Dear readers, I am switching URL due to some technical issues with the current one. The full content of jurisblogger has already been migrated to the new URL. New posts will only appear there. Eventully, this URL will cease to function. Looking forward to see you at pcloutier.ca
The election of Donald Trump as President of the United States of America was a shock to many. After all, it is difficult to imagine someone less qualified for the job who would also be able to achieve the feat of winning a presidential election (thanks in part to the archaic presidential election system, i.e. the electoral college). He has no experience in politics and the actions of his team over the past two weeks suggest that he also has very little clue on how the administration he is leading actually works. This could be characterised as incompetence, and in part it is, at least in terms of how to effectively implement his policies. Nevertheless, one should be careful to claim that all of the chaos and failure coming out of the White House is due to incompetence. I say this because in so doing I fear one would continue perpetuating the same mistake a considerable amount of people did over the last year, that is to not take Mr. Trump seriously, both as a candidate/President, and as a threat. And a threat he is. The chaos he creates is probably more representative of his personality, megalomaniac/narcissist, and ideology, a form of nouveau fascism, than solely of his incompetence. The recent Muslim ban is a great example. I think it is important to take Trump seriously, especially if we wish to craft effective paths of resistance.
As nina de jesus expressed during a recent conversation with me, it is in part because we (the public, the media, the left, the republicans, etc) have not taken Trump seriously that he has been so successful. Republicans thought he would never succeed at becoming their candidate, and by the time they realised he actually could win the primary, it was already too late. The democrats thought he was his own worst enemy, and tried to run a typical campaign against the most atypical candidate. By the time it was clear that nothing really stuck to Trump and that everything stuck to Clinton, it was too late. Many voters thought he just couldn’t win, yet he did. Many people thought he would moderate himself once in power, yet he didn’t. Despite all of this, it has always been pretty clear what Trump is capable of – i.e. attracting large portions of dissatisfied white, racist, rural and suburban, and mobilised voters in addition to the existing core conservative base – and what he stands for – i.e. white supremacy, nationalism/nativism, unregulated economy, and himself (translating into more power into his own hands, and the establishment of only one legitimate “perception of reality”, his, since he’s so “amazing, the best President ever, really”). I obviously cannot say how the election would have ended if Trump had been taken seriously from the start. What I believe, however, is that to counter his policies and resist his agenda we must take him seriously going forward, otherwise we give him the space he needs to implement his terrifying vision of the USA.
Trump’s vision resembles in part the policy agenda of the republicans, which is terrifying in its own right. What makes his vision different is his complete disregard for existing institutions and rules (at least more than the average elected republican), and his desire to change the system (consciously or not) into one that resembles him. Wanting to change the system is not bad per se, but the underlying reasons Trump has for this change is: creating his own version of fascism.
Some commentators have argued against using the word fascism to describe Trump et al, but as the saying goes if it feels, tastes and smells like crap, it must be crap. His administration has worked to consolidate power within a small team in the White House. It has been governing mainly through executive order. Trump rewards loyalty and puts a lot of value in the concept, resulting in a mistrust of the professional public service. Trump has shown contempt for the judiciary, while utterly failing to understand its role in the USA’s constitutional order. He is constantly attempting to delegitimise electoral processes. He glorifies law enforcement and “order”. His administration is trying to control information by muzzling government scientists, spreading misinformation, and attacking the press. Most importantly, Trump’s agenda is motivated by animus, contempt for the rule of law and human rights, racism, sexism, and the list goes on. However, the most troubling aspect remains his desire to do everything and stop at nothing to achieve this despicable agenda. If we refuse to call this fascism, than we are refusing to take Trump seriously.
The Executive Order that banned citizens of 7 predominantly Muslim countries from entering the USA, and banned all refugees for a certain amount of time (except Syrian refugees who are banned indefinitely), simply referred to as the Muslim ban, is a perfect representation of Trump’s fascist policies. The Muslim ban, that is allegedly not a ban, even though it obviously is, and allegedly does not target Muslims, even though it clearly does, is not based on fact, but on fiction, the fiction that Muslims pose a significant threat to the USA (white-supremacists/nationalists are a far greater threat, but of course Trump doesn’t care about that, or worst he views this as a positive thing). It is extremely damageable to the people it affects both inside and outside of the USA. It goes against basic decency, targets some of the most vulnerable people (refugees), and defies the rule of law. The fact that Courts have been granting extraordinary remedies (like temporary restraining orders) so quickly and nearly unanimously is quite telling.
Then the question is why? Why is the Trump administration adopting such policies? While I’m sure Trump’s own racism plays a part, I do not think it is the primary reason. The motivation, I think, is to gather support and galvanise his supporters by blaming problems on Muslims, Mexicans, and other minority groups. If the measures are illegal and unrealistic? no problem, more opportunities to reiterate his “reality” and to delegitimize institutions that block his path (e.g. restating that people from the 7 countries affected by the ban are dangerous, while mentioning that the judge who temporarily blocked the Executive Order is contributing to the “security risk” these people supposedly pose). It’s a game, a very damaging game, of pushing the boundaries further and further until they break. Normal rules do not apply, just brute power based on his status as President and on the disinformation machine he is creating.
