Manitoba bill would have judges weigh in on use of notwithstanding clause

A proposed bill would allow Manitoba judges to weigh in anytime the province invokes the Notwithstanding Clause to override the Charter of Rights and Freedoms.

WINNIPEG — Manitoba Premier Wab Kinew took a swipe at governments in Saskatchewan, Alberta and Quebec on Thursday as he announced a plan to have judges weigh in on the use of the notwithstanding clause to override protections under the Charter of Rights and Freedoms.

“It’s time in Canada that we push back against what conservative politicians are doing,” Kinew told reporters.

“It’s always the right wing that’s using the notwithstanding clause and they’re using it to play wedge politics. And however you feel about trans rights, however you feel about a Muslim person praying in the street as (Quebec Premier François) Legault is trying to allege is happening in Quebec a ton, the reality is this — we need to respect people’s freedom.”

Kinew made the comments after introducing a bill that would require any future Manitoba legislation that invokes the notwithstanding clause to be referred immediately to the province’s Court of Appeal.

Judges would not have the authority to strike down the legislation but could comment on it and say whether it would be unconstitutional if not for the notwithstanding clause.

“Armed with that information ... it will be up to you, the voter, to decide if you want to support that government the next time you go to the ballot box,” Kinew said.

Manitoba has never invoked the clause, and Kinew said his NDP government never will. His bill is aimed at future governments, he said.

Manitoba has intervened in a Supreme Court of Canada case over Quebec’s use of the notwithstanding clause to prohibit some public sector workers in positions of authority from wearing religious symbols while on the job. The Quebec government is also planning to ban prayer in public spaces, and has defended its moves as ways to protect the province’s secular status.

The notwithstanding clause — Section 33 of the Constitution — gives provincial legislatures or Parliament the ability to pass legislation that effectively overrides some provisions of the Charter for a five-year period.

The Alberta government has indicated it might invoke the notwithstanding clause for a law that prohibits doctors from prescribing puberty blockers for those under 16, saying the drugs permanently sterilize children.

The Saskatchewan government invoked the clause for a law that prevents children under 16 from changing their names or pronouns at school without parental consent.

“The notwithstanding clause is routinely being used by politicians who are targeting vulnerable minorities, targeting the LGBTQ2S+ community, targeting religious people,” Kinew said.

“The Quebec situation is certainly top of mind. We also know that other provinces, like our neighbours to the west in the Prairies, have used this to target LGBT folks. And that’s not right.”

It’s not clear whether Kinew’s bill will become law any time soon, as there are eight sitting days left in the current legislature session.

The Opposition Progressive Conservatives said the bill appears theoretical, as no Manitoba politician has raised the possibility of using the notwithstanding clause. They said the premier has other issues to address, such as health-care wait times and the rising cost of living.

“The premier is playing political games and trying to wedge and distract ... Manitobans from issues that are affecting Manitobans today,” Tory Leader Obby Khan said.

This report by The Canadian Press was first published Oct. 16, 2025.

Steve Lambert, The Canadian Press