HOW SOME VICTIMS OF DISCRIMINATION ARE LEFT BEHIND BY THE QUEBEC JUSTICE SYSTEM

Montreal, July 2, 2015

In two recent complaints of discrimination filed by CRARR on behalf of English-speaking racialized people (one of whom is an immigrant from China who speaks limited English as a second language), the Quebec Human Rights and Youth Rights Commission concluded that there was sufficient evidence to allow the victims to proceed before the Quebec Human Rights Tribunal. However, in both cases the Commission exercised its discretionary power not to provide free legal representation to the victims before the Tribunal, leaving them to go at their own expenses.

These two cases point to a problem with the Quebec human rights system (which is composed of the Commission and the Tribunal) which was becoming apparent even before the current measures of austerity. Under Quebec’s human rights Charter, the Commission has the discretionary power to refer a case to the Tribunal without providing free legal representation for the victim of discrimination, exploitation (in cases of seniors and people with disabilities) and reprisal, if it deems that, among other things, the case is not of “public interest” and raises no new questions of law.

According to the Commission’s annual reports, the number of cases which the Commission brought and the number in which it allowed individuals to go at their own expense before the Tribunal are as follows: In 2013-2014, 40 cases were brought before the Tribunal, while in 12 cases, the victims were left to go at their own expenses. In 2012-2013, the numbers were respectively 42 and 19, while in 2011-2012, the numbers were 49 and 23.

The Tribunal’s own data, however, shows a more different and disturbing situation: In 2013-2014, 36 were actually brought by the Commission before the Tribunal while in only 2 cases, victims actually went on their own (in fact, in one case, the victim went despite the Commission's ruling that there was no discrimination). In 2012-2013, the numbers were respectively 36 and 9, and in 2011-2012, the numbers were 48 and 4.

In other words, less than a quarter of the of the victims who the Commission chooses not to represent before the Tribunal actually brought their cases there on their own. There is no information as to what kind of cases are refused free legal representation by the Commission, why most unrepresented victims choose not to go on their own, and on the sociodemographic make-up of those victims as a group.

Although a complainant’s vulnerability, the “complexity of the case” and the “gravity of [the] injustice” constitute some of the factors that are supposed to be taken into account by the Commission when deciding whether or not to represent a person before the Tribunal, the reality is that vulnerable individuals who have experienced serious discrimination are often being left without representation. This phenomenon exacerbates the multiple obstacles that victims of discrimination who are economically, socially and linguistically disadvantaged already encounter in accessing the Quebec justice system.

As the Chinese worker’s case shows (see http://crarr.org/?q=node/19706), the Human Rights Commission does not appear to always consider a victim’s low income, age, disability and linguistic or cultural difficulties as factors of “vulnerability.”

This is the fourth CRARR-assisted case in the last two years that involved racialized victims of discrimination whose complaints were upheld by the Commission, but who were declined free legal representation before the Tribunal despite their economic vulnerability and other disadvantages. In three of those cases, the victims were on public assistance; one of whom also happened to have special mental health needs. In all, three victims were forced to abandon their claims and the other had to borrow heavily in order to pursue justice.

What is equally troubling is that the Respondent in each case is not your average private citizen: one, for instance, was a multinational department store; and the other, a leading national commercial property owner and manager. In the third case, it was a public transit corporation.

Under international law (such as the International Convention for the Elimination of Racial Discrimination), Canada is obliged to provide “effective” protection against discrimination. It could be argued that the practice of letting socially and economically vulnerable complainants go at their own expense before the Human Rights Tribunal, without legal representation by the Human Rights Commision, especially when the respondents are major state institutions or private corporations, goes against the principle of effective protection and that of equal protection and benefit of the law.

Another trend is also worth noting: according to the Quebec Human Rights Tribunal’s list of decided cases, over the past five years racialized Anglophones, especially English-speaking Blacks, as a demographic group have remained largely underrepresented among victims whose cases are brought by the Quebec Human Rights Commission before the Human Rights Tribunal. Yet social data, such as those produced by the 2010 Black Communities Demographic Project, shows that English-speaking Blacks, experienced significant social and economic disparities, including pervasive systemic racism.

Why this under-representation exists, and whether English-speaking racialized complainants are more likely to be left behind by the Commission, is also an issue that requires scrutiny.

It should be noted that almost 20 years, racialized Anglophones have been markedly absent as staff lawyers and investigators in the Quebec human rights system, where equality in employment is supposed to be the foundational principle, and intersectionality, a core operational notion. There are obviously systemic barriers in employment, and the correlation between these barriers and the dearth of cases brought before the Tribunal that involve English-speaking racialized persons also merit examination, especially in light of recent deeply questionable decisions reached by the Commission in a number of CRARR-assisted cases involving English-speaking Black complainants who had experienced racial discrimination and profiling.

An in-depth analysis is therefore required to determine the extent to which the Quebec Human Rights Commission resorts to the practice of refusing to provide representation to individuals whose complaints have been upheld, the financial and human consequences of this practice, and most importantly, the demographic profile of the people left to go on their own. The Quebec Auditor General, or the National Assembly’s Commission on Institutions, would be best placed to conduct this much-needed examination, if, and this is a big if, human rights and access to justice are among their priorities.

Until these questions are effectively addressed, one of the outstanding flaws of Quebec’s 40-year old human rights system remains.