'Troubling overreaction': Sask. law prof. questions use of notwithstanding clause for Catholic school ruling

'Troubling overreaction': Sask. law prof. questions use of notwithstanding clause for Catholic school ruling

A law professor at the University of Saskatchewan is surprised Premier Brad Wall plans to invoke the notwithstanding clause in a legal case involving Saskatchewan Catholic schools.

On Monday, Wall vowed to use a section of the Canadian Charter of Rights and Freedoms that allows provinces to create laws that will operate in spite of (or "notwithstanding") some charter rights that the laws appear to violate.

"This strikes me as a troubling overreaction," University of Saskatchewan law professor Ken Norman told CBC Radio's Morning Edition.

"Instead of respecting the judicial process, and doing what everyone else has to do and take its case up to the appeal court ... instead of that, we have a premier saying, 'If need be, we're going to shift into Defcon mode here."

Two weeks ago, a Court of Queen's Bench judge ruled that the province of Saskatchewan had to stop funding non-Catholic students from attending Catholic schools. The ruling could force as many as 10,000 non-Catholic students out of separate schools and into the public system.

Despite the ruling's significance, Norman doesn't believe the premier should be talking about circumventing the judgement so early in the process.

"The Catholic boards have announced they are going to appeal this case," he said. "And the judge has not ordered an immediate implementation. He has stayed his ruling for over a year."

Rare for clause to be used

Norman said it's rare for any province to use the notwithstanding clause.

While the clause was used in Saskatchewan back in the 1980s, and Wall has threatened to use it in back-to-work legislation, Norman said premiers have been very careful when negotiating around the courts.

"Canadians have a high regard for the charter," he said. "Canadians like rights, and the idea that a government can say, 'Not today,' and shut them down is not a popular idea."

Norman said that the ruling has merit, and believes that full funding of Catholic education may place one denomination in a more privileged situation over others.

"It's a fundamental question about basic rights and equality," he said. "It deserves a lot of our attention."