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.
“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.