Manitoba proposes law to automatically have court weigh in on use of notwithstanding clause

Law360 Canada (October 17, 2025, 1:52 PM EDT) -- Manitoba has introduced legislation which would make it so the provincial government’s use of the notwithstanding clause would automatically be put before a court to determine whether it results in a violation of people’s rights.

According to an Oct. 16 news release, Bill 50 would require “that any proposed provincial legislation invoking the notwithstanding clause be referred to the Manitoba Court of Appeal within 90 days” so that it may deliver an “opinion on whether the law violates” Canada’s Charter.

The release notes that the proposed legislation would not prevent the use of the clause but would require that any such “invocation be accompanied by a referral” to the Appeal Court for a declaration.

In a statement, Premier Wab Kinew noted that never in Manitoba’s history has its provincial government invoked the controversial legislation — but said that if it ever does, “we want to make sure every Manitoban has all the information in front of them when they go to vote.”

The notwithstanding clause, contained in s. 33 of the Charter, permits the government to adopt legislation to override certain rights and freedoms for a period of time — subject to renewal.

Manitoba’s introducing of Bill 50 comes several weeks after Saskatchewan’s Appeal Court ruled that its provincial government’s pre-emptive use of the notwithstanding clause does not bar courts from weighing in on whether the results of its use infringe on Charter rights.

The case involved a diversity rights group fighting the province’s government over the latter’s pronoun law, which makes it so children under 16 need parental permission before being able to change their gender pronouns or names at school.

In its decision, the Appeal Court stated that democracy is strengthened if citizens are made aware of when their rights are being violated by laws enacted using the notwithstanding clause.  

The court found that while the pronoun law still stands, the courts can at least make a declaration that it violates people’s rights.

“The proper functioning of our constitutional democracy is enhanced, not impaired, if Canada’s citizens, and legislators alike, are made aware when legislation that is allowed to operate by virtue of [the notwithstanding clause] does so in a way that limits Charter rights and freedoms,” found the majority of the Appeal Court.  

Manitoba Justice Minister Matt Wiebe stated that the notwithstanding clause is a “constitutional reality.”

“This bill acknowledges that Section 33 is a constitutional reality while enforcing accountability and the importance of a democratic check on legislative power,” said Wiebe. “It reinforces our belief that the ultimate power must lie with the people of Manitoba.”

The release notes that Manitoba recently intervened in the Supreme Court of Canada case of Quebec’s Bill 21, which involves that province’s use of the notwithstanding clause to bring about controversial laws that ban public sector workers from wearing religious symbols.

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