The NDP in Manitoba has introduced a new bill, named Bill 50 or The Constitutional Questions Amendment Act, to address concerns regarding the use of the notwithstanding clause in the Canadian Charter of Rights and Freedoms by future governments. Premier Wab Kinew proposed that any future Manitoba government invoking the notwithstanding clause would need to justify its decision to an appeal court judge. While the judge could provide feedback on the reasoning behind the clause’s use, they would not have the authority to prevent the government from proceeding.
The objective of this additional step, according to Kinew, is to prevent the misuse of the notwithstanding clause to infringe upon the rights of vulnerable populations. The notwithstanding clause, found in Section 33 of the Charter, allows governments to pass legislation that overrides certain protected rights.
Recent instances of the notwithstanding clause being invoked by other provinces include Alberta amending laws affecting transgender individuals and Saskatchewan’s use in a school pronoun law. Quebec has utilized the clause to defend its secularism law, Bill 21. Manitoba, along with four other provinces, has intervened in a Supreme Court case challenging Quebec’s Bill 21.
Manitoba’s attorney general has argued that courts should have the authority to assess whether laws in other jurisdictions, especially those using the notwithstanding clause, violate Canadians’ rights. The federal government has also emphasized the need for constitutional boundaries on the clause’s use to temporarily suspend Charter rights.
Bill 21, enacted in Quebec in 2019, prohibits public sector employees from wearing religious symbols at work and is shielded from legal challenges using the notwithstanding clause for a specified period. Ontario, Saskatchewan, and Alberta have supported Quebec by seeking intervener status in the Supreme Court case.
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 would not employ the clause, highlighting 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 new legislation, labeling it a distraction from other pressing issues. Khan questioned the timing of the bill’s introduction, emphasizing the need to address immediate concerns faced by Manitobans.