Part 1 – Setting the context: understanding race, racism and racial discrimination

1. Introduction

1.1. The Code context

The Code states that it is public policy in Ontario to recognize the inherent dignity and worth of every person and to provide for equal rights and opportunities without discrimination. The provisions of the Code are aimed at creating a climate of understanding and mutual respect for the dignity and worth of each person, so that each person feels a part of the community and feels able to contribute to the community.

Every person in Ontario has a right to be free from racial discrimination and harassment in the social areas of employment, services, goods, facilities, housing accommodation, contracts and membership in trade and vocational associations.

The Code evolved in part from the Ontario Racial Discrimination Act of 1944. But, despite laws to address racial discrimination having existed for over 60 years, racial discrimination and racism persist in Ontario. The OHRC received a significant number of complaints of racial discrimination and harassment when it was handling complaints. On average, about 30% to 40% of the complaints filed with the OHRC cited race and related grounds. Race continues to be a ground cited often in applications to the Human Rights Tribunal of Ontario (“Tribunal”).Many other instances of racial discrimination never come forward as applications to the Tribunal and there are manifestations of racism that are beyond the jurisdiction of the Tribunal, for example hate crimes perpetuated by individuals.^[1]

There are numerous other indicators of the reality of racial discrimination in Canada. Racialized persons experience disproportionate poverty, over-representation in the prison population, under-representation in the middle and upper layers of political, administrative, economic and media institutions and barriers to accessing employment, housing and health care to name just a few.^[2] Courts have recognized that racism exists in Canada.^[3]

It is all too easy for those who do not experience it to deny the reality of racism. This is counterproductive and damaging to our social fabric. Racial discrimination and racism must be acknowledged as a pervasive and continuing reality as a starting point to assessing how the Code applies and what can be done to address them.

While our province’s statutes exclude racial discrimination from any legal acceptance, racism and racial discrimination remain widespread and even socially accepted among many people. The Code therefore compels the OHRC to face this challenge and calls on our leaders and people to develop an unconditional culture of rights. Racism and racial discrimination must become a regretted part of Ontario’s past, not a tolerated part of its present and future.

1.2. The purpose and scope of this human rights Policy

This policy is based on extensive research and consultation. In 2003, the Commission conducted a province-wide inquiry into the effects of racial profiling, resulting in a report, Paying the Price: The Human Cost of Racial Profiling. In March 2004, the OHRC began a process of consultation specifically geared to developing this policy. Numerous focus groups were held with stakeholders representing a diversity of interests and perspectives. In October 2004, in partnership with the Association of Canadian Studies,^[4] the OHRC held a three-day Policy Dialogue with experts and stakeholders to identify and discuss trends and developments relevant to an OHRC policy on racial discrimination and racism.

In December 2004, papers generated by speakers at the Policy Dialogue were published in a dedicated issue of Canadian Diversity and posted on the OHRC’s Web site in January 2005. The public was invited to comment on the issues and ideas presented in the papers. In addition, respondent-oriented stakeholders were asked for input on specific issues that would be addressed in the policy.

This policy sets out the OHRC’s position on racism, racial discrimination and racial harassment, at the time of publication. It replaces the OHRC’s 1996 Policy on Racial Slurs and Harassment and Racial Jokes. It deals with issues that fall within the OHRC’s jurisdiction and which can form the subject matter of an application to the Tribunal. The policy is therefore bounded by the provisions of the Ontario Human Rights Code and Canada’s legal framework for analyzing discrimination. At the same time, the policy interprets the protections in the Code in a broad and purposive manner. This is consistent with the principle that the quasi-constitutional status of the Code requires that it be given a liberal interpretation that best ensures its anti-discriminatory goals are attained.

In the policy, discrimination and harassment due to race are analyzed with an understanding of the pernicious influence of the wider social fact of racism. The policy highlights some of the broader issues of racism to create appropriate context. However, a detailed discussion of all manifestations of racism in Canadian society is beyond the scope of this policy. Indeed, there are many lengthy documents and reports dedicated to specific issues of racism such as the Report of the Commission on Systemic Racism in the Ontario Criminal Justice System^[5], Unequal Access: A Canadian Profile of Racial Differences in Education, Employment and Income^[6], the OHRC’s Report Paying the Price: The Human Cost of Racial Profiling^[7] and the Royal Commission on Aboriginal Peoples^[8], to name just a few.

Several key themes have emerged from the OHRC’s research and consultation and form the basis of this policy:

• Racism and racial discrimination continue to exist and to affect the lives of not only racialized persons, but also all persons in Canada. The reality of racism and racial discrimination must be acknowledged to take effective measures to combat them.
• Race is a socially constructed way of judging, categorizing and creating difference among people. Despite the fact that there are no biological “races,” the social construction of race is a powerful force with real consequences for individuals.
• Racism operates at several levels, including individual, systemic or institutional and societal.
• Racial discrimination can be impacted by related Code grounds such as colour, ethnic origin, place of origin, ancestry and creed. In addition, race can overlap or intersect with other grounds such as sex, disability, sexual orientation, age and family status to create unique or compounded experiences of discrimination.
• Racial discrimination can occur through stereotyping and overt prejudice or in more subconscious, subtle and subversive ways.
• Racial discrimination also occurs in significant measure on a systemic or institutional level. Policies, practices, decision-making processes and organizational culture can create or perpetuate a position of relative disadvantage for racialized persons.
• Organizations have a responsibility to take proactive steps to ensure that they are not engaging in, condoning or allowing racial discrimination or harassment to occur. Obligations in this regard range from collecting numerical data in appropriate circumstances, accounting for historical disadvantage, reviewing policies, practices and decision-making processes for adverse impact and having in place and enforcing anti-discrimination and anti-harassment policies and education programs, to name just a few.

