Manitoba leads in protecting human rights

It is perhaps little noticed in our province — as we grapple with the cost of living, homelessness and the impending threat of forest fires — that the NDP government of Premier Wab Kinew has emerged as a leading defender of the Charter of Rights and Freedoms, even as the governments of Quebec, Alberta and Saskatchewan are doing their best to weaken it.

Issues of human rights and the role of the Charter were at the forefront of a recent four-day hearing before the Supreme Court of Canada on the legality of Quebec’s secularism law, Bill 21.

The law prohibits public sector employees — including teachers, police officers and government lawyers — from wearing religious symbols such as turbans, crosses, hijabs and yarmulkes while at work. Bill 21 forces religiously observant individuals to choose between their faith and employment in public institutions.

It is a clear violation of Section 2 of the Charter, which guarantees freedom of conscience, religion and association.

Knowing this, the Quebec government invoked Section 33, the notwithstanding clause, which allows governments to override the constitutional protections of basic freedoms, equality rights and legal rights contained in Sections 2 and 7 to 15 of the Charter.

Moreover, Quebec used Section 33 pre-emptively, inserting the clause when the bill was introduced in 2019 to shield the legislation from judicial review and allow it to take effect immediately.

In 2024, the National Assembly renewed the use of Section 33 for another five years, as permitted under the Charter. This raises a troubling question — will discrimination against religiously observant minorities become a permanent feature of Quebec’s approach to public life?

The Supreme Court’s eventual ruling on Bill 21 is, of course, vitally important to the thousands of Quebecers who must choose between their faith and their careers. There is irony here.

For much of Quebec’s history, the Roman Catholic Church was the dominant institution in the province — virtually a state religion. The Quiet Revolution was, in part, a reaction against that dominance. Now, generations later, secularism itself has become militant.

The human dimension of this debate should not be lost amid abstract arguments over competing values.

Interveners before the Supreme Court described Orthodox Jewish lawyers who can no longer accept government briefs and Muslim teachers who were forced to leave Quebec to continue their careers.

Beyond these critical human rights concerns, Quebec’s use of Section 33 to shield Bill 21 from judicial review raises major constitutional questions.

This is one reason dozens of interested parties, including the Government of Manitoba, were granted standing before the Supreme Court. Conservative governments in Alberta, Saskatchewan and Ontario supported Quebec’s position, while Manitoba and groups such as the English Montreal School Board, the Fédération autonome de l’enseignement, representing more than 66,000 teachers, and the Canadian Civil Liberties Association argued against the way Section 33 had been applied.

The suspension of constitutional rights is a serious matter that should be temporary and reserved for exceptional circumstances.

While the Charter permits legislatures to renew the use of Section 33 every five years, should there not be limits on how often such renewals can occur? If renewals become perpetual, legislatures will effectively have removed constitutional rights through the back door rather than through a formal constitutional amendment. The Supreme Court should place limits on indefinite renewals.

The pre-emptive use of Section 33 — preventing courts even from reviewing legislation or declaring how rights are affected — was a central concern in Manitoba’s factum before the Supreme Court.

The province argued that “the introduction of the Charter and the consequential remedial role of the courts has required a relationship of dialogue and mutual respect between the courts and legislatures.” Section 33 gives legislatures the final word, but not the only word.

To reinforce that principle, Manitoba Justice Minister Matt Wiebe has introduced Bill 4, The Constitutional Amendment Act, which would require any future Manitoba government seeking to invoke Section 33 to first explain its reasons before an appeal court judge. The judge would then issue a non-binding legal opinion on whether the proposed use violates Charter rights.

Democracy is strengthened when the public better understands constitutional controversies — and who better than the courts to help provide that understanding?

Manitoba has already led the country in creating guardrails around the use of Section 33. But further reform is needed to ensure the notwithstanding clause is used only in extraordinary circumstances and with broad democratic consensus.

Sen. Peter Harder has introduced Bill S-218 in the Senate. It would require any federal government contemplating the use of Section 33 to wait until a court has ruled on the legislation, thereby eliminating pre-emptive use entirely. It would also require the responsible minister to provide a formal statement explaining why the suspension of rights is necessary, with approval requiring a two-thirds legislative majority supported by at least two parties.

Manitoba should become the first legislature in Canada to endorse such an approach, just as it has become the first province to defend the principle that constitutional rights should not be overridden lightly, casually or permanently.

Thomas S. Axworthy is the chair of public policy at Massey College.