Summary#
Bill 39, the Notwithstanding Clause Limitation Act, 2025, would create a new Ontario Act restricting when a bill may use section 33 of the Canadian Charter of Rights and Freedoms, the “notwithstanding clause.” Its stated purpose is to limit that use. The bill would take effect on Royal Assent.
- A bill could use the clause only if it addresses a temporary, urgent and critical situation that seriously endangers Ontarians’ lives, health or safety; amends an Act with a provision a court has found violates the Charter; and limits the declaration to that provision and the Charter rules the court found it violates. All three conditions apply.
- A bill containing a declaration would need approval from at least two-thirds of the elected members of the Legislative Assembly to be adopted.
- If a minister introduces such a bill, the Attorney General must table a report within 30 days. It must explain how the declaration can be justified in a free and democratic society and why alternatives were considered inadequate.
- The bill addresses bills introduced in the Assembly. It does not say that existing declarations or laws would automatically be repealed or invalidated.
What it means for you#
- Ontarians: The bill would limit when the Legislature could pass a bill using the notwithstanding clause. It does not itself change the Charter or create a process for people to apply for a review.
- The government and Legislature: The Attorney General would have to prepare a report for each qualifying bill introduced by a minister. Any bill containing a declaration would need the two-thirds vote, whether or not a minister introduced it.
- People affected by laws using the clause: The bill does not state that an existing law or declaration would be undone if it became law.
Money#
No publicly available information on the bill’s cost.
- The bill requires the Attorney General to arrange for reports, but gives no staffing or cost estimate.
- It creates no fee, fine, benefit, or appropriation in the supplied text.
What is unclear#
- The bill does not define what counts as an “urgent and critical” temporary situation or how serious the danger must be.
- It does not specify whether the court finding must be final, or which court findings qualify.
- It does not require the Attorney General’s report to be tabled before the Assembly votes on the bill; the deadline is within 30 days after introduction.
- It does not set out a process or consequences if the report is late or missing.
- The supplied material does not explain how the bill would apply to existing declarations or laws.
Case for#
- A possible argument for the bill is that using the notwithstanding clause would be limited to temporary, serious threats to life, health or safety, rather than being available for other situations.
- Requiring a court finding that a provision violates the Charter would tie use of the clause to a specific provision and identified Charter rules.
- A two-thirds vote and a public report could require broader legislative support and an explanation of why alternatives were inadequate.
Case against#
- One concern is that the conditions are narrow and undefined. The bill does not explain how decision-makers would judge urgency, seriousness or temporary duration.
- The two-thirds requirement could make a bill harder to adopt even when it meets the conditions for using the clause.
- For bills introduced by ministers, the report deadline could allow the Assembly to vote before the report is tabled.
- The bill does not specify how it would affect existing declarations or laws, leaving that issue unclear.