by Zachary Couture
“Section 27 of the Canadian Charter of Rights and Freedoms specifically enshrines our multicultural heritage as one of the basic constitutional tenants. The mere fact that it is in the Charter, and says that the Charter is to be interpreted in a manner consistent with the preservation and enforcement of multicultural heritage of Canadians, is indicative of the importance of that diverse heritage in this country.”1
Justice Scalan of the Nova Scotia Supreme Court
Multiculturalism has been touted as a signifying feature of Canadian identity and governance. Statements by both federal and provincial leaders have reflected this since Prime Minister Pierre Elliot Trudeau announced multiculturalism as official federal policy in 1971.2 BC Premier David Eby described multiculturalism as a “pillar of our national identity”3 whereas Prime Minister Justin Trudeau described multiculturalism as one of the nation’s “greatest strengths – [for after all] Canadians know that we’re stronger not in spite of our diversity, but because of it.”4 Beyond political rhetoric, multiculturalism is entrenched in the Canadian Constitution through section 27, which states that the Charter must be interpreted in a manner that enhances, promotes and protects “the multicultural heritage of Canadians.”5 As a result, there is an inherent marriage between multiculturalism as a state policy and project, and the Charter itself. After all, Canadian governments reference the Charter in their policies on multiculturalism.6 Yet, despite the clear social and political importance of section 27, its legal application in Charter jurisprudence is underdeveloped.7
Section 27 ought to have serious legal weight given the history of its inclusion in the Charter. Part of this history was a commitment by political leaders to cultivate a distinct national identity for all Canadians, including those of neither British nor French descent.8 A more critical factor was the activism of ethno-cultural minority groups, who demanded a reference to the multicultural reality of Canada as a means of acknowledgement and meaningful protection.9 Indeed, as identified by Joseph Eliot Magnet, “freedom from discrimination and group survival” animated section 27’s constitutional entrenchment.10 Ultimately, section 27 is distinct from multiculturalism as a policy, as it is intended as a mechanism to ensure that cultural diversity is reflected upon and respected within the application of the Charter.
The goal of this paper is to provide a descriptive account of how section 27 and “multiculturalism” are used in Charter jurisprudence, in a manner that has relevance for modern litigation. It is also hoped that this modern account of section 27 can provide a foundation for further scholarly and legal work on multiculturalism in the Canadian constitution. In the last decade, there has been scant legal scholarship in the last decade accounting for section 27.11 Moreover, various scholars have suggested that section 27 is merely politically symbolic and thus is more “declarative” than legal in nature.12 Of course, there are many nations with constitutional provisions that are effectively “read out” or hold less legal weight than what they might appear on the surface of what is codified.13 Nonetheless, I counter that in the case of section 27, it ought to be seen as holding effective legal meaning, and I make this argument by demonstrating how it is used within Constitutional jurisprudence.
I argue that the use of section 27 is configurationally parallel to “Charter values”. As such, I utilize a comparative model to explain how both Charter values and section 27/ “multiculturalism” are structured within judicial reasoning in similar fashion. I make this analogy with Charter values as there has arguably come to be an expanded role of Charter values within constitutional jurisprudence despite not being entrenched rights in-and-of themselves. Thus, this comparison can help practitioners and scholars similarly situate section 27 and its latent capacity within Canada’s constitution. While I do not argue section 27 creates a substantial right,14 this is not to dissuade such normative arguments. Rather, I contribute to the body of scholarship speaking to the “adjectival capacity” of section 27 to assist in judicial interpretation.15 It is hoped that through my descriptive analysis, both scholars and practitioners can identify and expand on how section 27 is used in Charter litigation, such that it can be reinvigorated with greater jurisprudential life.16
My argument proceeds in four parts. First, I outline why section 27 is of importance to many cultural-minority groups in Canada. To do this, I explain what multiculturalism means in the Canadian political landscape, and note the contentions against it, to which I respond. Second, I provide my reasoning for comparing Charter values and section 27, and what I hope can be gained in knowledge from such a comparison. Here, I describe what Charter values are in constitutional jurisprudence, including criticism of them amongst legal scholars and practitioners. Third, I provide an overview of the similarities of how Charter values and section 27 are used in judicial reasoning on constitutional matters. By “judicial reasoning,” I refer to how both Charter values and section 27 are discussed in the written reasons of Canadian judges across constitutional caselaw. Finally, I end by discussing the similarities between Charter values and section 27, through the lens of jurisprudential theory, as helping guide judicial discretion. Here, I provide an account for the specific role of constitutional interpretive provisions like section 27, and the distinct ways section 27 as an interpretive provision may inform the decision-making of judges.
