From Discrimination to Systemic Racism: Understanding Societal Construction

INTRODUCTION

Recently RCMP Commissioner Brenda Lucki admitted she really didn’t understand the term “systemic racism” and later showed she was correct when she provided an old and obvious example of indirect discrimination as an example of systemic racism. Here I explore the evolution from discrimination to systemic discrimination to systemic racism and why they are different, although related.

There’s a lot of talk now about systemic or structural racism: how widespread it is and why it needs to be addressed. There are also some suggestions about how to eliminate it with many organizations and individuals explaining how they have practised systemic racism and what they will do to change. Systemic racism is inherent in institutions other than law, but it certainly involves law, both as a means to reinforcing other spheres of society and a focus in itself. Systemic racism raises questions about all aspects of law: legal institutions, its norms and practices, legislation, enforcement and interpretation, and legal education, and those who populate them.

In truth, though, it is impossible to treat law as a distinct phenomenon because systemic racism permeates the entire system, as do systemic sexism and other systemic phenomena, and all feed on each other. Despite the widespread condemnation of Commissioner Lucki’s reliance on an inadequate and in a significant way inappropriate example of systemic racism, it is also important to appreciate how systemic discrimination and systemic racism relate to each other.

Before continuing, let me clarify that systemic racism is one manifestation — a serious and highly consequential one, to be sure — but one manifestation of a larger reality about our current society: that it is premised on a systemic subtext and underpinning based on relations of dominance and suppression that govern members of disempowered groups. These relations exist in most if not all other countries, as well as Canada. That is to say, there are norms and values, assumptions and premises, expectations and ways of measuring that reflect how everyone is to behave and that govern, explicitly or tacitly, how the societal goods and benefits are to be distributed. Crucially, these norms and so on too often continue to play out even if laws and policies say otherwise. At times, these underlying premises, assumptions or beliefs come out in the open as distinct examples of discrimination; more likely, they are insidious and harder to identify, found in patterns of treatment. Unlike specific examples of discrimination, they thread their way through the broadest contours of the society. They are the roots beneath the overt premises and institutional norms that govern society.

Most significantly, as the National Post wrote recently, “The idea of systemic racism is not about individual attitudes. It is about how society works. Good people can participate in systemic racism.” Systemic racism reflects deeply embedded, hardly articulated, and often unspoken, assumptions about how the society should function and about people’s roles in the society. And in this it departs from our earliest thinking about discrimination and even, in its depth and breadth, from our more recent adoption of systemic discrimination.

THE EVOLUTION OF DISCRIMINATION THEORY: FROM DIRECT TO SYSTEMIC

There are many examples of how the law, personal views and discrimination or racism have interacted (and continue to do so). I provide one from over 70 years ago, restrictive covenants on the sale or occupancy of property, with reference to two famous cases. The first is a covenant that “[l]and not to be sold to Jews, or to persons of objectionable nationality”. The purchaser of property subject to the covenant, Drummond Wren, subsequently sought to have it declared invalid; no one opposed doing so. MacKay J. in the Ontario High Court of Justice, in Re Drummond Wren (1945) said

If sale of a piece of land can be prohibited to Jews, it can equally be prohibited to Protestants, Catholics or other groups or denominations. If the sale of one piece of land can be so prohibited, the sale of other pieces of land can likewise be prohibited. In my opinion, nothing could be more calculated to create or deepen divisions between existing religious and ethnic groups in this province, or in this country, than the sanction of a method of land transfer which would permit the segregation and confinement of particular groups to particular business or residential areas, or, conversely, would exclude particular groups from particular business or residential areas. The unlikelihood of such a policy as a legislative measure is evident from the contrary intention of the recently-enacted Racial Discrimination Act, and the judicial branch of government must take full cognizance of such factors.

Although he relied on many external sources relating to non-discrimination, MacKay J. explained, “My opinion as to the public policy applicable to this case in no way depends on the terms of The Racial Discrimination Act, save to the extent that such Act constitutes a legislative recognition of the policy which I have applied.”

