A constitutional case on duality in school busing got underway Tuesday with New Brunswick's chief justice throwing a potential legal curveball at Attorney General Serge Rousselle.

Ernest Drapeau suggested during a procedural hearing that he might require the attorney general to argue both for and against the constitutionality of dual school busing systems.

The provincial government is asking the New Brunswick Court of Appeal to rule whether the dual-education provisions of the Constitution also require two school bus systems — one for English schools and one for French schools.

The province plans to argue that the answer should be 'Yes.' But Drapeau told a courtroom packed with lawyers, journalists and citizens that the attorney general is expected to be independent of government on legal questions.

That might mean Rousselle's outside lawyer, André Richard, may have to make "a more balanced presentation" to ensure the issue is fully debated.

'Is the attorney general not supposed to be independent of the government and is he not, because of that independence, duty-bound to present all arguments, both pro and con the position of the government?' - Ernest Drapeau, chief justice

"Shouldn't the attorney general's approach be: Mr. Richard will appear and present the arguments for and against the government's position that the reference question should be answer in the affirmative?" Drapeau asked.

"Is the attorney general not supposed to be independent of the government and is he not, because of that independence, duty-bound to present all arguments, both pro and con the position of the government?"

A reference case is not like a normal adversarial court case, Drapeau said. The government is asking the court a question, and there's no official adversary.

So it's different from a criminal prosecution, when the attorney general argues for conviction, or a civil lawsuit where he must defend legislation being challenged.

Serge Rousselle

Attorney General Serge Rousselle described the prospect of arguing both as 'quite unusual.' (CBC)

This may be a case where the attorney general is "required to be everything but partisan," Drapeau said. "I mean partisan in the sense of taking a side in the dispute."

Declaring himself "old school" on the attorney general's "special responsibilities," Drapeau called the question "an area of deep concern for me as chief justice." He asked Richard to deal with the issue in legal submissions he will file on the case in May.

"This is a very fundamental question. It's not one I have a ready made answer to do ... I think it goes to the heart of the situation."

Outside the court, Richard told reporters that the chief justice's point was "interesting" and "a bit novel," and said the prospect of arguing both sides was "quite unusual."

"We will need to research and reflect upon that issue," he said, "then come back to the chief justice."

Kris Austin, the leader of the People's Alliance of New Brunswick, said he was glad Drapeau gave Rousselle "somewhat of a rebuke" for arguing for a 'Yes' on the question.

"Hopefully the government will rethink that, the attorney general will rethink that, and be sure that all sides are heard here."

Costs of interveners, translation raised

After weeks of controversy on the issue last spring, Rousselle announced he would ask the Court of Appeal whether the constitutional protection of English and French schools extends to the school buses that children use.

The court is unlikely to hear the substantive arguments in the case before the fall.

Tuesday's hearing was to lay out the procedural issues in this case, such as establishing filing deadlines and setting dates to hear applications from groups wanting to intervene and make arguments.

André Richard

The province's outside lawyer, André Richard, may have to make 'a more balanced presentation' to ensure the issue is fully debated. (Jacques Poitras/CBC)

But Drapeau served notice that the reference case, the first in the province since 1993, raises a range of complex legal issues.

He gave Richard until May 13 to file a submission on those issues. The court will hear applications from potential interveners May 24-25.

That hearing will also look at who will pay the legal costs of those interveners. Drapeau hinted that, given the province has put this issue before the courts, it may be expected to pay the bills for everyone.

He said he didn't want to see a situation where a range of francophone groups argue for a 'Yes' against the 'No' interveners, who may lack the money to mount their best legal argument.

Austin said that would be "huge for us." His political party will ask to intervene to argue for a 'No,' but Austin says it doesn't have the money to hire constitutional law experts. "It would certainly help us develop a strong case going forward."

Besides the attorney general's possible obligation to argue both sides, Drapeau also asked for input on how the case will comply with bilingualism requirements.

For example, he said, anglophone interveners may have a right to have filings by francophone groups translated into their language, and vice versa, he said, and if so, someone will have to do the translation and pay for it. "Who will bridge the great divide?" he asked.

He also chastised the government for including six "whereas" clauses in the wording of the question it submitted to the court, suggesting the clauses aren't neutral and could be seen as trying to influence the decision.

And he pointed out the law governing reference cases seems to obligate the Court of Appeal to hear any case the province deems important, which he called a potential infringement on judicial independence.

Drapeau also signaled his annoyance that the regular Court of Appeal courtroom at Fredericton's Justice Building is not equipped for simultaneous translation, something he called "essential" in an officially bilingual province.

"You may be surprised to know that, but that's a fact," he said in explaining why the Court of Appeal had to borrow a federal court courtroom two blocks away for Tuesday's hearing.