Judge hands province small win on Policy 713, pushes case back to fall
‘Confusion’ means no hearing until start of school year in September, just days before election campaign
The legal battle between the Anglophone East district education council and the Higgs government on Policy 713 could continue into the next school year, just days before the start of a provincial election campaign.
Chief Justice Tracey DeWare of the Court of King's Bench had said earlier this spring that she wanted the case resolved before students return to classes in the fall.
But a tangle of legal filings "has created confusion" that could push a potential hearing on an injunction against Policy 713 to the second week of September, DeWare has decided.
That means it will unfold just one week before the legislature is dissolved for the election.
DeWare's Wednesday ruling hands a small victory to the province, which argued the education council could not seek an injunction to block Education Minister Bill Hogan from repealing its own gender identity policy and from dissolving the council.
The province argued there is already a mechanism to resolve disputes between a minister and a council which involves going to court.
DeWare agreed.
"An injunction is not necessary as the Minister of Education's actions are subject to court oversight prior to any order for dissolution," DeWare wrote.
Hogan welcomed the decision.
"Certainly the decision by Chief Justice DeWare is promising, and we look forward to continuing that," he told reporters.
Consent required for those under 16
Last year's changes to Policy 713 include a requirement that educators get the consent of parents if a student under the age of 16 wants to adopt a new name or pronoun at school to reflect their gender identity.
Anglophone East believes that violates the equality rights of 2SLGBTQ+ students under the Charter of Rights and Freedoms.
Hogan has already declared he was repealing the education council's policy on implementing Policy 713 — which is at odds with the provincial document — and has vowed to dissolve the council for defying his directives on the issue.
That process requires a court application that DeWare says gives the council the same ability to "enlist the assistance of the court" to challenge the minister — making injunctions against repeal and dissolution unnecessary.
The judge said she is still able to consider the district's other requests, including an injunction against the implementation of Policy 713 itself.
Supporters
of gender policy in N.B. schools waved pride flags outside the
legislature at a protest rally over changes to Policy 713 last year. (Lars Schwarz/CBC)
The district issued a press release saying it was celebrating what it called its "first win" in the case. Council member Kristin Cavoukian said no one from the education council would be doing interviews.
DeWare originally planned to hear the main injunction application from June 18 to 21.
But she says Anglophone East's two amendments to its application, including changes to who was named as plaintiffs and a request for public-interest standing in the case, made it hard for the province to defend itself in court "until clarity is brought to the proceedings."
"This is a situation that needs to be dealt with expeditiously by the Court and the parties but has been an ongoing source of friction between the parties for nearly a year," DeWare wrote.
But she said she had to balance the need for speed with clarifying who exactly is asking for the "exceptional remedy" of blocking a minister from exercising his powers and whether they have the legal standing to do so.
The June 18-21 hearing will now deal with the question of standing.
If the education council gets standing and the case continues, a July 25-26 hearing would decide which expert witnesses and reports can be part of the case.
Finally, the injunction application itself would be heard Sept. 9-12.
By provincial law the legislature will be dissolved Sept. 19 for an election on Oct. 21, meaning DeWare's decision on an injunction could be released just days before — or during — the campaign.
"I would like to see it resolved as soon as possible," Hogan said at the legislature.
"We function on the court's schedule and on [the chief justice's] schedule and the different lawyers' schedules, so it is what it is. It's going to be what it's going to be, preferably the sooner the better."
ABOUT THE AUTHOR
Stick to teaching please. Reading, writing and math should be your focus.
I Wholeheartedly Agree
Reply to David Amos
Reply to Ralph Steinberg
Ralph Linwood
Reply to MR Cain
Reply to Ralph Steinberg
Reply to Ralph Steinberg
Reply to Ralph Linwood
Reply to David Amos
Reply to B Johnny Kalibanos
Reply to Ralph Linwood
Wow.
Reply to Ralph Steinberg
What is the fear of the Higgs party, and his supporters, of kids wanting to be call another name?
Reply by David Amos.
Governments use fear to rule the roost
Reply by Ralph Steinberg.
called.
Comment by Ralph Steinberg.
The other thing Higgs cannot stop, is the kids having their peers call them by the name they decide to be called, how is he or the parents going to control that, because this seems all about control?
Reply by David Amos.
True but how does that nonsense fit within any legal mandate?
Comment by Ralph Steinberg.
Do they need permission to have a nickname? That is the end run around this.
Reply by David Amos.
What is your nickname?
Reply by Ralph Linwood.
