CCLA seeks court order for more Policy 713 records

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The Canadian Civil Liberties Association is asking the court to order the Province of New Brunswick to produce all records revealing the identity of those who initiated the controversial review of Policy 713. 

In a notice of motion filed Tuesday, the Canadian Civil Liberties Association (CCLA) states the “identity of the person(s) who decided to review Policy 713 and their reasons for the decision remain unknown.” This is despite the Province of New Brunswick recently handing over five binders of evidence to the CCLA after a months-long delay. 

Among the records the CCLA seeks include the name(s) of those who prepared documents related to the review and proposed policy changes, unredacted copies of briefing notes and emails, and an unredacted copy of a March 1, 2022 email sent from Premier Blaine Higgs to Education Minister Bill Hogan.  

CCLA lawyer Harini Sivalingam says the amount of withheld information raises “very serious concerns.” 

In the records handed over, the province has redacted some information by labelling those sections “irrelevant or private,” while Hogan’s briefing notes were withheld due to “Crown/public interest privilege,” according to the CCLA’s legal filing.  

Sivalingam doesn’t dispute there are certain government cases where there are “legitimate” grounds for withholding information, but in the case of the Policy 713 lawsuit, she says the open court principle should be the “paramount consideration.” 

“In these kinds of cases, there’s a greater public interest that government’s decisions are transparent, and that the court and the public have access to all the relevant information that led to that decision, so in this case, the revisions to Policy 713,” she said. 

The CCLA is ultimately asking the court to quash the self-identification section of the revised policy, which now requires trans and non-binary public school students under the age of 16 to have parental consent for their chosen names and pronouns to be used in certain school settings. The group claims those changes violate the Education Act, the Human Rights Act, and the Canadian Charter of Rights and Freedoms. 

The CCLA launched its legal challenge last September after the Higgs government ushered in changes following a review of the existing policy in the spring. 

“The review was the catalyst and purported basis for the minister’s decisions,” the CCLA states in its filing. “But the process did not follow the department’s normal practices for reviewing policies and had several defects, including that this process did not identify a problem to which it was responding, did not particularize who initiated the review and why, lacked terms of reference for the review, promised a change before the review was completed, and forwarded potential amendments through the Executive Council Office and the Premier’s Office to ensure that ‘we [the Department] move in an intended direction.’” 

Brunswick News sought comment Thursday from Higgs and Hogan on these allegations. 

“Our government stands by the changes we made to Policy 713,” Higgs said in a statement. “We are providing a safe and welcoming learning environment for all students while respecting the role of parents.”    

Judge rules against unions 

Meanwhile, a Court of King’s Bench judge has ruled against three New Brunswick unions seeking to participate in the CCLA’s legal challenge. 

In a Wednesday decision, Justice Richard Petrie turned down intervener applications from the New Brunswick Teachers’ Federation (NBTF), the Canadian Union of Public Employees Local 2745, and the New Brunswick Union of Public and Private Employees (NBU). 

All three unions, which represent educational workers, had sought leave to intervene in the case, arguing the Higgs government’s revised Policy 713 violates their members’ freedom of expression as protected under the Charter. 

Last month, lawyers for the Province of New Brunswick argued to the court that the three unions shouldn’t be granted intervener status because they can challenge the policy changes by filing grievances. 

The court heard that NBTF had already filed a grievance, while CUPE Local 2745 had yet to do so. 

“In my view, to the extent the unions wish to pursue their own members’ Charter rights in this proceeding, it would warrant a significant and unwarranted expansion of the proceeding, but also run afoul of the principles of exclusive jurisdiction of labour adjudicators,” Petrie wrote in his decision. “Therefore, this court would not be an appropriate forum for their issues.”  

In an email Thursday, lawyer Jöel Michaud, who represents NBTF and NBU, said he hadn’t received instruction yet from his clients about whether they want to appeal the decision. CUPE lawyer Glen Gallant couldn’t be immediately reached for comment Thursday.  

In his decision, Petrie did grant leave to intervene to three groups, made up of eight organizations, after hearing their applications last month. Those groups are Egale Canada, Alter Acadie, Chroma NB and Imprint Youth; Gender Dysphoria Alliance and Our Duty Canada; and Equality New Brunswick and Wabanaki 2 Spirit Alliance. 

“Our priority in this case is to defend 2SLGBTQI young people who are impacted by this policy, and to fight for their right to feel safe and accepted at school,” Egale Canada said in a press release announcing the decision Thursday. 

“We are grateful that the court has recognized the unique and important perspectives – on behalf of the communities we represent – that we will bring to these proceedings.” 

In his decision, Petrie noted the interveners will need to abide by conditions, including that each group of organizations will be limited to filing one brief of law and delivering one set of oral arguments. The groups also cannot “advance new, substantive issues.” 

Three applications for “friend of the court” status in the lawsuit are still before the judge. Those applications are from the Madhu Verma Migrant Justice Centre and the New Brunswick Refugee Clinic, the Women’s Legal Education and Act Fund, and the Association for Reformed Political Action. Those will be the subject of a separate decision.