The NDP in Manitoba is working on measures to limit the future use of the Charter’s notwithstanding clause, which Premier Wab Kinew believes has been exploited by other governments to target religious and 2SLGBTQ+ communities through legislation. Premier Kinew introduced Bill 50, also known as The Constitutional Questions Amendment Act, to address this issue.
If Bill 50 becomes law, any future Manitoba government invoking the notwithstanding clause would need to justify its decision to an appeal court judge. Although the judge could offer comments on the justification, they would not have the authority to halt the government’s actions.
Kinew emphasized that this additional step aims to prevent the misuse of the notwithstanding clause to infringe upon the rights of vulnerable groups. He pointed out that politicians have been using the notwithstanding clause to target minorities, LGBTQ2S+ communities, and religious individuals.
The notwithstanding clause, found in Section 33 of the Charter of Rights and Freedoms, allows governments to pass laws that supersede certain protected rights. Several provinces, including Alberta and Saskatchewan, have recently invoked this clause to amend laws affecting transgender rights and pronoun usage in schools.
Manitoba has joined four other provinces in intervening in a legal challenge against Quebec’s Bill 21, which prohibits public sector employees from wearing religious symbols at work. The federal government has also raised concerns about the unrestricted use of the notwithstanding clause to temporarily override Charter rights.
While Kinew assured that his government would not use the notwithstanding clause, he emphasized the importance of transparency in its application to prevent future misuse. In response, Progressive Conservative Leader Obby Khan criticized the timing of the legislation, questioning why it was introduced so close to the end of the legislative session. Khan accused Kinew of diverting attention from other pressing issues facing the province.
The debate around the notwithstanding clause continues, with various provinces and the federal government advocating for constitutional limits on its use to protect fundamental rights and freedoms.