How do we resist this contemporary manifestation of fascism? The answers differ between what I think a state should do, and what individuals can do to resist. Let’s start with states. States should avoid the mistakes of the past, in other words, they should avoid complacency and should protect the victims affected by Trump’s policies. Treating the USA the same as always, and pretending that things are not that bad or that Trump can be reasoned with are the kind of wishful thinking that gives Trump the space he needs to implement his agenda in peace. We do not want a repeat of the rise of fascism in Europe. The international community needs to decry far and wide Trump’s actions, like the Muslim ban, that violate international law, and basic human decency. They should also think about other actions they can reasonably perform, minimally welcoming refugees affected by the Muslim ban and any future policies that violates human rights. Most have cowered. I am especially disappointed and frustrated by Canada’s position. Besides claiming we welcome everybody in Canada and offering temporary stay in Canada for those trapped by the travel ban, there has been no concrete action. The government hasn’t condemned the Muslim ban, hasn’t increased our take of refugees, and is refusing to reconsider the status of the USA as a safe third country (a country that does not produce refugees). It seems that the government is choosing to protect economic relations with the USA over human dignity. For now, resistance from states seem improbable.
Resistance, as it is often the case, will thus be mainly in the hands of the general public. One of the resistance paths that has already been used with some success is legal actions. The state of Washington even managed to temporarily block the application of the Muslim ban while its legality is being fully evaluated by the courts. These efforts to use the courts to ensure the basic respect of the principle of the rule of law and consequently of basic rights and freedoms are commendable, and donating to organisations such as the American Civil Liberties Association, the Center for Constitutional Rights, and others (if you are Canadian, you should check out and consider supporting the work of the Canadian Cross-Border Legal Coalition) are good ways to support resistance efforts. However, they are not sufficient. In part because courts cannot by themselves ensure good governance, but mainly because the law has limits. Some of those limits are built within the system (such as legal doctrine, the limited power of the judiciary, the ability of the legislative and executive branch to cause damages within the bound of legality, etc). Lawyers only have the power to act within the system, and if the system crumbles, they are powerless. There is not guarantee that Trump will continue to (partially) obey the courts’ orders. He may decide to mimic Andrew Jackson who defied the Supreme Court by refusing to follow its ruling, famously stating “John Marshall [the Chief Justice] has made his decision; now let him enforce it” (leading Jackson and his administration to commit genocide against Indigenous people). This would be extremely troubling, but not necessarily surprising.
People, however, have the power to hold the system together, or to change it for the better. They can pressure officials, at all levels, to act with some modicum of decency. They can shatter the image that Trump’s fascist agenda has the support of the population. They can change the rules when they no longer work. Anger, channeled through protests, collective actions, and defiant acts of compassion (like protecting refugees and other targeted groups) is a powerful tool. We have already seen some of the positive effects of mass mobilisation over the last weeks. These acts of popular resistance will of course take different shapes depending on the situation, location, and ability of those who mobilise, but such actions need to be continuous and loud. We need to disrupt and delegitimise (even further) Trump’s administration. We need to put them on the defensive. I think it is the only way to show Trump that we are taking him seriously, and that we mean business. Additionally, the media needs to stop giving him and his lackeys a forum. They lie as they breathe, giving them access to millions of people only increase the legitimacy of their so-called “alternative facts”. It is not presenting both side of the medal when one of the sides is obviously a lie. The media should not become the propaganda machine of the government. We also need to stop pretending he can be reasoned with or that it is worthwhile to work with him on certain policies we may find appealing (e.g. rejecting the TPP). A piecemeal approach to his agenda only legitimatises it. His communication team (and maybe himself through twitter) would only use such support as a way to paint a reasonable image of Trump capable of bi-partisanship. We do not have to condemn actions that are reasonable, but we should not praise them. We must ensure that we reduce his legitimacy as much as possible until he is abandoned completely by those who support him. We cannot let Trump succeed further. We must resist.
 A glimpse inside Trump’s White House: Glenn Thrush and Maggie Haberman, Trump and Staff Rethink Tactics After Stumbles, The New York Times, 5 February 2017.
 See, for example, Will Gore, No, we shouldn’t call Donald Trump a ‘Nazi’ – the language we use must be based on the present, not the past, Independent, 6 February 2017; and Gianni Riotta, I Know Fascists; Donald Trump Is No Fascist, The Atlantic, 16 January 2016.
 See Isaac Chotiner, Is Donald Trump a Fascist?, Slate, 10 February 2016, for the differences between Trump and old fashion fascism, which I do not think are material since what interests me are the potential consequences of Trump’s version of fascism, not ideological nuances.
 Maggie Ybarra, Majority of fatal attacks on U.S. soil carried out by white supremacists, not terrorists, The Washington Times, 24 June 2015.
