3rd Session, 43rd Legislature

This HTML version is provided for ease of use and is based on the bilingual version that was distributed in the Legislature after First Reading.

Bill 4

THE CONSTITUTIONAL QUESTIONS AMENDMENT ACT

(Assented to                                         )

WHEREAS our parliamentary democracy consists of three branches of government: the executive, the legislature and the judiciary;

AND WHEREAS section 33 of the Canadian Charter of Rights and Freedoms, the "notwithstanding clause", recognizes and preserves the role of the legislature in having the final word on important matters of public policy;

AND WHEREAS invoking the notwithstanding clause overrides protected rights for a period of five years and may be renewed after that;

AND WHEREAS any override of the fundamental rights and freedoms that define our constitutional democracy and reflect the core values of a free and just society should be subject to the highest levels of transparency, scrutiny and accountability;

AND WHEREAS the judiciary has a vital function to play in our democratic process by providing the people of Manitoba with reliable and impartial information about the effect of legislation on Charter rights;

AND WHEREAS the distribution of powers under the Constitution of Canada means that any invocation of the notwithstanding clause at the federal level would concern a federal power and may provide limited insight into the effects of invoking the notwithstanding clause at the provincial level;

THEREFORE HIS MAJESTY, by and with the advice and consent of the Legislative Assembly of Manitoba, enacts as follows:

C.C.S.M. c. C180 amended

1   The Constitutional Questions Act is amended by this Act.

2   The following is added after section 1:

Reference — use of notwithstanding clause

1.1(1)   If an Act of the Legislature contains a declaration pursuant to section 33 of the Canadian Charter of Rights and Freedoms stating that a provision of the Act operates notwithstanding a provision of the Charter, the Lieutenant Governor in Council shall refer the Act to the Court of Appeal in accordance with this section, and the court shall consider the matter.

Content of referral

1.1(2)   The referral shall seek the opinion of the court on whether

(a) the provision of the Act violates section 2 or sections 7 to 15 of the Charter; and

(b) if so, whether the provision of the Act is reasonable and demonstrably justified pursuant to section 1 of the Charter.

Timing of referral

1.1(3)   The referral must be made within 90 days after the enactment of the Act.

Coming into force

3   This Act comes into force on the day it receives royal assent.