While the policy covers all of the social areas in the Code, it places a heavier emphasis on employment. This is due to the fact that a large proportion of applications to the Tribunal allege employment-related discrimination. Employment is also integral to socio-economic well-being, which in turn impacts on health, access to education and access to services more broadly. There is therefore an interrelationship between discrimination in employment and discrimination in other social areas covered by the Code.

In addition to, and to supplement, this policy statement, the OHRC is engaged in, and will continue to undertake, promotion and advancement initiatives to address broader human rights issues related to racial discrimination and racism.

OHRC policy statements contribute to creating a culture of human rights in Ontario. They educate the public about human rights and set out standards for how individuals, employers, service providers and policy makers should act to ensure compliance with the Code. OHRC policy statements must be understood in a wider context of Canada’s global commitments.

1.3. International obligations

In 1948, the United Nations General Assembly adopted the landmark Universal Declaration of Human Rights, the foundation of international human rights law. The Universal Declaration established an international standard of non-discrimination on the basis of race, colour, language, national origin and a number of other grounds. The principles in the Universal Declaration were given force through various instruments^[9] including the International Convention on the Elimination of All Forms of Racial Discrimination^[10] (CERD). Canada ratified CERD in 1970 and in so doing accepted responsibility for respecting, protecting and fulfilling the rights contained therein.

Numerous other UN documents have addressed aspects of racial discrimination and racism.^[11] In 2003, Canada hosted the UN Special Rapporteur on Racism, Racial Discrimination, Xenophobia and Related Intolerance who prepared a report on his visit. ^[12]

Some of the key highlights from the various UN documents and instruments include:

• Confirming that race is a social construct, related to geographic, historical, political, economic, social and cultural factors with no justification for notions of racial superiority or racial prejudice
• Urging public recognition that racism persists and of the continuing impact of the historical legacy of racism, such as the effect of colonialism and slavery, including the trans-Atlantic slave trade, on indigenous persons, persons of African descent and persons of Asian descent
• Creating a positive obligation on states to review policies, laws and regulations which create or perpetuate racial discrimination, to enact legislation to prohibit racial discrimination by any person, group or organization and to report on the realization of rights
• Affirming the importance of barrier removal and corrective measures to achieve equal participation in all aspects of society
• Recognizing the interrelationship between economic status, marginalization and social exclusion and racism and the intersectional nature of racial discrimination
• Promoting collecting, compiling and analyzing reliable statistical data, in accordance with privacy and human rights laws, to monitor the situation of racialized groups and to assess whether legislation, policies, practices and other measures have an adverse impact on racialized groups
• Emphasizing the particular and extreme marginalization of Aboriginal peoples, and the unique issues raised in relation to treaties and land disputes and the Indian Act.

The Supreme Court of Canada has indicated that the values and principles enshrined in international law constitute a part of the legal context in which legislation is interpreted and applied.^[13] Additionally, human rights commissions have been identified as key institutions in implementing and protecting international human rights standards. Accordingly, the OHRC uses applicable international standards in its policy development and to inform its application and interpretation of the Code. History shows, however, that while Canada has affirmed international instruments on racism and racial discrimination, many people have continued to tolerate both.

1.4. Historical context: the legacy of racism in Canada

A starting point of a policy on racial discrimination and racism is to provide a brief historical context of racial discrimination and racism in Canada. We must be aware of the events of the past in order to address contemporary manifestations of racial discrimination and racism. A review of the history of racism reveals that Canada has made progress. For example, laws such as the Canadian Bill of Rights, the Ontario Human Rights Code and the Canadian Charter of Rights and Freedoms have been enacted to provide protection against racism and racial discrimination.^[14] However, much work remains to be done.

It is no coincidence that communities which historically experienced racial discrimination continue to be placed on the lowest rungs of the social, economic, political and cultural ladder in Canada. The legacy of racism in Canada has profoundly and lastingly permeated our systems and structures.^[15] As such, it must be acknowledged in any policy statement, particularly when considering such matters as institutional or systemic discrimination, inclusive design, barrier removal and methods to respond to racism. What follows is a brief, non-exhaustive historical overview to promote an understanding of the context of racism and racial discrimination in Canada.^{[∗∗∗∗∗]} Although many of the events described may appear to be in the distant past, it is important to note that there are many contemporary examples of racism.^[16]

Historically, policies and practices towards Aboriginal persons^[17] have been based on assumptions that they are inferior and incapable of governing themselves. Other patterns of interaction were characterized by a desire to assimilate, displace or segregate Aboriginal persons, or to suppress Aboriginal cultures.^[18] While recent decades have seen progress in addressing Aboriginal rights in Canada, much remains to be done as illustrated by outstanding issues regarding land rights, residential schools restitution, self-governance as well as other issues identified in the Report of the Royal Commission on Aboriginal Peoples, and the Report of the Special Rapporteur on the situation of human rights and fundamental freedoms of indigenous people.

The Indian Act, first enacted in 1876, gave the federal government control over “Indian” political structures, landholding patterns, resource and economic development and almost every important aspect of Aboriginal peoples’ lives. Just a few of the racist features of the Act included prohibiting land ownership, rules on electing leaders, denial of the right to vote, prohibiting leaving reserves without a pass, preventing ceremonial festivals and events, and determining who was an “Indian.”

Aboriginal children were forcibly removed from their homes and communities and sent to residential schools operated by missionary societies where they were forbidden to speak their language, to practice their traditions and customs and to learn about their history. They were often given an inferior education and many experienced malnutrition, overcrowding, illness, harsh discipline and sexual abuse. Many of these schools were closed in the 1960s, with the last one closing in 1988.

