Tougher Rules for Federal Notwithstanding Clause

Summary#

This bill would change the Constitution to set strict rules for when the federal Parliament can use the “notwithstanding clause” (section 33 of the Charter, which lets a law operate even if it violates certain rights for up to 5 years). It applies only to Parliament and the federal government, including laws for Yukon and the Northwest Territories (sub. (1)). It does not affect provinces. The bill adds court, transparency, debate, and voting requirements before any federal law can include a section 33 declaration.

• Requires a prior Supreme Court of Canada ruling that the bill (or existing Act it amends) would infringe Charter rights in sections 2 or 7–15 (sub. (4)).
• Limits who can introduce such a bill: it must start in the House of Commons and be introduced by a minister, not a private member or the Senate (sub. (3)).
• Requires a preamble with reasons and a detailed Charter statement explaining impacts and why limits cannot be justified under section 1 (subs. (5)–(6)).
• Bans time allocation or closure on these bills in either House (sub. (7)) and bars Committee of the Whole consideration (sub. (8)).
• Sets a high final-vote threshold: two-thirds of all MPs and support from at least two recognized party groups (sub. (9)).

What it means for you#

• Households and individuals

  • Federal laws that try to override certain Charter rights would face stricter checks. A law could proceed only after the Supreme Court has ruled the law would infringe those rights, and only with a two‑thirds vote in the House of Commons and cross‑party support (subs. (4), (9)).
  • You would see more public reasons and explanations when the federal government proposes to use section 33, through a required preamble and a Charter statement (subs. (5)–(6)).

• Workers and service users

  • No immediate change to existing rights or services. Changes occur only if Parliament seeks to pass a federal law using section 33, which would now be harder and slower under this bill (subs. (4), (7), (9)).

• Businesses and non-profits

  • No direct regulatory change. If a federal law using section 33 is proposed, there would be more time for scrutiny and higher voting hurdles before it could pass (subs. (7), (9)).

• Members of Parliament and federal government

  • Only a minister can introduce these bills, and only in the House of Commons; the Senate cannot originate them (sub. (3)).
  • You cannot use time allocation or Committee of the Whole for these bills (subs. (7)–(8)).
  • Third reading requires two‑thirds of all MPs and backing from members of at least two recognized party groups (sub. (9)).
  • The introducing minister must table a Charter statement on impacts and section 1 justification (sub. (6)).

• Provinces and territorial governments

  • Provinces are unaffected; these rules do not apply to provincial use of section 33 (sub. (1)).
  • Federal laws for Yukon and the Northwest Territories are covered by these rules (sub. (1)).

Expenses#

Estimated net cost: Data unavailable.

• No explicit appropriations, taxes, or fees are in the bill (Bill text).
• Supreme Court reference requirements (sub. (4), via section 53 of the Supreme Court Act) and extended parliamentary consideration (sub. (7)) could create legal and administrative costs; dollar amounts: Data unavailable.
• Ongoing frequency of such bills is uncertain; therefore total fiscal impact: Data unavailable.

Proponents' View#

• Adds a judicial check before using section 33 by requiring a Supreme Court reference that confirms a rights infringement (sub. (4)), reducing preemptive or speculative overrides.
• Improves transparency by mandating a preamble with reasons and a detailed Charter statement explaining impacts and why limits cannot be justified under section 1 (subs. (5)–(6)).
• Ensures broader democratic consent through a two‑thirds House vote and cross‑party support from at least two recognized party groups (sub. (9)).
• Prevents rushed passage by banning time allocation and Committee of the Whole, promoting fuller committee study and debate (subs. (7)–(8)).
• Limits use to government‑led bills introduced in the elected chamber, increasing accountability (sub. (3)).

Opponents' View#

• Shifts power toward the judiciary by making a Supreme Court ruling a precondition for Parliament’s use of section 33, which some may see as narrowing a constitutional tool intended for legislatures (sub. (4)).
• Creates delay and procedural hurdles—no time allocation, supermajority vote—that could block or slow government responses, even in urgent cases (subs. (7), (9)).
• Raises the bar so high that a minority of MPs could veto a government’s attempt to use section 33, even when a majority supports it (sub. (9)).
• Excludes private members’ bills and Senate‑initiated bills from ever using section 33, reducing legislative flexibility (sub. (3)).
• Applies only to federal laws, leaving provincial use of section 33 unchanged; critics may see this as addressing only part of the policy debate (sub. (1)).