The Higgs government found itself embroiled in yet another language controversy Friday after leaked documents revealed it had looked at eliminating the dual school bus system in favour of a single, privatized service.
Radio-Canada reported Thursday on two memos from government lawyers giving officials legal advice on whether the change would violate language provisions of the Constitution and breach union contracts.
On both counts, lawyers warned the government that the move would probably not survive a court challenge.
Premier Blaine Higgs said in the legislature that his government had looked at having some school children use municipal transit buses in Saint John, Fredericton and Moncton, as a way to both increase city ridership and respond to a shortage of school bus drivers.
"The cities were keen … to look at how they could offset the cost of their public transportation," Higgs said.
But the two memos don't mention city transit buses as an option. They refer to choosing "a single service provider" and a "private sector service provider" through a bidding process.
Education and Early Childhood Development Minister Bill Hogan, who's been in the job just five weeks, said he had not seen the memos.
But he ruled out a single, bilingual, privately run school bus system.
"I've been involved in no discussions and nor do I plan on being involved in any discussions about having bilingual school buses," he said. "That's not something I'm looking at. … I have no intention of going down that road."
He defended the idea of some children using city buses because of the chronic shortage of school bus drivers but said he wasn't looking at it "in the near future."
"I think we do need to look at what our solutions are going to be when we can't get our children to school," he said.
He also promised repeatedly that any solution would not violate any of the language-equality protections in the Charter of Rights and Freedoms.
"I have no intention of not respecting the constitutional requirements that we have toward our francophone Acadian population," Hogan told reporters. "I support that."
In Question Period, Higgs offered the same guarantee.
"There is no violation of constitutional rights. There will not be any violation of constitutional rights. … There is no room to wiggle around that."
Bilingual buses a bad idea, Liberal says
The premier also accused the Liberal opposition of posing questions with "not one element of substance" and claimed "there isn't any evidence of any timeline" — even though the two leaked memos clearly say the government wanted the change by September 2023.
The school bus controversy follows Higgs's decision to accelerate the replacement of French immersion with a still-undefined new program next fall, and his appointment of former People's Alliance leader Kris Austin to a working group on the Official Languages Act.
Acadian groups have denounced the choice of Austin because of his past criticism of some aspects of official bilingualism and duality, including the existence of so-called "dual" busing systems.
On Friday, Caraquet Liberal MLA Isabelle Thériault said "bilingual" buses were a bad idea for two reasons.
First, she said, "we have to preserve as much as possible the spaces where children can flourish and be educated in French" to avoid assimilation.
She said there was also a safety risk if a child in a school bus accident could not understand emergency instructions from a driver who wasn't bilingual.
"This could be catastrophic," she said.
Green MLA Kevin Arseneau also pointed out that a single bilingual school bus service would probably require the province to lay off all unilingual drivers in favour of bilingual drivers.
The province's four anglophone and three francophone school districts each run their own bus services.
School buses likely protected
In one of the memos, dated July 7, government lawyer Isabel Lavoie Daigle said the courts would probably interpret school buses as protected by Section 23, which grants minority-language groups in Canada the right to manage their own educational systems.
"Should government impose its vision on school transportation and remove duality in busing, this could be a violation of the rights of management and control of the school districts provided by S. 23," she wrote.
The province could argue in court that the section doesn't extend to school buses, she wrote, but "such a narrow interpretation of S. 23 is likely not to pass muster."
Another section of the Charter that gives anglophones and francophones in New Brunswick the right to "distinct educational institutions" would further hurt the province's legal position, she added.
"Our courts are likely to be reluctant to take away minority language rights which have been present in this province since the early 80s."
In 2015, the Liberal government of Brian Gallant sent the issue to the New Brunswick Court of Appeal as a reference case for a ruling on whether the dual-school-bus system was constitutionally required.
DOCUMENT | Read a leaked memo that shows the legal advice government lawyers gave the education department on the idea of a single privatized bilingual school bus system:
But after the court signalled its reluctance to be drawn into a political debate, the Liberals abandoned the case and said they would leave it up to school districts whether to share some bus routes between anglophone and francophone students.
So far no districts have opted for that.
The second memo, dated June 29, focuses on the province's contract with school bus drivers who are members of the Canadian Union of Public Employees Local 1253.
Government lawyer Michelle Brun-Coughlan says in that memo that contracting out school bus services would violate the existing collective agreement that prohibits layoffs of bus drivers.
In Question Period, Higgs said a recent wage demand from CUPE for raises averaging 25 per cent per year showed the need for alternative options.
"We are going to be forced to look at ways to do things differently … because we won't be able to afford anything else."
CUPE spokesperson Simon Ouellette said Local 1253 is not in negotiations with the province and hasn't made any wage demands. He said he didn't know where Higgs got the 25 per cent figure.