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Saskatchewan to invoke Charter clause over Catholic school funding

Saskatchewan Premier Brad Wall is seen in Regina on March 23, 2016.

Mark Taylor/THE CANADIAN PRESS

Saskatchewan Premier Brad Wall says the provincial government will override a court decision on the funding of Catholic schools – in what would be just the fifth use of the Constitution's "notwithstanding clause" in the 35-year history of the Charter of Rights and Freedoms.

"By invoking the notwithstanding clause, we are protecting the rights of parents and students to choose the schools that work best for their families, regardless of their religious faith," Mr. Wall said in a prepared statement. He told reporters that anxious parents had been calling his office and that he wanted to give them a sense of certainty about where their children would go to school.

Justice Donald Layh of the Saskatchewan Court of Queen's Bench ruled last week that the province does not have the right to fund non-denominational students at denominational schools. The ruling would affect 10,000 non-Catholic students who attend Catholic schools, according to Mr. Wall. The judge suspended his ruling for a year to allow the government to make plans to implement it.

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Related: Saskatchewan ruling on Catholic schools could have far-reaching consequences

The case has a complex history, dating from the 2003 closure of a small elementary school in the village of Theodore, which left 42 children facing the prospect of travelling 17 kilometres to another school. Then a Catholic school opened up, but a majority of the children were not Catholic.

A public board went to court to challenge the government's policy of funding non-Catholic students at Catholic schools, calling it a misuse of constitutional protections for Catholic education and arguing it meant fewer children and a shrinking tax base for public, non-denominational schools.The notwithstanding clause was part of the original political compromise that created the Charter. The Charter gave judges the right to review the content of any law and to strike down a law if they believe it violates Charter rights. But the Charter also grants federal and provincial legislators the last word, in Section 33, which sets out the authority to override certain rights.

The clause was first used by a separatist Quebec government in 1982, invoking it in each new provincial statute. Quebec used it again in 1988 on two Supreme Court decisions that rejected French-only sign laws. Saskatchewan added the clause to back-to-work legislation in 1986, but the addition proved unnecessary because the Supreme Court upheld the law. Alberta used it in the Marriage Act in 2000 to limit marriage to heterosexual couples, but because marriage law is a federal jurisdiction, this use of the clause had no legal effect.

"We just think it's sort of sad that the Premier would choose to override a ruling by the Saskatchewan Court of Queen's Bench," Larry Huber, executive director of Public Schools of Saskatchewan, told The Globe and Mail. "The ruling was based on the Constitution of Canada, on the Charter of Rights and Freedoms. These are foundational documents in hopefully having a civil, democratic society."

Tom Fortosky, a spokesman for the Catholic School Boards Association, which has appealed Justice Layh's decision, said his group is "extraordinarily pleased" with Mr. Wall's announcement. "This gives stability and certainty for parents for the foreseeable future. This is very good news for parents who believe Catholic education matters and who desire a faith-based education for their children."

Dwight Newman, a professor at the University of Saskatchewan law school, said the province viewed the ruling as impractical, posing problems for parents and schoolchildren who would have to be moved once the ruling took effect. "They don't even know which ones are to be affected because the province isn't in the business of monitoring children's religion," he said.

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He added that, while people worry that the notwithstanding clause allows the majority to override minority rights, "in this case, the court decision has a negative impact on minority communities."

Section 33 is a kind of third rail of Canadian politics. The federal government has never invoked it and former prime minister Paul Martin once promised to amend the Constitution so that Ottawa could not use the clause. The Parti Québécois recently urged Quebec's Liberal government to invoke the notwithstanding clause to override court rulings throwing out criminal charges over unreasonable delay. The government refused.

"The fear is that the integrity of the Charter itself could be undermined if it becomes a regular occurrence," said Kathleen Mahoney, a law professor at the University of Calgary.

Carla Beck, the Saskatchewan NDP's education critic, said the Premier is threatening to use the clause to distract from other issues, such as funding cuts to schools. "Even talk of the notwithstanding clause … is not something that should be used for political gain," she said.

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