Legal Milestones

R. v. Cartcel: Halifax’s first murder trial, 1749

Halifax’s 2,500 settlers were still crowded aboard the ships that had brought them from England when the future Nova Scotia capital witnessed its first murder. It happened in a flash on August 26, 1749, during an altercation between crewmen from two vessels. Abraham Goodsides said something to Peter Cartcel, a Frenchman who apparently knew enough English to spot an insult. Cartcel drew a knife and stabbed Goodsides in the chest, killing him.

The killing posed a challenge for Governor Edward Cornwallis, the English colonel in charge of establishing Halifax. Empowered to “erect, constitute and establish such and as many courts” as necessary, he had followed the model used in the former capital of Annapolis Royal and named himself and six councillors as members of a “general court” to try cases. None of its members had legal training.

Cartcel – his surname is also rendered as Carsal and Carteel in surviving records – stood trial five days after the stabbing in one of the few buildings completed on shore, a warehouse. Canada’s first jury trial under British law was a speedy affair – four witnesses described the altercation and the jury deliberated half an hour before finding Cartcel guilty. He was hanged two days later.

Cornwallis’ superiors in London later praised his efforts, describing the trial as “very regular and proper” and suggesting it would “convince the settlers of the intention of conforming to the Laws and Constitution of the Mother Country in every point.” The exercise was clearly intended to send the message that law and order would prevail. Two centuries later, however, a chief justice of the Supreme Court, Joseph Chisholm, concluded the trial “fell far short of ideal justice.” Cartcel had no lawyer or advocate to challenge the case against him or to look out for his interests, and likely should have been convicted of the less-serious offence of manslaughter and escaped the gallows.

For more information on the Cartcel case, see Dean Jobb, “First Blood,” in Bluenose Justice: True Tales of Mischief, Mayhem and Murder (Hantsport, N.S.: Lancelot Press, 1996), pp.135-40.

The Supreme Court’s First Term, Fall 1754

A week after Jonathan Belcher was sworn in as Nova Scotia’s chief justice amid ceremonies and parades, it was down to business. The Supreme Court’s first session, the Michaelmas Term of 1754, opened on Tuesday, October 29, 1754, in a courthouse at the corner of Buckingham and Argyle streets in Halifax. The grand jury convened to review criminal charges against 23 men and women and sent all but one – an accused murderer who had escaped from jail – to trial. Belcher ordered 12 of those indicted sent to the lower court for trial, a move designed to preserve the new Supreme Court for the most serious cases.

Of the accused persons that remained, a soldier and his wife were acquitted of robbery after the victim of the alleged crime failed to show up in court to prosecute. A servant, George Lease, stood trial for petty theft from his employer and a jury found him not guilty. Anne Westman, accused of grand theft for breaking into a widow’s home and stealing pewter dishes and linen, was also acquitted at trial. Juries were often reluctant to convict when even relatively minor crimes like theft could be punished by whipping, branding and, for repeat offenders, the death sentence. John Moor was not so lucky – he was convicted of stealing a dozen chickens and sentenced to have the letter “T” branded on his thumb, serving as proof of his criminal record should he reoffend.

The most serious trial lasted 10 hours – a length proceeding for the time – and involved murder charges against three crewmen from the Nancy and Sally, a New England sloop caught illegally trading with the French garrison at Fort Beausejour. A warship, HMS Vulture, had intercepted the vessel in the Bay of Fundy in July 1754, but the New Englanders had fired on the Vulture’s boarding party, killing two British sailors. The case raised thorny jurisdictional issues – there was a dispute over whether the offences had occurred at sea, making them a matter for an admiralty court, or close enough to shore to be a matter for the new Supreme Court. Belcher ruled his court was the proper forum. The jury found the crewmen guilty of the lesser offence of manslaughter – infuriating Belcher, who considered them traitors who had escaped “the just sentence of death.” He imposed the maximum punishment – a further nine months in jail – and, ironically, upon their release in July 1755 all three were forced to join the crew of a British man of war.

For more information on the Supreme court’s inaugural term, see James Muir and Jim Phillips, “Michaelmas Term 1754: The Supreme Court’s First Session,” in Philip Girard, Muir and Barry Cahill, eds., The Supreme Court of Nova Scotia 1754-2004: From Imperial Bastion to Provincial Oracle (Toronto: University of Toronto Press, 2004).

