie,  1 S.C.R. 312; Wells v Newfoundland,  3 S.C.R. 199; R. v 974649 Ontario Inc.,  3 S.C.R. 575, 2001 SCC 81.
Alberta Rules of Court, Alta. Reg. 390/68, r. 390(1).
Canadian Charter of Rights and Freedoms: s.23, s.24(1).
Constitution Act, 1867: s.92, s.96.
Constitution Act, 1982
Education Act, S.N.S. 1995-96, c. 1: s.11, s.12, s.13, s.14, s.15, s.16, s.88(1)
Judicature Act, R.S.N.S. 1989, c. 240: s.33, s.34(d), s.38
Nova Scotia Civil Procedure Rules, r. 15.07, 15.08(d), (e).
Ontario Rules of Civil Procedure, r. 59.06(2)(c), (d).
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Joel E. Fichaud, Q.C., and Melanie S. Comstock, for the appellants (instructed by Patterson Palmer, Halifax)
Alexander M. Cameron, for the respondent (instructed by Attorney General of Nova Scotia, Halifax)
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