Multiculturalism and the Charter

March 29th, 2006 by admin

Walking down a major street in any large Canadian city, one can readily observe the diversity that defines Canada’s present makeup.Demographically, Canada has undergone changes as a result of government policies that encourage increased immigration. And unlike the United States, which promotes the concept of a population “melting pot,” Canada encourages all citizens to preserve their heritages as part of our cultural mosaic.

Since 1982 we have had a constitutional guarantee of multiculturalism.

In particular, Section 27 of the Canadian Charter of Rights and Freedoms requires that when interpreting and applying other rights and freedoms in the Charter, our courts are required to do so in a way that “preserves and enhances the multicultural heritage of Canadians.”

Section 27 does not in and of itself grant any rights, but rather is an adjectival section. It serves to assist the courts in the interpretation of rights contained elsewhere in the Charter of Rights. Even though this use of the multicultural guarantee is of somewhat limited value, it does serve to reaffirm multiculturalism as a Canadian value whenever the section is used. How then has it been used?

During the first decade of Charter experience, from 1982 to 1991, Section 27 was used quite frequently, particularly in cases testing the assertion of freedom of religion, freedom of expression, egalitarian or equality rights and other miscellaneous parts of the Charter.

During the second decade of Charter experience, although the use of Section 27 declined, it was still employed in a number of ways.

Section 27 was invoked in some cases promoting egalitarianism. It was also used in relation to the legal rights sections of the Charter with respect to those persons in contact with the criminal justice system. One example of this is the right of an accused person to understand the language in which a trial is being conducted.

As well, many lawyers have added Section 27 to their Charter arguments in a last-ditch effort to win a case, however, in virtually all of these latter cases, the courts did not even consider the multicultural argument.

Today, there appears to be a continuation in the decline of the use and effectiveness of Section 27 as a useful constitutional tool in reaffirming an important Canadian value.

In the mid-’80s, there was a case in which accused individuals charged with assault wanted to wear their kirpans in court. The kirpan is a ceremonial sword that orthodox Sikhs are required to wear. In that case, the courts decided against the wearing of the kirpans in court, but the case did not reach the Supreme Court of Canada level.

However, just a few weeks ago, an important case was decided by the Supreme Court of Canada. The Multani or so-called kirpan case focused on freedom of religion and dealt with whether a local school board could prohibit a Sikh student from bringing a kirpan into a school. The Supreme Court supported the position that to deny a Sikh student permission to bring a kirpan into school constituted a deprivation of that student’s freedom of religion.

Clearly, this case stands out as a strong statement in favour of minority religious freedom. This is important to all religions, especially where the numbers are few and the fight for religious freedom is an ongoing concern. Canadian Jews are well aware of this.

What is the significance of this case, apart from the obvious victory for freedom of religion? Does the case serve to buttress the legal recognition of multiculturalism in Canada?

Although the case was decided on the basis of freedom of religion, many hailed it as a victory for multiculturalism. In criticizing the decision, one columnist in the Globe and Mail described the case as “multiculturalism gone wild.”

Significantly, there was reference in that decision to the notion of multiculturalism, however, Section 27, our constitutional guarantee of multicultural diversity, was not even used by the court.

What does this tell us? It tells us that diversity endures as an important Canadian value but also that the usefulness of Section 27 as a constitutional guarantee of multiculturalism remains in doubt. In short, preservation and enhancement of multiculturalism will not be significantly enhanced by the use of Section 27, but rather will depend almost entirely on the use of other sections of the Charter.

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By: Gerald Gall (Canadian Jewish News)
Source: Canadian Jewish News Website (Article Link)

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