Race is also often understood in the context of a multi-dimensional structure of race, class and gender, sexuality, and (dis)ability. Intersectionality —as a concept of analysis (see 11.7 Treatment in the Criminal Justice System)—is designed to show how these categories and their social effects are interlinked or interlocked in a way that makes them difficult to pull apart and analyse as separate entities. That is, race, class and gender, sexuality, and (dis)ability are understood to act together to produce social effects such as social division, oppression, and entitlement. Critical legal theorists like Kimberlé Crenshaw and others have used the concept of “intersectionality” to describe how race intersects with social and economic class, gender and sexual expression, nationality, and other institutional markers of identity (Crenshaw, 1989).

Intersectionality research attempts to reveal that racial bias is not just a feeling or belief held by a single person, as racism and racist practices exist in symbiotic relationships with other social factors. Intersectionality—as a concept—allows us to see that people do not just act alone in their bias or that racial bias simply exists by itself; rather, race is intersected with other social institutions, practices, and actions. It is interlocked and interdependent on other social traits and/or social conditions. For example, in the case of Shereen Hassan, the way she is understood at the border is not just as a non-White person, as she may be also interpreted or judged as a middle-class, non-White, cis-gendered, female Muslim immigrant. Her race does not exist nor act alone.

Through a lens of intersectionality, it is possible to examine race and how it is jointly expressed as economic wage disparity, housing disparity, health disparity, education disparity, and/or as overt acts of violence and aggression. Race is intersected and interlocked with other forms of oppression to such a degree that it may be a misnomer to simply name it and reify it as something called “race.” Maybe it should be renamed something like “race-class-gender-sexuality-(dis)ability and how they are interlocked in their social operation and history.” The framework of intersectionality reminds us that the concept of race or racism should only be used as a term of analysis and investigation and not as a “thing” in itself. That is, when we use the term “race”, it only serves to allow us to focus on the specific ways racialisation operates (i.e., racial bias or racism). Scholarly use of the term “race” does not imply that racial categorisation is a correct or natural way to understand people; rather, it recognises that it is a significant mode of categorisation that, along with others, can produce social effects for individuals and groups. For example, the class of a person and whether they are rich or poor has a powerful modifying effect on how a person is understood, judged, rewarded, and/or damaged by their racialisation. It cannot simply be “colour” that causes racist harm by itself. Using a chemical analogy, we might understand race to be an agent that works in a catalytic manner with other agents that are present in the chemical reaction. Race and other factors (e.g., class and gender) are intermingled to such a degree that they cannot be descriptively extricated from each other except for the purposes of analysis. This is the meaning and analytic power of the term “intersectionality.”

Racial theory that interrogates race (i.e., critical race theory) and how it exists in its institutional forms and expressions is useful for a student of criminology because it allows the student to understand how this unpacked notion of “race” could have an effect on crime and criminalisation (Delgado & Stefancic, 2007). Interrogating race allows for an understanding of how ideas about deviant behaviour might be associated with race or specific groups of racialised subjects (e.g., Indigenous or Black). Intersectionality—as a framework of analysis—demands that “race” as a social determinant must be linked with other social determinants or causes such as education, family, neighbourhood, policing, or sexuality.

Critical race theory allows us to understand that “race” is a human invention, or a social construct, that does not pre-exist humanity outside of time or social structure. It does not exist in the natural world, nor does it happen outside of human organisation. Humans or society invented the idea and practice of “race.” If “race” is a social construct, then how should we begin to understand its features and effects? For the purpose of analysis, one way is to break down the idea and practice of race into separate categories of effects, actions, or practices. For the purposes of examination and analysis, we can usefully unpack the practice of race or racism into three categories that help reveal how they are applied or deployed in real social practice: overt racism, institutional racism, and systemic racism.

What is Overt Racism?

Overt racism can be understood as the kind of racism individuals experience as direct interpersonal experiences. It is a kind of racial bias encounter experienced subjectively by individuals. For example, if someone is overtly racist towards you, it has immediate emotional and subjective effects. If you are treated unfairly due to race/racism, you experience it as a direct personal insult or injustice. If a person insults you with a verbal insult that mocks your racial background, then that can be understood as an overt act of racist speech. It is overt racist speech because it is using the framework of “race” as the main vehicle of insult. If that speech act is followed by an assault, then it can be argued that the assault was motivated by hate or bias. In both cases, racism or racial motivation is linked to the insult and/or assault. In this regard, such acts can be understood as acts of overt racism (see London police arrest 2 teenagers linked to Covid-19 racist assault on Singaporean student and East Asian student assaulted in ‘racist’ coronavirus attack in London).