Slavery Rulings: Judges refuse to treat people as property

More than 10,000 persons of African descent came to Nova Scotia between the founding of Halifax in 1749 and 1816. Most arrived in the 1780s – with other Loyalists at the end of the American Revolution – or as refugees during the War of 1812. A small number came as slaves, and initially the courts sided with their owners. In 1791, for instance, a magistrate refused to convict an Argyle man accused of forcing a woman and her daughter into slavery.

But slavery in Nova Scotia met a premature end thanks to the efforts of two early chief justices, Thomas Andrew Lumisden Strange and Sampson Salter Blowers. Strange, an English lawyer named chief in 1789, had little time for the notion that one person could be the property of another. Slavery was still legal – it was not outlawed in the British Empire until 1833 – but he found a way to make the law work against slave owners.

Strange and Blowers, who was attorney general, often discussed how best to deal with the slavery issue. Strange favoured a cautious approach. Rather than declaring slavery illegal, and possibly provoking a political showdown or forcing the authorities in Britain to intervene, he “wished to Sampson Salter Blowerswear out the claim (of slave owners) gradually,” Blowers recalled. When a litigant appeared before the Supreme Court seeking the return of a runaway slave, Strange required “the fullest proof of the master’s claim.” Since it was difficult for slave owners to produce such evidence, Blowers noted, “it was found generally very easy to succeed in favour of the Negro.”

Blowers shared Strange’s aversion to slavery and adopted a similar approach after succeeding him as chief justice in 1797. In one case, a runaway slave was arrested in Annapolis Royal but Blowers insisted on proof the “owner” had a legal right to buy the woman in the first place, and the claim for her return collapsed. As a result of “Blowers’ demands for the proof of its legality,” according to a biographer, “slavery died out relatively soon in the 19th century,” and in contrast to neighbouring New Brunswick, where the courts ruled that slavery was legal.

For more information, see “African Nova Scotians in the Age of Slavery and Abolition,” Nova Scotia Archives and Records Management website:

http://www.gov.ns.ca/nsarm/virtual/africanns/ch3.asp ; Entries in the Dictionary of Canadian Biography On-line for Sir Thomas Andrew Lumisden Strange: http://www.biographi.ca/EN/ShowBio.asp?BioId=37801

and Sampson Salter Blowers: http://www.biographi.ca/EN/ShowBio.asp?BioId=37377

Joseph HoweR. v. Howe: Joe Howe’s fight for a free press, 1835

Feisty editor Joseph Howe had a reputation as a thorn in the side of the Halifax establishment, using his newspaper, The Novascotian, to attack those mismanaging city affairs. On January 1, 1835, he published an anonymous letter, signed “The People,” accusing the magistrates in charge of the police, poor asylum and other services of pocketing £1,000 a year at the expense of the “poor and distressed.” At the urging of the outraged magistrates, the attorney general charged Howe with criminal libel for “wickedly, maliciously and seditiously desiring and intending to stir up and excite discontent among His Majesty’s subjects.”

Joseph Howe's Trial - 1835 (Plaque beneath statue of Howe on NS Legislature groundLawyers told Howe his case was hopeless, since his rabble-rousing motives were clear and truth was not yet recognized as a defence to charges of libel. So Howe chose to represent himself and, for more than six hours at his March 1835 Supreme Court trial, he regaled the jury with fresh allegations of corruption. The magistrate running the city prison, for instance, stored vegetables in the cells and forced inmates to make shoes for his family. Howe appealed to the jurors “to leave an unshackled press as a legacy to your children.” Despite Chief Justice Brenton Halliburton’s blunt direction to the jurors that Howe was guilty as charged, they returned in ten minutes with an acquittal. Howe and his supporters paraded through the streets in triumph; six magistrates promptly resigned in disgrace.

In the next edition of The Novascotian, Howe declared that “the press of Nova Scotia is free.” One scholar, Wilfred Kesterton, hailed the verdict as “the most momentous freedom-of-the-press precedent” in early Canadian journalism. But the press in Canada was not yet free from the spectre of prosecution for attacking those in power. Editors continued to be prosecuted and it would be years before Canadian juries, like those in Britain and the United States, were allowed to decide whether a statement was libelous. In the meantime, as Howe’s trial made clear, juries could protect dissenters and critics by taking the law into their own hands.

For more information about Howe’s trial, see Dean Jobb, Bluenose Justice: True Tales of Mischief, Mayhem and Murder (Hantsport, N.S.: Lancelot Press, 1996), pp. 23-30; and J. Murray Beck, Politics of Nova Scotia,1701-1896, vol. 1 (Tantallon, N.S.: Four East Publications, 1985), pp. 109-10.

