A bad judicial ruling is no surprise. Using the notwithstanding clause to crush it? That's surprising


National Post, 4 May 2017

The little town of Theodore, Sask., lost its public elementary school when the Good Spirit School Division shut it down some 15 years ago for lack of enrolment. Parents were not keen on their little ones being bused 15 k.m. away, and some opted for the Catholic school. That did not please the public school bureaucracy, which wanted to the kids shipped to Springside so that it could keep the money associated with them.

Thirty-five years after the signing of the Charter of Rights and Freedoms, it seems that there is a limit after all. A near-instant consensus has emerged in Saskatchewan that the government is right to invoke the notwithstanding clause to override a court determination that funding non-Catholic students at publically-funded Catholic schools violates the charter.

Premier Brad Wall was aghast at the April court decision that it was unconstitutional for non-Catholics, by their own choice, to attend publicly-funded Catholic schools. No matter that the parents of some 10,000 such students have chosen Catholic schools; the judge ruled that they had to get out by June 30, 2018. 

Justice Donald Layh of the Court of Queen’s Bench directed the bureaucrats of the education department to demand the religious identity papers of every single student in Saskatchewan Catholic schools. The 10,000 who did not have a Catholic baptismal certificate would be summarily booted out, no matter what they wanted, no matter what judgment their parents had reached, no matter how far the nearest public school might be, no matter whether there was room in the school, no matter what specialized programs may or may not be available, no matter that in 150 years since Confederation no government or court has ever taken the position of Justice Layh.

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