According to s. 718.2 of the Canadian Criminal Code, the courts can consider motivation as it pertains to sentencing. If the motivation for the crime is “hate/bias”, then this “prejudice” can be understood as motivating the crime (e.g., assault). If “hate/bias” is the motivation behind the crime, then the motivation alters the sentencing. The motivation of “hate/bias” does not affect the verdict; it only affects sentencing. In this regard, one limitation to the way this law responds to overt acts of racism is that there are no adequate guidelines for judges to follow when administering a guilty verdict in cases motivated by “hate/bias.” Specifically, the language of the law states:

A court that imposes a sentence shall also take into consideration the following principles:

(a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender, and, without limiting the generality of the foregoing,

(b) evidence that the offence was motivated by bias, prejudice or hate based on race, national or ethnic origin, language, colour, religion, sex, age, mental or physical disability, sexual orientation, or any other similar factor.

The second limitation to this law is that there are no detailed guidelines for judges to follow when delivering a sentence that involves a crime motivated by “hate/bias.”

What is Institutional Racism?

Institutional racism can be understood as “racism without racists”. An institution may have racist policies or practices that do not necessarily require racist beliefs on behalf of the workers tasked with enacting them. To give an example from Canadian history, in 1946, Viola Desmond was denied a downstairs seat in a cinema in New Glasgow, Nova Scotia (Reynolds & Robson, 2016, 2018). The cinema’s owner had established a rule prohibiting patrons who were not White from sitting downstairs. In this regard, the movie theatre was a racist institution because the prohibition produced negative effects (non-White people faced limitations that Whites did not) based on racial categorisation. Once a racist rule is institutionalised in this way, an employee tasked with enforcing this prohibition does not need to be racist themselves in order for the prohibition to produce a racist effect—they just need to fulfil their work duties. As an intellectual exercise, we could imagine the ticket seller refusing to sell Viola Desmond a downstairs ticket, stating: “Sorry, I cannot sell a downstairs ticket to you. I’ve got no problems with your kind, but the rules are the rules. Sorry.” From this perspective, the ticket seller can be understood to be lawfully following “the rules” and not acting in an overtly racist manner.

Another Canadian example of institutional racism can be found in its history of Chinese exclusion, where government enacted specific laws to disadvantage both Chinese migrants and Canadian-born Chinese (note: we can retroactively name these types of people as “Chinese-Canadians”; however, most Chinese-Canadians were not granted citizenship until the 1960s and in this sense were not part of the national fold). Institutional bias against Chinese was marked by several legislative acts that banned Chinese migration, Chinese voting, Chinese purchase of land, and the hiring of Chinese men (Prkachin, 2007). For more details, see the Discriminatory Legislation in British Columbia 1872-1948 [PDF].

Legislative acts that deploy racist restrictions are enacted through institutions of municipal, provincial and federal assembly. By enforcing and obeying these laws, a Canadian citizen employed in such an institution is simply complying with law. Their compliance is not an act of “overt” racism or bias because compliance is an act of lawfulness. And yet, there are complications to compliance. On the one hand, compliance is not an overtly racist act, but silence is also an act of complicity and endorsement. On the other hand, the act of compliance raises the spectre of tacit approval of racism by continued employment in an institution that clearly has harmful racist effects. Is an employee—who stays at a job against their conscience—making an overt decision to perpetuate racism?

Similarly, in the case of Shereen Hassan’s border refusal, we can understand the border guards’ actions not as individual racism or the active discretion of a specific agent but as institutional in nature because an external system of biased selection alerted the agent to detain and reject Shereen’s application to travel to the United States. Her refusal was not based on any unlawful act or behaviour on her part, nor the specific actions of a particular officer—any agent would have done the same; rather, a system of race—combined with a bias against previously identified non-Western names and nationalities—was adopted by Homeland security and border control. In so doing, a race-based system of bias and selection was “institutionalised.” The system exists outside of the behaviour or thinking of individual officers. The officer does not need to be biased themselves to carry out biased selection; the officer need only follow the system that flags Shereen Hassan’s name and profile. The officer does not act in a biased manner; the officer only follows what the system instructs. The officer is innocent of bias or racial profiling. The institution and its rules produce the racist effect, not the border control agent. This is the very definition of “institutional racism.”

