E/CN.4/2004/18/Add.2
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74.
The legal strategy is limited in several ways. In the first place, it suffers from a lack of
vigilance, flexibility, adaptability and creativeness. Discrimination in fact presents a shifting
landscape, whose colours, contours and textures are transformed and evolve, inconspicuously
and ineffably, under the pressure of migratory movements or ideological and ethical factors, or
as a result of the dilemmas and contradictions of multiculturalism and bilingualism. One
example would be the failure to extend the rights of French speakers to non-Quebec
communities. So the Canadian multicultural landscape is constantly changing under the
demographic and cultural influence of successive waves of immigration and the ideological and
political impact of the situation and climate in the region and in the world at large. In the Special
Rapporteur’s view, this environment is particularly exposed to xenophobic and racist political
platforms, which emerge like poisonous plants whenever national identity safeguards are
disrupted by the thrust of pluralism, arising either from historical events such as slavery,
colonization and imperial expansion or from immigration or globalization. He considers also
that this sort of environment is affected by technological progress, particularly in the area of
communications, through which other factors are amplified.
75.
The effectiveness of any political and legal strategy against racial discrimination is
therefore necessarily dependent on political vigilance and legal inventiveness. Canada’s legal
strategy must not be allowed to suffer from complacency and immobilism, but must evolve and
change in order to find appropriate responses to the new challenges and dangers of
discrimination and xenophobia, such as the non-recognition of the qualifications and
professional experience of immigrants.
76.
Canada’s judicial and quasi-judicial system is not very effective in the protection it offers
victims of racial discrimination. The members of communities interviewed believe that the laws
are not properly applied. For example, some representatives of aboriginal peoples consider that
the failure to apply the treaties which those peoples signed constitutes a significant, lasting
historic denial of rights in a country governed by the rule of law. Thus the excellent legal
coverage provided by a network of national and provincial human rights commissions in the
country is discredited in the eyes of the communities concerned owing to excessive delays in the
processing of discrimination complaints. The rapid treatment required by such cases owing to
their social, economic and emotional impact is impeded by the backlog due to inadequate
resources. The Special Rapporteur’s attention was also drawn to the fact that, owing to a lack of
sufficient intercultural training, the commissions’ investigators are limited in their deeper
understanding of the emotions and feelings underlying the complaints and thus ill-equipped to
elucidate the human dramas experienced by the victims. A purely legalistic or legal approach is
not sufficient when it comes to appreciating the structural, cultural and psychological dimensions
of racial discrimination. Inevitably the members of communities that are regularly exposed to
racial discrimination are suspicious of the judicial system.
77.
The legal strategy is also handicapped by poor coordination at national level in the
struggle against racism and discrimination. The Special Rapporteur was struck by the lack of
information exchanges between provinces concerning their policies and practices, often in areas
as sensitive as “racial profiling”. Even though the provinces are bound by national legislation,
the political and judicial authorities in charge do not deal with racial discrimination with the
same degree of motivation, the same sensitivity or the same keenness to find appropriate
solutions. Thus the question of the observance of treaties, by which the aboriginal communities
set such store, has been dealt with in Saskatchewan through an educational programme