By David L. Thomas, May 30, 2024
Sometimes our solutions to problems have the feature of exacerbating them and making conditions worse for the very people we intended to help.
The latest candidate is the British Columbia government’s proposed Bill 23, the Anti-Racism Act. The Bill arises from the 2022 Anti-Racism Data Act and the follow-up 2023 Anti-Racism Legislation Questionnaire Summary Report (the Report).
The Bill raises two questions: Does systemic racism really exist? If it does, is the Anti-Racism Act the right solution – or will it make matters worse?
On the first question, let’s draw a clear distinction between allegations of “racism” and “systemic racism.” Racism is about an incident that amounts to discrimination based on someone’s race. Systemic racism suggests not merely the presence of particular incidents of racism, but rather, something baked into the “system” that results in the discrimination of a person or group based on their race.
There are, without question, examples of systemic racism in our history, such as laws that were overtly racist in their nature. For example, we once allowed restrictive covenants in BC on land titles that prohibited property ownership by certain races. We look back on those examples today with disgust. Since those days we have implemented long-standing, honourable anti-discrimination laws that state that no one should be judged by their physical or mental characteristics. We all come into the world with certain attributes that will be with us for life. We concluded a long time ago that it is morally wrong to discriminate against a person based on such attributes.
Interestingly, the Report does not provide any examples of systemic racism. In fact, the Report admits that in its public questionnaire, the highest response was denial that systemic racism exists. The Report acknowledges that there was “a consistent theme” of denial of systemic racism and racial trauma across all demographic groups. The fact that all demographic groups question the existence is raised in another section of the Report: “In the analysis of comments, the ways in which respondents expressed denialism were not noticeably different across ethnic groups.”
Not to be dissuaded by responses that systemic racism doesn’t exist, the Report explains away “denialism” as being the result of the respondents’ anti-diversity, overt racism, implied racism, victimhood, and naïveté. The Report even suggests that denialism is a problem to be dealt with: “Denial of systemic racism was found across ethnicities, suggesting the need for a closer look at foundational drivers of culture, how those persist, and what can dismantle it.”
Notwithstanding the uncertain answer to our first question, the first principle in the Anti-Racism Act broadly asserts: “systemic racism, systemic racism specific to Indigenous peoples and racial inequity are harming individuals and communities in British Columbia and require urgent action.” And yet, nowhere in the Anti-Racism Act is there evidence or examples of systemic racism or an indication of where it can be found.
Nevertheless, let’s give the BC government the benefit of the doubt and conclude that systemic racism does exist. Why do they need to create a whole new bureaucracy with endless reports and action plans? Why don’t they go straight to those laws and policies that result in adverse differential treatment of others based on nothing more than their race and repeal them? The NDP has a majority government. What is it waiting for? The solution should be simple.
Unfortunately, the NDP solution is the Anti-Racism Act, which sets out to do something different. Rather ironically, the law in fact establishes adverse differential treatment of people based on their race. It contains several racially discriminatory clauses and mandates. An obvious example is Section 5, which establishes a Provincial Committee on Anti-Racism. However, to be a member of said Committee, one must “racialized” which, we are left to presume, means you cannot be white. Apparently, the BC government has decided to exclude the insights and opinions of an entire group of people based solely on the colour of their skin.
The Anti-Racism Act will require all public bodies to set race-based recruitment and advancement targets to ensure “racialized individuals” are hired and promoted to senior levels. Under this law, such racial discrimination is not only permissible, but also mandated. It will be lawful to racially discriminate against certain people pursuing their career ambitions, even though, like their “racialized” friends, they did not have any choice to be born with certain immutable characteristics.
All of this is permissible under the Charter of Rights and Freedoms even though Section 15(1) guarantees that everyone has the right to equal protection and equal benefit of the law without discrimination. However, Section 15(2) goes on to say it’s okay to ignore the previous section if you make an unequal law for the “amelioration of conditions of disadvantaged individuals or groups including those that are disadvantaged because of race….” etc.
Lawmakers should always ask themselves the question: this may seem like a good idea today, but will it seem like a good idea 50 years from now? I am sure those lawmakers who permitted racist covenants on land titles thought it was a good idea at the time. Is mandating a new form of reverse-racism today really a good idea in the long run? The racial demographics in Canada are rapidly changing. Some academics foresee white people becoming the minority in Canada as early as 2050. Will the Anti-Racism Act endure as a socially just and morally defensible law when the racial structure of Canadian society is fundamentally different than it is today?
The latest data from Statistics Canada shows that people of South Korean, Japanese, and South Asian descent tend to be the top earners in Canada, broadly speaking. While Latin-American and Black people are often among the lowest earners, white people are mostly in the middle of the pack. If the goal of the Anti-Racism Act is to advance racial equity, why does it contravene its second principle – “actions to … advance racial equity … should be informed by data” – by ignoring the data?
If Canada decided long ago that it is morally wrong to discriminate based on race, why is it suddenly okay now in BC? How is this morally justified? And, who decides which groups are advantaged or disadvantaged under the Charter? Will those determinations change over time, or will legal privileges based on race be owned indefinitely?
In my years as a human rights adjudicator and mediator, I often heard the allegation of “systemic racism,” but no one was able to clearly point to it when asked. I was not expected to ask such questions, but to just accept its existence as a given fact. It would be impolite to ask if there could be other reasons for disparate outcomes. Best to leave it to something invisible, that we all just agree is there, without having to point a finger to a person or an identifiable policy that might counter back. And yet, the Statistics Canada data, showing striking income differences within the visible minority cohort, tells us there is something more going on here.
I doubt the Anti-Racism Act will ever resolve the disparate outcomes that it targets. I fear it will make outcomes worse. The Anti-Racism Act contemplates anti-racism training in public bodies and the Report suggests education in our schools, presumably to educate everyone about Canada’s racist nature and unequal outcomes being based on systemic racism. It’s easy to blame something you cannot see for the outcomes you don’t like. The problem with blaming disparate outcomes solely on this invisible “systemic racism” is that it detracts from and negates other obvious causes of disparity. This is not how racial equity will be advanced. It is not how to teach our children to advance themselves or to create a more just society. It is more likely to have the opposite effect because problems never get solved when the cause is wrongly identified.
Anti-racism activists want to fight discrimination with racism. Ironically, it will only beget more racism in the long run. The more we see acceptable and overt racism in the law the more we will see the normalization of racism. It will make life for certain visible minorities and Indigenous peoples worse by further dividing society. People will naturally segregate to protect themselves when the laws make some more equal than others. Is that the outcome we desire?
The BC government seems determined to abandon principles of equality, to ignore uncomfortable data, and to force a racist and society-dividing solution onto a problem that people, of all backgrounds, don’t even agree exists.
David L. Thomas is a lawyer and mediator in British Columbia and a Senior Fellow with the Macdonald-Laurier Institute. From 2014–2021, he served as the Chairperson of the Canadian Human Rights Tribunal in Ottawa.