What is Systemic Racism?

Systemic racism is different from the other two forms of racism. It is not a form of racism experienced as an interaction between two individuals, and it may not be an institutional prohibition. Rather, it is bias or difference experienced as an effect of social structures. It may not even be immediately recognised as racism. It can also be understood as how race intersects with economic achievement and labour market disparity between those who are raced and those who are not raced (i.e., White).

The term “systemic” refers to the phenomenon of how non-racial aspects of society such as employment or housing affect a person’s life course. Lower labour market performance or lower salaries and wages can have an important effect on a person’s life. If you have low socio-economic status (SES), this low status might affect your life course. Some authors have argued that non-White people are more likely to be caught in a cycle of low SES and that status is inter-locked with non-White status. Sheila Block and Edward-Grace Galabuzi argue that “[T]he racialization of poverty refers to a phenomenon where poverty becomes disproportionately concentrated and reproduced among racialized group members, in some cases inter-generationally” (Block & Galabuzi, 2011, p. 15). In this regard, poor economic performance can intersect with race to produce “systemic” forms of oppression, bias, and disadvantage. This is what is meant by Kimberlé Crenshaw’s notion of “intersectionality.” These disadvantages are not directly driven and maintained by overt or institutional forms of racism; rather, the racial disparity can be understood as a third product of the way race interlocks with economic performance as argued by Block and Galabuzi. A series of conditions (e.g., worker preference, lower wages, types of work) work together to create the condition of racialised economic impoverishment. It is an accumulation of social practices that overlap and work together without a single guiding logic. In the context of policing, the racial profiling and targeted policing of racialised subjects may be one of those social practices. Police racial profiling is both a product of systemic racism and an agent that helps produce it, and it is interlocked with other social determinants that cannot be easily separated as objects of analysis.

In this sense, some authors have named “systemic racism” as a form of multi-dimensional disparity or racial inequality that reveals itself in education, incarceration, and health, where Indigenous or Black students have less chance of achieving their high school education, more chance of being incarcerated, and lower average life expectancies. These multi-dimensional forms of disparity are correlated with people of colour who are more represented in the areas of less longevity, more incarceration, and less education (Rohde & Guest, 2013). Indigenous and Black Canadians specifically are over-represented in the categories of less life, more prison, and less education. It is these forms of inter-locking disadvantages and social harms that help explain the meaning of “systemic racism.” As DiAngelo (2018) so eloquently states in her text White Fragility: Why it’s so Hard for White People to Talk About Racism, “[R]ace will influence whether we survive our birth, where we are most likely to live, which school we will attend, who our friends and partners will be, what careers we will have, how much money we will earn, how healthy we will be and even how long we expect to live” (p. 5).

People of colour are overrepresented in both their interaction with the system of justice and the system of incarceration (Ontario Human Rights Commission, 2017, 2018). But before police can exert race-based policing, the Black Canadian has already experienced various social injuries and harms that may expose them to more criminalisation. For example, in the area of schooling, Black high school students in Toronto have a higher drop-out rate and are more likely to live with a single parent. Black male students are more likely to be streamed into special classes and vocation programs rather than university preparation programs (Tator et al., 2006). Dominant social stereotypes regarding blackness are widespread in schools. Stereotypes and bias affect a child’s “youth identity development and relationship to schooling and the larger society” (Daniels, 2016, p. 103). Black males are also suspended at twice the rate of White males and expelled at four times the rate (Sanders, 2022). Higher school exclusion rates create delays in learning, which in turn creates increased academic challenges and poorer life outcomes.

In the context of Toronto, school prepares Black students to not graduate and not attend university (Tator et al., 2006). In so doing, the public school system—as a societal institution—is treating students in a way that harms their chances for educational and professional excellence. School teaches Black students that they are academic failures. Thus, school is a central social institution that helps limit the horizons of possibility for Black students and is a strong contributor to the way “race” acts in a multi-dimensional or “systemic” manner in society. It is no surprise that Black youth who perform poorly in Toronto then end up having more contact with police services. Outside of school, the over-policing of Black neighbourhoods and the increased chances of street checks and traffic stops all contribute to the experiences of many racialised youth (Sewell, 2021). The multi-dimensional racism in which Black students have been steeped has prepared and brought them these conditions not of their own choosing. And this returns us to the beginning of this chapter, where we began by asking: If race is a flawed social construction, why don’t we simply change, alter or erase the idea of race?