My name is Michael but please confirm with my parents that I can be called Mike.
Reply by Ralph Steinberg.
Or TJ, instead of Thomas Jane.......
Reply by David Amos.
Methinks if you are making fun of the soon to be gone Minister Mikey perhaps he has the right to call you Rotten Ralphy N'esy Pas?
Reply by Ralph Linwood.
Joking aside, it would be demeaning to minimize such a big decision by calling it a nickname. No reason a child can not be called by their chosen name in school.
Reply by David Amos.
Two Ralphys in one thread talking to each other Ain't that special???
Reply by Ralph Steinberg.
imho, not demeaning at all. It is a way the kid can be called what ever they want by friends and peers, without having to involve the parents etc......
Reply by David Amos.
I strongly disagree
Comment by Daniel Franklin.
NB: Canada's Florida, apparently.
Reply by David Amos.
At least the weather is getting warmer
Reply by B Johnny Kalibanos.
Taking some of the heat off Alberta. Both provinces will not follow the vv0kesy train.
Reply by David Amos.
Amen
Comment by David Amos.
I bet Mr Outhouse has a smile a mile wide today
Comment by Emmanuel Rochon.
I guess that in NB, knowledge is not power. Why are people so afraid of certain body parts?
Reply by David Amos.
Surely you jest
Reply by Emmanuel Rochon.
NOPE.
Reply by David Amos.
What body parts do you think we are afraid of?
Reply by Emmanuel Rochon.
Ask Higgs. He's the one who's afraid of letting people into schools to discuss body parts and how they can be used respectfully.
Reply by David Amos.
You are the one who made the claim
Comment by G. Timothy Walton.
Here's hoping for a Liberal minority to end this regressive nonsense Higgs and Hogan are pulling.
Reply by David Amos.
I maintain that Higgy will win the minority
Reply by Jack Bell.
As opposed to the Liberals nonsense?
Comment by Sandra Boudreau.
Mr. Higgs is trying to protect parental rights and our children. Good for him!!!!!
Reply by Cindy Sheppard.
What is he protecting them from exactly? Proper sexual education, the ability to express themselves as they see themselves - please tell me what they need protection from? Why is everyone so scared of sexual education and gender identity? Ignorance is the only answer I have. Kids don't ask their parents these questions but they have the questions. You think kids aren't checking all this out on the internet anyway. At least this way they get the correct information. And it was grade 9 and grade 11 not exactly 6 year olds. Look around at the music industry, the movies, TV shows - sex is everywhere, a healthy understanding of it will create healthy adults with healthy relationships.
Reply by David Amos.
Rage farming is taught in political science classes and found within the playbook of all political parties
Reply by Ralph Steinberg.
Amusing, how is that happening, if the parents rageout on the kid coming out?
Reply by David Amos.
Do you find the editing amusing as well?
Comment by Max Ruby.
Seems the voters will decide. Let the chips fall where they may. Mr. Higgs NBers are maxed out with the property tax hikes. Give NBers a break who have at least been in the same home 10+ years. My taxes went from $1500 to $6000 wages have not increased.
Reply by G. Timothy Walton.
If you want a tax cut that means Irving and the forestry giants get one too. The only difference is you'll still be paying more, just not as much more, while they'll be enjoying an actual decrease in their taxes.
You can thank Higgs for that little gift to the billion-dollar-profit corporations.
Reply by Jimmy Cochrane.
And you think a liberal government will solve this?
Reply by David Amos.
"Seems the voters will decide."
IMHO That is the way the wicked game should be played out
Comment by SW Home.
The Gov't may see this as a win but so should the Education Council. This basically ensures that Hogan and Higgs can't force these changes through before the election meaning the incoming Gov't can squash these changes once they are sworn in taking over from the Cons.
Comment by MR Cain.
So now it has become an election issue.
Reply by Bobby Richards.
Hasn’t it always been?
Reply by Cindy Sheppard.
More a deflection issue - from the real problems in this province.
Reply by David Amos.
I concur
Comment by Brent McMackin.
The DEC has violated their own code of conduct that they wrote let alone the Education Act, the Minister has no choice than to dissolve the entire council.
Reply by MR Cain.
The minister had lots of choices; he chose the wrong one.
Reply by David Amos.
Nay not so
Reply by Ralph Linwood.
The DEC is standing up for what is right contrary to the Minister. Good for them.
Comment by Michel Pelletier.
NBers should just desolve the conservative gouvernment
Reply by Ralph Skavinsky.
