The NDP in Manitoba is pushing for changes to restrict the use of the notwithstanding clause by future governments. Premier Wab Kinew introduced Bill 50, known as The Constitutional Questions Amendment Act, which would require a government invoking the clause to provide reasoning to an appeal court judge. The judge would be able to assess the justification but would not have the authority to block the government’s actions.
Kinew believes this additional step will prevent the misuse of the clause to infringe on the rights of marginalized communities. The notwithstanding clause, found in Section 33 of the Charter of Rights and Freedoms, allows governments to pass laws that supersede certain protected rights.
Recent examples of the clause being used include Alberta amending laws affecting transgender individuals and Saskatchewan implementing a school pronoun law. Quebec has also utilized the clause to protect its secularism law, Bill 21. Manitoba has taken a stand on this issue by intervening in a Supreme Court case challenging Quebec’s legislation.
The federal government and various provinces, including Ontario, Saskatchewan, and Alberta, have weighed in on the debate, calling for limitations on how the notwithstanding clause is employed. Bill 21 in Quebec, enacted in 2019, prohibits public sector employees from wearing religious symbols at work and is shielded from legal challenges for five years using the notwithstanding clause.
While the clause cannot override democratic rights, it can impact legal and equality rights, as well as fundamental freedoms, such as religious freedom under Section 2 of the Charter. The clause was designed to ensure that provincial and territorial governments maintain authority over their courts.
Premier Kinew has pledged that his government will not use the notwithstanding clause due to its commitment to upholding human rights outlined in the Charter. The move to introduce the new legislation aims to ensure transparency and accountability in the use of the notwithstanding clause by future Manitoba administrations.
In response, Progressive Conservative Leader Obby Khan criticized the government’s focus on this legislation, labeling it a distraction from other pressing issues. Khan pointed out that the notwithstanding clause has never been utilized in Manitoba and questioned the timing of the NDP’s proposal with only eight days left in the session.