The enslavement of Africans, racial segregation and discrimination are also part of Canada’s history. Black slavery was actively practiced in Canada. Between 1628 and the early 1800s, approximately 3000 people of African origin came to Canada and most were held as slaves. In 1793, the Parliament of Upper Canada (now Ontario) under Lieutenant Governor John Graves Simcoe passed an An Act to prevent the further introduction of Slaves, and to limit the term of contracts for Servitude within this Province, the first act to limit slavery in the British Empire.^[19] Ontario became a destination for those fleeing slavery in the United States via the “underground railroad.”^[20] In 1833 the British Parliament's Emancipation Act abolished slavery in all parts of the Empire, including Ontario, but its legacy remained.^[21] Prejudice and discrimination would still constrict the opportunities of most Canadians of African ancestry.

African Canadians were excluded from schools, churches, restaurants, hospitals and public transportation. They were restricted to menial, low-paying and exhausting labour.^[22] Many African Canadians lived in segregated communities in Nova Scotia, New Brunswick and Ontario. In addition, residential segregation was perpetuated through racially restrictive covenants attached to deeds and leases. ^[23] The Ontario legislature established segregated schools, and legal challenges to these failed.^[24] The legislation remained on books as late as 1964.^[25]

Prior to human rights statutes, court challenges to address racial discrimination were largely unsuccessful. In 1939, the Supreme Court of Canada rejected a lawsuit for humiliation brought by Fred Christie, a Black man who was refused service by a Montreal tavern. The Court declined to comment on the racial discrimination, instead concluding that freedom of commerce allowed a merchant to deal with the public in any way he may choose.^[26]

The experience of Chinese Canadians is similarly tainted by a history of racism. In the 1880s, labourers were recruited from China to take on the dangerous work of building the railway through the mountains. After being subjected to deplorable working conditions, once their labour was no longer needed, they were seen as a threat to society and an “alien race” and subjected to intense racial discrimination.^[27]

Laws were passed to limit Chinese immigration. The 1885 Chinese Immigration Act imposed a $50 “head tax” on all Chinese persons entering Canada. In 1903, this amount was raised to $500, a prohibitive amount of money.^[28] In 1872, the right to vote in provincial and municipal elections was also taken away from Chinese Canadians in British Columbia (Japanese Canadians and South Asian Canadians were also disenfranchised in 1895 and 1907 respectively).^[29] Chinese Canadians were also subjected to discriminatory laws and policies affecting their ability to own property, operate businesses, serve the public and enter certain professions. “In the interest of the morals of women and girls”^[30], laws were passed to prevent Chinese men from employing White women.^[31]

Many are familiar with the experience of Japanese Canadians in World War II. Twenty-three thousand Japanese Canadians living on the west coast of British Columbia were sent to relocation and detention camps in isolated areas in the interior of British Columbia, southern Alberta, Manitoba and northern Ontario. In addition to other violations and deprivations, Japanese Canadians were stripped of their property, businesses and savings. Towards the end of the war, Japanese Canadians were threatened with further expulsion. They were given the option for “dispersal” to towns east of the Rocky Mountains, or outright “repatriation” to Japan (by 1947, 4000 Japanese Canadians, half of whom were Canadian born, had left Canada). The Canadian government did not release them until 1947 and it took a further two years before they were able to resettle on the west coast. In 1988, twelve thousand surviving Japanese Canadians were paid $20,000 each as compensation and a formal apology was issued by Parliament.^[32]

Other groups have suffered from racism in Canada’s history. For example, South Asian Canadians^[33] were viewed with the same racial bias, hostility and resentment as was directed at other racialized groups and they had similar experiences with discriminatory laws, such as legislation to control their economic and social mobility and to remove their right to vote. ^[34] Like others, they were adversely impacted by immigration laws that preferred immigrants from northern and western European countries. In 1914 a shipload of 400 would-be immigrants from India were denied entry at Vancouver. They were held aboard the ship for nearly three months before being forced to return to India.^[35]

Jewish Canadians have been subjected to anti-Semitism and legalized discrimination. "None is too many" was the response given by a high level Canadian government official when asked how many Jews should be accepted as immigrants, at the time of the Nazi persecution of Jews.^[36] Signs posted along the Toronto beaches stated “No Dogs or Jews Allowed.” Many hotels and resorts had policies prohibiting Jews as guests.^[37] There were restrictions on where Jewish persons could live or buy property. In 1951, a Jewish man challenged one such restrictive covenant preventing property from being sold to anyone of “the Jewish, Hebrew, Semitic, Negro or coloured race or blood.” The Supreme Court of Canada declared the covenant void on the basis it was overly broad.^[38]

More recently, immigration policies and practices have been informed by and have contributed to racism in Canada. A discussion of immigration is beyond the scope of this policy^[39], however, at various times, Canada’s immigration policies and practices have either directly or indirectly made it easier for some groups (such as northern and western Europeans) and more difficult for racialized groups, to gain entry.

The history of racism has had an enduring effect on racialized communities. For example, paternalistic and assimilationist policies and practices toward Aboriginal persons have had a devastating impact. Many Aboriginal persons experience profound disadvantage in all spheres of life including housing, employment, health and education. Aboriginal communities continue to struggle to assert their land and treaty rights. Racialized groups can all trace their continued experience of marginalization to the legacy of racism in Canada.

2. “Race,” racism and racial discrimination

2.1. “Race” - a social construct

Race is a prohibited ground in the Code that is not specifically defined. As the term is commonly used in the human rights context and society in general, it is important to clarify its meaning.