That could happen in October...we will have to wait and see how the voters feel should parents have any say in how they address their children's feelings toward their sexuality.
Reply by Gabriel Boucher.
It shouldn't even be politicized in the first place. Children have the right to self expression in this country. It's not up to the parents to decide for them. Period. The fact that these kids can't even cast a vote to even have their say is atrocious. Higgs's government is fully taking advantage of these poor kids for political points, and it's disgusting. He needs to resign, and so does Mr. Hogan.
Reply by David Amos.
Methinks we will be voting not long after Canada Day and not when the frost is the pumpkin N'esy Pas?
NB: Canada's Florida, apparently.
Reply by David Amos.
At least the weather is getting warmer
Comment by David Amos.
I bet Mr Outhouse has a smile a mile wide today
Comment by Emmanuel Rochon.
I guess that in NB, knowledge is not power. Why are people so afraid of certain body parts?
Reply by David Amos.
Surely you jest
Reply by Emmanuel Rochon.
NOPE.
Reply by David Amos.
What body parts do you think we are afraid of?
Comment by G. Timothy Walton.
Here's hoping for a Liberal minority to end this regressive nonsense Higgs and Hogan are pulling.
Reply by David Amos.
I maintain that Higgy will win the minority
Comment by Sandra Boudreau.
Mr. Higgs is trying to protect parental rights and our children. Good for him!!!!!
Reply by Cindy Sheppard.
What is he protecting them from exactly? Proper sexual education, the ability to express themselves as they see themselves - please tell me what they need protection from? Why is everyone so scared of sexual education and gender identity? Ignorance is the only answer I have. Kids don't ask their parents these questions but they have the questions. You think kids aren't checking all this out on the internet anyway. At least this way they get the correct information. And it was grade 9 and grade 11 not exactly 6 year olds. Look around at the music industry, the movies, TV shows - sex is everywhere, a healthy understanding of it will create healthy adults with healthy relationships.
Reply by Graham McCormack.
LOL, he's rage farming. Sadly that has become the Cons playbook.
Reply by David Amos.
Rage farming is taught in political science classes and found within the playbook of all political parties
Comment by Max Ruby.
Seems the voters will decide. Let the chips fall where they may. Mr. Higgs NBers are maxed out with the property tax hikes. Give NBers a break who have at least been in the same home 10+ years. My taxes went from $1500 to $6000 wages have not increased.
Reply by G. Timothy Walton.
If you want a tax cut that means Irving and the forestry giants get one too. The only difference is you'll still be paying more, just not as much more, while they'll be enjoying an actual decrease in their taxes.
You can thank Higgs for that little gift to the billion-dollar-profit corporations.
Reply by Jimmy Cochrane.
And you think a liberal government will solve this?
Reply by David Amos.
"Seems the voters will decide."
IMHO That is the way the wicked game should be played out
Comment by SW Home.
The Gov't may see this as a win but so should the Education Council. This basically ensures that Hogan and Higgs can't force these changes through before the election meaning the incoming Gov't can squash these changes once they are sworn in taking over from the Cons.
Comment by MR Cain.
So now it has become an election issue.
Reply by Bobby Richards.
Hasn’t it always been?
Reply by Cindy Sheppard.
More a deflection issue - from the real problems in this province.
Reply by David Amos.
I concur
Comment by Brent McMackin.
The DEC has violated their own code of conduct that they wrote let alone the Education Act, the Minister has no choice than to dissolve the entire council.
Reply by MR Cain.
The minister had lots of choices; he chose the wrong one.
Reply by David Amos.
Nay not so
Comment by Michel Pelletier.
NBers should just desolve the conservative gouvernment
Reply by Ralph Skavinsky.
That could happen in October...we will have to wait and see how the voters feel should parents have any say in how they address their children's feelings toward their sexuality.
Reply by Gabriel Boucher.
It shouldn't even be politicized in the first place. Children have the right to self expression in this country. It's not up to the parents to decide for them. Period. The fact that these kids can't even cast a vote to even have their say is atrocious. Higgs's government is fully taking advantage of these poor kids for political points, and it's disgusting. He needs to resign, and so does Mr. Hogan.
Reply by David Amos.
Methinks we will be voting not long after Canada Day and not when the frost is the pumpkin N'esy Pas?
"The province argued there is already a mechanism to resolve disputes between a minister and a council which involves going to court.
DeWare agreed.
"An injunction is not necessary as the Minister of Education's actions are subject to court oversight prior to any order for dissolution," DeWare wrote.
Hogan welcomed the decision."