Education minister goes silent on Policy 713 dispute
Bill Hogan won’t respond to francophone district’s claim that he ‘understands’ district’s approach
New Brunswick's education minister has gone silent in the debate about Policy 713, choosing not to respond to the latest statement from a francophone district education council.
Bill Hogan did not speak to reporters Tuesday who wanted to question him about the statement from the Francophone South council, one of three francophone districts he suggested last week he might try to dissolve.
On Monday, Francophone South chair Michel Côté said the council was pleased with Hogan's comments last Friday in which the minister appeared to step back from the dissolution threat.
He said Hogan "appears to finally acknowledge" the district's commitment to Policy 713 via its own district policy, Policy 1.0, on implementing the provincial requirements.
Policy 713 requires that school staff obtain parental consent before letting a student under 16 adopt a new name or pronoun that reflects their gender identity.
The Francophone South implementation policy allows students as young as Grade 6 adopt a name or pronoun without parental involvement.
Hogan said in an April 22 letter to the districts that he was repealing the district-level policies and wanted them removed from the education councils' websites.
The districts refused, leading to his threat to dissolve them.
Francophone
South chair Michel Côté said his council was pleased with Hogan's
recent comments that suggest he might be stepping back from a threat to
dissolve councils who disobey his version of Policy 713. (Patrick Lacelle/Radio-Canada)
When he spoke to reporters last Friday, however, Hogan repeated that they should be removed — but also claimed he had learned a majority of francophone schools were adhering to Policy 713 itself.
If the three councils would "quit pretending" they were offside, everyone could move on, he said — an indication the showdown could be avoided.
Côté's statement on Monday described Hogan's comments last week as a path toward compromise.
"Mr. Hogan's latest remarks suggest that he now understands our long-standing and continuing objective to collaborate closely with parents in the best interests of our students," he said in the written statement issued by email.
"We genuinely hope to put an end to the months-long battle with the Department of Education and Early Childhood Development centred on one fundamental, non-negotiable principle: the protection of our students' constitutional rights."
There is no mention in Côté's statement of what Hogan said about removing the policies to reflect the reality in classrooms.
Earlier
this month, Hogan threatened to dissolve francophone district education
councils for refusing to adopt the province's version of Policy 713. (Radio-Canada)
Côté's statement, in fact, says Policy 1.0 "remains active and continues to be enforced in our schools to ensure that every student can thrive in an environment that champions authenticity."
The statement doesn't mention the differences between the polices.
A district spokesperson said Côté would not be doing media interviews to clarify the district's stance.
Hogan declined to comment through a spokesperson on Monday and did not speak to reporters at the legislature Tuesday.
The minister has committed to launching a legal application to dissolve the Anglophone East education council over its refusal to back down on its district-level policy.
There's still no word on whether the provincial cabinet has issued the required order to launch the court action.
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Hogan is awaiting further instructions, or maybe he has them now.....lay low on this one.
Province says school district can't bring Policy 713 case, hearing set for Tuesday
Decision on standing issue could end case before further steps
A hearing next week may determine whether a school district's case against the New Brunswick government over a gender identity policy can proceed.
The Anglophone East district education council is suing Education Minister Bill Hogan, alleging changes to Policy 713 last year violate the rights of students.
The province is expected to argue during a court hearing Tuesday that the school district lacks standing, a legal term for the ability to bring the case to court.
A decision in the province's favour would end the case.
Otherwise, the next step in the case would be a June hearing over the district's request for injunctions.
The injunctions sought would block the minister from seeking to dissolve the education council and revoking its gender identity policy.
The sides appeared by phone in Moncton court Wednesday for a case management conference to discuss the status of the case and set timelines.
A waste to not decide standing first, lawyer says
"The notion that they can proceed on injunction without standing, frankly without even having a proper plaintiff, is really problematic," Clarence Bennett, a lawyer representing the province, said Wednesday.
He said having a hearing on the injunction before deciding standing would be procedurally unfair.
"If we're right, and the plaintiffs don't have standing to bring this injunction, proceeding through an injunction, and hiring experts, and going through all the expense, and judicial resources and all that — it's wasted."