In the past, race was defined as a natural or biological division of the human species based on physical distinctions including skin colour and other bodily features. This notion of race emerged in the context of European imperial domination of nations and peoples deemed “non-white” and was used to establish a classification of peoples.^[40] Some of the greatest atrocities in human history have been associated with notions of racial superiority.

There is no legitimate scientific basis for racial classification. Genetic science now tells us that physical characteristics and genetic profiles correlate more strongly between “races” than among them.^[41] It is now recognized that notions of race are primarily centred on social processes that seek to construct differences among groups with the effect of marginalizing some in society.

While biological notions of race have been discredited, the social construction of race remains a potent force in society. The process of social construction of race is termed “racialization.” The Report of the Commission on Systemic Racism in the Ontario Criminal Justice System defined racialization “as the process by which societies construct races as real, different and unequal in ways that matter to economic, political and social life.”^[42] Even groups and people that have only marginal physical distinctions from western European people have been racialized in Canada. For example, emigrants from southern or eastern Europe were deemed as “races” of less worth when they first came to Canada.

Racialization extends to people in general but also to specific traits and attributes, which are connected in some way to racialized people and are deemed to be “abnormal” and of less worth. Individuals may have prejudices related to various racialized characteristics. In addition to physical features, characteristics of people that are commonly racialized include:

• accent or manner of speech
• name
• clothing and grooming
• diet
• beliefs and practices
• leisure preferences
• places of origin
• citizenship

Despite the fact that we know there are no “races,” the social construction of race is a powerful force in our society, with real consequences for individuals.^[43] Therefore, the ground of “race” in the Code continues to be important to the discussion of racism and racial discrimination.

2.1.1. A word about terminology

There are inherent challenges in finding ways in which to best describe people. Terminology is fluid and what is considered most appropriate will likely evolve over time. Moreover, people within a group may disagree on preference and may choose to use different terms to describe themselves. However, it is useful to provide some general guidelines on terminology that the OHRC considers most inclusive at the present time.

When it is necessary to describe people collectively, the term “racialized person” or “racialized group” is preferred over "racial minority,” "visible minority"^[44], "person of colour"^[45] or “non-White” as it expresses race as a social construct rather than as a description based on perceived biological traits. Furthermore, these other terms treat “White” as the norm to which racialized persons are to be compared and have a tendency to group all racialized persons in one category, as if they are all the same.

Where identification of individuals is necessary, allowing people to self-identify is always a preferred approach. If this isn’t possible, terms that are selected should be linked to the reason identification is required. For example, if intending to compare a group’s representation within an organization to its representation in the general population, terms used in the Canadian census would be a logical choice. It is generally better to avoid a broad term (e.g. Asian) where a specific term is available, such as one that refers to national origin (e.g. Chinese Canadian). Terms that are clearly considered inappropriate must be avoided and if an individual objects to a term, it should not be used.

The terms “Black” and “White”^[46] are widely used to describe individuals, and may even be the terms people prefer to use in describing themselves. While at this time, these terms are not viewed by most as inappropriate, nevertheless, it is important to remember that they refer to racialized characteristics.

2.2. Understanding racism

Racism is a wider phenomenon than racial discrimination. While the Code seeks to combat racism through public education and the advancement of human rights, not every manifestation of racism can be dealt with through the current human rights complaint mechanism and process. Rather, it is only racially discriminatory actions in specified social areas that are prohibited by the Code (see section “2.3. The Code and Racial Discrimination”). Nevertheless, racism plays a major role in the social processes that give rise to and entrench racial discrimination. As such, acknowledging and understanding racism as a historical and current reality in Canadian society is critical for a human rights policy.

Many different definitions of racism exist. They differ in complexity and emphasis and can often be very difficult to understand. Therefore, what follows is a general discussion of the key elements for understanding racism.

Definitions of racism all agree that it is an ideology that either explicitly or implicitly asserts that one racialized group is inherently superior to others. Racist ideology can be openly manifested in racial slurs, jokes or hate crimes. However, it can be more deeply rooted in attitudes, values and stereotypical beliefs. In some cases these beliefs are unconsciously maintained by individuals and have become deeply embedded in systems and institutions that have evolved over time.

Racism differs from simple prejudice in that it has also been tied to the aspect of power, i.e. the social, political, economic and institutional power that is held by the dominant group in society. In Canada and Ontario, the institutions that have the greatest degree of influence and power, including governments, the education system, banking and commerce, and the justice system are not, at this time, fully representative of racialized persons, particularly in their leadership.

Racism often manifests in negative beliefs, assumptions and actions. However, it is not just perpetuated by individuals. It may be evident in organizational or institutional structures and programs as well as in individual thought or behaviour patterns. Racism oppresses and subordinates people because of racialized characteristics. It has a profound impact on social, economic, political and cultural life.

2.2.1. How racism operates

From the discussion above it is clear that racism exists at a number of levels^[47], in particular (1) individual, (2) institutional or systemic, and (3) societal (also described as cultural/ideological).

At the individual level, racism may be expressed in an overt manner but also through everyday behaviour that involves many small events in the interaction between people. This is often described as “everyday racism” and is often very subtle in nature. Despite being plain to the person experiencing it, everyday racism by itself may be so subtle as to be difficult to address through human rights complaints. However, at other times, where it falls within a social area covered by the Code, there may be circumstances where everyday racism, as part of a broader context, may be sufficient to be considered racial discrimination (please refer to section “3.3. Subtle Racial Discrimination” for a discussion of these situations). Either way, the cumulative effect of these everyday experiences is profound.

