Timeline for New Brunswick’s Policy 713 legal resolution unclear

Click to play video: 'Path forward unclear for legal challenge of changes to Policy 713'
Path forward unclear for legal challenge of changes to Policy 713
All motions to intervene in the legal challenge of New Brunswick’s school gender identity policy have been heard, but the path forward in the case is not yet clear. Several outstanding issues need to be dealt with and the province says it may ask for the process to slow down. Silas Brown explains – Apr 22, 2024

Justice Richard Petrie says he will try and deliver a decision on requests from six groups to participate in the Policy 713 legal challenge on May 6, but a number of other issues have the potential to delay proceedings afterwards.

“I’ve somewhat unfortunately cornered myself into a box of making a decision by May 6,” Petrie told the court at the close of a hearing on Monday.

A number of groups are looking to intervene on the judicial review of the province’s decision to amend its school gender identity policy to require parental consent for children under 16 to use a different name or pronoun in the classroom. But a number of other issues threaten to gum up proceedings afterwards.

Court dates the week of May 13 have been set aside to possibly deal with disagreements over redactions in the records of the information that education minister Bill Hogan had in front of him when he made the decision to revise the policy last year.

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The Canadian Civil Liberties Association had been requesting the documents since they were granted public interest standing in December, but only received them from the province last week.

Click to play video: 'N.B. government turns over documents that led to Policy 713 changes'
N.B. government turns over documents that led to Policy 713 changes

Those dates may also be used to deal with a request from the province to split the issue into two hearings, one dealing with alleged breaches of the Human Rights Act and Education Act and another, if necessary, to deal with the alleged Charter breaches.

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Petrie said the tight timeline is because he sees the case as a “priority matter” and that it would be “unacceptable” to have it drag into the late fall without a resolution.

But the province says ongoing litigation in Moncton with the Anglophone East District Education Council over the policy may lead the province making a motion to slow proceedings.

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Counsel for the province Clarence Bennett also suggested that there is no urgency in resolving the case since the revised policy has been in place for nearly a year and that this school year ends in eight weeks anyway. He also accused the CCLA of unfairly alleging the province was causing delays in the media and of receiving special treatment in court scheduling and in how the case was to this point being managed.

Bennett declined to speak to media after Monday’s hearing.

Counsel for the CCLA, Benjamin Perryman, did say that the delay in receiving the record was unusual. The province wanted them to file a motion, but Perryman said it’s more normal for governments to turn over records in judicial review cases and then have the parties argue over the contentious pieces afterwards.

He also disagreed that the case is getting any special treatment and said that all parties should have an interest in moving quickly towards a resolution.

“Part of the reason why the CCLA was granted public interest standing is because the court understood that there is at least a reasonable allegation that there is a serious issue of harm to some students in New Brunswick and it’s governing itself on the basis of that possibility,” he told reporters following Monday’s hearing.

Intervener Motions

The final list of who will participate once the review moves forward has yet to be set. A handful of organizations have applied to be “friends of the court” meaning they may make some written submissions but can’t submit evidence. Those include the Madhu Verma Migrant Justice Centre, the Women’s Legal Education and Action Fund, and the Association for Reformed Political Action. None of those applications were opposed by either the province or the CCLA and will be settled outside of open court.

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There are six other applications to participate as full parties, which can allow the introduction of evidence and even the cross-examination of witnesses, although justice Petrie does have the ability to set limits on participation.

Last week a number of “community interveners” including Egale Canada, Chroma NB, Imprint Youth and Alter Acadie argued that they should be added to the case as a joint full party in order to provide perspective from LGBTQ2 organizations that work on the front lines with youth affected by the decision. A similar coalition of Saskatchewan organizations, led by Egale, were granted public interest standing in the legal fight over that province’s revisions to its school gender identity policy.

Click to play video: 'New Brunswick government facing second lawsuit over gender policy'
New Brunswick government facing second lawsuit over gender policy

During that hearing the court also heard joint application from the Gender Dysphoria Alliance and Our Duty Canada argued that their organizations would provide the perspective of parents and provide evidence on what they claim are the harms of social transitioning to another gender.

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Finally, Equality NB and the Wabanaki Two-Spirit Alliance also made their case to participate, arguing that they would show how the policy revisions run contrary to Indigenous concepts of two-spirit people and gender identity.

Tuesday’s hearing dealt with three unions representing school staff: the New Brunswick Union, New Brunswick Teachers Federation and CUPE Local 2745. The three are also seeking to be added as full parties and argued that the how the policy affects school staff and students are related and that their perspective should be represented.

Petrie says he will aim to deliver a decision on all of the prospective interveners on May 6.

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