 See Jamil Dakwar, All international laws Trump’s Muslim ban is breaking, Al Jazeera, 2 February 2017; and Stephen Toope and Jutta Brunnée, Whither the rule of law?, The Globe and Mail, 9 February 2017.
 Gloria Galloway and Michelle Zilio, Despite Trump ban, Canada won’t increase refugee quotas, The Globe and Mail, 31 January 2017.
 See, for example, the difference in reaction to potential trade barriers: Adrian Morrow, Ottawa warns Trump team of retaliation if border tariffs imposed, The Globe and Mail, 8 February 2017.
 I use the word state in its internal sense (i.e. the nation-state). I recognise, however, that some USA (federated) states and local government have been leading resistance actions against the Trump administration.
 See https://en.wikipedia.org/wiki/Legal_challenges_to_Executive_Order_13769 for a list of different legal challenges against the Muslim ban. There will surely be other legal battles to fight, such as protecting trans peoples, ensuring environmental protection, and vindicating indigenous peoples’ rights.
 See the 9th Circuit US Court of Appeal decision of Washington v Trump here: http://cdn.ca9.uscourts.gov/datastore/opinions/2017/02/09/17-35105.pdf
The legal profession is not the most diverse of profession. For the longest time it was reserved for white cis men with enough financial mean to survive legal training. It has slowly opened its door to white cis women (although there are still issues, especially in the private sector). It is still very white and cis-hetero normative however. There are probably many causes for the homogeneity of the legal profession (financial barrier to access the profession, hiring biases in large firms, the image of the profession, etc). The Law Society of Upper Canada (LSUC) is at least currently considering ways to increase diversity in the profession. While the LSUC is far from having control over all the factors affecting diversity, it does have the power to accredit law schools, and law schools are often viewed as the true gatekeepers of the profession. This power is, however, rarely used as new law schools are a rare thing. Trinity Western University (TWU), a private university that caters to evangelical Christians, is the most recent university so seek accreditation. TWU has an infamous covenant that all students are required to sign. This covenant forbids sexual intimacy except between married heterosexual couples. This unsurprisingly shocked many people including benchers (the decision-makers of the LSUC). Accrediting TWU seemed, at the very least, to go against diversifying the legal profession. The LSUC ultimately rejected TWU accreditation because of its discriminatory covenant. A law suit ensued, pitting equality against freedom of religion. Days before Toronto Pride, the Ontario Court of Appeal (ONCA) upheld the decision of the LSUC. In this post, I shortly expose additional background on the case. I then explore the decision’s treatment of the LSUC’s decision making power. I finish by looking at the ONCA’s approach to the balancing of rights.
For those who are unaware, the Toronto Pride Parade was on 3 July this year. Usually the parade is pretty uneventful for the erudite. It can be a fun and colourful event (and has some significance when it’s your first), but it’s pretty repetitive (especially the one in Toronto). Same floats, same corporations pretending to care, same organisations, etc. This year, however, something pretty significant happened during pride. No, I’m not talking about Prime Minister Trudeau’s participation in the parade (I couldn’t care less about that in all honesty). Nor I am talking about the 34 years too late apology by the police for the Toronto bathhouse raids in the 80s (what about reparation?). I’m talking about the Black Lives Matter (BLM) protest during the parade. The group, composed largely of black queer people – supported by other people of colour and indigenous people (POCIP) – stopped the parade for 25 min to make demands to Pride Toronto. The demands were mostly more inclusion of POCIP in pride. One, however, shocked a great many people: the removal of the police as participants in pride events. The executive director of pride accepted the demands, only to backtrack in part the next day. We will see how things progress, but I doubt BLM will simply give up (thankfully).
When the COP 21 (the 21st session of the conference of the parties to the United Nations Framework Convention on Climate Change or UNFCCC) started this fall in Paris, I had little hope we would accomplish anything. In all honesty I spent more time thinking about what would happen if the world couldn’t agree on something concrete in Paris. However, the international community realised it was no longer possible to postpone or ignore the issue. We needed to act now, and to my great relief we did through the last minute adoption of the Paris Agreement and the accompanying COP 21 Decision. It is of course not the best agreement, and on its own it is clearly not enough to stop catastrophic climate change. But it is a first step that binds the international community, and a much needed signal that we need to take climate change seriously. In this post I will first briefly summarize what the Paris Agreement entails. I will then offer some thoughts on what the Agreement means for Canada.
Unless you’ve been living under a rock these past months, you are already aware of the devastating effects of the civil war in Syria on its population. Syrians are fleeing en masse their country, seeking refuge where they can. Bordering states are flooded with refugees, while waves of refugees attempt to reach Europe hoping for stability and security. The Syrian refugee crisis has produced many tragedies;  the most well-known here is probably the story of a family who tried to reach Canada but died in the process. Canada’s response to the crisis has been dismal and shameful, especially considering our past responses to similar crisis (the Vietnamese one for example). The new Liberal government is under a lot of pressure to change the situation. Trudeau has already promised to welcome 25 000 Syrian refugees before the end of the year, which gives me hope that the government attitudes towards the crisis will improve.