The NDP in Manitoba is introducing measures aimed at limiting the use of the Charter’s notwithstanding clause by future governments. Premier Wab Kinew proposed Bill 50, known as The Constitutional Questions Amendment Act, which would require any future Manitoba government invoking the notwithstanding clause to justify its decision to an appeal court judge. While the judge could provide feedback on the validity of using the clause, they would not have the authority to block the government’s actions.
Kinew emphasized that adding this additional step would serve as a safeguard against potential misuse of the notwithstanding clause to infringe on the rights of marginalized groups. The notwithstanding clause, found in Section 33 of the Charter of Rights and Freedoms, allows a government to pass legislation that overrides certain protected rights.
In recent years, other provinces like Alberta and Saskatchewan have utilized the notwithstanding clause to amend laws affecting transgender individuals and pronoun usage in schools. Quebec invoked the clause to shield its secularism law, known as Bill 21. Manitoba, alongside four other provinces, has intervened in a legal challenge against Quebec’s Bill 21 at the Supreme Court.
Manitoba’s attorney general has argued that courts should have the authority to assess whether laws in other jurisdictions, including those using the notwithstanding clause, violate Canadians’ rights. The federal government has also advocated for constitutional limits on the clause’s use to temporarily suspend Charter rights.
Bill 21, passed in 2019 in Quebec, prohibits public sector employees from wearing religious symbols at work. Quebec invoked the notwithstanding clause to protect the law from court challenges for a specified period. Ontario, Saskatchewan, and Alberta have supported Quebec’s position in the Supreme Court case.
While the notwithstanding clause cannot override democratic rights, it can impact legal and equality rights, including religious freedom under the Charter. Kinew stated that his government would not use the clause, emphasizing their commitment to upholding human rights as outlined in the Charter.
In response, Progressive Conservative Leader Obby Khan criticized the NDP’s focus on the notwithstanding clause, labeling it as a distraction from other pressing issues. Khan questioned the timing of the proposed legislation with only a few days left in the session, highlighting the need to address more immediate concerns.