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Opinion Is Brad Wall really defending school choice with his use of the notwithstanding clause?

Kent Roach is a professor of law at the University of Toronto and the author of The Supreme Court on Trial: Judicial Activism or Democratic Dialogue

The Saskatchewan government will override Charter rights to freedom of religion and equality in order to reverse a trial judge's controversial decision that public funding of non-Catholic students to attend publicly funded Catholic schools violated those rights. The use of the override in this case may eventually be warranted. But right now, its use is the premature equivalent of using a sledgehammer to kill a fly. A fly that will reappear in five years' time.

The override is a legitimate part of the Charter of Rights and Freedoms, but we, as citizens, should pay close attention to its use. We should also recognize that the first remedy for bad Charter decisions is appeals to the higher courts.

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Premier Brad Wall has been itching to use the override since the Supreme Court's 2015 decision striking down back-to-work laws. The override in Saskatchewan has bipartisan appeal originating in late premier Allan Blakeney's reservations about the Charter. But the override is designed only to give elected governments temporary victories that must be revisited after the next election. It will not bring the stability that Mr.Wall promises.

The case is complex and curious. Despite Mr.Wall's rhetoric about defending school choice, the case seems to be more about an "open war" over scarce public funding of schools in a province facing rural depopulation and fiscal challenges than about real concerns regarding discrimination against minorities.

It was started in 2005 when the NDP government decided not to ask for an advisory opinion from the Saskatchewan Court of Appeal about its funding of non-Catholic students attending Catholic schools.

The case was brought by a public school board after it had to close a 42-student rural school only to find the Catholic school board opening a 26-student Catholic school in the same small town. The town is Theodore. In 2006, it had a population of 339. It does not have a Catholic church.

Both the government and the Catholic schools who receive funding for every student (Catholic or not) who attends a Catholic school understandably defended the status quo of funding. They also called Muslim, Jewish and Mennonite parents who said they were more comfortable sending their children to Catholic schools than non-denominational schools.

The trial judge accepted that the public school board had standing to bring the case and that Confederation-era protections only sheltered what was essential to preserve the Catholic nature of the school. Both of these decisions seem correct. It makes no sense to expect parents to bring such expensive and prolonged litigation. Moreover, it would not be proper to conclude that publicly funded Catholic schools – even though they exist as part of a Confederation bargain – could violate every Charter right at will.

But the trial judge's 240-page judgment then runs out of steam. He accepted Catholic schools with a distinct lack of enthusiasm in part because they were imposed by Ottawa, and in part because they are out of touch with modern diversity.

But in this, the 150th year of Confederation, denominational school rights should not be disparaged as Victorian relics. They demonstrate how the protection of minorities is built into our constitutional DNA.

The trial judge's remedy – only funding Catholics who attend Catholic schools – will do nothing for today's religious minorities. In fact, it will hurt those who prefer to send their children to Catholic schools.

The trial judge relied heavily on a brief statement by one Supreme Court judge that stated it was "axiomatic" that funding Catholic schools without Confederation-era protections would violate both freedom of religion and equality. He also relied on a recent Supreme Court statement about the need for religious neutrality made in a very different context. No one is forced to attend Catholic schools.

The trial judge did not grapple with the limits on public funding or more proportionate responses, such as better funding of all religious schools in order to maximize parental choice.

Parental concerns about maintaining any local school at a time of rural depopulation and fiscal austerity were lost in his analysis (perhaps because of the way the government argued the case), even though the Supreme Court has warned courts to be cautious in second-guessing how governments distribute scarce resources among competing groups.

To be sure, these deficiencies in the trial judgment might eventually justify the use of the override if appeal courts fail to correct them. But the override at this time is premature. It will also be only a temporary victory that will have to be revisited by the next government.

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The Charter, including the override, is too important to be used as an instrument in cultural, partisan or institutional wars.

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