Manitoba law to target use of notwithstanding clause to override Charter

PREMIER Wab Kinew plans to introduce legislation that would allow the Manitoba Court of Appeal to pre-emptively review any attempt by a future provincial government to invoke the notwithstanding clause to override fundamental human rights.

“The bill we’re going to introduce is going to be consistent with the intervention we made at the Supreme Court, which is basically just saying it’s you, the people, who should have a final say in our democracy,” Kinew said in an interview.

“If somebody uses the notwithstanding clause, even if the judiciary can’t pierce the veil so to speak, they should be able to still tell the public if this would otherwise violate people’s rights. Then, you the voter can decide at the next election how you feel about government disregarding Charter rights in that way.”

The notwithstanding clause, a provision of the Canadian Charter of Rights and Freedoms, allows a province or the federal government to pass a law that violates certain sections of the Charter that deal with fundamental freedoms, legal rights and equality rights. The clause permits a government to pass a law that overrides these Charter rights for five years. The clause cannot be used, however, to override democratic or mobility rights.

Of issue for the Kinew government is a provision in Section 33 that shields any law introduced under the notwithstanding clause from being reviewed or struck down by a court.

Last month, Kinew announced Manitoba was joining four other provinces to intervene in a Supreme Court of Canada hearing on Quebec’s Bill 21, a law that seeks to protect Quebec’s secular status by banning public employees from wearing religious symbols, including crosses, hijabs, turbans and burqas.

Passed in 2019, Quebec’s national assembly invoked the notwithstanding clause to protect it from being struck down by any court.

In a subsequent review by the Superior Court of Quebec, the majority of the law was upheld on the basis that the notwithstanding clause was used. However, the court did rule the law could not reasonably be applied to members of the national assembly or English language school boards because it violated minority language rights, which cannot be overridden by Section 33 of the Charter.

That lower court decision was overturned by the Quebec Court of Appeal in 2024. Earlier this year, the Supreme Court agreed to hear a challenge of the law with an eye towards a ruling that provides more guidance to provinces on how to invoke Section 33.

Kinew acknowledged Manitoba’s approach is unique and untested in Canada.

However, he said he has talked with other premiers who are concerned about Quebec’s law and he will raise the idea with Prime Minister Mark Carney in a one-on-one meeting next week in Ottawa. He also said that legal scholars have floated the idea of pre-emptive legal reviews to ensure the notwithstanding clause is applied correctly by governments.

“I think… our government is looking to set an example here, and it’s happening within a context where, not only is the notwithstanding clause being used in other parts of the country to target religious freedoms, to target cultural and religious minorities, to target LGBTQ2S+plus people.

“Manitobans elected a moderate government here, and I want a voice of moderation as part of this conversation, because if you cut through all the legal theory, effectively what you’re talking about with the use of the notwithstanding clause is the ability to suspend people’s human rights by a parliament or a legislature.”

Kinew was quick to note he is not seeking support to amend the Constitution, and nothing in the forthcoming Manitoba bill will empower the courts to strike down a future law passed by a government through use of the notwithstanding clause.

Although unique in its approach, there is growing support for greater involvement by courts in creating guardrails for the use of Section 33.

In its submission to the Supreme Court on Quebec’s law, the federal Liberal government has argued that without rules, repeated invocation of the notwithstanding clause is tantamount to “indirectly amending the Constitution.”

Ottawa has also asked whether it’s possible for courts to determine whether the use of Section 33 would cause “irreparable impairment” of Charter rights.

The notwithstanding clause has been used more than two dozen times; with 17 invocations, Quebec has made the most use of it. Manitoba has never used it to protect a law passed in its legislature.

dan.lett@freepress.mb.ca