Kinew introduces bill to limit notwithstanding clause use in Manitoba

Manitoba has proposed new legislation that would make it more difficult for future governments to invoke the notwithstanding clause.

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Manitoba has proposed new legislation that would make it more difficult for future governments to invoke the notwithstanding clause, which it claims has been abused to target religious groups and the LGBTQ community.

Premier Wab Kinew and Justice Minister Matt Wiebe introduced Bill 50 on Thursday, also known as The Constitutional Questions Amendment Act.

If passed, the legislation “would require any provincial legislation invoking Section 33 of the Canadian Charter of Rights and Freedoms, commonly known as the notwithstanding clause, to be automatically referred to the Manitoba Court of Appeal for an opinion on whether the law violates charter rights.”

The notwithstanding clause refers to Section 33 of the Charter of Rights and Freedoms, which allows a government to introduce legislation that overrides certain protected rights.

Any proposed provincial legislation invoking the notwithstanding clause would have to be referred to the appeal court within 90 days.

“No government has ever made the decision to invoke the notwithstanding clause in Manitoba history, but if they do, we want to make sure every Manitoban has all the information in front of them when they go to vote. This bill will make sure that happens,” Kinew said in a press release.

He noted that the proposed legislation wouldn’t prevent the use of the notwithstanding clause outright, but would require any such invocation to be subjected to an opinion by the province’s appeal court on the law’s constitutionality.

While the judge would be permitted to comment on the merit of its use, they wouldn’t have the authority to stop the government from moving forward.

“This bill acknowledges that Section 33 is a constitutional reality while enforcing accountability and the importance of a democratic check on legislative power. It reinforces our belief that the ultimate power must lie with the people of Manitoba,” Wiebe said.

Kinew believes the alteration could work as a bulwark against the clause being used 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.

Kinew added that 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.”

Meanwhile, the Carney government has also been trying to crack down on the province’s ability to invoke the clause to override certain federal laws.

Justice Minister Sean Fraser requested the Supreme Court of Canada place limitations on provincial governments last month as part of Ottawa’s intervention in the legal battle over Quebec’s Bill 21, the secularism law.

Constitutional advocates have pushed back against the federal government, arguing the Liberal suggestion risks upending national unity.

Five of Canada’s premiers penned a joint letter earlier this month demanding Prime Minister Mark Carney withdraw his government’s Supreme Court submission to limit the notwithstanding clause.

The premiers call the submission an unprecedented assault on parliamentary sovereignty, provincial rights and democracy.

Alberta’s Danielle Smith, Quebec’s François Legault, Saskatchewan’s Scott Moe, Nova Scotia’s Tim Houston and Ontario’s Doug Ford accused the federal government of attempting to rewrite the Constitution through the courts.

“We write jointly to express our profound disappointment with the content of the federal government’s factum in this appeal,” reads the letter. “The Attorney General of Canada’s submissions seek to advance never-before-seen limits on the ability of democratically elected legislatures to use the notwithstanding clause.”