The Trial of the Saladin Pirates, 1844

When the Saladin ran aground in May 1844 at Country Harbour, on the Eastern Shore, it brought with it one of the bloodiest crimes ever recorded on the high seas. There were only six men on board, too few to handle the 550-ton square-rigger, and their explanation – that the captain and others had died at sea – was suspicious. The crew was arrested and taken to Halifax, where a dark tale of murder and piracy soon emerged.

Two men, William Carr and John Galloway, accused the other four of murdering Captain Alexander McKenzie and five other crewmen somewhere off the coast of South America. The mutineers were looking for a secluded cove in Newfoundland or the Gaspé where they could unload copper, silver and other valuables on board when they washed ashore in Nova Scotia.

The ringleader had been another captain, George Fielding, who was on board as a passenger after losing his own vessel in a botched smuggling scheme. Fielding had recruited four crewmen – John Hazelton, William Travaskiss, Charles Anderson and George Jones – and on the night of April 13 they had used axes and other ship’s tools to kill McKenzie and five others. Carr and Galloway were spared, but also had blood on their hands. The mutineers soon discovered that Fielding had built a cache of weapons and was plotting another night of killing to fatten his share of the loot. They turned on him within days, and forced Carr and Galloway to toss Fielding overboard. Fielding’s teenage son, who was traveling with his father, suffered the same fate.

The story of what happened on the Saladin – not one, but two mutinies – emerged from a series of confessions in which each crewman downplayed his own role and blamed the others. When the case went to trial before the Supreme Court in Halifax in July, Attorney General James W. Johnston told the jury that “one tenth of what these men did would constitute the crime of piracy.” The defence stressed evidence that at least some of the men killed out of fear for their own lives, but Chief Justice Brenton Halliburton declared there was no legal justification for their actions. The jury deliberated just 15 minutes before convicting Hazelton, Travaskiss, Anderson and Jones. Carr and Galloway stood trial separately and were acquitted.

The convicted pirates were hanged on July 30, 1844. It was the last public execution in Halifax and hundreds turned out, bringing their children along to witness the consequences of breaking the law. A gallows was erected on the South Common – now the site of Victoria General Hospital – and the condemned men arrived in a prison wagon ringed by soldiers armed with rifles and bayonets. P.H. Lenior, who was ten at the time, recalled the scene: “Each man had a coil of rope round his arm, the other end of which was knotted around his neck .... White hoods were pulled over their faces. The next moment four bodies shot into the air and continued to dangle there. Never have I forgotten the sight.”

Source: “The Saladin Pirates,” in Dean Jobb, Crime Wave: Con Men, Rogues and Scoundrels from Nova Scotia’s Past (Lawrencetown, N.S.: Pottersfield Press, 1991), pp. 134-44

Halifax Explosion Manslaughter Cases, 1918

Benjamin Russell, a 68-year-old Supreme Court judge, was getting dressed on the morning of December 6, 1917 when a massive explosion shook the Halifax home where he rented a room. His fellow tenants, convinced they were being bombed by German airplanes, fled to the basement but Russell went to the door and watched as “a gently curving column of fire, of all the colors that fire can assume,” rose over the city’s north end. Russell spent the following days helping to care for homeless children and arranged for clothing and other relief supplies to be stored in the hallways of the Spring Garden Road courthouse. But Russell’s biggest contribution in the aftermath of the Halifax Explosion would be made in the courtroom.

The explosion, triggered when the freighter Imo and the munitions ship Mont Blanc collided in the harbour, was the world’s largest pre-atomic blast, leaving almost 2,000 dead, another 9,000 maimed or injured, and flattening huge swaths of the city. An inquiry convened with days and its commissioner, Justice Arthur Drysdale of the Supreme Court, ruled the Mont Blanc had caused the collision. In response to Drysdale’s criticisms and the local newspapers’ demands for vengeance, manslaughter charged were filed against three men – Aime Le Medec, the Mont Blanc’s captain; Frank Mackey, a local pilot who guided the ship into the harbour; and Commander Frederick Evans Wyatt, the official responsible for overseeing harbour traffic.

The defence applied to the supreme Court to release Mackey and Le Medec, and Russell ruled there was no evidence to support criminal charges, despite the findings of his colleague Drysdale. In his view, the Imo was at fault and Mackey had taken “every possible care to prevent the collision.” Russell later wrote in his memoirs that a person should not be convicted of manslaughter for doing “what was best in his judgment to prevent an impending accident even if, in spite of his best efforts, the struggle was unsuccessful.”

