Colleen Sheppard teaches human-rights law and is a former director and current member of the Centre for Human Rights & Legal Pluralism (CHRLP) at McGill University.

Tamara Thermitus is a Montreal lawyer specializing in human rights and anti-racism.

Derek J. Jones lectures in law at McGill and is a member of the CHRLP.

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The authors are respectively lawyers of the Ontario, Quebec and Massachusetts Bars.

What is systemic racism? Depending on whom you ask, the question may confuse, inspire, anger, mobilize or inform. From the RCMP and politicians, to the courts, the global Black Lives Matters movement, or aggrieved families and communities, divergent answers underscore the need to ask how racism can be “systemic.”

Before probing the semantics of how, let us remind each other why racism is abhorrent.

Racism violates lives, our values and vision of the fair and just life. It violates the fundamental human right and commitment to equality. Racism denigrates the equal worth of citizens. Canada thus joins most countries in deeming it immoral and unlawful to discriminate against individuals on the basis of race, colour, ethnic background. It bars unequal opportunity in employment, schooling, housing, income, leadership, public security, political and civic life. A racist act violates more than the individual or community touched. The rights of every person “are diminished, when the rights of one [person] are threatened,” proclaimed U.S. president John F. Kennedy in 1963. So instructs the heritage of the 1960s civil-rights era.

Since then, waves of equality and anti-discrimination laws nationally and internationally, as well as hundreds of decisions from courts and human-rights tribunals and evolving interdisciplinary legal scholarship, have imparted lessons for today’s considerations on systemic racism. For example, we can gain insights from the United Nations’ International Convention on the Elimination of All Forms of Racial Discrimination, which mandates that countries work to prohibit and eliminate racial discrimination in all its forms. Canada signed the treaty when Jim Crow laws, South African apartheid and Indian residential schools existed as blatant, intentional examples of race-based oppression of peoples’ fundamental freedoms.

But the elimination of those overtly racist regimes did not end the quest for racial equality. Today, discrimination law is widely understood to encompass both blatant and unintentional discrimination. Accordingly, even seemingly neutral rules, policies or practices may have discriminatory effects on specific groups.

Interdisciplinary analyses and research also provide insight. A 2006 University of Toronto study found that Black people in Ontario were 16 times more likely to be shot and killed by police than white people, while a 2019 report commissioned by the Montreal police force found Indigenous and Black people in the city are more than four times more likely to be racially profiled by police than white people. Some may reason that such studies are flawed or that the statistics reflect the outcome of fighting crime within certain communities, but modern human-rights thought rejects such facile explanations with critical and inquiring scrutiny. Since the 1980s, the Supreme Court of Canada and human-rights tribunals have recognized such data as evidence of potential systemic racial discrimination.

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Race-based discrimination may be understood as systemic when it goes beyond isolated individual wrongdoing to encompass broader patterns of racial inequality. Systemic racism includes: recurrent individual mistreatment; exclusionary or harmful institutional policies and practices; and broader societal and intergenerational injustice. To understand these interactions, we can use insights from equality law to scrutinize racial discrimination at these three interconnected levels – individual, institutional and societal.

Consider police misconduct. First, a police officer may engage in race-based profiling, abuse of power or the murder of a Black or Indigenous individual; this micro-level racism consists of individual acts of conscious or unconscious racial bias. No one is born racist. But interdisciplinary research confirms that children, adolescents and adults may learn and internalize prejudice. Regular, pervasive or persistent patterns of racist conduct by police officers introduce a systemic dimension to individual cases.

Second, despite the institutional appeal of the “few bad apples” argument, tragic lone acts of racism seldom occur in a vacuum; meso-racism (racial discrimination in organizational practices and structures) arises within institutions. Canadians recognize that our institutions are not immune from inheriting or perpetuating attitudes, policies or practices reflective of racial assumptions or prejudice. So we ask: Do institutions acknowledge, condone or condemn racism? Institutions that fail to address it actively are more likely to unconsciously foster its legacy. Comprehensive equity-based institutional policies not only investigate, adjudicate and learn from individual cases of wrongdoing, they pro-actively prevent them through vigilant systems of recruitment, the reformation of policies, programs and training, substantive diversity and leadership initiatives, anti-bias training and education, community liaison, and regular institutional review.

Third, a commitment to equality also requires scrutiny and action at the macro level. For example, if the police profile, harass or murder an Indigenous woman because of racist attitudes, and prosecutors decline to bring charges, the acts go beyond the police officer and institution to implicate the criminal-justice system. When our government reports that Indigenous people account for 30 per cent of federal inmates, despite making up just 5 per cent of Canada’s population, the phenomenon has gone beyond arrests and correctional institutions and raises questions of profound systemic discrimination. Individuals and institutions function within structures that may systemically perpetuate racial inequality. Macro-racism has thus recently, and historically, mobilized democratic protest against unequal protection and treatment within the legal system.

In 2004, and as recently as 2017, UN working groups have determined that Canada has yet to free itself from racism, and that the human rights of Black Canadians remain compromised by structural and systemic racism. We urgently need transformative understandings that help eliminate racial discrimination in all its forms and levels. In 1984, as commissioner of the Royal Commission on Equality in Employment, Justice Rosalie Abella noted: “Systemic discrimination requires systemic remedies.”

Today’s unprecedented outpouring of public dialogue and innovative proposals to dismantle systemic racism holds promise. We call on civil society, scholars, activists, societal institutions and governments to work to identify and remedy the individual, institutional and macro dimensions of systemic racism. Imperfect definitions must not delay actions. As professor Cindy Blackstock, of McGill’s School of Social Work, notes: “The best friends of systemic discrimination are public silence and inaction.”

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