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Saskatchewan to invoke notwithstanding clause for Catholic school funding

REGINA - The Saskatchewan government says it will invoke the notwithstanding clause of the Charter of Rights and Freedoms so it can keep funding for non-Catholic students attending Catholic schools.

Premier Brad Wall says the move is about protecting the rights of parents and students to choose schools regardless of their faith.

Premier Brad Wall speaks with members of the media following the 2017 budget speech at the Legislative Building in Regina Wednesday, March 22, 2017. The Saskatchewan government says it will invoke the notwithstanding clause of the Charter of Rights and Freedoms so it can keep Catholic school funding for non-Catholic students.THE CANADIAN PRESS/Mark Taylor

Premier Brad Wall speaks with members of the media following the 2017 budget speech at the Legislative Building in Regina Wednesday, March 22, 2017. The Saskatchewan government says it will invoke the notwithstanding clause of the Charter of Rights and Freedoms so it can keep Catholic school funding for non-Catholic students.THE CANADIAN PRESS/Mark Taylor

Saskatchewan Premier Brad Wall talks to reporters at the legislature in Regina, Monday, May 1, 2017. The Saskatchewan government says it will invoke the notwithstanding clause of the Charter of Rights and Freedoms so it can keep Catholic school funding for non-Catholic students. THE CANADIAN PRESS/Jennifer Graham

Saskatchewan Premier Brad Wall talks to reporters at the legislature in Regina, Monday, May 1, 2017. The Saskatchewan government says it will invoke the notwithstanding clause of the Charter of Rights and Freedoms so it can keep Catholic school funding for non-Catholic students. THE CANADIAN PRESS/Jennifer Graham

EXPLAINER: The Notwithstanding Clause

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The Saskatchewan government says it will invoke the notwithstanding clause of the Charter of Rights and Freedoms so it can keep funding non-Catholic students attending Catholic schools. Premier Brad Wall casts it as a move to protect the rights of parents and students to choose schools.

The notwithstanding clause has long been one of the most controversial aspects of the charter. While some argue the clause is a healthy part of a Constitutional democracy, others disagree. Former prime minister Brian Mulroney once said, with it, the charter was "not worth the paper it's written on."

Here is a refresher on what has been referred to as the "sleeping giant" of Canada's Constitution:

WHAT IS IT?

The notwithstanding clause is Section 33 of the Charter of Rights and Freedoms. It gives provincial legislatures or Parliament the ability, through the passage of a law, to override certain portions of the charter for a five-year term.

ITS ORIGINS

While the notwithstanding clause is often seen as a last-minute insert to get provinces onside with the Charter of Rights, Eric Adams, research fellow at the University of Alberta's Centre for Constitutional Studies, notes that the charter's precursor, the Canadian Bill of Rights, had a similar provision. "The provinces are not inventing a new mechanism to get around rights," Adams says.

"They are drawing on this existing Canadian tradition that says that we don't have to have all-or-nothing rights-protecting instruments. In fact, we might want to retain some flexibility for governments to respond if they disagree with the kind of rights interpretation that a court might provide."

With charter negotiations ramping up in the early 1980s, then-prime minister Pierre Trudeau didn't seen the need for the clause, but provinces such as Alberta and Saskatchewan wanted an out should they disagree with a decision of the courts.

In the end, Adams says, Trudeau reluctantly agreed.

ITS STRUCTURE

The clause only applies to certain sections of the charter. For instance, it can't be used against provisions that protect the democratic process — that would create a pathway to dictatorship. "It's not an ability to override the Constitution full stop," Adams says.

"It is the ability to override certain particular, carefully selected provisions in the charter." The clause also can't be used for more than five years at a time. This ensures that the public has the chance to challenge a government's decision to use the clause in a general election before it can be renewed.

ITS USE

The notwithstanding clause usually comes up whenever there is a controversial court ruling. For instance, Stephen Harper's Conservatives were asked about, but refused to use, the clause on a court decision involving assisted dying.

There have also been recent musings about provinces using the clause to avoid strict time limits the Supreme Court placed on criminal prosecutions. "What's happening when governments ... air the notwithstanding clause, I actually think that's a nice healthy democratic moment," Adams says.

While often debated, its use is much rarer.

Quebec, as the only provincial government to oppose the charter, passed legislation in 1982 that invoked the clause in every new law, but that stopped in 1985.

In 1986, Saskatchewan used the clause to protect back-to-work legislation and Quebec used it again in 1988 to protect residents and businesses using French-only signs.

Alberta tried to use the clause in a 2000 bill limiting marriage to a man and a woman, but that failed because marriage was ruled a federal jurisdiction. The federal government has never used the clause.

"I think the notwithstanding clause is used very sparingly and should be used in unique circumstances, and this one is unique," Wall said Monday at the legislature.

"This is now a matter of school choice for parents. And we've had the separate-school system say they don't mind the fact that parents who may not be Catholic are choosing — maybe sometimes for convenience or location or just preference — to have their kids enrolled in those schools, and we think that choice is healthy."

A Court of Queen's Bench ruling last month said provincial government funding of non-minority faith students attending separate schools infringes on religious neutrality and equality rights.

The government has said that allowing that decision to stand would force about 10,000 non-Catholic students out of Catholic schools. It has also said the ruling could jeopardize provincial funding for 26 other faith-based schools.

"Justice is sort of poring through the ruling still to determine the impact on some of those schools," said Wall.

"I think it's fair to say that there is risk there."

The notwithstanding clause gives provincial legislatures the authority to override certain portions of the charter for a five-year term. Invoking the clause requires an act of the Saskatchewan legislature, which Wall said is in the works.

"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.

"It sounds like that's what they're doing and ... there's no role for the federal government."

The court ruling stems from a lawsuit over the province's policy of funding separate schools based solely on student enrolment without regard to the student's religious affiliation.

The dispute started in 2003 when the Yorkdale School Division, now Good Spirit School Division, closed its kindergarten-to-Grade 8 school in the town of Theodore due to declining enrolment. The division planned to bus its 42 students to another community.

In response, a local group created its own Catholic school division and opened St. Theodore Roman Catholic School. That prompted Good Spirit to file a lawsuit that claimed the creation of the new school division was not to serve Catholics in the community, but rather to prevent students from being bused to a neighbouring town.

Wall said last week that the decision "simply cannot stand." There could be greatly overpopulated public schools and empty or near- empty separate schools, he said, and the viability of community schools would be at risk.

Public Schools of Saskatchewan has said the province is ignoring that the ruling says government funding of non-Catholic students to attend Catholic schools violates Canada's Constitution.

It also said any disruption caused by students moving from separate schools "is a product of the unilateral decision of Catholic schools to admit those students."

The Saskatchewan Catholic School Boards Association has said it will appeal the court ruling.

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