Judge in gender-identity lawsuit questions whether province is legally withholding records

The Canadian Civil Liberties Association and the Province of New Brunswick argued the case Thursday and Friday in Burton. (Ed Hunter/CBC - image credit)
The Canadian Civil Liberties Association and the Province of New Brunswick argued the case Thursday and Friday in Burton. (Ed Hunter/CBC - image credit)

A judge has decided to review several documents before he decides whether it's legal for the province to withhold them from the court and the public.

In the case against the province's school gender-identity policy, Justice Richard Petrie said Friday he will review briefing notes and emails to make sure the province is not "over-claiming" confidentiality.

The Canadian Civil Liberties Association is challenging the new changes to Policy 713, which now requires parental consent before school staff can use a student's chosen name and pronoun if they're under age 16. The association alleges this policy violates children's Charter and human rights, and is asking the judge to quash it.

Before they can begin arguing the case, the province must first produce all the documents the minister reviewed when making changes to the policy. Over the last three days of hearings, the association and the province disagreed over which documents are relevant and which documents should be withheld for confidentiality reasons.

The province says nine documents — five briefing notes and four emails — are relevant to the case but should be withheld from the judge and the public because of "public interest immunity."

The province's lawyers argued the documents were prepared for the minister before he had a meeting with cabinet. Revealing them would harm the public interest because cabinet members are supposed to feel safe enough to have honest arguments about issues, lawyer Steve Hutchison said.

"If this is released … ministers and former ministers would be put in front of a microphone and asked, 'What was your position?'" Hutchison has said previously.

But changes to the policy were not a cabinet decision, the civil liberties group argued, so they should not be protected as if they were. Association lawyer Sheree Conlon also said this kind of immunity should not be used to "shield" politicians from scrutiny.

"Just because a policy is controversial does not mean the government's decision-making process should be shielded," she said. "Public scrutiny is crucial to our democracy."

Province withholding document already made public

Petrie said several issues raise doubts about whether the province is inappropriately withholding documents.

One of the briefing notes it wants to withhold was written to the premier in 2019. CBC News received this briefing note as part of a right to information request that sought all records "related to the decision to launch a review into Policy 713."

CBC News published the briefing note as part of an investigation. The briefing note speaks generally about the need for the policy and how its development started. In an affidavit submitted to court, public servant Lisa Lacenaire-McHardie said the briefing note was released in error and that it should have been confidential.

Justice Petrie said he doesn't see why.

"Having reviewed that document … I just don't see anything in it that's obvious to me about this issue," he said. "It does raise either that uncertainty, or maybe an over-claiming of public interest immunity. I have not concluded that, but it at least raises some doubt."

In its submissions, the province also said the briefing notes were made to give advice to the premier and cabinet. However, Hutchison said that was a mistake and they were not actually prepared for cabinet, rather for the minister. Petrie said he accepts that it was a mistake, but "it does not add to my confidence."

Petrie said the province also did not provide the documents related to the June 8 amendments of the policy until the second day of hearings, when it was challenged by the association, and he said that adds to his concern about "how this vetting process had gone."

Petrie asked the province to go through the documents one more time and decide whether it wants to suggest redactions instead of withholding the entire document.

Regardless of what the province decides, Petrie will review the fully unredacted documents and decide in the coming weeks whether they should be fully or partly revealed.