Not Withstanding Scrutiny

The Saskatchewan government hasn’t justified its resort to the notwithstanding clause in the Catholic school funding case

Yesterday, I summarized and briefly commented on the decision of the Saskatchewan Court of Queen’s Bench in  in Good Spirit School Division No. 204 v Christ the Teacher Roman Catholic Separate School Division No. 212, 2017 SKQB 109, which held that funding Catholic schools for educating non-Catholic students was an unjustifiable infringement of religious liberty and equality guarantees of the Canadian Charter of Rights and Freedoms. In my view this decision is correct. However, plenty of people disagree. Importantly, so does the government of Saskatchewan, which has announced that it will have the provincial legislation resort to the Charter‘s “notwithstanding clause” to nullify the Court’s decision, ostensibly in the name of school choice. Some thoughtful people, like Emmett Macfarlane and Dennis Baker, are supportive of the idea. In my view, however, it is misguided and hypocritical, not to mention illustrative of why the notwithstanding clause should never be used.

The best justification for occasionally resorting to section 33 of the Charter, which allows a legislature to suspend for a renewable period of up to five years the operation of constitutionally protected right is that the legislature disagrees with the courts’ interpretation of that right. After all, if the truth about rights, to borrow a phrase from Jeremy Waldron, exists at all, it’s not obvious that courts have privileged access to it. Questions about rights, about what counts as justifiable limitations of rights, are difficult, and reasonable people can disagree about them. In the face of such disagreement, isn’t it acceptable for the people’s elected representatives to decide that their views ought to prevail over those of unelected judges?

Trouble is, this solemn scene ― representatives of the people deliberating about rights and coming to conclusions that are reasoned and reasonable, if different from the judges’ ― has not taken place in Saskatchewan. The government doesn’t say that it disagrees with Justice Layh’s views about the scope of religious liberty or equality. It does not argue that the constitutionally protected freedom of religion does not encompass a duty of religious neutrality on the part of the state. It does not say that granting funding for students outside of a school’s denomination to Catholic schools and to no others is consistent with neutrality or not discriminatory. It is content to state the objective of “school choice” ― which, by the way, I think is a laudable objective, but which the government’s lawyers didn’t even dare put to the Court ― as if the end justifies the means, and it is permissible to disregard Charter rights as soon as one has a worthwhile reason for doing so. This is not what the defenders of the notwithstanding clause, or indeed the critics of any judicial enforcement of individual rights, say they have in mind. Why, then, do they defend the Saskatchewan government?

The Charter, or any sort of system that protects individual rights against infringement by the state, is based on the idea that the end does not always justify the means. At most, there is a proportionality test, such as the one embodied in section 1 of the Charter. A pressing social objective can justify some limitations of rights, but no more than is necessary, and in particular, not if less restrictive means are available to the government. Of course, whether the means at issue in a given case are the least restrictive available is a difficult question, and legislatures and courts might disagree about that. But there is no sign that Saskatchewan’s government has given any thought to alternative ways of achieving its professed objective of school choice. Why, then, do those boosters of the “notwithstanding clause” that justify its use by the existence of reasonable disagreement defend this government?

In reality, the government’s position is doubly hypocritical. It is hypocritical, first, because although it is posing as the defender of school choice, it is the government that is ultimately responsible for limiting the choices of the parents at the centre of this litigation. The government funds public schools. Its funding was not sufficient to keep a rural school open. The school board decided to close it, and have students be bussed to a different one. Instead of accepting this, some parents took advantage of constitutional rules allowing them to set up a “separate” Catholic school―in a village where there had never been one―, and non-Catholic parents, who had never had any particular interest in Catholicism, decided to also send their children there. If the choices of these parents mattered as much as the government now says they do, the local public school would have stayed open, and this case would not have arisen.

The government is hypocritical, second, because it has perfectly constitutional options to provide even more school choice than it now does ― in which it appears to take no interest. The government could provide all groups, including all religious groups, with funds to educate students from outside their communities. That would be real, meaningful school choice ― not the rather limited choice of a public or a Catholic school, which is only a choice, as Justice Layh points out, for those who do not mind their children receiving a Catholic education. Sure that might be costly system ― but if school choice is important enough to override constitutional rights, surely it’s worth a little tax raise?

Instead of admitting that its position is driven by fiscal, and presumably ultimately electoral, considerations rather than an authentic concern with school choice, the government compounds its hypocrisy with misleading threats. It claims that “[t]he ruling [in Good Spirit School Division] could also risk provincial funding of 26 other faith-based schools including Luther College, Regina Christian School, Saskatoon Christian School and Huda School.” The press release conveniently doesn’t mention the fact that this funding, which was not actually at issue in the Good Spirit School Division case, is less that the funding Catholic schools receive, and that at least the Huda School was on the side of the plaintiffs in the proceedings. Indeed, I wonder how the people involved the Huda School feel about being used in this way to make the government’s case considering the testimony of the school’s president at trial. Here’s how Justice Layh describes it:

he asked why the Huda School cannot receive funding to educate non-Muslim students, just like Catholic schools receive funding to educate non-Catholic students. The Huda School does not discriminate against hiring non-Muslim teachers (unlike Catholic schools). The majority of its teaching staff is non-Muslim. Dr. Aboguddah testified that the Huda School would welcome non-Muslim students to its growing school of 430 students (in 2016) which would provide an opportunity to build bridges with the broader Canadian community to reduce the stereotyping and negative image affecting the Muslim community in light of recent world events. [397]

A Rabbi similarly testified “that certain advantages would accrue to the small Jewish school in Regina if it received complete government funding for non-Jewish students.” [440] Again, if the government were committed to meaningful, non-discriminatory school choice, it would fund schools equally, regardless of who is behind them. The constitution would not stand in its way. It is its choice not to do so ― and it ought to accept the constitutional consequences of this choice.

