The NDP in Manitoba is moving forward with measures aimed at restricting the future use of the Charter’s notwithstanding clause to prevent potential legislation targeting religious and LGBTQ+ communities. Premier Wab Kinew presented Bill 50, known as The Constitutional Questions Amendment Act, which, if approved, will mandate that any future Manitoba government utilizing the notwithstanding clause must justify its decision to an appeal court judge. While the judge can provide feedback on the justification, they will not have the authority to halt the government’s actions.
Kinew emphasized that adding this additional step serves as a safeguard against the misuse of the notwithstanding clause to infringe on the rights of vulnerable groups. The notwithstanding clause, found in Section 33 of the Charter of Rights and Freedoms, allows governments to pass laws that override certain protected rights.
Instances of the notwithstanding clause being used in other provinces to push through legislation affecting marginalized groups were highlighted, including Alberta amending laws impacting transgender individuals and Quebec shielding its secularism law, Bill 21. Manitoba, along with four other provinces, has sought intervener status in a legal challenge against Quebec’s Bill 21 at the Supreme Court.
The federal government and Manitoba have both argued for restrictions on how the notwithstanding clause can be employed to temporarily set aside Charter rights. Bill 21 in Quebec, which prohibits public sector employees from wearing religious symbols at work, invoked the notwithstanding clause to protect the law from legal challenges for a five-year period.
While the notwithstanding clause cannot override democratic rights, it can impact legal and equality rights, as well as fundamental freedoms. Kinew affirmed that his government will not use the notwithstanding clause, emphasizing a commitment to upholding human rights as outlined in the Charter. Progressive Conservative Leader Obby Khan criticized the timing of the legislation, alleging it was a diversion tactic from other issues facing the government.