The Power of Perspectives

The Canadian Bar Association

Kerri Froc

The “normalization” of Trump and implications for the right to equality in Canada

November 17 2016 17 November 2016

Those on the left are still in a state of shock and dismay following the Donald Trump as President of the United States on November 9, 2016.  The late-night comedy shows lately have felt more like wakes than entertainment. Kate MacKinnon on Saturday Night Live (for the last time in her Hillary Clinton get-up) sang Leonard Cohen’s Hallelujah, ending with a promise and  a call to perseverance: “I’m not giving up and neither should you.” One strategy touted repeatedly by the media this week as part of “not giving up” is to resist the “normalization” of Trump and his administration. 

In this context, Hua Hsu of the New Yorker this week suggested that “normalization” is “the ways in which dangerous things come to be viewed as just another part of everyday life…It’s on the late-night talk show, when the comedian giggles as he tousles Donald Trump’s hair, signalling that this madman can take a joke; it’s in the life-style magazine that works to humanize him and those around him.”  The danger, he says, is that normalization “shapes our field of vision; it tells a story of the world and its possibilities.” 

Obviously, the normalization of misogyny, racism, and xenophobia didn’t start with Trump.  But, he is emblematic of the fragility of social progress.  The “doublespeak” of a powerful figure turns sexual assault into “locker room talk,”  calling out bigotry is again delegitimized as “political correctness,” and trading upon dehumanizing stereotypes of historically denigrated groups like refugees becomes “unconventional” politics once that candidate wins.  As Gloria Steinem once remarked, there was a time when wife battering and sexual harassment was “just called life.”

Now, in 2016, discriminatory behaviour is “just called politics.” As the process of normalization kicks into high gear with “softball” interviews on 60 Minutes and his imminent inauguration, there is a risk a “subtle amnesia” sets in and it could be called nothing at all.

Closer to home, this normalization process is significant for the right to equality guaranteed in the Canadian Charter of Rights and Freedoms. There is a disquieting tendency in section 15 jurisprudence for the Supreme Court of Canada to rely on the notion of discrimination as an aberrant, irrational phenomenon. 

From the very first case on equality rights, Andrews v Law Society, Justice McIntyre, for the majority, stated that the guarantee of equality was based on the notion that a law should not, because of “irrelevant personal characteristics have a more burdensome or less beneficial impact on one than another.”

A court’s consideration of the rationality or reasonableness of impugned legislation was formally relegated to section 1 in Andrews.  Even then, the Supreme Court did not completely do away with the idea that the irrelevance of the named characteristic to a law (and the consequent irrationality of making distinctions in the law based on this characteristic) mattered. It carried on through the various permutations of the equality test.

Currently, the idea of discrimination as aberrant and irrational is lurking in shadows of the requirement that legislation perpetuate “arbitrary” disadvantage (Kahkewistahaw First Nation v. Taypotat), prejudice or stereotype.  The Supreme Court in section 7 jurisprudence has defined arbitrariness a lack of connection between the negative impact and the law’s object (e.g., Canada (Attorney General) v. Bedford), and in section 15 jurisprudence, associated prejudice with “animus or contempt” towards a historically disadvantaged group, and defined stereotyping as “an attribution of untrue characteristics” (Quebec v. A).

Nothing feels “arbitrary” about Trump’s systematic demonization of racial minorities, his threat to jail women who have abortions (and to appoint Supreme Court judges with the specific intent of having them overturn Roe v. Wade), and his cavalier attitude towards same sex marriage, amongst others.  He has moved the needle on what constitutes rational, deliberative public policy.  And with Trump’s normalization, now, more than ever, we will be less able to identify discrimination if our standard continues to rely on the idea that it is an aberration to our “normal.” 

Our lodestar in Canadian society, and in equality doctrine, ought to be whether these actions perpetuate the ever-present racism, patriarchy, colonization, homophobia, and other systems of oppression in our society, together or in concert with one another.

 

Kerri A. Froc is a Postdoctoral Fellow at Carleton University, and a Trudeau and Vanier Scholar. The author's views are her own. Photo licensed under Creative Commons by jbouie

 

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