Like a court looking to uphold a dubious administrative decision on a reasonableness standard, Profs. Macfarlane and Baker, and those who agree with them, offer their own reasons for why Justice Layh’s decision was wrong. I might return to that in a future post. Here, my point is that the government of Saskatchewan does not give any such reasons. Its justification for overriding this decision cannot withstand scrutiny. And it’s the government, not the thoughtful (if in my view mistaken) scholars, that gets to use the “notwithstanding clause”. If government were run by profs. Macfarlane and Baker, I would have fewer qualms about its ability to override judicial determinations of constitutional rights. But it is not.

As this case demonstrates, real-life governments are largely uninterested in thinking about constitutional rights. If they are allowed to disregard judicial decisions, they will not engage in serious deliberation themselves. They will press ahead with their political objectives, sloganeering and lying along the way. I have said this before ― in the face of judicial decisions with which I virulently disagreed ― and I say so again: if we are serious about constitutionally entrenched rights, we are better off with a categorical presumption against allowing legislatures to resort to the “notwithstanding clause”.

Author: Leonid Sirota

Law nerd. I teach constitutional law at the Auckland University of Technology Law School, in New Zealand. I studied law at McGill, clerked at the Federal Court of Canada, and then did graduate work at the NYU School of Law.

9 thoughts on “Not Withstanding Scrutiny”

  1. That’s the sad reality; that the Notwithstanding Clause is simply there to allow politicians a bit of populist pandering. The Premier of Saskatchewan will be able to play this off as some great blow for religious liberty (when, ironically, it’s the opposite), continue to underfund public schools in the province for what would look like a rounding error.

    What I find particularly galling about this, as you point out in yesterday’s blog post, is that even by an originalist’s interpretation, the Court’s finding is solid. There was never the intent there to have non-Catholic students sent to Catholic schools, that’s just a modern justification. It goes to show you that while there’s a legitimate originalist argument to be made for aspects of the Constitution, you won’t find that legitimacy by looking to political leaders and most commentators, who will happily pick and choose interpretations to bolster preexisting prejudices and ideological positions.

    With the exception of Andrew Coyne, who did write a very good column in the National Post yesterday laying out his objections, which are similar to yours’, for why invoking the Notwithstanding clause really is a violation of the spirit of entrenched rights. I’ve been critical of some of Coyne’s commentary on Constitutional issues in the past, but anyone who believes in the importance of entrenched civil liberties has to view the Notwithstanding Clause to be an anathema to very concept.

    1. I’ve read Coyne’s column and also think it’s very good. Just didn’t quite see how to work it into the post, which I’d planned before reading it.

  2. I found parts of the judgement persuasive, but not on the crucial matters.

    It was self-contradictory at points. For example, the Court cautions against using a historical practice to determine a the scope of a right. It says this to say that the existence of non-Catholics at the time of the constitutional guarantee cannot turn it into a right to have Catholic schools educate non-Catholics. Yet, the Court extensively uses Catholic dogma and practices at the time to determine the scope of a right in finding that the historical purpose for wanting separate schools precludes educating non-Catholics.

    The Court found that Catholics wanted and were granted a right to have schools that are separate from other faiths. The Court seems to equate a right to have a separate school for Catholics to necessarily preclude non-Catholics: “I fail to see why the minority would simultaneously seek a right to admit children of the majority faith from whom they took deliberate action to separate” (para. 259). I am not sure if I accept the framing it that way or accept the logic. Just because a Catholic church has a right to establish a Catholic church doesn’t mean the right ends when non-Catholics attend mass.

    Also, on a practical matter, how does one determine if a child is Catholic? How does one determine if a first grader is Catholic or non-Catholic (and thus whether Sask. can fund them at Catholic school)? Do you ask them? And if a first grader declares they are Catholic pre-school year, and then decides they are not Catholic mid-year, is the government obligated not to fund that child’s Catholic education? It strikes me as odd. Just as odd as that a child of that age doesn’t have the capacity to contract, but its government funding at a Catholic school depends on the question. If the right actually belongs to the parent, at what age does one determine whether the child can answer that question for her or himself. If the answer is “never”, it would seem odd if government can fund a Catholic education for a 12th grader who is a self-professed non-Catholic, but is allowed by this decision to do so because the right belongs to the parent.

    1. “It is a sordid business, this divvying us up by race”, said US Chief Justice Roberts in one of his opinions. Divvying us up by faith isn’t much prettier, but religious “separate but equal” is precisely what our constitution requires, in Saskatchewan anyway. Layh J says the test is whether the child has been baptized, which seems fair enough―not because it takes care of all questions, but because it’s a workable approach to a constitutional requirement.

      I agree that the judgment’s approach to evolution vs originalism isn’t ideal. I might write about it eventually. I do think that the treatment of “separateness” is persuasive though.

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