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

Posted on May 03, 2017, 12:18 am
5 mins

PHOTOS: Premier Brad Wall of Saskatchewan (Photo: CBC). Below: Edmonton lawyer Simon Renouf.

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.

9 Comments to: Inclusion of 1905 act in Constitution means Brad Wall’s ‘Notwithstanding Clause’ gambit is no slam-dunk

  1. jerrymacgp

    May 3rd, 2017

    ‘ ..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… ‘

    I wonder, not being a lawyer myself either (but sometimes even lay people like us can figure out these things), does this also put paid to the notion often put forth on this blog, not only by yourself but by some of your commenters, that any potential future abolition of the publicly-funded parallel separate school system could be done by bills passed only in the Alberta Legislature and the Parliament of Canada, without involving the other provinces & territories?

    Reply
    • David Climenhaga

      May 3rd, 2017

      That’s a good question. While I may have given an unintended impression, all I recall saying here is that the amending formula would have to be used in certain cases. The amending formula has different procedures for bills affecting only one province and the federal government, two provinces and the federal government (for example, a boundary change), and all provinces. DJC

      Reply
    • Jim M. Gallagher

      May 5th, 2017

      What you are describing is what happened in Nfld and Quebec I believe.

      Reply
  2. David

    May 3rd, 2017

    While I actually agree with Mr. Wall’s premise of student choice, I also agree that he is using this to distract from other important issues – mainly school funding.

    I can understand that a few non Catholic parents might want to send their kids to a Catholic school because they prefer it over public schools. However, I think in many cases what is happening in Saskatchewan is there is no public school in their community, either because the government has cut funding or it doesn’t want to fund building another school, so its more the parents being forced into this by the government than by the parents own choice.

    Of course not having to fund public schools in some communities saves the government a substantial amount of money, so I suspect Mr. Wall’s real concern is that rather than freedom of choice.

    Now the average person in Saskatchewan (or Alberta) would probably think the court decision was sensible – Catholic schools should be for Catholic students, so I am not sure this is a winning political issue for Mr. Wall. However, I suppose talking about “parental choice” is just the best way to dress up his case politically as he would rather not emphasize it is really about saving his government money by closing more public schools.

    Reply
    • Trevor

      May 3rd, 2017

      A correction on your comments must be made. It is not a “few non catholic parents” sending their kids to those schools. Rather it is thought the number is at least 30 percent. Nor is it a situation where the decision is made due to no public school being in the community. This is a question of ideology and policy as shown by the fact that Brad Wall and his government forced a catholic a school on a community when nobody was asking for it! This is just an extension of their decision to fund ALL religious schools back in 2011. It is simply wrong!

      Reply
  3. Sassy

    May 3rd, 2017

    I’ve been thinking about possible hidden motives behind Brad Wall’s move. For sure, it distracts from his government’s education cost-cutting. I think there is more. The notwithstanding clause gambit may be a ruse. It’s well known the conservatives in both our province and in Saskatchewan have long embraced and secretly promoted moving public education into the hands of private operators (of course, funded as much as possible by the tax payers). In the USA, Catholic schools are private and, I believe, still make up the largest educator in the private/charter school business. Perhaps Wall and his cohorts are planning to 1. close numerous public schools then 2. encourage/assist Catholic schools (who, by then, won’t be able to accept non-Catholic students) to convert to private schools. Because of the uproar and chaos, the population would likely agree to the province continuing to fund those now-private schools. Other private schools in Saskatchewan would soon line up to get more than the 50% of public funding most currently receive. Conservative mission accomplished. Hope I’m wrong….

    Reply
  4. Gail

    May 3rd, 2017

    It’s time to stop funding religious schools. Period. We are secular society. We need to fund a secular school system. Religious instruction can take place on personal time not in our publicly-funded school system.

    Reply
  5. Farron

    May 5th, 2017

    I wouldn’t give Brad Walll too much credit. This is the same guy who ran his mouth and violated the New West Partnership his own government agreed to, then pretended he didn’t do anything wrong. I’m pretty sure he lives in a fantasy world.

    Reply

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