The Racial Discrimination Act, 1944 did not address restrictive covenants, but prohibited notices or other forms of representation “indicating discrimination or an intention to discriminate against any person or any class of persons for any purpose because of the race or creed of such person or class of persons”. It was originally intended to cover “employment, housing, and recreational accommodations and properties”. A history of the Act on its 75th anniversary, illustrated by a 1935 ad for a Muskoka resort that subtly states it has a “restricted clientele”, explains why the legislation was necessary, providing other examples of anti-Semitic practices.

The second covenant from 1933 is reproduced on the Human Rights History website here. The people targeted by the covenant were

any person wholly or partly of negro, Asiatic, coloured or Semitic blood, …[or] any person less than four generations removed from that part of Europe lying south of latitude 55 degrees and east of longitude 15 degrees east. Relationship, however slight, to any class forbidden as aforesaid shall be deemed sufficient to prevent transfer to or occupancy by such persons of northern and western European descent, other than Jews.

The vendor, Anna Noble, wanted to sell the land to Bernard Wolf, believed to be Jewish; other owners in the same parcel objected. Noble sought a declaration that the covenant was invalid, relying on Re Drummond Wren Both the Ontario Supreme Court and the Ontario Court of Appeal held the covenant to be valid and enforceable. At the Supreme Court of Canada, the covenant was found to be invalid, as not running with the land and as a restraint on alienation; in part because it was not possible “to set such limits to the lines of race or blood as would enable a court to say in all cases whether a proposed purchaser is or is not within the ban” and was thus void for uncertainty (Rand J., Noble v. Alley, p.70).

Although the majority on the SCC held the covenant was invalid, there was a dissent that held it was valid. Furthermore, six other judges, one in the Ontario Supreme Court and five on the Ontario Court of Appeal, also held it was valid. Restrictive covenants and the challenges to them illustrate how personal bigotry, legal principles and the role played by individuals in law (rather than the law itself) can feed on each other. They show how ostensibly neutral legal principles can reinforce the personal bigotry and how recognizing and transcending discrimination is a chancy thing.

(For those interested in how these cases relate to each other and in how much McKay J. was ahead of his time in his analysis, see a 1951 Canadian Bar Review comment by C.B. Bourne here. I realize that for some, these developments may seem a long time ago, with the assumptions underlying the covenants long past, although they are, of course, part of the historical underpinning of the claims of systemic racism today. However, I often find that time is an elusive concept and for me the “nearness” of Noble v. Alley is highlighted by the fact that J.J. Robinette, K.C., who represented Noble, represented one of the parties in an appeal case in which I was involved as an articling student.)

In 1950, the Conveyancing and Law of Property Act prohibited restrictive covenants. Its original and current wording 70 years later in section 22 is as follows: “Every covenant made after the 24th day of March, 1950, that but for this section would be annexed to and run with land and that restricts the sale, ownership, occupation or use of land because of the race, creed, colour, nationality, ancestry or place of origin of any person is void and of no effect.”

Section 22 of the Conveyancing and Law of Property Act codified the actual result in Noble v. Alley. It sits among several Ontario statutes that addressed discrimination in different contexts that operationalized the move towards human rights following World War II.

The Universal Declaration of Human Rights, a general statement, was proclaimed in 1948. Other international human rights instruments are designed to combat discrimination against particular groups, including discrimination against indigenous peoples, migrants, minorities, people with disabilities, women, race, religion, sexual orientation and gender identity (these are listed here). Other context-specific rights are to be “exercised without discrimination” (see, for example, Article 2(2) of the International Covenant on Economic, Social and Cultural Rights).

These international instruments, premised on the concept of discrimination, led to the enactment of a number of statutes across Canada also employing the anti-discrimination model, beginning in the 1950s. They prohibited discrimination in specific contexts and against specific protected groups.

In Ontario, the Fair Employment Practices Act, 1951 prohibited discrimination based on “race, creed, colour, nationality, ancestry or place of origin” in employment; the Female Employees Fair Remuneration Act, 1951 which prohibited an employer from discriminating by “paying a female employee at a rate of pay less than the rate of pay paid to a male employee employed by him for the same work done in the same establishment”; and the Fair Accommodation Practices Act, 1954, which provided as follows: “No person shall deny to any person or class of persons the accommodation, services or facilities available in any place to which the public is customarily admitted because of the race, creed, colour, nationality, ancestry or place of origin of such person or class of persons.” This statute also included the prohibition in relation to signage that had been the subject of the Racial Discrimination Act, 1944, which it repealed.