Canada is a country founded upon colonization and immigration. It is known for having one of the most diverse populations in the world. This mosaic of individuals and cultures presents unique and evolving challenges for human relations. Some human rights claims allege racism by, among or within racialized groups. The consequences of these situations, for example loss of a job, are every bit as serious as racism perpetuated by White persons against racialized persons and they should be dealt with equally seriously.

At the institutional or systemic level, racism is evident in organizational and government policies, practices, and procedures and “normal ways of doing things” which may directly or indirectly, consciously or unwittingly, promote, sustain, or entrench differential advantage for some people and disadvantage for others.

At a societal level, racism is evident in cultural and ideological expressions that underlie and sustain dominant values and beliefs. It is evident in a whole range of concepts, ideas, images and institutions that provide the framework of interpretation and meaning for racialized thought in society. It is communicated and reproduced through agencies of socialization and cultural transmission such as the mass media (in which racialized persons are portrayed as different from the norm or as problems), schools, universities, religious doctrines and practices, art, music and literature. It is reflected in everyday language; for example “whiteness” is associated with overwhelmingly positive connotations, while “blackness” is associated with negative connotations.^[48] This form of racism is maintained through socialization as children begin to absorb these beliefs and values at an early age.^[49]

As mentioned above, any effective response to racism must clearly acknowledge that it persists in Ontario. However, as great stigma attaches to allegations of racism, there is a tendency to deny its existence generally or in a particular situation.

It is important to emphasize that racism in its more entrenched forms is often unconsciously applied and its operation is often unrecognized by even those practising it. In addition, as noted earlier in the Policy, while Canada has made much progress, racism remains a reality. It should not be treated as aberrant behaviour or a set of deviant attitudes on the part of a deviant individual - a so-called “rotten apple” within the system. Failing to recognize the complex, subtle and systemic nature of racism impedes effective action against it.

Finally, it is the OHRC’s view that, except in the most obvious circumstances, such as where individuals clearly intend to engage in racist behaviour, it is preferable that actions rather than individuals be described as racist.

2.3. The Code and racial discrimination

2.3.1. Defining racial discrimination 

The purpose of anti-discrimination laws, such as the Code, is to prevent the violation of human dignity and freedom through the imposition of disadvantage, stereotyping or political or social prejudice. While racism is a social phenomenon, it is racial discrimination that is a legally prohibited act.^[50]

There is no fixed definition of racial discrimination and society’s understanding of what constitutes racial discrimination will continue to evolve over time. Several descriptions of racial discrimination have been offered which can be helpful in understanding and explaining it.

For example, in the international human rights context, it has been described as any distinction, exclusion, restriction or preference based on race that nullifies or impairs the human rights or fundamental freedoms afforded citizens.^[51] One approach in Canadian case law suggests that it may be described as any distinction, conduct or actions, whether intentional or not, but based on a person’s race, which has the effect of imposing burdens on an individual or group, not imposed upon others or which withholds or limits access to benefits available to other members of society.^[52] Moreover, the case law has clearly stated that race need only be a factor for there to be a finding of racial discrimination.

The Code offers every Ontarian protection from racial discrimination specifically in the realms of employment, services, contracts, housing and vocational associations.

2.3.2. Racial discrimination and related Code grounds

In addition to race, the Code prohibits discrimination on several related grounds. These include primarily the grounds of colour, ethnic origin, ancestry, place of origin, citizenship and creed (religion).

Depending on the circumstances, discrimination based on race may cite race alone or may include one or more related grounds. However, as a social construct, the ground of race is capable of encompassing the meaning of all of the related grounds and any other characteristic that is racialized and used to discriminate.

In many instances of racial discrimination, the particular notion of race acted on is given specific meaning by related grounds. In such instances, it would be appropriate to cite these other grounds along with race. For example, when a man named Muhammad is screened from an employment competition on the basis of his name, it is appropriate to cite as grounds for discrimination race, ethnic origin, ancestry, place of origin and creed, as the name in question is racialized precisely because it is stereotypically connected to a specific origin and creed.

In other instances, indicators including the related grounds cited in the Code are employed as euphemisms or proxies for notions of race.^[53] As most people have come to know that they cannot explicitly differentiate and judge people based on their race, racial discrimination often takes the shape of employing other less stigmatized notions and terms in the place of racial ones. Even those who experience racial discrimination often feel reluctant to employ explicitly racial notions and terms. For example, instances of racial discrimination may make reference to a person’s accent or place of origin as a proxy for race. It is appropriate to cite related grounds of the Code together with race in instances where racial discrimination employs these descriptors as euphemisms or proxies for race.

In practice, it is often difficult to tell specifically what underlies racial discrimination. A First Nations woman may be discriminated against based on the colour of her skin or because of stereotypes associated with her ethnic origin or her ancestry, or with some distaste for the practices of her creed or by some combination of these factors. All are possibilities and it is difficult often to distinguish these in specific instances. In such situations, race, being a social construct, can encompass other related grounds within its meaning, but in practice it may be preferable to cite every ground which may have been a factor in an individual’s experience.

2.3.3. Intersectional and overlapping grounds

Several prohibited grounds stipulated by the Code have less direct relationship with the ground of race including, for example, the grounds of gender, disability, age, family status and sexual orientation. Nevertheless, a person’s experience of discrimination can be impacted by these other grounds.

Acts of discrimination often accompany people in relationship to overlapping and intersecting^[54] identifications as much as to any single identification. Individuals, based on their unique combination of identities, may be exposed to unique forms of discrimination and may uniquely experience the personal pain and social harm that accompanies acts of discrimination.

