Wall right in use of ‘the clause’

Premier Brad Wall’s recent announcement t hat t he Saskatchewan government will use the notwithstanding clause to respond to a court decision on Catholic schools has some people up in arms. Some have repeated their dislike for the notwithstandi ng clause, while others have claimed the clause has been incorrectly used. Both objections are based on a flawed understanding of the clause and the realities of governing. Wall actually deserves commendation for an insightful policy step.

The “notwithstanding clause” is found in Section 33 of the Canadian Charter of Rights and Freedoms. It allows the federal parliament or a provincial legislature to indicate in legislation that a law operates “notwithstanding” certain sections of the Charter.

This suspension of the Charter’s application expires every five years, although it can be renewed. In effect, Sec. 33 gives legislators the last word on the application of certain rights when they profoundly disagree with the interpretations offered by judges.

The notwithstanding clause was a vital part of the constitutional negotiations that led to the Charter being adopted in 1982. Without it, some provinces were unwilling to come on board. Without it, there would be no Charter at all. Those who argue that the notwithstanding clause is somehow illegitimate actually bear the onus of explaining how the rest of the Charter would be legitimate without it.

The notwithstanding clause was advocated at the time by premiers of very different political stripes— notably Saskatchewan’s New Democratic Party premier Allan Blakeney and Alberta’s Progressive Conservative premier Peter Lougheed. These premiers had a shared vision of the supreme role of parliament in Canada’s constitutional tradition, and saw the notwithstanding clause as a bridge between that vision and the vision of a constitution with a written bill of rights enforced by judges.

The notwithstanding clause was also not i nvented in some ad hoc way. It tracked a similar clause in the 1960 Canadian Bill of Rights. So Sec. 33 was part of Canada’s existing legal architecture, and was an important clause in bringing together different constitutional traditions.

Those who oppose i ts existence may be wedded to a different vision of Canada — one oriented only to individualistic rights — but the clause is properly part of Canadian constitutionalism.

In the Charter’s 35- year history, the notwithstanding clause has not been used extensively. But it has been used more than many people realize. In a 2001 journal article, constitutional scholar Tsvi Kahana identified 17 different statutes that had used it — far more than the handful of instances that are commonly cited. Most past uses have gone unnoticed because Sec. 33 has served relatively routine purposes of enabling legislators to make a different choice than courts might have otherwise forced upon them.

That is what Wall’s government has done here — in the context of a particularly nettlesome problem created by the courts. The practical effect of the recent Saskatchewan ruling was to require thousands of children to move to different schools in close to a year from now, because the court concluded that non- Catholic students could no longer be funded at Catholic schools.

The case went to court in an unusual way — over a scrap about resources between a public and Catholic school board.

The court did not receive a robust evidentiary record on the alleged rights violations or justifications for the government’s infringement of those rights. The judge — a distinguished former commercial lawyer — worked valiantly with the materials he had. But the case is, quite frankly, a mess. The awkward way that the case came forward left the court with an incomplete record on how Saskatchewan funds other faith- based schools. And the judge’s discussion of the equality and religious rights at play fails to mention some of the pertinent case law.

There are, then, good bases for an appeal, and an appeal should proceed. Some academics have suggested Wall ought to wait for the outcome of an appeal before turning to the notwithstanding clause. But this suggestion ignores the fact that the clause has often been used preemptively. Wall’s use is simply in keeping with existing constitutional practice.

Some academics and pundits’ objections also miss the realities of governing. The mere possibility that thousands of children could be hauled out of their schools creates needless anxiety for children and parents. It might affect current choices on the schools they start in. It requires the government to prepare to conduct some sort of “religion test” to determine who must be removed from Catholic schools.

To simply wait around on an appeal without promising the stability that the notwithstanding clause offers would be to shirk the responsibilities of good governance.

Wall has explained the chaos t hat would result from waiting for an appellate court ruling. His government is rightly acting to minimize that chaos. He is doing so through an entirely proper use of the notwithstanding clause. He should be commended for his actions.

SOME OBJECTIONS ALSO MISS THE REALITIES OF GOVERNING. HIS GOVERNMENT IS RIGHTLY ACTING TO MINIMIZE THAT CHAOS. — NEWMAN