When Wyatt’s case came before a grand jury for review in March 1918, Russell again appealed for Haligonians to stop looking for scapegoats. “When a great calamity such as that which has visited this city occurs,” he declared, “there is a very natural and pardonable disposition ... to demand vengeance and seek to hold somebody criminally responsible.” Despite his instructions that the evidence “fell short of the requirements for an indictment for manslaughter,” Wyatt was ordered to stand trial. Russell presided over the trial and repeated his assertion that “nothing in the eyes of the law” justified a manslaughter charge. This time a jury listened and acquitted Wyatt.

The owners of the two vessels sued each other for damages but fought to a draw. Drysdale, despite his obvious bias, was on the bench for the civil trial and again found the Mont Blanc to blame. He awarded $2 million to the Imo’s owners, but the Supreme Court of Canada and the Judicial Committee of Britain’s Privy Council – then Canada’s final court of appeal – overturned the award and found the ships equally liable for the collision.

For more information on this case, see Dean Jobb, “Assigning the Blame,” in Crime Wave: Con-Men, Rogues and Scoundrels from Nova Scotia’s Past (Lawrencetown Beach, N.S.: Pottersfield Press, 1991), pp. 57-66; Benjamin Russell, Autobiography (Halifax: Royal Print and Litho, 1932), pp. 264-73.

R. v. McLachlan: A labour leader stands trial for sedition, 1923

J.B. McLachlan is the greatest labour leader Nova Scotia has ever produced. Scottish-born, he came to Cape Breton in 1902 to work in the coal mines and by the 1920s was the champion of miners and steelworkers fighting the British Empire Steel Corp. for a decent wages and living conditions.

The government of the day openly sided with Besco and its hard-nosed president, Roy Wolvin, sending in troop and provincial police to intimidate strikers. In July 1923, with the steel plant shut down by a walkout, mounted policemen swept through the adjacent town of Whitney Pier, assaulting residents as they returned home from church. The incident brought out McLachlan’s radical rhetoric, and he circulated a notice urging other mining unions to walk out in support. Branding the Nova Scotia government “the guilty and responsible party” for the attack, he called on his fellow unionists “to spread the fight against (Premier) Armstrong to every mine in Nova Scotia.”

McLachlan paid dearly for those words. “Fighting Jim,” as he was known in the press, was convicted in December 1923 of three counts of sedition – unlawfully inciting public disorder or promoting hatred of the government. It was little more than a show trial: Attorney General Walter J. O’Hearn, who prosecuted, insisted on a Halifax trial for fear sympathetic Cape Breton jurors would acquit someone with the courage to champion their cause. In his instructions to the jury, Justice Humphrey Mellish of the Supreme Court, a former coal company lawyer, could barely disguise his distaste for McLachlan and the Marxist ideals he espoused. Legal historian Barry Cahill has labeled it a “gross miscarriage of justice.”

McLachlan’s lawyers managed to have one count dismissed on appeal – the charge of publishing seditious material in Halifax, since it had emerged at trial that a Besco official had leaked the notice to the Halifax newspapers. He was sentenced to two years in prison but paroled after serving less than five months. His death in 1937, when he was in his late 60s, was blamed on a lung ailment picked up while confined to the damp cells of Dorchester Penitentiary.

For more information on J.B. McLachlan’s trial, see David Frank, J.B. McLachlan: A Biography (Toronto: James Lorimer & Company, 1999), chapter 8; Barry Cahill, “Howe (1835), Dixon (1920) and McLachlan (1923): Comparative Perspectives on the Legal History of Sedition,” University of New Brunswick Law Journal, vol. 45 (1996), pp. 281-307.

R. v. Farmer: Nova Scotia’s last hanging for murder, 1937

Everett Farmer always claimed he shot his half-brother Zachariah in self defence. The crime occurred in Farmer’s kitchen in the summer of 1937 over a keg of home-brewed beer. An argument erupted, Zach threatened to kill Everett, and Everett claimed he loaded his shotgun and fired to protect himself and his family.

Farmer was tried for murder in September 1937. Poor and black, with eight children under the age of 15, he had no money to pay legal fees but the province appointed one of the area’s leading lawyers to handle his defence – Vincent Pottier, who went on to become the first Acadian to serve on the Supreme Court. Pottier had little time to prepare his case and there was evidence Zach was sitting in a chair when shot, casting doubt on Farmer’s claims his own life had been in danger. The jury convicted him of murder and Justice William Carroll imposed the death sentence.

