Using the Notwithstanding Clause to save Catholic school funding is overkill

News | by Gregory Beatty

Considering the Saskatchewan government’s sorry litigation record, it’s not surprising Premier Brad Wall played the notwithstanding card to get around an April 20 Queen’s Bench ruling that full public funding for non-Catholic students attending Catholic schools was unconstitutional.

Facing school closure because of dwindling enrolment in 2003, the town of Theodore applied to join Christ the Teacher Roman Catholic Separate School Division in Yorkton. The district’s public school board later sued, arguing that the arrangement, which enabled Theodore to keep its school open, contravened s.93 of The Constitution Act (1867).

“Section 93 functioned as an early form of affirmative action to protect religious minorities against being overwhelmed by a religious majority that was actively trying to convert them and their children,” says David Richards of OneSystemSask, an advocacy group that wants Saskatchewan to adopt a unified school system.

In 1867, the minorities were Protestants in Quebec and Catholics in English Canada. Today, Canada is a much different country, with many minority faiths and a sizeable population of non-believers.

Other provinces have recognized that reality and moved to single school systems. Saskatchewan, in fact, is one of only three provinces that still fund separate schools and in recent years, non-Catholic students have been flooding into the system. Estimates place the number at 10,000 — which is about 30 per cent the Catholic school population.

Convenience of school location, friends, a special program like French immersion: these are undoubtedly factors in some instances. But families keen to have their children educated in a Christian environment is a big factor too, says Richards.

“It’s very much a Christian school system, so instead of being affirmative action, it’s special privilege for a group that already has a majority.”

Theodore Case

Justice Layh, in his ruling, concluded that s.93 did not authorize the Saskatchewan government to fully fund non-Catholic students who attend Catholic schools. To allow that, he said, would create “two parallel and competing” public school systems.

Having made that finding, Justice Layh further concluded that the government’s actions violated s.2(a) and s.15 of the Charter. The former addresses religious freedom and the government’s duty (as described by the Supreme Court in Saguenay [2015]) to be neutral in all religious matters, while the latter addresses equality.

In addition to public and separate school systems, Saskatchewan provides funding for 32 other schools. Like the Catholic system, many are faith-based, but students receive only 50 to 80 per cent as much funding as non-Catholics in the Catholic system. That, said Justice Layh, violates s.15, while preferential government support for Christian students contravenes s.2(a).

Following the decision, Saskatchewan Catholic School Boards Association announced its intention to appeal. The government didn’t do the same until May 17, almost a full month after Wall’s vow to use the notwithstanding clause.

“It’s unprecedented,” says University of Saskatchewan law professor Ken Norman. “By design, the notwithstanding clause is meant to be a risky business for governments. Parliament has never used it in 35 years. Outside of Quebec, there’s very few occasions — Saskatchewan once in 1988, and Alberta in 2000.

“And when it has been used, it’s been as a last resort, where the avenues of appeal have been exhausted,” adds Norman. “Here, they’ve not even begun. So it seems to me an overreaction.”

Wall justified his decision by saying he wanted to provide certainty for non-Catholic families with children in the Catholic system. But as Norman notes, Justice Layh gave a 15-month stay, so the ruling doesn’t come into effect until June 2018. As well, if more time was needed, a further stay would surely be granted.

Yet Wall still felt compelled to act — effectively trumping Charter rights to state neutrality in religion and equality.

That’s no trivial matter, says Norman.

“When negotiations were underway, Pierre Trudeau hoped the Charter would come to be valued by Canadians,” he says. “We now know that it absolutely is. There was a Stats Can study in 2013 that said nine of 10 Canadians viewed the Charter as the top symbol of our national identity.

“Now, for a premier to say, ‘Well, notwithstanding that, I’m going to have it my way’, especially when he has an avenue of appeal open to him, is a very risky thing to do.”

Bigger Picture

Politics play a big part in this, of course. When Wall thumbed his nose at the Saguenay decision (which held that a Christian prayer at a city council meeting was unconstitutional) by asserting the Saskatchewan Legislature would continue its 110-year tradition of saying an Anglican prayer, he won accolades from his Christian base.

The media attention generated by his “notwithstanding” announcement also took heat off his government for its mean-spirited budget and other controversies/scandals.

During Charter negotiations, Norman says, Saskatchewan’s Alan Blakeney, Alberta’s Peter Lougheed and Manitoba’s Sterling Lyon championed the notwithstanding clause.

Blakeney in particular was concerned about granting courts, in an era where they were seen as a conservative force, the power to pre-empt government policies. Lately, though, courts have been more of a progressive force in upholding human rights. And that’s got conservatives upset.

“There’s a loaded phrase known as ‘judicial activism’, and certainly Premier Wall is in that camp which doesn’t like the idea of judges doing anything very bold by interpreting the Charter,” says Norman.“Of course, the Saskatchewan government, if it feels it wants to roll the dice, can put the Charter on ice.

“I just think it’s premature, and unwise,” says Norman. “They should follow the normal judicial process, and give the appellate court an opportunity to analyze whether this question is one that involves a violation of equality and religious freedom.” ❧

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One System For All

While some might regard OneSystemSask’s mission as Don Quixote-like, David Richards thinks there’s support for a unified school system.

“What’s been seen in every province where this comes up is the vast majority actually want a unified system — whether it’s been Ontario, Newfoundland, Quebec, or even Alberta, says Richards. “But what happens politically is the 70 per cent who want a unified system aren’t going to be single issue voters, whereas a large portion of the 30 per cent who want privileged, segregated education will be.”

Switching to a unified system makes financial sense, Richards says.

“There was a five-year study commissioned by the Ontario Federation of Urban Neighbourhoods. It found the savings would be between $1.2 and $1.6 billion per year. Saskatchewan is one-tenth Ontario’s size, so we’d be looking at savings of $120 to $160 million. That works out to three to four per cent in the total education budget.”

Thanks to their s.93 protection, Catholic schools are also exempt from Charter rights such as freedom of religion, association, expression and more.

That gives them a legal right, says Richards, to discriminate in their employment practices. “It allows a Catholic school to fire a janitor for being Jewish, or refuse to hire a teacher for being gay,” he says.

Reproductive rights, marital/family status and gay-straight alliances are other areas where Catholic schools are free to discriminate if they wish.

A constitutional amendment would be required for Saskatchewan to switch to a unified school system. But unlike complex federal constitutional matters like Senate Reform, this process would be relatively simple, says University of Saskatchewan law professor Ken Norman.

“Newfoundland and Quebec both had religious schools,” he says. “And both provinces, after a fair bit of political turmoil, came to the view that the democratically fair thing was to have a secular public system. They got their constitution amended, which essentially required them to come to terms with Ottawa, so it was fairly straightforward.”

To circumvent some of the political turmoil here, Richards’ organization is investigating the idea of a referendum.

“To some extent, it shields the politicians,” he says. “If, like the rest of Canada, 70 per cent of Saskatchewan people think unifying school systems is a good way to save money and promote equality, then they won’t be punished at the ballot box by a single issue voting bloc.” /Gregory Beatty