Bill S‑218 adds a new section to the Constitution Act, 1982 that creates a set of prerequisites and parliamentary rules governing federal invocations of the notwithstanding clause (section 33). It limits the circumstances and the parliamentary processes by which the federal Parliament may pass laws that operate notwithstanding certain Charter protections.
The change is targeted at federal legislation and measures within Parliament’s authority (including matters relating to Yukon and the Northwest Territories). By shifting decision-making toward prior judicial analysis and raising legislative thresholds, the bill changes how governments would pursue statutes that explicitly override specified Charter rights.
At a Glance
What It Does
The bill inserts section 33.1 into the Constitution Act, 1982 to require that any federal bill invoking section 33 meet defined procedural conditions before it may be enacted, including origination requirements, a prior Supreme Court finding about an infringement, mandatory explanatory materials, and limits on expedited parliamentary procedures.
Who It Affects
Federal ministers and the House of Commons in drafting and advancing any bill that would include a notwithstanding declaration; the Supreme Court of Canada because of an explicit pre‑introduction reference mechanism; and members of Parliament and party groups because of altered voting and debate rules for such bills. The text applies to matters within Parliament’s authority, including Yukon and the Northwest Territories.
Why It Matters
If enacted, the bill would make it more difficult for the federal government to use the notwithstanding clause quickly or unilaterally, channel disputes through the Court before Parliament acts, and require broader parliamentary consensus. That changes tactical and constitutional calculations for governments contemplating rights‑infringing measures.
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What This Bill Actually Does
The bill inserts a new provision—numbered 33.1—into the Constitution Act, 1982. That provision is expressly limited to the Parliament and government of Canada and to all matters within the authority of Parliament; the text singles out Yukon and the Northwest Territories as included.
The new provision defines key terms used in the measure, notably what counts as a "declaration" under section 33 and what the bill calls an "infringing bill" (a bill that contains such a declaration).
On procedure, the bill requires infringing bills to originate in the House of Commons and to be introduced by a minister. It conditions introduction on a judicial step: the bill may only be introduced if the Supreme Court has already found, via a reference under section 53 of the Supreme Court Act, that the bill or the underlying Act would infringe one of the listed Charter protections.
In short, Parliament must trigger or obtain a section 53 reference and receive the Court’s finding before moving an infringing bill through the House.The bill also imposes transparency and deliberation obligations. Any infringing bill must include a preamble explaining the reasons for the declaration, and the responsible minister must table a statement in the House that describes the bill’s potential effects on the enumerated Charter rights and explains why any infringement cannot be justified under section 1.
To protect full consideration, the measure bars either House from adopting motions to limit debate time on an infringing bill and prevents consideration by Committee of the Whole.Finally, the bill raises the numeric threshold for an infringing bill to pass third reading in the House of Commons: it requires approval from two‑thirds of the House’s membership and support by members of at least two groups that are composed solely of members of the same recognized party. Together, these procedural and substantive rules are designed to ensure judicial input, to force public explanation, and to require a wider parliamentary consensus before the federal notwithstanding power is exercised.
The Five Things You Need to Know
The bill adds a standalone section (33.1) to the Constitution Act, 1982 that applies only to the Parliament and government of Canada and to matters within Parliament’s authority, explicitly including Yukon and the Northwest Territories.
An "infringing bill" may only be introduced in the House of Commons and must be introduced by a minister; private members cannot initiate such a bill.
Introduction of an infringing bill is permitted only after a Supreme Court ruling under section 53 (a reference) finds that the bill or the underlying Act would infringe specified Charter rights or freedoms.
An infringing bill must carry a preamble setting out reasons for the notwithstanding declaration, and the introducing minister must table a statement explaining the bill’s effects on the Charter rights listed and why any infringement is not justified under section 1.
The House of Commons may only adopt a third‑reading motion for an infringing bill with the support of two‑thirds of members and with support from members of at least two single‑party groups; the bill also prohibits time‑allocation motions and Committee of the Whole consideration for such bills.
Section-by-Section Breakdown
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Scope — federal Parliament and territorial matters
This subsection confines the new rules to the Parliament and government of Canada and to matters within Parliament’s authority, and it explicitly names Yukon and the Northwest Territories. Practically, it means the added constraints apply to federal lawmaking but do not purport to change provincial legislatures’ ability to invoke section 33.
Definitions of declaration and infringing bill
The text formalizes two working definitions: a "declaration" is a section 33 notice that an Act will operate notwithstanding specific Charter provisions; an "infringing bill" is any bill that contains such a declaration. Drafting matters: these definitions frame which bills trigger the new procedural regime and exclude other legislative measures that do not include an explicit notwithstanding clause.
