Serge Rousselle sends dual busing case to appeal court

The provincial governmentwill ask the New BrunswickCourt of Appeal to hearareference case on the constitutionality of dual school busing,Education Minister SergeRousselleannounced on Thursday.

Thereference process includes cabinet drafting one or more questions for the court to answer, Rousselle said.

Last month,New Democratic Party Leader Dominic Cardy called for a judicial review of the provincial policy of requiring separate schoolbuses for students in the English and French school systems.

The provincial governmentmaintains that separate bus systems are required in New Brunswick under the constitutional provisions for duality in education.

Roussellesays he is confident the governmentis on firm legal ground, but that it's important it hears citizens' concerns andresponds to the ongoing debate.

While the court must take the case, it can reject or rephrase the questions posed if it feels they are not constitutional or legal questions, but rather political.

It will be up to the Court of Appeal to decide whether to appoint a "friend of the court" to argue against the government's position, Roussellesaid.

Cardyis pleased.

"I'm glad that after a month of personal attacks against me, and saying I was evil for raising the subject, that the government now agrees and the Liberals are on board with the NDP that you can deal with difficult conversations, you can push for a strong bilingual province and still ask the court to deal with difficult questions,"hesaid on Thursday.

If we have to go to court to decide our democracy, we don't have much of a democracy.- Jason McBride, anti-bilingualism petition organizer

Jason McBride, theorganizer of ananti-bilingualismpetition, says his group will consider applying to the court for intervener status in the proceedings.

If the court upholds dual busing, McBride sayshe still won't be persuaded. He contends it should be up to voters.

"If the court goes yea or nay, there's right and there's wrong. Regardless of what the court says if we have to go to court to decide our democracy, we don't have much of a democracy," he said.

Ruling not binding

The Court of Appeal's reference ruling will beadvisory only. It istechnically not binding, but the University of Alberta law school guide to reference cases statesthere is no known case where a court went against a reference ruling.

A reference ruling by a provincial Court of Appeal is, however,subject to appeal to the Supreme Court of Canada.

Cardy has cited the Supreme Court of Canada ruling about a French school in Summerside, which says school buses were not an "educational institution," to argue buses are not covered by the Section 16 Charter provisions guaranteeing English and French communities in New Brunswickthe right to their own educational institutions.

However Michel Doucet,of the University of Moncton, saysCardy is not looking at the decision as awhole.

Elsewhere it states that transportation can have an impact of the vitality of a minority language community, said Doucet.

Thatmeans section 23, on minority language rights, would come into play and protect the dual system, particularly in light of the 1999 Supreme Court of CanadaBeaulac decision, which says all language rights must be interpreted broadly, looking not just at their direct meaning but at their "purpose," including minority language protection, he said.

Each province has a law outlining how the government can take a reference case to the province's highest court.

In Ottawa's case, it's the Supreme Court of Canada. Recent examples have included theHarper government questioninghow to change or abolish the Senate,and theChretien government on whether Quebec could become independent without constitutional negotiations with rest of Canada.