Both defendants have appealed the ruling of the Saskatchewan Court of Queen’s Bench, which held that government funding of non-Catholics in Catholic schools is unconstitutional. The trial judge ruled that the Saskatchewan government must stop funding non-minority faith students to attend separate schools. Among the 39 grounds of appeal raised by the Government of Saskatchewan and 67 grounds of appeal raised by Christ the Teacher Roman Catholic Separate School Division are the misinterpretation and misapplication of s. 93 of the Constitution Act, 1867, s. 17 of the Saskatchewan Act, ss. 1, 2(a) and 15(1) of the Charter and the territorial Ordinances of 1901, errors in relation to standing and errors affecting the defendants’ rights to a fair trial.
Following the release of this decision, Saskatchewan’s Premier, Brad Wall, confirmed that the government will protect school choice in Saskatchewan by invoking the notwithstanding clause of the Charter. This decision seeks to prevent approximately 10,000 non-Catholic students from being forced out of Catholic schools. “I have asked the Ministers of Education and Justice to begin preparing legislation to invoke the notwithstanding clause to protect choice in our school system,” Wall said. “We wanted to announce this now to provide clarity and provide parents with the assurance that they will be able to continue to choose the kind of school they want their children to attend.”
The notwithstanding clause is section 33 of the Charter. It gives provincial legislatures or Parliament the ability, through the passage of a law, to override sections 2 and 7-15 of the Charter for a five-year term. Saskatchewan has invoked the clause only one other time in 1986 as a preventative measure during a contract dispute with provincial government workers. The Supreme Court later ruled that the law didn’t violate the Charter so the notwithstanding clause didn’t need to be invoked. The last time the notwithstanding clause was used elsewhere in Canada was in 2000. That year, Quebec used the clause with respect to education when it came to religious schools and schools for Indigenous students. Alberta also used the clause in relation to its Marriage Act. The federal government has never used the clause.