Wall threatens notwithstanding clause

By Geoff Lee

May 4, 2017 12:00 AM

Premier to incorporate little used proviso to protect school choice

The Saskatchewan Catholic School Boards Association (SCSBA) is appealing a judge’s ruling that the provincial government must stop funding non-Catholic students who attend Catholic schools.
However, it may never see the inside of a courtroom following Premier Brad Wall’s plans to shield the issue from the courts, and protect school choice in Saskatchewan.
“I have asked the ministers of Education and Justice to begin preparing legislation to invoke the notwithstanding clause to protect choice in our school system,” Wall said on Monday.
The move comes in response to a recent Court of Queen’s Bench ruling that, if allowed to stand, would force about 10,000 non-Catholic students out of Catholic schools.
The ruling could also risk provincial funding of 26 other faith-based schools including Luther College, Regina Christian School, Saskatoon Christian School and Huda School.
The loss of funding for non-Catholic students in Saskatchewan is intended to take effect on June 30, 2018, following the April 20 ruling by Saskatchewan Justice Donald Layh.
Tom Fortosky, SCSBA’s spokesperson, told the Source there is a distinct possibility this case will go before the Supreme Court of Canada when the appeal was filed on April 27.
He said in terms of funding, the Saskatchewan Act, a part of the Constitution of Canada, actually says when the government provides funding to public and separate school boards, they will not discriminate in the provision of those funds.
Layh wrote that funding “non-minority faith students” in Catholic schools is actually a violation of both the Charter of Rights and “the state’s duty of religious neutrality.”
“Effectively, this decision is saying the government has to discriminate on the basis of religion,” said Fortosky. 
Wall said by invoking the notwithstanding clause, the province is protecting the rights of parents and students to choose the schools that work best for their families, regardless of their religious faith.
“We wanted to announce this now 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,” he said.
Section 33 of The Charter of Rights and Freedoms gives provincial legislatures the authority to override certain portions of the Charter for a five-year term.  
Invoking the notwithstanding clause requires an Act of the Legislative Assembly.
The last time the Saskatchewan government used the notwithstanding clause was 31 years ago.
The government’s recent action is in response to the court ruling on a legal challenge by the Good Spirit School Division of Christ the Teacher Catholic Schools’ right to receive provincial funding for non-Catholic students.
Fortosky said the legal team for Christ the Teacher schools believes there were legal errors by Layh’s finding that the provincial government has to discriminate, on the basis of religion in its allocation of funding.
“The constitutional provision in section 17(2) expressly prohibits any such discrimination,” said Fortosky.
Currently, the province pays for any student who attends Catholic schools regardless of their religious affiliations.
The Christ the Teacher School Division was the subject of a 2005 lawsuit filed by the Good Spirit School Division.
It happened after a Catholic school was created in the village of Theodore, Sask. in 2003, with some non-Catholic students enrolled
The GSSD went to court to argue Catholic schools don’t have the constitutional right to receive government funding for non-Catholic students.
The decision to appeal has been unanimously endorsed by all eight Catholic school boards in the province.
Although the case is specific to Christ the Teacher division, it affects all Catholic education in the province.
Fortosky said the legal team representing Christ the Teacher School Division believes there are several other strong legal grounds for appeal.
“At its essence, the constitution provides the Catholic minority with the right to operate a school system in accordance with Catholic values and beliefs,” said Fortosky.
He said the SCSBA wants to be a welcoming and an inclusive community.
“From our perspective, we offer a distinctively Catholic faith-based education, and if parents choose that for their children, they are welcome to join us.”
He also said the case has a lot to do with who you define as a Catholic.
“We look at self declaration for determining who’s a Catholic or not,” he said.
“In terms of the definition of Catholic, we feel the judge gave a very narrow definition of what constitutes a Catholic as being someone with a Catholic baptismal certificate, but you need to know the Catholic Church recognizes baptismal certificates from other denominations.”
The Lloydminster Catholic School Board shares SCSBA’s inclusionary beliefs.
“Catholic school divisions believe we have the right to decide to admit non-Catholic students, and to determine the extent to which their admission allows us to maintain a truly authentic faith-based Catholic school system,” said the LCSD in a statement.
“Our faith is a journey that includes inquiry of non-Catholics and growth of existing members.
“This requires inclusion and a welcoming spirit.”
When asked what it would cost a parent to fund a non-Catholic student in a Catholic school in Saskatchewan, Fortosky said, “We are focusing our efforts on the appeal right now.
“We feel confident in our grounds for appeal, so it’s a little early to start speculating on the what ifs in terms of what the cost is.”
All he would say is that costs vary all across Saskatchewan.

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