The NDP in Manitoba has introduced Bill 50, also known as The Constitutional Questions Amendment Act, to restrict the future use of the Charter’s notwithstanding clause by governments. Premier Wab Kinew proposed this bill as a measure to prevent the misuse of the clause, which has been employed by other governments to target vulnerable groups, including religious communities and LGBTQ2S+ individuals.
If passed, the new law would mandate that any Manitoba government invoking 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 this additional step would serve as a safeguard against the potential infringement of rights of marginalized communities through the misuse of the notwithstanding clause. He criticized the routine use of the clause by politicians to target vulnerable minorities.
The notwithstanding clause, enshrined in Section 33 of the Charter of Rights and Freedoms, allows governments to pass legislation that overrides certain protected rights.
Alberta and Saskatchewan have recently utilized the notwithstanding clause to amend laws affecting transgender individuals and pronoun usage in schools, respectively. Quebec invoked the clause to protect its secularism law, Bill 21. Manitoba, along with four other provinces, has intervened in a legal challenge against Quebec’s Bill 21 at the Supreme Court.
The federal government and Manitoba’s attorney general have advocated for limitations on the use of the notwithstanding clause to prevent the temporary suspension of Charter rights.
Bill 21, implemented in Quebec in 2019, prohibits public sector employees from wearing religious symbols at work. Quebec invoked the notwithstanding clause to shield this law from legal challenges for a five-year period.
While the notwithstanding clause cannot override democratic rights, it can impact certain legal, equality, and fundamental freedoms. Kinew assured that his government would not use the clause, emphasizing their commitment to upholding human rights as outlined in the Charter.
Progressive Conservative Leader Obby Khan criticized the NDP’s focus on the notwithstanding clause, arguing that it has never been invoked in Manitoba and accusing Kinew of using the legislation as a diversion tactic from other pressing issues.
Khan questioned the timing of the bill’s introduction, expressing concerns about more urgent matters facing the province as the legislative session nears its end.