Correspondingly, instances of racial discrimination may occur in intersection with other grounds of the Code to form unique and meaningful combinations. For example, a young Black man can be seen as a “Black person” or as a “young person” or as a “man.” All these sources of identity overlap but, in addition, also intersect in a socially significant way. Such a person may be exposed to discrimination based on any of the grounds of race and/or colour, age and gender independently when these identifications do not mix in specific circumstances in any significant way. However, such a person may also be exposed to an intersectional form of discrimination on the basis of being identified as a “young Black man” based on the various assumptions and/or stereotypes that are uniquely associated with this socially significant intersection.

The OHRC will look to all possible implications of intersecting and overlapping identities in its application of the Code and expects others in society to similarly recognize this diversity. Accordingly, it is important to consider possible intersections when allegations of racial discrimination are raised, and, when circumstances indicate it, to cite the prohibited ground of race along with other grounds when intersections are apparent.

2.4. Racism and racial discrimination - common “myths”

Discussions of racism and racial discrimination often evoke a different type of response than when other types of human rights concerns are raised. In fact, there is a set of common “myths” that frequently come into play when racism and racial discrimination are raised. These myths serve to silence persons who speak out against racism and racial discrimination, hamper efforts to combat racism and racial discrimination and even affect the ability of decision-makers to objectively deal with claims of racism and racial discrimination.^[55]

Some of the most common myths and misconceptions about racism and racial discrimination include:

• racism is exaggerated and that, except for exceptional cases or the actions of a “few bad apples” racism does not exist in Canada
• people in Canada are “colour blind” and do not even notice race
• mentioning the existence of racism or racial discrimination or taking proactive measures to address racism or racial discrimination constitutes reverse racism towards White people
• racialized people are less credible and their assertions must be more carefully scrutinized and investigated or must be corroborated
• racialized people play the “race card” to manipulate people or systems to get what they want
• racialized people are too sensitive, tend to overreact or have a “chip on their shoulder”
• racialized people themselves, and not racism or racial discrimination, are at fault for their disadvantage or state of “otherness,” commonly known as “blaming it on the victim”
• immigration is bad for Canada as immigrants take jobs away, commit more crime, are a drain on the system or do not fit into our society
• if a racialized person has been treated acceptably in the past, then discriminatory treatment cannot take place in the future.^[56]

These responses create a climate that prevents any kind of effective response to racial inequality.^[57]

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^[1] Hate crimes continue to occur in Ontario and Canada and have an impact on the victim, his or her community and wider society that is disproportionate and longer lasting than that of most other crimes. Despite the fact that it is estimated by the police that hate crimes are reported in only 10-15% of cases, the Toronto Police recorded a total of 163 hate crime occurrences in 2004 against a variety of groups; see Toronto Police Service Hate Crime Unit, 2004 Annual Hate/Bias Crime Statistical Report, online: < www.torontopolice.on.ca/publications/files/reports/2004hatecrimereport.pdf>. B’nai Brith’s League for Human Rights notes that anti-Semitism in Canada continues to escalate and that the year 2004 was characterized by a surge, for the fourth year in a row, in the number of reported anti-Semitic incidents; see League for Human Rights of B’nai Brith Canada, Audit of Antisemitic Incidents: Patterns of Prejudice in Canada (Toronto: League for Human Rights, 2005), online: www.bnaibrith.ca.
^[2] See reports on racial inequality as well as the Report of the United Nations Special Rapporteur on contemporary forms of racism, racial discrimination, xenophobia and related intolerance, Commission on Human Rights, E/CN.4/2004/18/Add.2 (1 March 2004) [hereinafter Report of the Special Rapporteur on Racism].
^[3] For example, in R. v. Parks (1993), 15 O.R. (3d) 324 at 342 the Ontario Court of Appeal stated: 

Racism, and in particular anti-black racism, is a part of our community's psyche. A significant segment of our community holds overtly racist views. A much larger segment subconsciously operates on the basis of negative racial stereotypes. Furthermore, our institutions, including the criminal justice system, reflect and perpetuate those negative stereotypes. These elements combine to infect our society as a whole with the evil of racism. 

