Province aims to override ruling on Catholic schools
SEE CLAUSE ON A4 Wall says notwithstanding clause will be used to block court decision
Premier Brad Wall is planning to use the notwithstanding clause in order to block a judge’s decision that would ban funding for non Catholic students in Catholic schools.
It is the first time his Saskatchewan Party is using the clause, which can override the court’s decision.
The province has said 10,000 non-Catholic students would be forced out of Catholic schools if it allowed a recent Court of Queen’s Bench ruling to stay in place.
Wall said his government “will do everything we can to protect parental choice, to protect the system that we have now” and that “we like the fact that there’s school choice.”
The notwithstanding clause — also known as “overriding power” — is entrenched as Section 33 in Canada’s Charter of Rights and Freedoms.
Provinces can pass a law to override portions of the charter for a five-year period. In this instance, it will be used to override a judge’s decision.
Wall said he made the announcement — days after an appeal on the ruling was filed — to “provide clarity and provide parents with the assurance that they will be able to continue to choose the kind of school they want their children to attend.”
Officials within the Ministry of Justice and the Ministry of Education are drafting the law.
Wall also said the ruling, if allowed to stand, could jeopardize provincial funding for Saskatchewan’s 26 other faith-based schools.
He said Justice officials were “sort of poring through the ruling still to determine the impact on some of those schools” and that “it’s fair to say that there is a risk there.”
On April 20, Court of Queen’s Bench Justice Donald Layh ruled that provincial government funding of non-minority faith students attending separate schools infringes on religious neutrality and equality rights.
Wall had said previously the ruling could not stand and government officials had indicated the notwithstanding clause was being considered, but Monday’s announcement marks the first time since 1986 Saskatchewan has used its overriding powers.
“Legally, the province can do this,” said Dwight Newman, a constitutional law professor at the University of Saskatchewan.
“Education is in the jurisdiction of the province, and it is a provincial law that has been struck down on charter grounds.”
“The provincial government can use the notwithstanding clause to keep that law in place.”
Wall questioned how the province would be able to determine who is and is not considered a Catholic in the school system if it were to follow the court ruling.
He continuously emphasized his government’s desire to give parents the choice between a public or faith-based education, calling the preference “very important.”
Parallel to the issue of funding faith-based schools is Bill 63, which is a likely-to-pass law that will allow the province to force school boards — Catholic and public — to work together on issues such as procurement and busing routes. The province has also built nine joint-use schools that are shared between Catholic and non-Catholic schools.
Layh’s decision stemmed from a 2003 dispute involving the Yorkdale School Division (now the Good Spirit School Division) when it closed down its kindergartento-Grade 8 school in Theodore because of declining enrolment.
The 42 students in the area were to be bused to a school 17 kilometres away. But instead a local group created a Catholic School Division and opened up St. Theodore Roman Catholic School.
Good Spirit School Division launched a lawsuit in response, claiming the new school was created not to serve Catholics in the community, but to prevent students from being bused away.
The Catholic School Board Association was launching an appeal of Layh’s decision, but could not be reached for comment Monday.