Saskatchewan Government to Invoke the Notwithstanding Clause to Permit Funding for Non-Catholic Students Attending Catholic Schools

(Photo by Marc Lostracci - originally posted to Flickr as Every Canadian Needs A Copy, CC BY 2.0, https://commons.wikimedia.org/w/index.php?curid=4522975)

(Photo by Marc Lostracci - originally posted to Flickr as Every Canadian Needs A Copy, CC BY 2.0, https://commons.wikimedia.org/w/index.php?curid=4522975)

In a lawsuit concerning the constitutionality of provincial funding to a Catholic school division in Saskatoon, Justice Leurer of the Court of Queen’s Bench ruled that public funding for non-Catholic students who attend Catholic schools is an unjustified violation of the state’s duty of religious neutrality: “The government’s decision to fund non-minority faith students at separate schools proves an obvious…public preference for the ideals of Catholicism and Protestantism shown to no other religion. This preference is neither trivial nor insignificant.”[1] Under section 1, Leurer J found that the government had failed to prove that funding non-Catholic students to attend Catholic school is not a pressing and substantial objective in a free and democratic society.

Following the decision, the Saskatchewan provincial government announced that it will invoke the notwithstanding clause to nullify the judicial ruling although the government has not specified the date of invocation. The notwithstanding clause permits provinces to enact legislation that may violate Charter rights, but only for a five-year period. Former president of the Saskatchewan Catholic School Boards Association (SCSBA), Tom Fortosky, says he is grateful for the government’s decision to invoke the clause but still sees the need to appeal the decision to “resolve the issue for all time”. The SCSBA has filed for an appeal and anticipates a hearing sometime in 2018.

[1] Good Spirit School Division No. 204 v Christ the Teacher Roman Catholic Separate School Division No. 212 and the Government of Saskatchewan, 2017 SKQB 109 at para 388.