Francophone education councils may face dissolution too, minister says

Education Minister Bill Hogan says he'll insist that three francophone district education councils fall in line on Policy 713 or potentially face the same threat of dissolution as an anglophone council in Moncton.

He issued that warning Wednesday despite acknowledging last year that curtailing minority-language education governance is unconstitutional. 

Hogan suggested Wednesday that he could move to dissolve three francophone education councils who have not yet repealed their gender identity policies, the same action he plans to take against the Anglophone East council.

"They're subject to the Education Act just like everybody else. If they refuse to follow the directive of corrective action that was issued, then we're going to follow the process that's available under the Education Act for all of the DECs," Hogan said in the legislature.

"We're not going to just pick one out."

He added a caveat that Anglophone East is the only district that has so far gone to court to block Hogan from repealing its policy — a move that he argues the education council doesn't have the authority to make and that precipitated his dissolution threat.

None of the francophone councils have taken legal action.

Still, any move against them could run afoul of Section 23 of the Charter of Rights and Freedoms, which guarantees minority-language communities in each province the right to manage their own school systems.

Hogan acknowledged that last year when he introduced Bill 46, which would have limited the decision-making powers of anglophone education councils but left them intact for francophone councils.

"There are Charter rights on the francophone side as a minority community in our province, and we're not going to mess around with Charter rights," he said at the time.

The bill was later withdrawn.

Protection of minority rights

On Wednesday Hogan told reporters he understood the implications of Section 23, though he suggested it was part of the 1867 British North America Act and stated, incorrectly, that minority-language education rights are under "federal purview."

In fact, provinces are responsible for complying with Section 23, which became part of the Constitution when the Charter was adopted in 1982. 

He said the section has never been used in New Brunswick in a legal challenge "and we'll see what happens."

Retired Université de Moncton law professor Michel Doucet, a language rights expert, said Section 23 represents "a new hurdle" for Hogan as he turns his attention to the three francophone districts in the fight over Policy 713.

Last year's changes to the provincial policy require school staff to obtain the consent of parents when a student under 16 wants to adopt a new name or pronoun at school that aligns with their gender identity.

District education councils have pushed back, with Anglophone East adopting an implementation policy that gives students more leeway.

The policy adopted by the three francophone districts says that "regardless" of Policy 713, students from Grade 6 and up can choose the names and pronouns they want the school to use for official purposes.

Hogan demanded the districts repeal that in a letter sent April 22. 

Doucet says if Hogan dissolved the francophone education councils, he would likely have to arrange for a new, elected councils to be in place quickly to avoid running afoul of the Charter.

"It could be the same DEC all over again that would be re-elected, so it's quite a different ballgame for the minister when he tries to attack the francophone DECs, because of Section 23." 

Opposition Liberal education critic Francine Landry said based on his comments last year about Bill 46, she believes Hogan understands the constitutional risk and that's why he hasn't moved against the francophone councils yet.

"I don't think he's willing to go that way right now, because of that protection."

Green MLA and education critic Kevin Arseneau compared the threat to the Higgs government's elimination of elected positions on regional health authority boards.

"We're on a slippery slope in New Brunswick, where we're dismantling democratically elected councils." 

Hogan said he hopes to hear from the three francophone districts by the end of this week on whether they'll comply with his April 22 directive.

Hogan needs a cabinet order before he can file a court application in Court of King's Bench to dissolve the Anglophone East council, and he said Wednesday he didn't know whether that was on the agenda for a cabinet meeting Thursday.

The Liberals say the minister could have avoided the costly and time-consuming legal battles by sending Policy 713 to the New Brunswick Court of Appeal for a reference ruling on whether it was constitutional.

"I think we're way beyond that question," Hogan said Wednesday of that option.