The <i>Charter</i> ’s Nuclear Option? Contesting Narratives of the Notwithstanding Clause’s Limited Use Norm

Abstract This article reconsiders the prevailing “limited use norm” surrounding Canada’s notwithstanding clause, which holds that its invocation should be rare. Through a comprehensive analysis of archival documents, legislative debates and firsthand accounts, it demonstrates that the arguments for this norm proposed in the academic literature rest on a selective reading of framers’ intent, political practice and textual safeguards. Proponents of the norm rely disproportionately on statements from anti-notwithstanding clause framers such as Pierre Trudeau and Jean Chrétien while overlooking the instrumental role played by provincial premiers Peter Lougheed, Allan Blakeney and Sterling Lyon. These premiers opposed the entrenchment of the Charter of Rights and Freedoms and saw the notwithstanding clause as a legitimate tool to protect parliamentary sovereignty. By recovering this neglected alternative vision, the article offers a more complete historical account for understanding the provinces’ increasing willingness to invoke the notwithstanding clause today.