Sask. man who helped draft notwithstanding clause believes province is using it prematurely

Click to play video: 'A look at the notwithstanding clause after Brad Wall announces plans to override Catholic school funding decision'
A look at the notwithstanding clause after Brad Wall announces plans to override Catholic school funding decision
WATCH ABOVE: It is the constitution and the classroom day two. Yesterday, Premier Brad Wall announced plans to use the notwithstanding clause to override a Court of Queen’s Bench decision to eliminate Catholic school funding for non-Catholic children. Provincial affairs reporter David Baxter takes a deeper dive into what all this means – May 2, 2017

It will be at least five years before parents may have to pay extra to enroll their non-Catholic children in the Catholic school system, thanks to the Saskatchewan government’s plan to invoke the notwithstanding clause.

On April 20, a Court of Queen’s Bench judge ruled that the province can no longer fund non-Catholic children in Catholic schools.

Once the necessary legislation is passed, the notwithstanding clause will override the judge’s verdict for a five-year period.

This course of action appears sudden to Howard Leeson, who helped draft the clause 35 years ago.

“So we really don’t need to use it right away. If at the end of the court process you wanted to use it that’s an entirely different thing. My general feeling is it’s premature right now,” Leeson said.

READ MORE: Sask. government halts Catholic school funding decision with notwithstanding clause

Story continues below advertisement

When the Saskatchewan Catholic School Boards Association (SCSBA) launch their planned appeal, it would have delayed the implementation of the judge’s decision.

Leeson, who is a baptized Catholic, supports the verdict.

“I think it’s a genuine discrimination against other faiths, because at the moment they can take only 80 per cent of their funding,” Leeson explained.

“The court is not saying there can’t be funding to religious schools, it just has to be equal amongst the religions, and I think that’s a pretty good argument.”

Leeson anticipates the ruling will be upheld in an appeal, which he said would bring the “real crunch”.

Premier Wall said Monday that if his government is still in power in five years, and a decision hasn’t been reached, they will renew the notwithstanding clause.

READ MORE: Judge rules Sask. government cannot fund non-Catholic students in Catholic schools

Education Minister Don Morgan said that the province will likely get involved in the SCSBA appeal. He defended the status quo of education funding because it has worked for over a century.

“There’s a lot of reasons why it works well. If a child has a problem in one school system it gives that student the opportunity to go to the other school system and have a fresh start, it allows some resources to be shared,” Morgan said.

Story continues below advertisement

Morgan said that there are no plans to change the education system in Saskatchewan, because no one has come forward advocating that change.

“We’re also hearing from people in the public school, saying if we brought 10,000 kids in we can’t absorb them. We don’t have the facilities to do that,” Morgan said.

Constitutional lawyer with MTL Aikens Khurrum Awan discusses the notwithstanding clause with Global News. Kael Donnelly/Global News

Constitutional lawyer with MTL Aikens Khurrum Awan represented the public school system in the Theodore case. He believes using the notwithstanding clause sends the wrong message.

“Given the religious diversity of the province today where you have 35 per cent of the province’s population either being people of no religious affiliation, or religious affiliation other than Catholic or Protestant, that it was no longer open to the government to be selectively supporting the choice of some non-Catholic parents who are comfortable with a Catholic education,” Awan said.

Story continues below advertisement

“The idea of choice that the government is promoting is in itself discriminatory when you consider the religious and non-religious diversity of the province.”

Public Schools of Saskatchewan executive director Larry Huber said he is disappointed in the government’s choice to use the clause. Awan said his clients share a similar view.

“My clients in the public board are deeply concerned about the precedent that it sets. That’s a precedent, in our respectful opinion, exceeds the political interests of the day,” Awan said.

Meanwhile, the SCSBA said they are extraordinarily pleased that the government is giving parents breathing room with the clause.

Tom Fortosky with the SCSBA said they are investigating fundraising options to cover the cost of the appeal.

“We received a quote from our council on the cost of an appeal, and it’s approximately $125,000,” Fortosky said.

If the appeal goes to the Supreme Court of Canada, \ that appeal cost would likely double.

Sponsored content