Supreme Court of Canada to determine how far a judge can go to enforce school rights

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Can a judge monitor the execution of an order forcing a province to build and renovate French-language schools, by calling parties to evaluate status of work and meeting deadlines? Can a judge put his nose in the affairs of the Province after having rendered judgment, without exceeding his powers?

Yes, he can and must, said the Nova Scotia Acadian parents and their allies before the Supreme Court of Canada, especially when the province in question waited 18 years to comply with section 23 of the Canadian Charter. Rights and Freedoms, which grants the right to education in the language of the minority.

The Supreme Court of Canada has once again been the scene of a legal debate on the constitutional right of Francophone parents to educate their children in their mother tongue. This time, however, the focus has been on the remedy the Charter of Rights provides for a court when a person is a victim of a violation of their rights.

Parents contend that the Province’s past delinquency in respect of francophone school rights amply justified the decision of Judge Arthur LeBlanc of the Supreme Court of Nova Scotia to personally follow up on his judgment rendered in 2000, who ordered Nova Scotia to develop or build French-language schools in the Cheticamp, Annapolis, Île Madame, Argyle and Clare regions. This, they say, is consistent with section 24 of the Canadian Charter of Rights and Freedoms, which provides that any person who is a victim of a violation of a right guaranteed to them “may obtain the remedy that the court considers appropriate and just in the circumstances. ”

This decision of LeBlanc J. to maintain his jurisdiction after the judgment and to supervise his own judgment, however, was overturned by the Court of Appeal of the Province.

The lawyer of the National Federation of French School Trustees, Michel Doucet, emphasized the restorative nature of section 23 and recalled that the Supreme Court of Canada has recognized the possibility of a more direct intervention of the courts in the history the Mahé judgment of 1990, which recognized that parents had the constitutional right to manage and control their French-language schools. “The order of Justice LeBlanc took into account this fact and that the rights of the parents had not been respected.”

According to Doucet, “a more active judicial intervention is not only justified but necessary in cases where there is an urgency to act.” However, he said, LeBlanc J. was convinced that there was a historical violation of language rights and a lack of will to correct the situation on the part of the Province. “The judge was convinced that it was urgent to act to respect the rights of Acadians in Nova Scotia”. It has therefore taken the right decision to ensure the effective implementation of school rights taking into account the Mahé judgment. He characterized Justice LeBlanc’s intervention as both “minimal” and “innovator”.

“Judge LeBlanc did not invent the jurisdiction to have a right of inspection from scratch, it was done in the past,” said lawyer Roger Lepage of the Federation of French-Speaking Jurists Associations. , who cited in support two judgments of the English courts. “A court must intervene in a more robust way,” pleaded the lawyer.

The Commissioner of Official Languages ​​is also in favor of a more aggressive intervention by the courts. “The Commissioner believes that if the judge had been satisfied with a simple declaratory order, it would have been against section 23 and its application would have made no sense,” said Laura Snowball. “There is no order if we respect it in the crumb and it is applied sparingly, taking the time it takes” added the lawyer of the Office of the Commissioner of Official Languages. “If Justice LeBlanc had not continued to monitor, his order would not have meant much.”

Province attorney Alexander Cameron noted that the government had delivered the goods, building the schools in accordance with the deadlines set out by Justice LeBlanc. He described as “exaggeration” the words of parents who claim to have waited 18 years before the province respects their school rights, but was quickly put back in its place by the judge Michel Bastarache: “We are not there to discuss this matter, “said the Acadian judge dryly.

Mr. Cameron argued that the meetings organized by Justice LeBlanc to evaluate the status of work and the respect of deadlines “did not add anything except that they caused a lot of confusion.” He accused Justice LeBlanc of interference in the affairs of the Province, of acting “outside his jurisdiction” and considered that there was a serious problem of a judge playing mediators. “The hearings were not effective, we could not do anything and that led us nowhere.”

The province’s lawyer has had a barrage of questions from Supreme Court of Canada judges. Justice Louise Arbor has several times expressed her disagreement. “Perhaps Justice LeBlanc could have been more explicit, but it has nothing to do with his competence.” Justice Arbor also noted that the courts are now trying to find other ways to resolve litigation, “to save tremendous costs.” Counsel for the Province’s suggestion that a judge should not supervise the execution of a judgment “would take us 20 years back” according to her.

The Attorney General of Canada has not taken a stand in this case. His lawyer, Bernard Laprade, cautiously emphasized the special nature of the litigation before the court. “Just because things happened as they did in Nova Scotia does not mean that such measures would be appropriate in other jurisdictions.” Ontario, which is on the same side as Nova Scotia, argued that courts should not exercise such jurisdiction except in rare cases. “When a court gives itself the mandate to manage and supervise an order, it distorts the dialogue and undermines the democratic process,” said the province’s lawyer. Reply by Judge Bastarache: “When the law is broken, we can not get it back. The child will have grown up. He will not be at school anymore and will not have taken advantage of his rights. ”

New Brunswick, for its part, asks the Supreme Court to clarify in its judgment that the direct intervention of a judge is an exceptional gesture. “It remains a remedy of last resort” pleaded Gabriel Bourgeois. “Nothing would be more detrimental to language rights if the courts administered and supervised a cure, the right would be for the cold.”

For the President of the Federation of Acadian Parents in Nova Scotia, Gérald Boudreau, it is clear that the Province would never have built the schools quickly without the order of Justice LeBlanc. “This is a hypothetical question but I personally believe that the Province would not have executed the judgment so quickly … The province had a tradition of dragging its feet and procrastinating”