The NDP is taking steps it says will make it harder for future Manitoba governments to invoke the Charter’s notwithstanding clause — a measure the premier says has been used in recent years by other governments to enact legislation targeting religious groups and members of the 2SLGBTQ+ community.
Premier Wab Kinew introduced Bill 50, The Constitutional Questions Amendment Act, on Thursday.
If passed into law, a Manitoba government that invokes the clause in the future would be required to lay out its rationale to an appeal court judge. The judge would be allowed to comment on the merit of its use, but wouldn’t have the power to stop the government from moving forward.
Kinew suggested adding that extra step will act as a safeguard against use of the clause to “trample” on the rights of vulnerable groups.
“The notwithstanding clause is being routinely used by politicians who are targeting vulnerable minorities, targeting the LGBTQ2S+ communities, targeting religious people,” he said.
Section 33 of the Charter of Rights and Freedoms, commonly known as the notwithstanding clause, allows a government to introduce legislation that overrides some protected rights.
Alberta Premier Danielle Smith’s office instructed officials this year to invoke the clause to amend three laws that impact transgender people. Saskatchewan Premier Scott Moe invoked it in 2023 in a school pronoun law. Quebec has used the law to shield Bill 21, its secularism law.
Manitoba is one of five provinces that has filed for intervener status in a case regarding Quebec’s secularism law at the Supreme Court, which has agreed to hear a legal challenge of Bill 21.
In September, Manitoba’s attorney general filed a legal factum to the Supreme Court arguing that courts should be able to issue opinions on whether other jurisdictions’ laws — including those that use the notwithstanding clause — violate the rights of Canadians.
A Supreme Court filing from the federal government last month argues there should be constitutional limits placed on how the clause can be used to temporarily erase rights enshrined in the Charter.
Bill 21, passed in 2019, prohibits Quebec teachers, judges, police and other public sector employees from wearing religious symbols at work, including hijabs, turbans, kippahs and crosses.
Quebec invoked the notwithstanding clause to shield its legislation from court challenges for a five-year period.
Ontario, Saskatchewan and Alberta have filed for intervener status in support of Quebec in the Supreme Court case.
‘Talking about hypoethicals’: PC leader
While the clause can’t be used to override democratic rights, it can be applied to some legal and equality rights, as well as fundamental freedoms. That includes a right to religious freedom under Section 2 of the Charter.
The notwithstanding clause was crafted to help ensure provincial and territorial governments retained more power over their jurisdictional courts.
Kinew said his government will never use it.
“The reason is simple — because we respect human rights as they are articulated in the Charter,” he said.
“We’re bringing in this law today to ensure that no future government in Manitoba can use the notwithstanding clause without being straight up with you.”
Progressive Conservative Leader Obby Khan said the clause has never been applied in Manitoba. He accused Kinew of “trying to distract everyone” from the NDP record on other fronts.
“People don’t know where they’re going to buy food and pay their bills from, and we’re talking about hypoethicals,” the Opposition leader said.
“There’s eight days left in session…. If this is so important, why didn’t he bring it out [sooner]?”
