The bill amends Manitoba's Constitutional Questions Act to require the Lieutenant Governor in Council to refer any Act that includes a declaration under section 33 of the Canadian Charter of Rights and Freedoms (the "notwithstanding clause") to the Court of Appeal. The referral must be made within 90 days of the Act's enactment and asks the court to opine on whether the impugned provision violates section 2 or sections 7–15 of the Charter and, if it does, whether that violation is reasonable and demonstrably justified under section 1.
This change builds a formal advisory-review step into the provincial law-making process. The requirement increases transparency and supplies an authoritative judicial analysis early in the life of legislation that relies on the notwithstanding clause, but it does not itself nullify or suspend the statute — the court is asked for an opinion rather than to strike the law down.
That creates practical, political and resource implications for government, the courts and rights stakeholders.
At a Glance
What It Does
The bill requires the Lieutenant Governor in Council to refer any Manitoba Act containing a section 33 declaration to the Court of Appeal within 90 days of enactment. The court is asked to determine whether the provision breaches section 2 or sections 7–15 of the Charter and, if so, whether the breach is justified under section 1.
Who It Affects
Provincial ministers, the Lieutenant Governor in Council (the executive), the Court of Appeal, civil liberties organizations, opposition legislators and departments implementing legislation that invokes section 33. It applies only to Acts of the Manitoba Legislature, not federal legislation.
Why It Matters
The bill inserts a routine judicial review/advisory step into any provincial use of the notwithstanding clause, creating an early judicial assessment that can shape public debate and subsequent litigation. It raises questions about timing, court resources, and the practical weight of advisory opinions in political and legal decision-making.
More articles like this one.
A weekly email with all the latest developments on this topic.
What This Bill Actually Does
The bill adds a new referral provision to Manitoba's Constitutional Questions Act. When the Legislature passes an Act that contains a declaration under section 33 of the Charter — the provision that allows a legislature to operate notwithstanding certain Charter protections — the executive (the Lieutenant Governor in Council) must send that Act to the Manitoba Court of Appeal for consideration.
The referral is mandatory and must occur within 90 days of the Act becoming law.
The Court of Appeal's mandate under the referral is narrow and focused. The court is asked first whether the provision infringes the Charter freedoms listed in section 2 (fundamental freedoms) or the legal and equality protections in sections 7 through 15.
If the court finds an infringement, the referral then asks whether the infringement is a reasonable limit that can be justified under section 1 of the Charter. In short, the court is to do the two-step Charter analysis most courts use in traditional remedies cases, but here as an advisory review of an Act that expressly invokes the notwithstanding clause.The bill frames the Court of Appeal's role as an opinion-giver: the referral "seeks the opinion of the court" and says the court "shall consider the matter." That language makes the outcome advisory rather than directly altering the legal effect of the Act — the notwithstanding declaration still permits the Legislature to operate contrary to those Charter protections for the statute's five-year window.
Practically, however, an early, reasoned opinion from the province's highest court can influence public debate, pressure governments to amend or repeal provisions, and shape later litigation strategies.There are a few built-in limits and open questions. The referral is triggered only by provincial Acts and only asks about sections 2 and 7–15, not the entirety of the Charter (for example, some democratic or language rights are outside that list).
The bill does not set a deadline for the Court of Appeal to report back, nor does it prescribe how the opinion must be published or how the government must respond. Those implementation details will determine how much practical effect the new requirement has beyond producing a formal judicial analysis.
The Five Things You Need to Know
The Lieutenant Governor in Council must refer any Manitoba Act containing a section 33 declaration to the Manitoba Court of Appeal.
The referral must be made within 90 days after the Act is enacted.
The court is asked whether the Act's provision violates section 2 or sections 7–15 of the Charter.
If the court finds a violation, the referral asks whether the violation is reasonable and demonstrably justified under section 1 of the Charter.
The bill takes effect on the day it receives royal assent and creates an advisory reference process; it does not itself rescind or pause the impugned statute.
Section-by-Section Breakdown
Every bill we cover gets an analysis of its key sections.
