Disbanding DEC no simple process: lawyer

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While existing laws give the education minister the authority to request the dissolution of the Anglophone East school district education council, it’s a complicated process that has not been seen in the province before, says a constitutional law expert.

On Thursday, Education Minister Bill Hogan said he was going to seek to disband the Anglophone East DEC because it did not meet his deadline for dropping its court challenge of Policy 713, the province’s gender policy for schools.

Lawyer Lyle Skinner, a New Brunswicker who now works in Ottawa and who specializes in parliamentary and emergency management law, said in an interview Friday that Hogan does not have authority to unilaterally dissolve the DEC. 

In 2022, Premier Blaine Higgs dismissed the board members of the province’s two health authorities. But, Skinner said, there are two sections of the Canadian Charter of Rights and Freedoms that make the Anglophone East case different.

The first section protects minority language rights in education, and the second states that the English and French linguistic communities in New Brunswick have equality of status and equal rights and privileges. 

“Language is so strongly linked to culture, that’s why the minister does not have that unilateral power,” said Skinner. 

In his statement Thursday, Hogan said he has been given no choice but to begin the process to dissolve the council. “I laid out clear actions that the DEC could take to remedy the situation, including a clear deadline given the amount that has been spent simply to start the process,” he said.

“They are diverting almost $300,000 from classrooms to Ontario-based lawyers to file a motion to fight the rights of parents to be informed about their kids under 16.”  

The minister wrote that the money doesn’t fall within any of the permissible categories of the Education Act and is a misappropriation of public funds, as they “were meant to support public education.”

To shut down the council, Skinner said Hogan would first need to go to the cabinet, then make an application to the Court of King’s Bench. 

He would also need to form a legal opinion as to why the council needs to be dismissed. Skinner said there are two paths Hogan may follow: an argument that the council has failed to comply with the provisions of the Education Act within a reasonable period of time, or that there is an inability to function due to organizational differences. 

Hogan may use his opinion that the council has mismanaged funds as evidence of disfunction, Skinner said. 

However, he said, Hogan won’t have a case against the council if the DEC succeeds in its Charter of Rights challenge of Policy 713. 

The council filed a notice of action Wednesday against the province, asking the court to declare that sections of the policy are contrary to the Canadian Charter of Rights and Freedoms and the Human Rights Act.   

The statement of claim says Policy 713, which requires students under 16 to get parental consent to go by their preferred name and pronoun at school, forces staff to “misgender and deadname” gender-diverse students. 

According to the claim, the council believes the policy’s self-identification provisions have a discriminatory purpose and target gender-diverse youth for different treatment. It says Hogan has stated explicitly that these provisions do not apply to the nicknames of cisgender students. 

The district’s filing says these provisions force students to choose between being outed to their parents before they’re ready, or continuing to be misgendered at school. They say the acts of deadnaming and misgendering gender-diverse youth cause significant psychological, emotional and physical harm to them. 

“If Policy 713 is found by the court to be unconstitutional, then the DEC didn’t violate any provision of the Act because they can’t undertake something that is unconstitutional,” said Skinner. 

Along with the claim filed on Wednesday, the education council is also seeking a series of injunctions to stop Hogan from repealing its district policy, disbanding the education council, and enforcing sections Policy 713. 

A case management conference for the case was held on Friday afternoon in Moncton court. 

During the hearing, Court of King’s Bench Chief Justice Tracey Deware said the matter of the injunction needs to be heard during the dates set in mid-June so other issues can be resolved. 

“This chaos cannot continue,” she said. 

“By the time students return to classes in September, everybody needs to know who is calling the shots at the Anglophone East School District.” 

Clarence Bennett, a lawyer representing the province, said they plan to file a motion to have the matter dismissed. 

Another case management conference is scheduled to take place on May 15.