See also, R. v. Williams, [1998] 1 S.C.R. 1128, and R. v. Hamilton, [2004] O.J. No. 3252 (C.A.). For cases concerning racial profiling see infra, note 66.
^[4] The Association for Canadian Studies is a voluntary non-profit organization. It seeks to expand and disseminate knowledge about Canada through teaching, research and publications.
^[5] Report of the Commission on Systemic Racism in the Ontario Criminal Justice System (Toronto:
Queen’s Printer for Ontario, 1995) (Co-Chairs: D. Cole & M. Gittens).
^[6] Unequal Access: A Canadian Profile of Racial Differences in Education, Employment and Income,Report Prepared for the Canadian Race Relations Foundation by the Canadian Council on Social Development (Toronto: Canadian Race Relations Foundation, 2000).
^[7] Ontario Human Rights Commission, Paying the Price: The Human Cost of Racial Profiling (Toronto: Queen’s Printer, 2003).
^[8] Report of the Royal Commission on Aboriginal Peoples (Ottawa: Canada Communication Group Publishing, 1996) (Co-Chairs: R. Dussault & G. Erasmus).
^[9] For example, the International Convent on Civil and Political Rights, 16 December 1966, 999 U.N.T.S.
171 (entered into force 23 March 1976, accession by Canada 19 May 1976) [hereinafter the ICCPR] and the International Covenant on Economic Social and Cultural Rights, 16 December 1966, 993 U.N.T.S. 3 (entered into force 03 January 1976, accession by Canada 19 August 1976) [hereinafter ICESCR].
^[10] 21 December 1965, 660 U.N.T.S. 195 (entered into force 04 January 1969, accession by Canada 14 October 1970) [hereinafter CERD].
^[11] For the purposes of this policy, the most relevant are the Vienna Declaration and Programme of Action, adopted by the World Conference on Human Rights, UN Doc. A/CONF. 157/23 (1993), endorsed GA Res. 48/121, UN Doc. A/RES/48/121 (1993), the Declaration on Race and Racial Prejudice, adopted and proclaimed by the General Conference of the United Nations Educational, Scientific and Cultural Organization (UNESCO) 27 November 1978, E/CN.4/Sub.2/1982/2/Add.1, annex V, 1982 and most recently the World Conference Against Racism, Racial Discrimination, Xenophobia and Related Intolerance Declaration and Programme of Action, 25 January 2002, A/CONF.189/12.
^[12] Report of the Special Rapporteur on Racism, supra, note 3.
^[13] See Slaight Communications Inc. v. Davidson, [1989] 1 S.C.R. 1038 and Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817 at paras. 70-71.
^[14] In 1960, Canada enacted a declaratory statement of human rights in the Canadian Bill of Rights, S.C. 1960, c. 44. While the bill was cast as a constitutional document, it was a statute that could be overridden by other laws. It did not apply to provincial legislation. Courts tended to interpret it narrowly and the bill was considered a disappointment by those who wanted to see a truly constitutional Bill of Rights; see McLachlin, infra, note 22 at paras. 37-38. In 1962, the Ontario Human Rights Commission, the first of its kind in Canada, was established to administer and enforce the Ontario Human Rights Code, which was enacted in 1962. The Canadian Charter of Rights and Freedoms came into force in April 1982, although the equality rights provisions in section 15 came into effect three years after the rest of the Charter. It is a constitutional document and federal and provincial laws and state actions are required to conform to it. The Charter is founded on the rule of law and entrenches in the Constitution of Canada the rights and freedoms, including equality rights, that Canadians believe are necessary in a free and democratic society.
^[15] Report of the Special Rapporteur on Racism, supra, note 3 at paras. 68-9.
^{[∗∗∗∗∗]} This summary is intended to concisely outline and show the commonalities of some of the most significant events of racism in Canadian history. It is not, and cannot be, a detailed or exhaustive review of the experience of every racialized community nor should it be considered a basis for comparing the degree of racism suffered by various communities.
^[16] See statistics on hate crimes, supra, note 2. A recent Ipsos-Reid survey commissioned by the Dominion Institute found that one in six Canadian adults report that they have personally been the victims of racism. Moreover, approximately one in ten Canadian adults would not welcome people from another race as next-door neighbours; see Ipsos-Reid, “March 21st, International Day for the Elimination of Racial Discrimination: One in Six Canadians Say They Have Been the Victim of Racism” (21 March 2005), online: www.dominion.ca/Downloads/IRracismSurvey.pdf>. See also the Report of the Special Rapporteur on the situation of human rights and fundamental freedoms of indigenous people, Commission on Human Rights, E/CN.4/2005/88/Add.3 (02 December 2004) [hereinafter Report of the Special Rapporteur on Indigenous People].
^[17] This brief history of the Aboriginal experience of racism is based on more detailed discussions in: F.Henry, C. Tator, W. Mattis & T. Rees, The Colour of Democracy: Racism in Canadian Society, 2d ed. (Toronto: Nelson, a division of Thompson Canada Ltd., 1998) at 119-142; M. Jacko, “The Experience of Aboriginal Peoples in Canada” Paper for the International Council on Human Rights Policy (2001).
^[18] For a detailed discussion of the various events that have had such a profound impact on Aboriginal culture that they have sometimes been described as “cultural genocide,” see Report of the Royal Commission on Aboriginal Peoples, supra, note 9 at Part One, Chapter 6 “Stage Three: Displacement and Assimilation.”
^[19] See Archives of Ontario www.archives.gov.on.ca/english/exhibits/humnrits/slavery.htm and Ontario Heritage Foundation www.heritagefdn.on.ca/userfiles/HTML/nts_1_2724_1.html>.
^[20] See Archives of Ontario, ibid.
^[21] The Rt. Hon. Beverly McLachlin, “Racism and the Law: The Canadian Experience” (2002) 1 J.L. & Equality 7-24 at para. 18, online: QL (JOUR).
^[22] Ibid.
^[23] Henry, Tator, Mattis & Rees, supra, note 18 at 71-72.