Adds mandatory referral when section 33 is invoked
This provision inserts a new section (1.1) in the Constitutional Questions Act requiring the Lieutenant Governor in Council to refer any Act that contains a section 33 declaration to the Court of Appeal. The practical effect is to convert a political choice to invoke the notwithstanding clause into a matter that triggers judicial consideration, formalizing an automatic reference rather than leaving review to later litigation or political debate.
Identifies which Charter rights the court must examine
Subsection (2)(a) narrows the Court of Appeal's inquiry to whether the Act's provision violates section 2 (fundamental freedoms) or sections 7–15 (legal rights and equality). By listing those sections explicitly, the bill prioritizes analysis of civil liberties and core individual legal protections and excludes other Charter provisions from the mandatory reference question.
Requires the court to consider section 1 justification if a violation is found
If the court concludes there is a violation of the listed Charter protections, subsection (2)(b) directs it to assess whether the violation can be justified under section 1 — the familiar proportionality and minimal impairment analysis. That compels the Court of Appeal to apply the full Charter remedial framework in an advisory context, which will produce a reasoned legal roadmap regardless of whether the government must act on it.
Timing of referral and commencement
Subsection (3) sets a 90-day deadline for making the referral after the Act's enactment, creating an early-window obligation on the executive. Section 3 states that the amendment comes into force on royal assent. The combination forces the referral decision to occur promptly after the law takes effect but leaves undefined how quickly the Court of Appeal must deliver its opinion and how that opinion is to be published or used.
This bill is one of many.
Codify tracks hundreds of bills on this topic across all five countries.
Explore this topic in Codify Search →Who Benefits and Who Bears the Cost
Every bill creates winners and losers. Here's who stands to gain and who bears the cost.
Who Benefits
- Civil liberties and rights organizations — they gain an authoritative, early judicial analysis on whether a law using the notwithstanding clause infringes fundamental freedoms or legal rights, improving advocacy and public messaging.
- Opposition parties and legislators — the court opinion provides a neutral legal assessment they can use in legislative debate, oversight and public accountability exercises.
- Legal practitioners and academics — advisers and litigators receive an early, reasoned statement of law that can guide courtroom strategy, compliance advice and scholarly analysis.
Who Bears the Cost
- Manitoba government (executive departments and Treasury) — must fund referrals and respond politically and administratively to court opinions, with direct legal costs and possible policy redesign expenses.
- Manitoba Court of Appeal — must allocate judicial and administrative resources to consider mandatory references, potentially crowding the court's docket and increasing costs to the judicial branch.
- Public agencies and regulated entities implementing the challenged statutes — may face legal uncertainty, compliance costs or operational disruption while a high-profile advisory opinion is pending or debated.
Key Issues
The Core Tension
The bill pits two legitimate goals against one another: democratic accountability and transparency on the one hand (giving the public and decision-makers an early judicial account of Charter impacts), and legislative finality and executive discretion on the other (preserving the Legislature's ability to rely on the notwithstanding clause without judicial interference). The advisory reference increases information and pressure but does not resolve the underlying conflict between judicial norms and elected officials' asserted policy choices.
The bill creates an advisory judicial checkpoint without altering the substantive legal effect of a notwithstanding declaration. That produces a mixed outcome: governments retain the formal power to rely on section 33, but the early Court of Appeal opinion could carry large political and persuasive weight.
The statute does not require the government to act on the opinion, nor does it provide remedies or suspensions tied to an adverse opinion; implementation relies on informal political consequences and public pressure. How governments respond will determine whether the referral becomes a meaningful restraint or a symbolic step.
Several implementation questions are unresolved. The bill limits the court's mandate to sections 2 and 7–15 but offers no rationale for excluding other Charter protections; that choice could lead to strategic drafting where governments invoke section 33 to target provisions not covered by the referral.
The 90-day referral deadline puts a clear time pressure on the executive but the bill contains no deadline for how long the Court of Appeal may take to deliver its opinion, nor any rules for publication or mandatory governmental follow-up. Finally, while provincial reference procedures exist, routine mandatory references may import political controversy into judicial work and raise resource-allocation issues for the appellate court.
There's more to this law than the bill.
Codify Laws traces every connection across the legislative lifecycle.