Studies of capital punishment in Canada and the United States have found that those condemned to death tend to be poor or members of minority groups. This trend, however, was less pronounced in Nova Scotia in the 1930s. Of the six whites convicted of murder during the decade, four were executed and two had their sentences commuted to life in prison; two other blacks were convicted of murder, but only one was hanged. The federal cabinet, which decided whether a condemned person’s life would be spared, reviewed Farmer’s case but voted to allow justice to take its course. Farmer was hanged in the Shelburne courthouse on December 14, 1937, the last person executed in Nova Scotia.

Source: Dean Jobb, “‘Life Was Cheap Then’: The King v. Farmer, 1937,” in Shades of Justice: Seven Nova Scotia Murder Cases (Halifax: Nimbus Publishing, 1988), pp. 95-114.

The Ordeal of Donald Marshall Jr., 1971-1990

In 1971 a young Mi’kmaq named Donald Marshall Jr. was convicted of stabbing another teenager, Sandy Seale, to death in a Sydney park. He served 11 years in prison before mounting evidence of his innocence prompted his release and a decade-long review of his case that would reshape Nova Scotia’s criminal justice system.

Marshall was released on bail in 1982 and the federal justice minister of the day, Jean Chretien, referred the case to the Appeal Division of the Nova Scotia Supreme Court for a rehearing. The court issued a 1983 ruling that acquitted Marshall but absolved the police, Crown prosecutors and courts of blame. The court declared that any miscarriage of justice was “more apparent than real” and suggested Marshall would have been spared his ordeal if he had cooperated with the original police investigation.

Another Sydney man, Roy Ebsary, was later convicted of manslaughter in Seale’s death. But controversy over the handling of the case refused to die and forced the Nova Scotia government to establish a royal commission, headed by three out-of-province judges, to investigate. Public hearings held in Sydney and Halifax in the late 1980s showed Marshall had been a victim of prejudice and that evidence exonerating him of the crime had been suppressed. The hearings also exposed political interference in later police investigations of politicians.

The Marshall Commission’s report, released in 1990, found clear evidence that systemic racism and political influence had tainted the province’s criminal justice system. Its far-reaching recommendations included steps to bring more members of visible minorities into the ranks of the police, the legal profession and the judiciary. To insulate future prosecutions from political interference, Nova Scotia’s police forces were given the power to decide whether to file charges and a Public Prosecution Service was established that operates independently of government. Crown attorneys across the country are now required to disclose to defendants all evidence in the prosecution’s hands, including information that may help establish the person’s innocence. Efforts to create a more representative justice system, however, remain in progress. Despite the establishment of a program to encourage blacks and Mi’kmaq to attend Dalhousie Law School, both minorities remain under-represented in the legal profession and among the province’s judiciary.

Source: Michael Harris, Justice Denied: The Law Versus Donald Marshall (Toronto: Macmillan of Canada, 1986).

Nova Scotia (Attorney General) v. MacIntyre: Public access to the courts, 1982

Linden MacIntyre was a CBC television reporter based in Halifax in the early 1980s when he sought access to search warrants the RCMP had used to seize political party finance records – part of an investigation that would see two Liberal fundraisers convicted of influence peddling. When court officials refused to disclose the documents, MacIntyre – now a correspondent for CBC’s investigative program The Fifth Estate – applied to the Supreme Court for an order making them public.

Justice Peter Richard ruled that warrants and records related to completed searches were public documents and must be released. The court’s Appeal Division upheld the ruling and went further, ruling that the records of all searches should be open to scrutiny and members of the public were entitled to be present in court when a warrant was issued.

The ruling was appealed to the Supreme Court of Canada, which ruled in January 1982 that search warrant records are public documents, but only after a search has been conducted and only if evidence has been seized. Hearings to issue search warrants, however, must be held in private to ensure those about to be searched do not have a chance to hide or destroy evidence. These provisions were later incorporated into the Criminal Code, which gives judges the power to seal search warrants if their release would jeopardize an investigation or expose the identity of a confidential police informant.

The MacIntyre ruling is a landmark, confirming the wider principle that proceedings in Canada’s courts – with few exceptions – are conducted in the presence of journalists and the public. “At every stage the rule should be one of public accessibility and concomitant judicial accountability,” Justice Brian Dickson (who later became chief justice) wrote in the majority ruling. Public access should be curtailed rarely and only “to protect social values of superordinate importance,” he added, including the rights of innocent parties. Dickson’s reasoning continues to be cited whenever a dispute arises over access to court documents or hearings.

