Bill 39 (Notwithstanding Clause Limitation Act, 2025) bars Ontario bills from including a declaration under section 33 of the Canadian Charter of Rights and Freedoms except in narrowly defined circumstances and only after specified procedural steps. It lets the Legislature invoke s.33 for (1) temporary, urgent measures that seriously endanger life, health or safety, or (2) targeted responses that amend an Act whose provision a court has found to contravene the Charter — and then only with respect to that contravening provision.
The bill also requires the Attorney General to table a written justification in the Assembly within 30 days when a minister introduces a bill invoking s.33, and it prevents adoption of such a bill unless two‑thirds of all elected members approve. The measure tightens the procedural and substantive gatekeeping around provincial use of s.33, increasing transparency and raising the legislative threshold for overriding Charter rights in Ontario.
At a Glance
What It Does
The Act prohibits Ontario bills from including a s.33 declaration except where the bill addresses a temporary, urgent threat to lives/health/safety or where it amends a provision already found by a court to contravene the Charter, and then only to the specific contravening provision. It mandates an Attorney General report for minister‑introduced bills that use s.33 and requires a two‑thirds majority of elected members to adopt any such bill.
Who It Affects
Ontario ministers who would introduce legislation invoking s.33, the Attorney General (who must prepare and table a mandatory explanatory report), the Legislative Assembly (which must secure a two‑thirds vote), and individuals or groups whose Charter rights are at issue in provincial laws (particularly in litigation or emergency responses).
Why It Matters
The Act imposes a procedural and substantive brake on provincial invocations of the notwithstanding clause: it narrows permissible uses, forces public, written justification, and raises the numeric threshold for adoption. For legal teams and policy drafters, the bill changes the calculus for drafting emergency measures and post‑judgment legislative responses.
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What This Bill Actually Does
The bill creates three linked restraints on Ontario’s use of section 33 of the Charter. First, it states a general prohibition: ordinary bills cannot include a s.33 declaration unless they meet the statute’s narrow exceptions.
Second, it defines the exceptions: a provincial law may invoke s.33 only to respond to an urgent, temporary situation that seriously endangers life, health or safety, or to amend an Act where a court has already found a specific provision contravenes the Charter — and in that second case the declaration may cover only that contravening provision in the amended Act. Those limits focus uses of s.33 on short‑term emergencies or narrowly tailored, remedial legislative fixes after judicial findings.
Third, the bill builds procedural guardrails. When a minister introduces a bill that includes a s.33 declaration, the Attorney General must table, within 30 days, a report that explains how the declaration can be demonstrably justified in a free and democratic society and describes what alternatives were considered and why they were inadequate.
The reporting duty is explicit and time‑bounded; it applies only to minister‑introduced bills and not to bills introduced by private members, which leaves a drafting pathway outside the reporting requirement.Finally, the Act raises the adoption threshold: a bill containing a s.33 declaration cannot be adopted unless at least two‑thirds of all members elected to the Legislative Assembly vote in favor. That is a higher bar than a simple majority and means governments must build broader consensus before overriding Charter protections.
The Act comes into force on Royal Assent and is titled the Notwithstanding Clause Limitation Act, 2025.
The Five Things You Need to Know
The Act allows s.33 declarations only for (a) temporary, urgent measures that seriously endanger life, health or safety, or (b) amendments limited to a provision already found by a court to contravene the Charter.
If a minister introduces a bill that includes a s.33 declaration, the Attorney General must table a written report within 30 days explaining the demonstrable justification and why alternatives were inadequate.
The report must describe both how the declaration is justifiable in a free and democratic society and the alternative measures considered before opting to invoke s.33.
A bill containing a s.33 declaration cannot be adopted unless at least two‑thirds of members elected to the Legislative Assembly approve — the threshold is two‑thirds of all elected members, not merely those present.
The reporting duty applies only to bills introduced by a minister of the Crown; private members’ bills that include a s.33 declaration are not covered by the Act’s report requirement.