In 1969, Vancouver enacted a by-law affecting persons operating a business under a municipal licence prohibiting racial discrimination in the selling of goods or providing a service or accommodation “by reason only of [a] person’s race, creed or colour”. And it was not until 1970 that legislation prohibited discrimination against women on grounds of sex and marital status in employment (see The Women’s Equal Employment Opportunity Act, 1970, which also included provisions relating to pregnancy), and even then the statute applied to both men and women (somewhat akin to prohibiting anyone from sleeping under bridges).

(Most federal and provincial statutes relating to non-discrimination on several grounds are helpfully listed on the Canada’s Human Rights History website, with links to the legislation.)

These statutes were important in acknowledging discrimination and in providing a means to challenge and penalize it. But they reflect an attempt to address particular kinds of discrimination, not necessarily by government, but by private entities, whether restaurant owners, employers, landlords or others.

By the late 1960s, all Canadian provinces and the federal level had enacted comprehensive human rights or anti-discrimination legislation (the territories did so at later dates). I refer to Ontario’s Human Rights Code (“the Ontario Code” or “the Code”) as an example of how these statutes operate. (Again, all Canadian human rights statutes, federal and provincial, can be found on the Human Rights History website.) The current Code has been expanded since it was first enacted in 1962 when it effectively brought together some of the existing anti-discrimination legislation. It applied then to “signs, services, facilities, public accommodation, employee and trade union membership” and the protected grounds were no broader than those in the existing statutes (that is, race, creed, colour, nationality, ancestry and place of origin).

The current Ontario Code, which applies to both private and government entities, protects people against discrimination in the provision of services, accommodation and employment and vocational associations, such as trade unions on the grounds of “race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, marital status, family status or disability” (receipt of public assistance is also a protected ground for accommodation). It also prohibits harassment in relation to accommodation and employment on the same grounds and sexual harassment in these areas on the grounds of “sex, sexual orientation, gender identity or gender expression”. There are a number of provisions that relate specifically to disability or to other grounds. The Code also incorporates the purpose of the Racial Discrimination Act respecting notices (although not limited to race), including the protection of expression of free opinion (Code, s.13).

The Code also reflects some of the tension that exists between the rights it provides. For example, it permits infringement of the right to marry if the refusal to solemnize a marriage or provide “sacred space” for a marriage to take place is based on religious belief (Code, s.18.1).

The original focus in anti-discrimination legislation was on the intention of the individual claimed to have discriminated. That was reflected in the early statutes and in the human rights legislation. And certainly there were sufficient cases to show that this was a legitimate requirement, that an employer refused to hire a Black person because they were Black, for example. This approach made it easy to blame failure to abide by human rights expectations or specific legislative requirements to “bad apples” who were not following the rules.

Thus a major development in human rights legislation was the recognition that a finding of discrimination did not require intention, it could be unintentional or indirect, if the effect was to discriminate. It did not matter if an individual refused to hire a Black person if the result of applying the employer’s practices of relying on personal connections for references was a failure to hire Black applicants. In Ont. Human Rights Comm. v. Simpsons-Sears, the Supreme Court of Canada discussed cases determined by previous inquiry boards and lower courts (as well as the SCC) that determined not only that intention was not required, but also that the Code also prohibited indirect, adverse effect or impact discrimination, despite lack of wording to that effect. As McIntyre J., for the Court, explained,

[Adverse effect discrimination] arises where an employer for genuine business reasons adopts a rule or standard which is on its face neutral, and which will apply equally to all employees, but which has a discriminatory effect upon a prohibited ground on one employee or group of employees in that it imposes, because of some special characteristic of the employee or group, obligations, penalties, or restrictive conditions not imposed on other members of the work force. (Simpsons-Sears, para.18)

However, in the case of indirect discrimination, McIntyre J. ruled, the offending rule is not struck down but the parties must accommodate the person against whom there has been discrimination up to the point of undue hardship for the party discriminating (Simpsons-Sears, para. 23).

Section 11 of the Ontario Code does now prohibit indirect discrimination, which it terms “constructive discrimination”, unless “the requirement, qualification or factor is reasonable and bona fide in the circumstances”.

It is this indirect or adverse effect discrimination that Commissioner Lucki referenced in her testimony.