Origination and ministerial introduction requirement
The bill obliges infringing bills to originate in the House of Commons and to be introduced by a minister. That removes private‑member or Senate initiation routes for notwithstanding invocations at the federal level and centralizes responsibility in the government, ensuring executive accountability and control over timing and framing.
Prior Supreme Court reference as a condition for introduction
This subsection conditions introduction on a prior finding by the Supreme Court under section 53 that the proposed bill or an Act it targets would infringe the listed Charter rights. The mechanism uses the Court’s advisory reference power as a gatekeeping step: governments must obtain the Court’s assessment before Parliament begins formal consideration of a notwithstanding declaration.
Preamble and ministerial Charter statement
The bill requires an infringing bill to include a preamble stating the reasons for invoking section 33 and requires the introducing minister to table a statement laying out the bill’s potential effects on specified Charter rights and the minister’s argument that any infringement is not justified under section 1. Those documentary requirements increase transparency and create a written record of the government’s justification that can be used in public and legal scrutiny.
Limits on expedited procedure and committee handling
Subsections (7) and (8) prevent either House from adopting a time‑limiting motion for an infringing bill and prohibit Committee of the Whole consideration. The effect is procedural insulation: the bill ensures extended and formal debate on the floor rather than expedited or informal consideration, making it harder to fast‑track a notwithstanding measure.
Raised voting threshold and cross‑party requirement at third reading
The bill alters the vote requirement for third reading: approval needs two‑thirds of the House’s membership plus support from members of at least two groups composed solely of members of the same recognized party. That combines a high numeric threshold with a cross‑party dimension intended to prevent single‑party imposition of notwithstanding declarations.
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Every bill creates winners and losers. Here's who stands to gain and who bears the cost.
Who Benefits
- Rights holders and civil liberties organizations — The added judicial and parliamentary hurdles reduce the risk of rapid, unilateral use of the notwithstanding clause and create more opportunities for scrutiny and public debate.
- The Supreme Court of Canada — The bill formalizes a routine role for the Court to assess claims of Charter infringement before Parliament acts, increasing the Court’s gatekeeping function in this specific context.
- Opposition parties and smaller parties — Procedural protections and a supermajority requirement give opposition and smaller parties greater leverage to shape, delay, or block infringing bills compared with standard majority dynamics.
- Parliamentary transparency advocates and legal scholars — Mandatory preambles and ministerial Charter statements create formal documentary records that aid oversight, research, and public understanding.
Who Bears the Cost
- Federal ministers and the government — They face additional legal and procedural burdens: obtaining a section 53 reference, preparing detailed Charter statements, and building broader parliamentary coalitions before a notwithstanding declaration can be enacted.
- The House of Commons and its procedural staff — Extended floor debate and the ban on Committee of the Whole consideration will increase time demands and may require reallocation of committee workloads and resources.
- Governing parties seeking to act quickly — Time‑sensitive policy responses that might otherwise use a notwithstanding declaration become slower and more politically costly, reducing executive flexibility.
- Territorial administrations where federal laws apply (Yukon, NWT) — They will be affected by the federal procedural changes but have no parallel mechanism in this bill to assert local input, creating potential governance frictions.
Key Issues
The Core Tension
The central dilemma is between protecting Charter rights through judicial review and broader parliamentary consensus versus preserving Parliament’s constitutional authority and flexibility to override certain Charter protections when it deems that necessary; the bill makes a deliberate trade‑off in favor of judicial gatekeeping and heightened legislative consensus at the cost of executive speed and unilateral parliamentary sovereignty.
The bill erects procedural and substantive hurdles intended to constrain federal use of the notwithstanding clause, but it raises several implementation and legal questions. Requiring a Supreme Court reference under section 53 makes the Court an explicit gatekeeper, yet section 53 produces advisory opinions; the bill does not say whether Parliament could proceed when the Court’s language is narrow or non‑conclusive.
The mechanics of obtaining a reference—who requests it, what question is framed, and how timing interacts with urgent legislative needs—are left to political practice and could be contested.
Other ambiguities matter in practice. The supermajority rule requires two‑thirds of members and support from members of "at least two groups composed solely of members who are members of the same recognized party," a formulation that will invite disputes about what counts as a "group" and how to treat independents or coalition alignments.
The territorial footprint—Yukon and NWT named but Nunavut omitted—creates questions about equal treatment across federal territories. Finally, by channeling decisions through judicial findings and heightened parliamentary thresholds, the bill increases deliberation and safeguards rights but also slows the government response to pressing policy problems and shifts significant agenda control away from the elected executive.
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