HUMAN RIGHTS | The Importance of Distinguishing Racism from Racial Discrimination.

• Author: McKay-Panos, Linda

September 1, 2020By Linda McKay-Panos

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 [SA. 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...