Systemic Transformation through Human Rights: Institutional vs Systemic Transformation through Human Rights: Institutional vs. Judicial Strategies in Québec Pierre Bosset, Université du Québec à Montréal III Congreso International Multihuri Valencia, June 1, 2017

Hints of systemic discrimination Higher rates of incarceration for Blacks, members of First Nations Higher rates of unemployment for Blacks, Arabs Underrepresentation of minorities in Civil Service Underrepresentation in elected positions Underrepresentation in arts & culture Etc.

Dealing with racism and discrimination: strategies Educational Political Law-based: Judicial Dialogue with public institutions

I. Judicial strategies Discrimination (Québec Charter of Human Rights and Freedoms) Québec Human Rights Commission investigates Québec Human Rights Tribunal decides

Discrimination complaints before Québec HR Commission (2015-2016)

Gains through judicial approach Reasonable accommodation (1985) Recognition of systemic discrimination (1987) Employer is legally responsible for discrimination by co-workers, clients (1993) “Preferences of clients” not an excuse for discrimination (1994) Racial profiling is a form of discrimination (2005) Court decisions feed educational strategies

Criticism of judicial approach Length of Commission investigations (average = 15 months) Higher rate of closed files for race discrimination complaints HR Commissions not sensitive enough to racism HR Commissions pay only lip-service to intersectionality Lack of systemic impact

II. Institutional strategies Systemic investigations (HR Commission) Race discrimination in Taxi industry (1985) Relations between Police and Minority Groups (1988)

Triggers and outcomes Several individual complaints pointing to widespread discrimination (Taxi) Death of young Black man + requests from NGOs (Police) Both consultations reveal extent of discrimination practices Recommendations have led to significant changes in practices, standards, training, laws & regulations

Institutional strategies (continued) Public consultations (HR Commission): The Public Consultation on Discrimination against Gays & Lesbians (1994)

Triggers and outcomes Sexual orientation: a prohibited ground in Québec since 1977 AIDS crisis in 1980s reveals indifference of health authorities Homophobic murders in 1990s + incidents of “gay-bashing” reveal extent of violence, inadequate police action LG community leaders ask HR Commission for public investigation (1993) HR Commission decides for public consultations; creates a joint committee with community leaders Health, police & legislation identified as key issues Consultations widely reported in media Consultation Report (1994) contains 41 recommendations, leads to significant changes in policy – including legal recognition of same-sex couples (2001)

Positive factors Consultation project was “co-constructed” HR Commission is independent from public authorities “Climate of confidence” was established between HR Commission and community leaders (Papy & Bureau, 2007) Participation in consultation was actively encouraged by community leaders Media empathically reported situations of discrimination experienced by members of LG community LG issues became politically mainstream In background: threat of legal action over recognition of same-sex couples

Institutional strategies (continued) Sui generis approaches: The Bouchard-Taylor Commission on Reasonable Accommodation of Cultural Differences (2007-2008)

Triggers The Multani case (Supreme Court of Canada, 2006) The role of media in fostering perceptions of unreasonable accommodations (Potvin, 2011) The role of politicians in making RA an “issue” Defusing the issue through a consultation commission (Over)broadening the issue? – Human Rights included, but not main focus

Follow-up to Report Classification of BT recommendations (Rocher, 2014): Instrumental Qualifications Skills Training French etc. Humanistic Human dignity Racism & discrimination Diversity Cross-cultural dialogue Citizenship Social cohesion Common values Rule of law Participation

Differential follow-up (Rocher, 2014) Instrumental: 50% Humanistic: 42% Citizenship: 17%

“It would seem that public authorities have devoted more efforts to the instrumental dimension of managing diversity than to what appeared to lie behind the creation of the [BT] Commission, i.e. the ‘identity problem’ or the general issue of citizenship.” Rocher (2014, my translation)

A commission on systemic racism: issues still under discussion Racism or discrimination? What kind of “commission”? What kind of “consultation”? Which aspects to cover? Etc.

Institutional strategies: Potential/Conditions Institutional strategies can promote systemic change Institutional strategies can have a mobilizing effect on communities Institutional strategies can have an educational impact Institutional strategies can be combined with legal strategies Institutional strategies work best when co-operating with independent public institutions Institutional strategies work best when co-constructed

Merci! Thank you! ¡Muchas gracias!