S-218 (45-1) - An Act to amend the Constitution Act, 1982 (notwithstanding clause)
Chamber
senate
Stage
2nd Reading
Introduced
May 28, 2025
Progress
This bill adds new rules making it harder for Parliament to use the notwithstanding clause to override Charter rights.
Key Changes
- Requires a Supreme Court ruling confirming a Charter infringement before Parliament can invoke the notwithstanding clause
- Requires any bill invoking the notwithstanding clause to originate in the House of Commons and be introduced by a Cabinet minister
- Requires a written preamble explaining the reasons for overriding Charter rights
- Requires the minister to table a statement explaining the bill's effects on Charter rights and why the infringement cannot be justified under Section 1
- Requires a two-thirds supermajority of all MPs, from at least two recognized parties, to pass such a bill at third reading
- Bans time allocation (debate limits) and Committee of the Whole consideration for bills invoking the notwithstanding clause
Gotchas
- This bill applies only to the federal Parliament — provincial and territorial legislatures would still be able to use the notwithstanding clause under existing rules without these restrictions.
- Requiring a Supreme Court reference before introduction creates a mandatory judicial step in the legislative process, which is a significant departure from the current separation of powers between Parliament and the courts.
- The two-thirds supermajority requirement would make it very difficult for any single party with a majority government to invoke the notwithstanding clause without cross-party support.
- Because this bill amends the Constitution Act, 1982, it may itself require a constitutional amendment process rather than a simple act of Parliament, raising questions about whether it can be passed this way.
- The bill does not address provincial use of the notwithstanding clause, meaning the federal and provincial rules would diverge significantly if this bill passed.
Who's Affected
- Federal Parliament and the Government of Canada
- Cabinet ministers introducing legislation
- Members of Parliament and recognized political parties
- Canadian residents whose Charter rights might be affected by notwithstanding clause legislation
- The Supreme Court of Canada, which would be required to conduct references before such bills proceed
Vibes
0 responses
Gotchas
- This bill applies only to the federal Parliament — provincial and territorial legislatures would still be able to use the notwithstanding clause under existing rules without these restrictions.
- Requiring a Supreme Court reference before introduction creates a mandatory judicial step in the legislative process, which is a significant departure from the current separation of powers between Parliament and the courts.
- The two-thirds supermajority requirement would make it very difficult for any single party with a majority government to invoke the notwithstanding clause without cross-party support.
- Because this bill amends the Constitution Act, 1982, it may itself require a constitutional amendment process rather than a simple act of Parliament, raising questions about whether it can be passed this way.
- The bill does not address provincial use of the notwithstanding clause, meaning the federal and provincial rules would diverge significantly if this bill passed.
Summary
Bill S-218 proposes changes to the Constitution Act, 1982 to place strict conditions on when and how the federal Parliament can use the 'notwithstanding clause' (Section 33 of the Charter). The notwithstanding clause currently allows Parliament or provincial legislatures to pass laws that override certain Charter rights for up to five years. This bill would apply new rules specifically to the federal Parliament (not provinces), requiring several steps before such a law could be passed. Under this bill, before Parliament could invoke the notwithstanding clause, the Supreme Court of Canada would first have to confirm — through a formal reference — that the proposed law actually does infringe a Charter right. The bill would also require the law to start in the House of Commons, be introduced by a Cabinet minister, include a written explanation of why the rights violation cannot be justified, and pass with the support of at least two-thirds of all Members of Parliament from at least two recognized political parties. Time limits on debate would be banned, and the bill could not be fast-tracked through a Committee of the Whole. The bill was introduced by Senator Harder in May 2025. It reflects ongoing debate in Canada about whether the notwithstanding clause is being used too easily and whether stronger safeguards are needed to protect Charter rights at the federal level.
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Vibes
0 responses