Doucet-Boudreau V. Nova Scotia (Minister of Education) - Dissent

Dissent

The justices who did not side with Iacobucci and Arbour did not dispute the applicability or importance of section 23. Instead, a dissent regarding the usage of section 24(1) was written by Justices Louis LeBel and Marie Deschamps. They justified their dissent on the grounds that in order for the courts to "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 their view, Justice LeBlanc seeing reports amounted to overseeing the construction, which violated functus officio and the separation of powers, which could, in turn, threaten judicial independence. The dissenting justices also felt Justice LeBlanc had an option not to require reports, and section 23 still could have been enforced.

Justice LeBlanc's expectations, moreover, were not judged to be clear enough to the government. Fundamental justice was thus seen as having been violated.

The majority responded to these concerns by arguing that "the approach taken by... 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."