1. 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

3. 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.

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

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

7. Discrimination complaints before Québec HR Commission (2015-2016)

8. 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

9. 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

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

11. 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

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

13. 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)

14. 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

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

16. 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

17. 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

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

19. “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)

20. 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.

21. 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

22. Merci! Thank you! ¡Muchas gracias!