For more information on this case, see the Supreme Court of Canada’s ruling: Nova Scotia (Attorney General) v. MacIntyre [1982] 1 S.C.R. 175.

R. v. Marshall: Native fishing rights established, 1999

Donald Marshall Jr., the man whose wrongful murder conviction shook the foundations of Nova Scotia’s justice system, was also at the centre of a landmark ruling on native fishing rights in the Maritime provinces. In August 1993, Marshall was charged with illegally fishing for eels in Pomquet Harbour, Antigonish County. Marshall admitted catching and selling 463 pounds of eels out of season, but claimed he was exempt from federal fisheries regulations by treaties the Mi’kmaq people had signed with the British in 1760-61.

A provincial court judge rejected that argument at trial and Nova Scotia’s Court of Appeal also found that no treaty rights had been violated. The case went before the Supreme Court of Canada, which ruled in September 1999 that the 240-year-old treaties gave Marshall and other Mi’kmaq the right to fish in order to make a “moderate livelihood,” subject to federal regulation.

The ruling created chaos in the East Coast fishery and prompted clashes between licenced fishermen and natives eager to exercise their new-found right to fish. Violence erupted at Burnt Church, New Brunswick, where non-native fishermen destroyed lobster traps and gear belonging to natives. In response, the Supreme Court of Canada took the unprecedented step in November 1999 of issuing a clarification to its ruling, stressing that Ottawa and provincial governments have the authority to regulate native access to the fishery to conserve fish stocks and ensure licences are allocated fairly to natives and non-natives. As a result, most Mi’kmaq bands in Atlantic Canada have reached agreements with the federal Department of Fisheries and Oceans to establish a native fishery.

For more information on this case, see the Supreme Court of Canada’s rulings. R. v. Marshall, [1999] 3 S.C.R. 533, available online at: http://www.lexum.umontreal.ca/csc-scc/en/pub/1999/vol3/html/1999scr3_0533.html

R. v. Marshall, [1999] 3 S.C.R. 456, available online at; http://www.lexum.umontreal.ca/csc-scc/en/pub/1999/vol3/html/1999scr3_0456.html

Doucet-Boudreau v. Nova Scotia (Minister of Education): Judicial oversight of Charter rights, 2003

A Nova Scotia court battle over French-language education rights has become a leading Supreme Court of Canada precedent that explores the limits of judicial power and whether courts have the right to monitor government compliance with their rulings.

The case began in June 2000 when Justice Arthur LeBlanc of Nova Scotia’s Supreme Court found that there were enough minority-language parents in five areas of the Province – Clare, Argyle, Kingston-Greenwood, Arichat and Cheticamp – to justify the creation of French-language schools, as provided under Section 23 of the Charter of Rights and Freedoms. He ordered Nova Scotia’s Department of Education and Le Conseil Scolaire Acadian Provincial, the agency established to provide French-language education programs, to make “best efforts” to establish the five schools by September 2001.

The provincial government accepted the judgment but appealed Justice LeBlanc’s requirement that education officials return to court to report on their progress in building the schools. The Nova Scotia Court of Appeal overturned the ruling, with two of three judges ruling that courts do not have the power to order such follow-up hearings.

A group of Acadian parents appealed and, in November 2003, the Supreme Court of Canada issued a 5-4 judgment that reinstated Justice LeBlanc’s ruling and revealed deep divisions within the court. Writing for the majority, Justices Frank Iacobucci and Louise Arbour said while such supervision was not justified in all cases, Justice LeBlanc’s “creative” approach had breathed life into the Charter’s educational rights in an “urgent context of ongoing cultural erosion.” The dissent, co-written by justices Louis LeBel and Marie Deschamps, warned that such incursions into the bureaucratic and political arenas could upset the separation of powers between courts, legislatures and the executive branch of government. The minority said “an attitude of restraint” was justified, given Canada’s “tradition of compliance by governments and public servants with judicial interpretations of the law and court orders.”

For more information on this case, see the Supreme Court of Canada’s ruling, Doucet-Boudreau v. Nova Scotia (Minister of Education), [2003] 3 S.C.R. 3, available online at : http://www.lexum.umontreal.ca/csc-scc/en/pub/2003/vol3/html/2003scr3_0003.html

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