The Constitutional Questions Act

The Constitutional Questions Act, C.C.S.M. c. C180 (Assented to September 10, 1986) bilingual version (HTML) Table of Contents Section 1 Reference to court authorized 1.1 Reference — use of notwithstanding clause 2 Court to certify opinion 3 Notice to Attorney General of Canada 4 Notice to interested persons, appearance of Attorneys General 5 Appointment of counsel to argue case 6 Appeal 7 Notice to Attorneys General 8 Declaration as to validity of provincial statute 9 Reference in Continuing Consolidation 10 Repeals 11 Commencement of Act HER MAJESTY, by and with the advice and consent of the Legislative Assembly of Manitoba, enacts as follows: Reference to court authorized 1 The Lieutenant Governor in Council may refer any matter to the Court of Appeal or to the Court of King's Bench for hearing or consideration and the Court of Appeal or the Court of King's Bench shall hear or consider the matter. 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. S.M. 2026, c. 4, s. 2 . Court to certify opinion 2 The Court of Appeal or the Court of King's Bench shall certify to the Lieutenant Governor in Council its opinion on the matter referred, with reasons, which shall be given in the same manner as in the case of a judgment in an ordinary action; and a judge of the Court of Appeal who differs from the opinion of the majority may in like manner certify to the Lieutenant Governor in Council his or her opinion, with reasons. Notice to Attorney General of Canada 3 Where the matter referred under section 1 relates to the constitutional validity or constitutional applicability of an Act of the Legislature, or any provision thereof, the Attorney-General of Manitoba shall notify the Attorney General of Canada of the hearing and the Attorney General of Canada may appear in person or by counsel and be heard with respect to the matter. Notice to interested persons 4(1) The Court of Appeal or the Court of King's Bench may direct that any person interested, or, where there is a class of persons interested, any one or more persons as representative of that class, be notified of the hearing; and those persons are entitled to be heard. Crown in right of other provinces 4(2) Where His Majesty in right of Canada or His Majesty in right of any other province of Canada is interested in a matter referred under section 1, the Attorney General of Canada or the Attorney-General of that other province, as the case may be, may, on giving not less than 14 days' written notice to the court and to the Attorney-General of Manitoba, appear in person or by counsel and be heard with respect to the matter. Appearance of counsel 4(3) Where a matter referred under section 1 arises out of the agreement made between the Government of Canada and the Government of Manitoba under The Taxation Agreement Act, 1952 , or any agreement made between the Government of Canada and the Government of Manitoba under The Taxation Agreement Act, 1957 or under any similar Act that came into force after the 5th day of April, 1957, or any agreement made between the Government of Canada and the Government of Manitoba under The Income Tax Act (Manitoba) 1962 , if the Attorney General of Canada or the Attorney-General of another province desires to appear and be heard, the Attorney General of Canada or the Attorney-General of that other province may appear and be heard and may be represented by counsel who is a member of the Bar of any province of Canada and is entitled to practise in the court of any province of Canada. S.M. 2002, c. 44, s. 105 . Appointment of counsel to argue case 5 Where any interest affected is not represented by counsel, the Court of Appeal or the Court of King's Bench may, in its discretion, request some counsel to argue the case with respect to that interest and the reasonable expenses thereof shall be paid by the Minister of Finance. Appeal 6 The opinion of the Court of Appeal or the Court of King's Bench shall be deemed a judgment of the court and an appeal lies therefrom as in the case of a judgment in an action. Definitions 7(1) In this section "law" includes an Act of the Parliament of Canada or of the Legislature and includes a regulation made pursuant to any such Act; (« loi ») "remedy" means a remedy provided pursuant to subsection 24(1) of the Canadian Charter of Rights and Freedoms but does not include a remedy of exclusion of evidence or a remedy consequential on exclusion of evidence. (« recours ») Notice to Attorneys General required 7(2) Where in a cause, matter or other proceeding the constitutional validity or constitutional applicability of any law is challenged or an application is made for a remedy, the law shall not be held to be invalid, inapplicable or inoperable and the remedy shall not be granted until (a) the Attorney General of Canada and the Attorney-General of Manitoba have been served with the notice of the challenge or the application in accordance with this section; and (b) the Attorney General of Canada and the Attorney-General of Manitoba have replied and have been heard if either or both desire to be heard. Notice re regulation 7(3) Where in a cause, matter or other proceeding the validity of a regulation is challenged other than on a question of constitutional validity or applicability, the regulation shall not be held to be invalid until (a) the Attorney General of Canada and the Attorney-General of Manitoba have been served with the notice of the challenge or the application in accordance with this section; and (b) the Attorney General of Canada and the Attorney-General of Manitoba have replied and have been heard if either or both desire to be heard. Form of notice 7(4) A notice mentioned in subsection (2) or (3) shall (a) be headed to show a proper style of cause in the action, cause, matter, proceeding or application; (b) state the law or provision thereof that is being challenged; (c) where there is an allegation of the infringement or denial of a right or freedom, state clearly that right or freedom; (d) state the date, time and place for the hearing of arguments in the action, cause, matter, proceeding or application; and (e) state the particulars that explain the points to be argued. Thirty days' notice necessary 7(5) Unless the court authorizes a shorter period of notice, a notice mentioned in subsection (2) or (3) shall be served at least 30 days before the date fixed for hearing of arguments. Status of Attorney-General of Manitoba 7(6) Where in a cause, matter or other proceeding to which this section applies the Attorney-General of Manitoba appears, he or she is a party and, for the purpose of an appeal from an adjudication respecting the validity or applicability of a law, or respecting the entitlement to a remedy, has the same rights as any other party. Status of Attorney General of Canada 7(7) Where in a cause, matter or other proceeding to which this section applies the Attorney General of Canada appears, he or she is a party and, for the purpose of an appeal from an adjudication respecting the validity or applicability of a law, or respecting entitlement to a remedy, has the same rights as any other party. Service on the Attorney-General 7(8) A notice mentioned in subsection (2) and (3) is sufficiently served on the Attorney-General of Manitoba if it is sent by registered or certified mail to, or during office hours it is left with, the Deputy Attorney-General of Manitoba, the Assistant Deputy Attorney-General of Manitoba (Justice Division) or the Director of Constitutional Law of the Department of the Attorney-General. S.M. 2013, c. 54, s. 18 . Declaration as to validity of provincial statute 8(1) The Court of King's Bench has jurisdiction to entertain an action or proceeding for a declaration as to the validity of any Act of the Legislature, or any provision thereof, though no further relief is sought at the instance of either (a) the Attorney General of Canada; or (b) the Attorney-General of Manitoba. Parties 8(2) An action under this section is sufficiently constituted if the two Attorneys General are parties to it. Appeal 8(3) An appeal lies from a judgment under this section as in the case of a judgment in an ordinary action. Reference in Continuing Consolidation 9 This Act may be referred to as chapter C180 of the Continuing Consolidation of the Statutes of Manitoba . Repeal of C.C.S.M. chapter C180 10(1) An Act for Expediting the Decision of Constitutional and other Provincial Questions being chapter C180 of the Continuing Consolidation of the Statutes of Manitoba is repealed. Repeal of sections of Q.B. Act 10(2) Sections 62 and 73 of The Queen's Bench Act being chapter C280 of the Continuing Consolidation of the Statutes of Manitoba are repealed. Commencement of Act 11 This Act comes into force on the day it receives the royal assent.