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Inclusion of 1905 act in Constitution means Brad Wall's 'Notwithstanding Clause' gambit is no slam-dunk

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Photo: DanielPaquet/Wikimedia Commons

If Saskatchewan Premier Brad Wall thinks he can just snap his fingers and the Notwithstanding Clause of the Canadian Charter of Rights and Freedoms will make his Catholic school troubles go away, he may need to think again.

In a comment about yesterday's AlbertaPolitics.ca post, prominent Edmonton lawyer Simon Renouf observed that Mr. Wall's talk of using Section 33 of the Charter to override an inconvenient court ruling on how Catholic schools are funded is unlikely to be a definitive solution to the Saskatchewan Party's political problem because Mr. Justice Donald Layh's decision rests on more than just fundamental rights.

"Section 33 of the Charter (the "Notwithstanding Clause") permits a legislature to invoke the provision to allow a legislative provision to stand that would otherwise offend sections 2, and 7-15 of the Charter," Mr. Renouf wrote. Section 2 guarantees Canadians' fundamental freedoms; Sections 7-15 guarantee our legal rights.

However, he went on, "I very much doubt that the Saskatchewan government can use the Notwithstanding Clause to save its scheme of public funding for non-Catholic students to attend Catholic schools as the court also found that this funding offends section 17(2) of the Saskatchewan Act, which amends s. 93 of the Constitution Act, 1867 to allow for funded Catholic schools, for Catholics."

"The Notwithstanding Clause could not affect this finding, as it applies only to certain sections of the Charter, and not to the Saskatchewan Act," Mr. Renouf concluded.

Now, I'm no lawyer, but Mr. Renouf is a fine one, so this is a very interesting observation. The media has portrayed Mr. Wall's vow to have his Saskatchewan Party majority invoke Section 33 as a slam-dunk play that will sideline Justice Layh's ruling that that Saskatchewan's government may no longer legally fund non-Catholic students in Catholic schools.

But the Notwithstanding Clause is powerless against provisions in the 1905 Saskatchewan Act, which since 1982 has been entrenched in Canada's complicated Constitution.

And there it is, near the end of Justice Layh's April 20 ruling, apparently missed by all the great minds of the media: "Section 17(2) of the Saskatchewan Act, which provides constitutional protection against discrimination in the distribution of moneys payable to any class of school, only protects separate schools to the extent they admit students of the minority faith."

So while the Saskatchewan Legislature can use Section 33 to evade the effect of the decision to uphold legal and fundamental rights, which the ruling also does, it cannot touch the Saskatchewan Act.

As an important aside, according to Peter Hogg's Constitutional Law of Canada, which its publisher describes as "the definitive work on Canadian constitutional law," once the Saskatchewan, Alberta and Manitoba Acts were incorporated into the Constitution in 1982 they could only be amended using the amending procedures set out in the Constitution Act, 1982.

Perhaps more politically troublesome for Mr. Wall is the notion that the Saskatchewan Legislature could amend the denominational school rights provision in the Saskatchewan Act through a bilateral amendment between the province and Parliament, as permitted by Section 43 of the Constitution Act, 1982.

The problem facing the Wall government here is that it has already argued in court that it was forced to provide per-student funding under the terms set out in the Saskatchewan Act and the judge ruled the opposite. So ask yourself, in 2017, can either the Saskatchewan government or the Parliament of Canada pass a law requiring a province to fund non-Catholic students attending a Catholic school?

Given all this, in the short term it looks very much as if the Saskatchewan government will need to be in court appealing the ruling if Mr. Wall hopes to keep it from taking effect at the end of June 2018.

I am sure Saskatchewan, like every other Canadian province, employs very good lawyers to advise it in situations like this, so it seems highly unlikely Mr. Wall did not know about the problem with the Saskatchewan Act when he began to bluster about using the Notwithstanding Clause.

From over here in Alberta, this seems to lend credibility to the suggestion by Saskatchewan NDP Education Critic Carla Beck that Mr. Wall is merely using such talk to distract from other issues, including funding cuts to schools.

Photo: DanielPaquet/Wikimedia Commons

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