The parallels between Trump's pardons and Danielle Smith's use of the notwithstanding clause

I was reading about yet another round of Trump pardons and it is blazingly apparent the extent to which Trump has exercised this presidential power in a way that fundamentally strips away the important norms undergirding it.

The pardon is an instrument by which the executive can address injustices, engage in national healing (Jimmy Carter famously used it to pardon evaders of the Vietnam War draft), or deal with disproportionate sentences. In theory, it should be exercised where the legal system has failed or where manifest injustice exists.

Trump - as he does in virtually all aspects of his presidency - has transformed the pardon power into a venal exercise of patronage and grievance, pardoning swathes of undeserving cronies and other criminals who apparently remind Trump of himself.

This is not to say that past presidents haven’t engaged in controversial pardons/commutations (think of Ford and Nixon, Clinton and Mark Rich, or George W. and Scooter Libby). But those were controversial precisely because they were unusual, enough to carry sustained media attention and, in the eyes of some, to stain presidencies. Trump’s cavalier attitude towards the pardon power has completely stripped it of any thought and propriety. An instrument meant to be exercised with principle and that in an important sense should add something to the rule of law has been completely transformed into a narcissist’s tool for political vengeance and personal graft.

What Danielle Smith and her UCP government have done with the notwithstanding clause shares disturbing parallels.

The comparison might not seem immediately intuitive. After all, the pardon power is an instrument of the executive, while the notwithstanding clause is technically a legislative power. But this difference is negligible when you consider that Smith’s legislative majority has allowed her to ram through bills employing the clause in middle-of-the-night session by dramatically curtailing any debate.

Regardless, the point of the comparison is to assert that as with Trump and pardons, Smith has quickly destroyed any notion that a unique constitutional power ought to be used with some care, and in ways that advance norms of democracy, the rule of law, and rights.

Alberta’s most recent use, the fourth in two months, employs the clause to shield a transphobic, anti-science, anti-evidence, anti-autonomy assault on rights. The clause now protects laws that prohibit doctors from prescribing puberty blockers and hormone therapy to youth under 16, forces teachers to out vulnerable kids, and bans transgender girls from participating in girls sports.

Defenders of the recent spate of provincial uses of the notwithstanding clause love to emphasize that it is a valid constitutional power, indeed that it can’t be anti-Charter because it is part of the Charter. This truism does not belie the simple fact that most of the provincial uses since 2017 have been manifestly anti rights, from Quebec’s unjustifiable Bill 21 assault on religious minorities to Alberta’s most recent abomination.

Defenders of Smith’s most recent bill have claimed that what it really seeks to do is “protect children” or protect “parent’s rights”. On that basis, the champions of the notwithstanding clause will say that this is exactly when it should be used: when the legislature has a differing view to judicial orthodoxy about how competing rights ought to be balanced under the Charter. I myself have made this argument in defending the existence of the clause.

But of course this argument simply doesn’t apply in this instance, anymore than it applies to Quebec’s Bill 21 (which does not promote ‘secularism’ so much as it enforces irreligion, a perversion of the very idea of ‘state neutrality in religion’). That’s because the idea that Danielle Smith’s transphobic laws “protect children” is premised on nothing more than lies and disinformation. She and others in her government have made bullshit claims about children being left sterile by gender affirming medical therapies that are, to put it mildly, contrary to all of the evidence about the effect of puberty blockers (a treatment that not only saves lives but is also reversible).

Similarly, the premise that teachers should be forced to out children to their parents on the basis they express a preference for a different pronoun or name is based on nothing - can anyone point to a single instance in this country of ‘harm’ to a child in such a circumstance where parental notification was not made? No. Of course not. Because the only ‘harm’ here is rooted in the transphobic belief that being trans or expressing any gender confusion is automatically harmful.

When shitting on rights and inclusion becomes justified because you think the “integrity” of kid’s sports needs to be maintained as if they’re the fucking Olympics, you’ve lost the fucking plot.

Indeed, I’ll be more convinced of the seriousness of the recourse to ‘principle’ held by the notwithstanding clause’s most ardent defenders when any of them point to an example of its use they believe to be unjustified. Because if you believe literally all of these recent uses by Alberta, Ontario, and Quebec are justified - not legally valid, not ‘constitutional’, but morally or normative justified - the truth is you simply don’t care about minority rights.

So let’s move past an unnecessary part of the debate. Let’s stipulate that, like the pardon power, the notwithstanding clause exists, is a valid legal instrument, and is part of the Charter. Instead, let’s start talking about the fact that, like any power, the notwithstanding clause can be, and is being, abused.