The Supreme Court subsequently held in the 1999 case of British Columbia (Public Service Employee Relations Commission) v. BCGSEU (Meiorin) that there should be no distinction between direct and indirect discrimination. The boundaries between them are vague and it is unrealistic to make the distinction (that is, it is too easy to disguise direct discrimination as indirect discrimination). The other reason is that the distinction “may, in practice, serve to legitimize systemic discrimination, or ‘discrimination that results from the simple operation of established procedures of recruitment, hiring and promotion, none of which is necessarily designed to promote discrimination'” (Meiorin, para. 39, citing Canadian National Railway Co. v. Canada (Canadian Human Rights Commission (1987)). Furthermore, McLachlin J. (as she then was) explained that while permitting accommodation, the conventional analysis relating to indirect discrimination has not permitted striking down the offending provisions.

Writing for the Court, McLachlin J. cited an important passage from Shelagh Day and Gwen Brodsky’s “The Duty to Accommodate: Who Will Benefit?”:

‘The difficulty with this paradigm is that it does not challenge the imbalances of power, or the discourses of dominance, such as racism, ablebodyism and sexism, which result in a society being designed well for some and not for others. It allows those who consider themselves “normal” to continue to construct institutions and relations in their image, as long as others, when they challenge this construction are “accommodated”.

Accommodation, conceived this way, appears to be rooted in the formal model of equality. As a formula, different treatment for “different” people is merely the flip side of like treatment for likes. Accommodation does not go to the heart of the equality question, to the goal of transformation, to an examination of the way institutions and relations must be changed in order to make them available, accessible, meaningful and rewarding for the many diverse groups of which our society is composed. Accommodation seems to mean that we do not change procedures or services, we simply “accommodate” those who do not quite fit. We make some concessions to those who are “different”, rather than abandoning the idea of “normal” and working for genuine inclusiveness.

In this way, accommodation seems to allow formal equality to be the dominant paradigm, as long as some adjustments can be made, sometimes, to deal with unequal effects. Accommodation, conceived of in this way does not challenge deep-seated beliefs about the intrinsic superiority of such characteristics as mobility and sightedness. In short, accommodation is assimilationist. Its goal is to try to make “different” people fit into existing systems.’ (cited in Meiorin, para. 41 [my emphasis])

Systemic discrimination, referring to rules or practices, goes beyond the impact on an individual; a challenge to discriminatory practices that are systemic raises a need to assess rules and policies across an institution to bring about change. Systemic discrimination complaints may still be limited to a particular entity, such as a particular employer, or a broader study of practices that are common in comparable entities may result in broader change. For example, the Abella Commission (reporting in 1984) was given the task of inquiring into the practices of 11 Crown and government-owned corporations to develop remedies to promote “equality in employment for … women, native people, disabled persons, and visible minorities” (Equality in Employment: A Royal Commission Report [“Abella Report”], p.v). Two aspects of determining the reasons for disadvantage stand out and to developing remedies: the first is that it was necessary to understand the societal context in which the corporations functioned; and the second is that systemic discrimination results from “the inexorable, cumulative effect on individuals or groups of behaviour that has an arbitrarily negative impact on them[that] is more significant than whether the behaviour flows from insensitivity or intentional discrimination”, requiring systemic remedies such as employment equity and affirmative action that respond to “patterns of discrimination” (Abella Report, p.9).

We have used the concept of systemic discrimination in the human rights field and in Canadian Charter of Rights and Freedoms analysis for many years. Indeed, Charter interpretation imported it, as it did much else in relation to section 15, the equality guarantee, from human rights anti-discrimination analysis, beginning with the first section 15 case, Andrews v. Law Society of British Columbia: “In general, it may be said that the principles which have been applied under the Human Rights Acts are equally applicable in considering questions of discrimination under s. 15(1)”, with some exceptions of which systemic discrimination is not one. Justice McIntyre referred to the 1987 decision of the Canadian Human Rights Commission in Canadian National Railway Co. v. Canada (Canadian Human Rights Commission), which in turn relied on the discussion of systemic discrimination in the Abella Report on employment equity.

