Confronting our failures: Tensions in remedying systemic discrimination in Canada
| Published date | 01 December 2024 |
| DOI | http://doi.org/10.1177/13582291241291024 |
| Author | Sophie Bisping |
| Date | 01 December 2024 |
Article
International Journal of
Discrimination and the Law
2024, Vol. 24(4) 313–337
© The Author(s) 2024
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DOI: 10.1177/13582291241291024
journals.sagepub.com/home/jdi
Confronting our failures:
Tensions in remedying systemic
discrimination in Canada
Sophie Bisping
Abstract
This article examines the complexities of providing remedies for systemic discrimination
in light of evolving understandings of equality and justice. Despite constitutional and
statutory protections affirming the right to live free from discrimination, there remains a
significant gap between recognizing systemic discrimination and implementing effective
remedies. The 2021 case of Canada (Attorney General) v. First Nations Child and Family Caring
Society of Canada serves as a focal point to highlight the shortcomings of the current
remedial framework, which often prioritizes corrective over transformative justice,
reflecting a formal rather than substantive approach to equality. In this case, the Canadian
Human Rights Tribunal found that Canada’s inequitable funding of First Nations child
welfare services was discriminatory on the grounds of race and national or ethnic origin. It
ordered Canada to compensate every child impacted, while simultaneously imposing
systemic remedies such as reforming federal funding policies. By exploring the Tribunal’s
decision to uphold both individual and systemic remedies, the paper argues for a more
integrated approach that moves beyond the dichotomy of individual versus systemic
discrimination. It advocates for co-designed remedies informed by the perspectives of
affected communities, calling for a shift in how systemic discrimination is addressed within
Canada’s legal framework.
Keywords
Remedies, systemic discrimination, Canada, Indigenous communities, child welfare
policies
McGill University Faculty of Law, Montreal, QC, Canada
Corresponding author:
Sophie Bisping, Faculty of Law, McGill University, 3644 Peel St, Montreal, QC H3A1W9, Canada.
Email: sophie.bisping@mail.mcgill.ca
Introduction
The fundamental right to a remedy is encapsulated in the legal maxim ubi jus ibi re-
medium, which holds that where there is a right, there must be a remedy for its violation. In
Canada, constitutional and statutory protections affirm the right of every individual to live
free from discrimination. As contemporary understandings of discrimination evolve,
providing appropriate remedies for breaches of the right to equality has grown more
complex. This calls for a renewed evaluation of the law’s remedial framework to better
address these nuances.
This complexity has been particularly manifest in cases of systemic discrimination. As
opposed to direct
1
or indirect
2
discrimination, systemic discrimination denotes situations
where “patterns of behaviour, policies or practices that are part of the structures of an
organization, […] create or perpetuate disadvantage”
3
for persons belonging to a par-
ticular group. Because it is rooted in patterns of behaviour, it is often pervasive and deeply
entrenched in everyday realities, including through unchallenged direct and indirect
discrimination in both the public and private spheres.
4
This compendium of realities
creates disadvantages for some groups and privileges for others.
Bridging the gap between the harms caused by systemic discrimination and crafting
appropriate remedies is a complex challenge, yet not insurmountable, as demonstrated by
the Canadian Federal Court’s decision in Canada (Attorney General) v. First Nations
Child and Family Caring Society of Canada [Canada v. Caring Society]. This landmark
ruling was notable not only for awarding both individual compensation and forward-
looking structural remedies but also for reaffirming the authority of administrative tri-
bunals to impose positive policy obligations on the government.
5
Yet this decision also
underscores the existing barriers to innovative remedies in the pursuit of substantive
equality.
6
Examining this case and its judicial history reveals the shortcomings of the
prevailing remedial approach to human rights violations, which relies on a corrective
justice framework that impedes progress towards substantive equality in Canada. This
paper connects the prevalent critique of corrective justice in addressing systemic dis-
crimination with the fundamental tenets of substantive equality: the commitment to
achieve equitable outcomes and acknowledge the historical patterns of disadvantage
faced by Indigenous peoples in Canada. Ultimately, it suggests that systemic remedies
need to be informed by the perspectives of the communities they are crafted for.
The case of Canada v. Caring Society centres on the Federal Government’s inadequate
funding for child and family services on First Nations reserves,
7
which led to delays,
denials, and disruptions in services, ultimately resulting in a higher number of children
being placed in foster care. In 2007, the First Nations Child and Family Caring Society of
Canada and the Assembly of First Nations filed a complaint with the Canadian Human
Rights Tribunal (CHRT) under section 5 of the Canadian Human Rights Act,
8
arguing that
this underfunding constituted systemic discrimination based on race and national or ethnic
origin. In 2016, the Tribunal ruled in favour of the Caring Society, finding that First
Nations were negatively affected or denied services due to the actions of Aboriginal
Affairs and Northern Development Canada, and that race or national/ethnic origin played
a role in these adverse impacts.
9
The Tribunal ordered the department, now known as the
314 International Journal of Discrimination and the Law 24(4)
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