^[24] Stewart and School Trustees of Sandwich (1864), 23 U.C.Q.B. 634 at 638 (where no separate school was in existence, attendance at common school could not be denied); Hutchinson and School Trustees of St. Catharines (1871), 31 U.C.Q.B 274 at 277-279 (application to compel school trustees to admit Black student dismissed because common school over-crowded, but court held refusal to admit Black student on account of the child’s colour was unjustified); Re Hill v. School of Trustees of Camden and Zone (1874), 11 U.C.Q.B. 573 at 578-579 (application to compel school trustees to admit Black students dismissed because establishment of a separate school for coloured students precluded their parents from choosing the common school); Dunn v. Board of Education of Windsor (1884), 6.O.R. 125 at 127-128 (Ch. Div.) (application to compel school trustees to admit Black student dismissed because no prior request had been made to school inspector and because common school was over-crowded).
^[25] Henry, Tator, Mattis & Rees, supra, note 18 at 72 and C. Smith, “Tuition Fee Increases and the History of Racial Exclusion in Canadian Legal Education” (2004) 3:3 Canadian Diversity 32-35 at 33.
^[26] McLachlin, supra, note 22 at para. 21.
^[27] Henry, Tator, Mattis & Rees, supra, note 18 at 72-73.
^[28] A class action lawsuit against the Canadian government to seek compensation for the effects of the head tax has been unsuccessful; Mack v. Canada (Attorney General) (2001), 55 O.R. (3d) 113 (Sup. Ct.), aff’d (2002), 60 O.R. (3d) 737 (C.A.), leave to appeal denied [2002] S.C.C.A. No. 476.
^[29] McLachlin, supra, note 22 at para. 13.
^[30] Quong Wing v. The King (1914), 49 S.C.R. 440 at 444, Sir Charles Fitzpatrick C.J.C.
^[31] McLachlin, supra, note 22 at para. 14.
^[32] Henry, Tator, Mattis & Rees, supra, note 18 at 76-77. See also Canadian Race Relations Foundation, “From Racism to Redress: The Japanese Canadian Experience,” online: www.crr.ca/EN/MediaCentre/FactSheets/eMedCen_FacShtFromRacismToRedress.pdf.
^[33] This term encompasses persons originating from India, Pakistan, Sri Lanka, Bhutan, Nepal and Bangladesh; Henry, Tator, Mattis & Rees, supra, note 18 at 76.
^[34] Ibid. at 76-77.
^[35] Ibid. at 79.
^[36] For a detailed discussion see: I. Abella & H. Troper, None Is Too Many: Canada and the Jews of Europe, 1933 to 1948 (Toronto: Lester & Orpen Dennys, 1982).
^[37] Henry, Tator, Mattis & Rees, supra, note 18 at 80.
^[38] Noble v. Alley, [1951] S.C.R. 64.
^[39] Such federal immigration policies are matters within the jurisdiction of the Canadian Parliament and consequently not subject to provincial human rights codes.
^[40] F. Henry, “Concepts of Race and Racism and Implications for OHRC Policy” (2004) 3:3 Canadian Diversity 4.
^[41] Robert Miles & Rudy Torres, “Does “Race” Matter? Transatlantic Perspectives on Racism after “Race Relations”,” in V. Amit-Talai and C. Knowles, eds., Re-Situating Identities: The Politics of Race, Ethnicity and Culture (Peterborough: Broadview Press, 1995) 24-46:...earlier this century, the biological and genetic sciences established conclusively in light of empirical evidence that the attempt to establish the existence of different types or “races” of human beings by scientific procedures had failed. [at 25]
^[42] Report of the Commission on Systemic Racism in the Ontario Criminal Justice System, supra, note 6 at40-41.
^[43] M. Castagna & G.J.S. Dei, “An Historical Overview of the Application of the Race Concept in Social Practice,” in A. Calliste and G.J.S. Dei, eds., Anti-Racist Feminism (Halifax: Fernwood Publishing, 2000)19-37 at 35.
^[44] Words that describe racialized persons as a “minority” assume that White people are the predominant population group which is an inaccurate portrayal of most countries in the world and, increasingly, of many areas in Canada.
^[45] A term which applies to all people who are not seen as White by the dominant group, generally used by racialized groups as an alternative to the term visible minority. It emphasizes that skin colour is a key consideration in the “everyday” experiences of their lives; Canadian Race Relations Foundation, Glossary of Terms (April 2005). However, the term is imprecise and not all racialized people would describe themselves in this way.
^[46] The Commission has chosen to capitalize the terms “Black” and “White” although with a recognition that whether these terms should be capitalized is a matter open to debate.
^[47] Please see for greater detail F. Henry, “Concepts of Race and Racism and Implications for OHRC Policy,” supra, note 41.
^[48] A review of a thesaurus or dictionary makes this clear. For example, consider the positive connotation of the terms “white lie” and “white knight” compared with the negative meanings of “blacklist,” “blackmarket” and “blackmail” and many other words beginning with “black.”
^[49] Henry, Tator, Mattis & Rees, supra note 18 at 56-7.
^[50] This distinction was succinctly acknowledged by the Nova Scotia Board of Inquiry in Johnson v. Halifax (Regional Municipality) Police Service (2003), 48 C.H.R.R. D/307 (N.S. Bd. Inq.).
^[51] Adapted from the definition in the CERD, supra, note 11 Article 1:any distinction, exclusion, restriction or preference based on race, colour, descent, or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in the political, economic, social cultural or any other field of public life.
^[52] Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143 at 174.
^[53] See for greater detail J. A. Rummens, “Operationalizing Race and Its Related Grounds in Ontario Human Rights Policy” (2004) 3:3 Canadian Diversity 7.
^[54] The OHRC has repeatedly recognized the importance of applying an intersectional approach to discrimination involving multiple grounds as well as the particular relevance of the intersectional approach for racial discrimination complaints. See Ontario Human Rights Commission, An Intersectional Approachto Discrimination: Addressing Multiple Grounds in Human Rights Claims (October 2001), online: www.ohrc.on.ca.
^[55] For a discussion of five assumptions that have played out in human rights tribunals’ analysis of race cases, see R. Dhir, “Common Myths and Misconceptions about Racial Discrimination: A Case Study” (2nd Annual Human Rights Symposium: Focus on Racial Discrimination, May 2003).
^[56] In particular, see Smith v. Mardana, infra, note 79. The Tribunal had reasoned, “[w]hy would the very people who hired him, who were impressed by him, who promoted him, and who accommodated his school schedule in terms of working hours, suddenly make a decision against him on his race?” at para. 23. However, the Divisional Court recognized this as a common myth and one that inappropriately focused on the motivation of the respondents, which does not properly form part of the analysis of whether racial discrimination occurred.
^[57] See also Henry, Tator, Mattis & Rees, supra, note 18 at pp 384-5.