The 1992 report of the Ontario Human Rights Code Review Task Force, chaired by Mary Cornish, recommended that a human rights commission have the authority, among other things, to “examine and inquire into systemic issues of discrimination throughout the Province including laws, policies and practices of the Provincial Government” and “where necessary, the Commissioner will initiate systemic claims before the Tribunal” (Task Force Report, p.35). The preamble to the Code should acknowledge “historic systemic discrimination has been practised against members of certain groups in Ontario because of their [the grounds then protected by the Code]” (Task Force Report, p.48). The Commission today has authority to undertake research into systemic problems and bring cases to the Hearing Tribunal (in deciding whether to address an issue, it considers, among other factors, whether it will have “a broad, systemic impact”) (on the Commission, see here).

THE LIMITATIONS OF THE DISCRIMINATION APPROACH: MOVING TO SYSTEMIC RACISM

Even with the acceptance of indirect discrimination and systemic discrimination, which have played an important role in the development of more equitable workplaces in particular, as well as other contexts, the discrimination approach has limitations. It applies to a specific circumstance in a specific context. The evidence of discrimination may cut across similar entities and it may cut across different kinds of entities, but discrimination complaints still have to be addressed within the confines of a particular entity. This is limiting for addressing “the imbalances of power, or the discourses of dominance, such as racism, ablebodyism and sexism” to which Day and Brodsky refer. It also permits those who act in a discriminatory manner to blame the ostensibly neutral rules.

In 1999, I made a presentation at the Feminism and Law Summer Workshop at Cornell University entitled “Why the Discrimination Model is Inadequate for Equality Practice” (“Equality Practice”). My purpose at the time was to explain the limited nature of the discrimination model because it requires a comparison with how someone else (in the majority group) was being treated. This was the case whether addressing discrimination against women or racialized women or against any other marginalized group. It requires finding a specific circumstance in which a member of the majority group had been treated better or differently in a positive way from someone analogous in a disadvantaged group (a man being appointed a principal while a woman was not, a white person approved to rent an apartment when a black person was refused; the rules governing selection for employment or admission to a school reflect the knowledge and experience gained by people in the middle class, disproportionately white). Although systemic discrimination allows a more thorough and richer analysis of impugned rules or conduct, it nevertheless is still limited to particular entity boundaries.

“Equality Practice” discussed the integration of anti-discrimination analysis under human rights legislation into the interpretation of the equality guarantee under section 15 of the Canadian Charter of Rights and Freedoms, which is drafted as an anti-discrimination provision. I wrote:

While human rights legislation based on the anti-discrimination model has been important in redressing particular situations of discrimination, it is best suited to certain contexts: it does not provide an adequate basis for a substantive equality theory which must be more flexible and far-reaching to address the subtle and deep-rooted practices of inequality in Canada. (p.2)

Systemic discrimination as defined has never quite captured the comprehensive notion that bias, bigotry, unfairness, brutality against people because of their race — or their sex, sexual orientation, gender, disability and other circumstances — is a reflection of the subtext underlying societal assumptions and norms.

That the individual police officer shoots a black man in the back or kneels on his neck for 8 minutes and 46 minutes does not alone constitute systemic racism, although these actions are clearly wrong, regardless of the victim; rather it is that such actions are seen as permissible, that the police officer feels free to do it, that the underlying assumptions and norms and the organizational practices built on them will allow the police officer to act with impunity (or suffer a relatively mild penalty). And this is so whether the individual is a “bad apple” who flouts the rules or whether they are following rules that are abusive (it’s okay to kneel on suspects’ necks for extended periods) or applied disproportionately to members of a particular group (somehow, it’s almost always a black neck on which the officer kneels). And, of course, systemic racism isn’t only about these cases, it is about a slew of cases, private and public. It isn’t about one act, horrendous though it is, it is about innumerable acts that are linked together and that cross the boundaries from entity to entity, from context to context.

Similarly, systemic misogyny or systemic homophobia permits leeway in how organizations and individuals are allowed to treat women or LBGTQ+ people. In fact, we can think about systemic ill treatment of many individuals or groups with particular characteristics. Although the form of treatment may be different and the particular assumptions about the members of the maligned group may be different (or similar, such as those relating to intelligence levels, for example), the underlying assumptions about how society should be organized and how that organization is maintained are the same.

