The Importance of Distinguishing Racism from Racial Discrimination

By Linda McKay-Panos

Reposted from LawNow 45(1) with permission

Recently, anti-racism has received extensive media coverage. Instead of addressing what can be done about it, there has been much discussion about whether racism—particularly systemic racism—exists in Canada, and apparent confusion about the meaning of important terms. For example, on June 9, 2020, CBC reported that Alberta Deputy RCMP Commissioner Curtis Zablocki denied there was systemic racism in policing in Canada. RCMP Commissioner Brenda Lucki said that Deputy RCMP Commissioner Zablocki had indicated he misunderstood the meaning of “systemic racism”. In order to proceed to actually address racism, it is very important that everyone is very clear about terminology.

Racism, racial discrimination and even systemic racism are often used interchangeably, leading to confusion and misinformation. Provincial, territorial and federal legislation prohibit racial discrimination. The Canadian Charter of Rights and Freedoms (Charter) prohibits racial discrimination by the government. There are limited circumstances under this legislation where racial discrimination may be justified by the government or the respondent.

“Race” is one of several grounds covered under both human rights legislation and s. 15(1) of the Charter. Walter Tarnopolsky defined race for the purposes of human rights law (as quoted in Blake v Loconte (1980), 1 CHRRD/74 at D/78 (Ont. Bd. of Inquiry)) as:

… only one [Board of Inquiry] has attempted to provide a definition of the word ‘race’ and this was the 1976 Board of Inquiry under the Alberta Individual’s Rights Protection Act [S.A. 1972, c. 2, in] the case of Ali v. Such… The Board quoted from Webster’s New World Dictionary (2d. ed.) and Black’s Law Dictionary (rev. 4th. ed) and thereupon concluded that ‘race indicates broad or great divisions between mankind, and each of the definitions indicates that the races have physical peculiarities that distinguish one race from the other’. 

Legislation often does not define “discrimination”, but leading cases from the Supreme Court of Canada (SCC) provide guidance. Under human rights law, the leading case is Moore v British Columbia (Education), 2012 SCC 61 (Moore). Moore provides:

[33] … [T]o demonstrate prima facie discrimination, complainants are required to show that they have a characteristic protected from discrimination under the Code; that they experienced an adverse impact with respect to the service; and that the protected characteristic was a factor in the adverse impact.

 Under s. 15(1) of the Charter, the SCC summarizes the law on discrimination in Quebec (Attorney General) v Alliance du personnel professionnel et technique de la santé et des services sociaux, 2018 SCC 17:

[25] … The test for a prima facie violation of s. 15 proceeds in two stages: Does the impugned law, on its face or in its impact, create a distinction based on enumerated or analogous grounds? If so, does the law impose ‘burdens or den[y] a benefit in a manner that has the effect of reinforcing, perpetuating, or exacerbating … disadvantage’ (citation omitted).

Intention is not relevant in discrimination; we do not consider whether a person intended to discriminate. It is the impact of the discrimination that we take into account.

 The legal tests for “discrimination” and “race” indicate that a person faces racial discrimination any time a person experiences an adverse impact (e.g. caused by the operation of law under the Charter; or in areas such as employment, tenancy or public services under human rights law) because of their race. This applies to white people, persons of colour, black persons and Indigenous people. For example, if a prospective employer did not hire an otherwise qualified person based on their race, that would be racial discrimination. This discrimination is illegal unless the employer can reasonably justify it. In short, it is possible for a white person, an Indigenous person or a person of colour to experience racial discrimination.

The law addresses behaviour and not attitudes. While racial discrimination is an action, it is often caused by racial prejudice, which is an attitude. According to the Calgary Anti-Racism Education (CARED) website:

Assumptions and stereotypes about white people are examples of racial prejudice, not racism. Racial prejudice refers to a set of discriminatory or derogatory attitudes based on assumptions deriving from perceptions about race and/or skin colour. Thus, racial prejudice can indeed be directed at white people (e.g., white people can’t dance) but is not considered racism because of the systemic relationship of power.

Thus, racism is not the same as racial discrimination. Although people sometimes refer to racial discrimination as “racism”, this creates confusion and is not correct. Racism is a combination of racial prejudice (or discrimination) plus power. By “power”, we are talking about who is recognized and accepted as having power in society as a whole. In this context, the power is socially-imbued but not necessarily earned. For example, in Canada and the United States, it is generally accepted that heterosexual white middle-aged males are natural leaders. We can see this by looking at various institutions – such as governments, legislatures, large corporations, justice and other institutions – to see who is at the head (or who has the power).

CARED further explains “power” as follows:

By power we mean: the authority granted through social structures and conventions—possibly supported by force or the threat of force—and access to means of communications and resources, to reinforce racial prejudice, regardless of the falsity of the underlying prejudiced assumption. Basically, all power is relational, and the different relationships either reinforce or disrupt one another.

Systemic racism and institutional racism are subsets of racism. Frances Henry and Carol Tator define racism in The Colour of Democracy 4th ed (Toronto: Nelson Education, 2010) at p 383 as:

A system in which one group of people exercises power over another on the basis of skin colour; an implicit or explicit set of beliefs, erroneous assumptions, and actions based on an ideology of the inherent superiority of one racial group over another, and evident in organizational or institutional structures and programs as well as in individual thought or behaviour patterns. 

In the case of Canada and United States, white people currently possess socially-imbued power and this is reflected in our institutions. The Centre for Race and Culture talks about systemic racism in Canadian society as follows:

A system of power and violence that structures opportunity and assigns value based on the social construct of race where privilege is afforded to whiteness. A system that unfairly disadvantages Black, People of Colour and Indigenous Communities while subsequently unfairly advantaging communities and individuals embraced by whiteness. 

Another confusing term is being incorrectly used interchangeably with systemic racism—systematic racism. These two terms are not the same. Josh Burnoff provides the following explanation:

Systematic racism is a set of practices that discriminate on the basis of race. Systemic racism is a system that has racism inherent in how it operates.

Systematic racism is relatively easy to fix, if you care to try. Systemic racism requires a deeper level of thinking. I also think it demands including a racially diverse set of decision makers, because a diverse set of people can more easily identify racism in the systems that include racism within it, whether that racism is intentional or not.

Why is it very important to be clear? When a white person says that they have experienced racism, this is not possible in Canada because white people currently possess socially-imbued power. However, they may well have experienced racial discrimination and can obtain a legal remedy in some circumstances. For more in-depth information on racism and racial discrimination, please visit CARED.