Why Brad Wall invoked notwithstanding clause to trump court ruling on Catholic education

The recent commitment by Saskatchewan Premier Brad Wall to invoke the notwithstanding clause raises several important, interrelated questions that warrant some consideration.

Practical, political reasons at play in controversial move, says Joe Garcea

The notwithstanding clause allows provinces to create laws that will operate in spite of some charter rights that the laws appear to violate. (Mike Zartler/CBC)

The recent commitment by Saskatchewan Premier Brad Wall to invoke the notwithstanding clause in trumping a court ruling prohibiting provincial government funding for non-Catholic students attending Catholic schools raises several important, interrelated questions that warrant some consideration.

Why did Wall make the commitment to invoke the notwithstanding clause in light of the court decision?  

Invariably, government decisions are made for practical or political reasons. Undoubtedly, both sets of reasons impinged in the government's decision. 

Court decision presented 'complicated challenges'

The premier articulated the practical reasons while explaining his commitment to invoke the clause. 

In doing so, the premier explained the complicated challenges that would emerge in complying with the court ruling within the timeframe mandated by the court.

In this respect, he pointed to, among other things:

  • The challenges the provincial government would face in transforming the funding system within the relatively short period of time prescribed by the court;
  • the problems that it would cause for public schools in planning and implementing a system for accommodating the many students who would be constrained to transfer to the public system;
  • the challenges it would pose for the Catholic school boards in operating with fewer students and fewer funds; as well as
  • the short- and long-term sustainability challenges that the Catholic school system would face. 

This list does not even include other administrative challenges that would have to be dealt with in a relatively short time, such as determining who is Catholic (or at least is contemplating being baptized as Catholic) and who is not, and establishing a fee structure and collection system for the Catholic boards for any non-Catholic families opting to have their children educated in Catholic schools.  

Last, but far from the least, was the potential financial challenges and costs for the provincial government and school boards in reconfiguring the K-12 educational system. 

Budget no doubt played role in decision

While there is no reason to doubt the centrality of the practical realities that led the premier to make the commitment to invoke the notwithstanding clause, there is also no reason to doubt that to some extent it was done for political reasons.

After all, this was a time when the premier and his government began facing some political challenges related to the fallout from the controversial 2017 budget. 

Despite the fact that voter support for the existence or public funding of a Catholic School system (or any other denominational schools) is far from unanimous, there is substantial voter support for a modicum of choice, convenience, continuity and stability within the educational system. 

Politically, the court decision created a window of opportunity for the provincial government to do three things that in all likelihood it hoped would be politically beneficial for it.

The first was to depict itself as the champion of choice, convenience, continuity and stability within the K-12 system among Catholics and non-Catholics alike. 

The second was to depict itself as a 'defender of the faith' among the most religious Catholics and non-Catholics, who believe their children benefit from the values that, ostensibly, are embodied within the Catholic education system. 

Decision changed channel from budget

The third was to have a major issue that could potentially be a 'channel changer,' which would divert media and voter attention from what some perceived either as 'sins of commission' or 'sins of omission' related to the budget and other financial management matters.

This included the sale of land for the Global Transportation Hub, and the legislation authorizing the government to sell up to 49 per cent of any Crown corporation and enter into a partnership with private sector companies.

Given all those challenges and the practical and political reasons factored into its calculations, it is not surprising that the provincial government responded as it did to the court decision. 

About the Author

Joe Garcea is a faculty member in the department of political studies at the University of Saskatchewan.