Systemic racism stems from a country’s history, from early formalizing of relations of oppression and exclusion from the power to determine how society functions. In New France, Nova Scotia and Prince Edward Island, enslavement (see a history here), immigration policies and laws are among the established ways in which the conditions even prior to Canada’s becoming a country constituted systemic racism and the roots of today’s systemic racism; for Indigenous peoples, the Indian Act, reserves, outlawing of potlatches, exclusion from voting and other policies created the reality of systemic racism then and the roots of systemic racism today. For a discussion of systemic racism in Quebec, see here in response to Premier Legault’s statement that there is no systemic discrimination in Quebec.

As Senator Murray Sinclair states in The Globe and Mail, “Systemic racism is when the system itself is based upon and founded upon racist beliefs and philosophies and thinking and has put in place policies and practices that literally force even the non-racists to act in a racist way.” It is manifested in ways we might describe as discrimination, but even systemic discrimination inadequately addresses the interrelationship of societal elements. See, for example, five charts showing how persons of colour are disadvantaged; these dramatically show the surface of systemic racism, the outcomes, but they do not show the subterranean links among them or with other aspects of society.

The focus over the last weeks has been on systemic racism in police enforcement, in the United States and Canada; however, the immediate responses have been relevant to other aspects of society (changing packaging and casting the voices of cartoon characters, ending police shows that are unrealistic because the police are all heroes). Some are institutional: the Stratford Festival “issued a statement that was unprecedented in admitting its ‘complicity in unjust systems’ and upholding ‘white supremacy'”, handing over its social media channels to Black artists, who expressed their own concern that despite being able to voice their views and experiences, “then white folks determine what to do”.

Toronto City Council has approved changes to the police department that have been discussed or recommended for some time, including responding to mental health calls differently and the wearing of body cameras. Minneapolis announced it would disband its police department, but as it considers how to proceed, the nature of the replacement body is not clear.

I mention the above because they illustrate the range of actions (and there are many more) that have responded to the protests about systemic racism. While some may make light of removing Aunt Jemima from pancake mix boxes, the continued existence of this memento of slavery, especially in her original form, actually reflects how deep-seated the continued impact of racism is.

Yet even the most obvious responses may be at least slightly more complicated than they first appear. For example, the family of Lillian Richard, who portrayed Aunt Jemima, are not pleased they were not consulted, since “[a]ll of the people in my family are happy and proud of Aunt Lillian and what she accomplished”, although it does not appear they actually object. Others, however, are sure about the rightousness of removing her visage (see, for example, here).

It is far more difficult to respond substantively to systemic racism than to address specific instances of discrimination. Yet even systemic discrimination leaves well-established norms and values and institutions intact in fundamental ways. Once the initial responses to the protests are fading, as they will likely do, it will be necessary to unearth not only the specific instances of historical and current wrongdoing, but also how they are linked together: what exactly are the assumptions and organizational arrangements that underlie various forms of structural relations of dominance and exclusion? who controls these assumptions and organizational arrangements? how are they communicated? how are they manifested, probably in a variety of ways, in society’s arenas? to what extent are “ordinary” people complicit in this, to what extent do they simply absorb these assumptions and simply take for granted the organizational arrangements? How do the answers to these questions play out in different institutions in society and to what extent do they reflect and reinforce each other?

We know in law that more people of colour and Indigenous people are in jail, compared to their numbers in the population generally; we know that judicial decision-making is based on legal principles and premises and rules that have developed in a white society over the history of Canada and have been imported from England; we know that Indigenous women suffer from domestic violence disproportionately to other women; and we know a great deal more about the interaction of people of colour and Indigenous peoples with the legal system. We know that some of this is kneaded and merged with class and gender and other factors. And we know, too, how some of that relates to the economic, social and educational realms and their institutional racism. These are things we know and have known, yet they continue. Finding solutions requires substantive analysis and change that manages to affect the network of systemic racism tying all these circumstances together.

This is a giant task, one I confess I have simplified. And we will continue to use anti-discrimination tools to address and change specific circumstances of racism, as well as make legal changes outside the human rights system. However, unless these actions are related to the more fundamental and deep-rooted premises underlying systemic racism, they will have only a limited — albeit not unimportant — impact. Radical change requires more, including changes to the legal system even as it is used as a tool to achieve transformation.