Section-by-Section Breakdown
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General prohibition with narrowly defined exceptions
Section 1 establishes the core rule: Ontario bills shall not include a section 33 declaration unless they meet subsection (2). Subsection (2) then lists two narrow permissions — an urgent, temporary public‑safety measure, and legislative fixes to provisions already judicially found to contravene the Charter — and adds a tailoring limit for the second permission so that only the contravening provision in the amended Act may be declared notwithstanding. Practically, this narrows legislative discretion: governments cannot broadly annex s.33 to regular policy legislation and must show the situation fits the statutory categories when they attempt to do so.
Attorney General must justify minister‑introduced s.33 bills within 30 days
Section 2 applies only to bills introduced in the Assembly by a minister of the Crown and requires the Attorney General to cause a report to be tabled within 30 days after introduction. The report must explain how the declaration can be demonstrably justified in a free and democratic society and list and explain why alternatives were inadequate. That creates a short, statutorily mandated window for producing a reasoned, public legal justification tied to the government’s choice to invoke s.33.
Two‑thirds legislative approval required for adoption
Section 3 makes substantive use contingent on political supermajority: a bill with a s.33 declaration cannot be adopted unless it receives approval of at least two‑thirds of members elected to the Legislative Assembly. The text ties the denominator to 'members elected,' meaning the required count is based on the total Assembly membership rather than those present and voting, which raises the practical hurdle for governments seeking to override Charter protections.
Commencement and short title
Section 4 sets the Act to come into force on Royal Assent; section 5 provides its short title. Those provisions make the Act immediately operative upon formal enactment and give lawyers and drafters a conventional citation for future references.
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Every bill creates winners and losers. Here's who stands to gain and who bears the cost.
Who Benefits
- Individuals and rights claimants — The Act narrows routine use of the notwithstanding clause and requires public justification, reducing the chance that Charter rights are overridden without clear, time‑limited reasons.
- Ontario courts and litigants — Courts that invalidate provincial provisions will see less risk of broad legislative reversals because the Act restricts post‑judgment uses of s.33 to declarations limited to the contravening provision.
- Public and transparency advocates — Mandatory, time‑bound AG reports force governments to disclose legal reasoning and alternatives, increasing public scrutiny of any legislative decision to override Charter rights.
Who Bears the Cost
- Provincial Cabinet and ministers — The government must secure a two‑thirds Assembly vote to adopt s.33 declarations, which reduces executive flexibility and raises the political and legislative cost of overriding rights.
- Attorney General’s office — The AG must prepare and table substantive legal reports within 30 days for minister‑introduced bills, creating administrative and legal workload and a tight timeline for complex justifications.
- Governments responding to public emergencies — The statutory narrowing to "temporary" and "serious endangerment" may limit the province’s ability to use s.33 quickly in unconventional or fast‑evolving crises without risking later judicial or political challenge.
Key Issues
The Core Tension
The bill confronts a classic dilemma: protect constitutional rights by imposing legal and procedural limits on legislative power, or preserve parliamentary supremacy and executive flexibility to respond to emergencies and to correct judicial rulings; each choice respects a different democratic value (rights protection versus legislative autonomy), and the Act resolves that tension by elevating transparency and a supermajority requirement at the cost of narrowing government latitude.
The Act builds clear procedural and substantive constraints, but it leaves open several practical and legal uncertainties. First, its meaning depends heavily on interpretive judgments: what qualifies as an "urgent and critical situation of a temporary nature" or what counts as "seriously endangers the lives, health or safety of Ontarians" are fact‑dependent and likely to invite judicial review or political dispute.
Second, the reporting requirement applies only to minister‑introduced bills; private members could use a procedural route to introduce a s.33 declaration without triggering the AG’s 30‑day public justification, creating a potential circumvention pathway.
There are also institutional questions. The two‑thirds threshold is expressed relative to 'members elected to the Legislative Assembly,' which raises tactical considerations about quorum, vacancies, and the arithmetic of coalition building; it also leaves open how courts will treat a declaration adopted by a simple majority in breach of this statute.
Finally, although the Act constrains provincial practice, it cannot bind future Assemblies — any subsequent Legislature could repeal or amend this Act — and it does not affect federal uses of s.33. Those limits make the Act a procedural check whose durability depends on politics as much as law.
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