A pointless debate over unenforceable legislation

Earlier this month, Manitoba’s NDP government introduced legislation — now known as Bill 50 — that would require any provincial legislation that invokes Section 33 of the Canadian Charter of Rights and Freedoms — the “notwithstanding clause” — to be automatically referred to the Manitoba Court of Appeal for an opinion on whether the law violates Charter rights.

The new law would not prevent the use of the controversial clause by a future provincial government. Rather, it would require that the government in power at that time explain to the province’s top court why the use of the clause is necessary, and it would give that court the power to state its opinion on the validity of the legislation that invokes the clause.

In other words, it would force a future government elected by Manitobans to justify its legislative agenda to a panel of unelected judges, who would be free to poke holes in that government’s decision to invoke the notwithstanding clause — and do it before the legislation is passed and implemented.

Given the usual glacial pace of our judicial system, that means the implementation of the notwithstanding clause could be delayed for months, or even more than a year. As a result, the government of the day would be effectively paralyzed on a serious issue by a law passed by a previous government years or even decades earlier.

If that sounds sketchy, it should. Many of you will recall that in 2014, the Manitoba Progressive Conservative Party went to court to challenge the Selinger government’s decision to raise the PST rate without first holding a referendum, as required under balanced budget legislation passed by the Filmon government almost 20 years earlier.

In response to the Tories’ argument, the Selinger government — an NDP government — argued that the referendum requirement in the balanced budget law violated constitutional principles, making it null and void.

The court agreed with the Selinger government. In his judgment dismissing the PC Party’s action, Mr. Justice Kenneth Hanson said that “The doctrine of parliamentary sovereignty prevents a legislative body from binding future legislative bodies as to the substance of its future legislation.”

The judge also quoted an earlier decision of the Supreme Court of Canada, which said that “as a matter of constitutional principle, neither Parliament nor the legislatures can, by ordinary legislation, fetter themselves against some future legislative action.”

Hanson then said that “For all of the above reasons, I am satisfied that to the extent s.10(1) of the” [balanced budget law] “purports to fetter the legislative power of the Legislative Assembly, it is legally ineffective and unenforceable.”

Those are unambiguous words, and there is a good possibility that the same reasoning applies to Bill 50, which is currently being debated by MLAs in the Legislative Assembly. The Kinew government is trying to erect a roadblock that would delay, if not effectively prevent, a future Manitoba government from invoking the notwithstanding clause.

Bill 50 appears to violate the same constitutional principles that the Manitoba NDP successfully fought to uphold in 2014. For that reason, there is a strong possibility that any future government could regard Bill 50 as “legally ineffective and unenforceable,” and simply ignore it. If somebody decided to go to court to challenge such a decision, that person would likely hit the same constitutional wall that the PC Party encountered in 2014.

It is a reasonable inference that the Kinew government has been told this by their legal advisers, yet is pressing ahead with Bill 50 as if it represents an insurmountable, constitutionally valid barrier to the invocation of the notwithstanding clause in Manitoba sometime in the future.

It begs an obvious question: If they know the legislation would likely not survive a judicial challenge, why are they pushing ahead with Bill 50?

It’s pretty simple. Bill 50 is more about optics, opportunism and virtue-signalling than it is about impeding the future use of the notwithstanding clause in this province.

It’s about the Kinew government trying to cast itself as the heroic defender of Manitobans’ fundamental freedoms, while simultaneously attempting to goad the opposition PCs into allowing themselves to be painted as amoral defenders of the notwithstanding clause.

If the Tories are dumb enough to take the bait, they run the risk of being condemned by both the NDP and media as the party that supports the trampling of Manitobans’ rights. That, in turn, opens the door to allegations of secret agendas and contempt for rights and freedoms. Such a scenario would inevitably cost the Tories votes at election time, to the electoral benefit of the NDP.

Instead of fighting against Bill 50, as if they are defending the notwithstanding clause, the Tories should avoid being drawn into a pointless debate over legislation that is likely unenforceable. Instead, they should repeatedly profess their love for democracy and their opposition to the unprincipled use of a provision that overrides or limits Manitobans’ rights.

They should then focus on their job as the opposition, by holding the Kinew government to account on the issues Manitobans care about today — health care and public safety, education and the economy.