Bennett told Court of King's Bench Chief Justice Tracey DeWare that the education council had the chance to join a separate case over the province's Policy 713 filed by the Canadian Civil Liberties Association being heard in Fredericton but opted not to do so.
Bennett said it's led to a situation where there are two separate cases being heard in two courts in the province on similar issues.
"Those issues are for another day," DeWare said.
Perri Ravon, a lawyer representing the education council, later added that whether the cases should be combined can be decided at a later point.
The education council's case argues Policy 713, which requires school staff to get the consent of parents if a student under 16 wants to adopt a new name or pronoun, violates the charter and human rights of students.
The district had adopted its own policy implementing Policy 713 which says staff "shall respect the direction of the student in regard to the name and pronouns they wish to be called in daily interactions with school personnel and other students."
Wednesday was the deadline DeWare had set for the province to file motions calling for the council's case to be dismissed.
The province's online court registry shows two motions filed by the province and CBC News has requested copies, but they have not yet been provided.
It's unclear how quickly a decision on standing will be made, though DeWare at several points Wednesday indicated there could be an oral ruling.
The injunction hearing, originally set for two days, has been extended to four days starting June 18.
The minister has demanded the district revoke its 713 policy, and threatened to dissolve the education council. That prompted the district to file its case, including seeking an injunction to block dissolution.
Hogan has said earlier this month he would start the process to dissolve the district education council over its spending on the case. The dissolution process requires cabinet approval and an application to court.
It's unclear whether cabinet has decided to move ahead with dissolution.
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Gender-identity review began as 'political decision,' province's lawyer argues
Province leaving out too many records in gender-identity lawsuit, civil liberties group alleges
The province is under attack in court for withholding information about why it started a controversial review of its school gender-identity policy.
But the province says it does not need to reveal that information because the decision to begin the review was a political one.
The Canadian Civil Liberties Association has filed a judicial review challenge to the changes to Policy 713, which now requires parental consent before school staff can use certain students' chosen names and pronouns.
The association alleges that the process Education Minister Bill Hogan followed, and the changes themselves, are improper and unconstitutional.
Before a judge can decide if that's true, the province has to produce all records that Hogan considered when he made the changes to the policy. The province provided this record, approximately 4,000 pages, seven months after the lawsuit was filed.
In court this week, the association argued that record is incomplete. Lawyers said documents about how the policy review actually came about are missing, and the province is withholding too many emails and briefing notes without justification.
Lawyers said the judge needs these documents to properly decide the case.
The province's lawyer, Steve Hutchison, said documents about why the minister decided to start the review of the policy are irrelevant, because that was a "political decision."
"That political decision is not reviewable by this court. It's reviewable by the electorate," Hutchison said.
The province is withholding several briefing notes presented to the minister by claiming "public interest immunity." This means that according to the province, if the records are released there would be harm to the public interest or the administration of justice.
The civil liberties association argued the province is required to provide evidence to prove this.
Hutchison said some of the briefing notes were prepared for Hogan before cabinet meetings and that means they're confidential. He said releasing them would harm the public interest because cabinet members are supposed to feel safe enough to have honest arguments about issues.
"If this is released … ministers and former ministers would be put in front of a microphone and asked, 'What was your position?'" he said. "Members of cabinet believe that what they're discussing is not going to be in the newspaper the next day."
The association said this argument doesn't apply in this case because changes to Policy 713 were up to Hogan alone and were not decided at cabinet.
Without records, judge 'blindfolded,' lawyer says
Justice Richard Petrie said he will not have a decision immediately and set dates for the case to come back in July.
According to an affidavit, the province compiled the records by first collecting all documents related to the policy review. The affidavit says the province went through the documents and identified which ones are likely to have been considered or reviewed by the minister. Those documents were then presented to the minister to confirm that he, indeed, laid eyes on them.
Adam Goldenberg, the lawyer representing the community intervener, including local 2SLGBTQ+ support organizations, said the province should have stopped at the first step. He said that this filtering is not appropriate and gives too much leeway to the province to curate what the judge gets to see.
He said if the judge accepts the record as it is, "You are going to be casting in the dark, blindfolded," Goldenberg said.
Hutchison said it is the civil liberties association that's casting, by "going on a fishing expedition" for documents to support their case. He said the process followed by the province to create the record was standard practice.
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