Court of Appeal

CASE NO.                                      VOL. NO.                                            PAGE

ATTORNEY GENERAL OF NOVA    - and -           GLENDA DOUCET-BOUDREAU,

SCOTIA, representing Her Majesty                              ALICE BOUDREAU, JOCELYN

The Queen in Right                                                      BOURBEAU, BERNADETTE CORMIER-

of the Province of Nova Scotia                        MARCHAND, YOLANDE LEVERT and CYRILLE LeBLANC, in their name and in the name of all Nova Scotia parents who are entitled to the right, under Section 23 of the Canadian Charter of Rights and Freedoms, to have their children educated in the language of the minority, namely the French language, in publicly funded French language school facilities; and LA FEDERATION DES PARENTS ACADIENS DE LA NOUVELLE ECOSSE INC.

- and -              LE CONSEIL SCOLAIRE ACADIEN PROVINCIAL

(Appellant)                                                                                                                     (Respondents)

                              - and -                 COMMISSION NATIONALE DES PARENTS FRANCOPHONES

                                                                                                                                          (Intervenor)

CA 168059                                                  Halifax, N.S.                                                     Flinn, J.A.

[Cite as: Doucet-Boudreau  v. Nova Scotia (Attorney General), 2001 NSCA 104]

APPEAL HEARD:                        May 11, 2001

JUDGMENT DELIVERED:          June 26, 2001

SUBJECT:       Canadian Charter of Rights and Freedoms s. 24(1) - Remedial power - Authority of the trial judge, in conjunction of granting a remedy under s. 24(1) to initiate a post-trial process in respect of the enforcement of that remedy.

SUMMARY:    Following the hearing of an application the trial judge decided:

1.      That the Department of Education of the Province of Nova had a constitutional duty to the respondents under s. 23 of the Charter to provide French programs in French facilities in five regions of the Province;

2.      That the Department of Education was in breach of that duty;

3.      Pursuant to the provisions of 24(1) of the Charter remedied the breach by ordering the Province to use its best efforts to provide such facilities by respective dates set out in his order.

The trial judge then purported to retain jurisdiction, himself, and required the Department of Education to appear before him on an ongoing basis, and to file affidavits setting forth what the Department of Education was doing by way of complying with the trial judge’s decision, so that the trial judge would have the opportunity to determine if the Department of Education was indeed making every or best efforts to comply with his order.

The Province challenged the trial judge’s jurisdiction to remain seized of this case as he did.  The trial judge decided that he did have the authority to remain seized of the case under s. 24(1) of the Charter.

RESULT:             Appeal allowed.  Having made a final decision, and having issued a final order on the matter that was in dispute before him, the trial judge had no jurisdiction to initiate a post-trial process in respect of the enforcement of the remedy which he ordered.

There is no authority to which the court had been directed or which the court could determine which give a trial judge such authority to extend his jurisdiction.

Further, under the circumstances the extension of jurisdiction by the trial judge in this case was both unnecessary and unwarranted.

Per Freeman, J.A. dissenting; under the circumstances of this case the trial judge was justified in retaining continuing control over the implementation of his order.  He had jurisdiction to do so, and the remedy he crafted pursuant to s. 24(1) of the Charter was a balanced proportionate and effective way to remedy a long standing deprivation of the respondent’s rights pursuant to s. 23.