Saskatchewan's premier says the province will use the notwithstanding clause to defy a court ruling that said the government could no longer pay for non-Catholic students to attend Catholic schools.

We will defend school choice for students and parents. - Premier Brad Wall

A press release says the government is using the provision in the Charter of Rights and Freedoms to "protect school choice" in Saskatchewan.

The notwithstanding clause allows provinces to create laws that will operate in spite of (or "notwithstanding") some charter rights that the laws appear to violate.

This override power is temporary.

The government has said that a recent ruling by the Court of Queen's Bench would force as many as 10,000 non-Catholic students out of separate schools into the public system.

It said the ruling also jeopardizes provincial money for 26 other faith-based schools including Luther College, the Regina Christian School and the Huda School for Muslim students.

"We support school choice, including public, separate and faith-based schools," said Premier Brad Wall in a news release.

"We will defend school choice for students and parents. By invoking the notwithstanding clause we are protecting the rights of parents and students to choose the schools that work best for their families, regardless of their religious faith."

Any notwithstanding clause declaration expires after five years, but can be re-enacted indefinitely.

NDP support

Interim NDP leader and Leader of the Opposition Trent Wotherspoon says he supports an appeal of the decision and consideration of using the notwithstanding clause.

"I think a government worth its salt needs to make sure it's assessing its tools, and this is one those tools," he said.

"But if this government thinks it can simply invoke the notwithstanding clause and continue to run roughshod over our local boards, continue to run roughshod over our classrooms with damaging cuts, that's not on."

He called on the government to scrap Bill 63 — proposed amendments to the Education Act that would affect the powers the provincial government would have over school boards.

Wotherspoon also criticized the government for "jumping in" to the court case after the decision and not helping to mediate a solution as the case worked its way through the courts over the past decade.

"We support an appeal moving forward and we support the consideration of invoking the notwithstanding clause, but that's a very serious measure to take and so to show any level of good faith, Bill 63 has to be scrapped," Wotherspoon said.

Previous use of the notwithstanding clause

Saskatchewan's premier has mused about invoking the notwithstanding clause in the past, but has not done so.

The province did use it in 1986 as a preventive 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.