Why Section 27 Matters: Understanding Multiculturalism and its Promises in Canada
What is multiculturalism? Even counsel to the constitutional drafters recognized it is a term that has no fixed meaning in and of itself, and can be ambiguous.17 Its meaning should unquestionably matter, however, because it is in our Constitution. It also matters because, though I do not explore in depth how Canadian courts have interpreted the “meaning” of “multiculturalism,” understanding the social and political definition the Canadian public ascribes to it is imperative for any meaningful appreciation of how section 27 might function within the Charter.
From the political context, multiculturalism can be understood as a mode of governmentality, and as legal response to population diversity.18 Political theorists like Will Kymlicka have forwarded that multiculturalism functions as a liberal theory of “minority rights” within a democratic nation-state.19 Indeed, this understanding is consistent with the fact that anti-discrimination policies and anti-racist educational initiatives have been and are adopted by Canada through official “multiculturalism” policy.20 Yet Kymlicka later recognized that multiculturalism has also been advanced in neoliberal directions.21 Here multiculturalism is less concerned with addressing the marginalization of minorities under the nation-state, but rather encouraging their market inclusion including through the commodification of cultural products, or even by exploiting transnational networks based on ethnic lines to bring in more capital.22 Despite this, I favour a legal understanding of multiculturalism not principally based on capitalist terms, even if the neoliberal definition of the term is utilized in public discourse and politics. Multiculturalism predates neoliberalism, having its discursive origins in Canada arise during the 1960’s during the peak of the expansion of the welfare state.23 While many Canadians today may experience multiculturalism as a market-based or neo-liberal phenomenon, multiculturalism’s initial function was as an extension of civil rights discourse and inclusive democratic citizenship.24 As such, its inclusion in the Charter at section 27 would seem to provide commentary on rights owed by the constitutional state itself, and not private markets. Moreover, an argument could be made that while based in terms of capital, and not meaningful political or social rights, neoliberal multiculturalism can still be understood as a commentary on rights – that being a right of access to and participation in the market. As such, the layperson understanding of multiculturalism, even under neoliberal terms, would broadly be of rights to societal participation and inclusion. This ought to inform how we understand it by reference to the Charter and the obligations of government.
While multiculturalism as “minority rights” is supported by many Canadians, multiculturalism as a policy or political idea has also been subject to critique. These critiques may help explain, at least in part, why the meaning of “multiculturalism” in the constitutional context has yet to be fully fleshed out. There is notable political-policy concerns that arise from fully determining the boundaries of constitutional multiculturalism. I first note the critique emanating from the Quebec context. Canadian nationalism envisioned as “multicultural” and “civic” has been used as a way to denigrate Quebecois nationalism as merely “ethnic,” by comparison to the “inclusive” (Anglo-)Canadian “civic” nationalism; this has often negated the reality of common Anglo-European ideals – which carry their own version of “ethnic” nationalism – embedded in Canadian nationalist expectations from the rest of Canada.25 In fact, multiculturalism from its outset has failed to fully engage Francophone-Quebecois concerns. Since 1971, all levels of Quebec government have rejected multiculturalism, as since its inception it has been seen as undermining the long fought struggle of French Canada for recognition as a distinct nation by redefining French Canadians as merely a particular ethnic group amongst numerous others in Canada without distinction.26 In contrast to Canadian multiculturalism, Quebec has largely adopted a model of “interculturalism” – a model that embraces diversity, but with an expectation that there would be interaction, engagement and learning of culture and language, and in the Quebecois context this specifically emphasizes preservation of Francophone cultural practices and French language.27 Interculturalism has early foundations that arose both prior to and alongside the emergence of multiculturalism. In the 1960’s and 1970’s in community settings in Montreal, “interculturalism” was used to describe a multiethnic and cosmopolitan reality and resulting social expectations.28 However, following the 1988 federal enactment of a “new” Canadian Multiculturalism Act, with a more clear definition and purpose of Canadian multiculturalism policy, Quebecois scholars have noted that “interculturalism” was not just used as a qualifier of Quebec society and its dynamics, but rather increasingly as an intellectual and social response to Canadian multiculturalism from a Quebecois perspective.29 Indeed, while still accounting for pluralism, interculturalism diverges from multiculturalism by explicitly taking note of the need for language protection, emphasizing connections between cultures in Quebec, and understanding that in the Canadian/ North American context, French Canada is a minority and thus unlike English Canada, has to contend with geo- and socio-political structural fragility.30
Indigenous peoples have also, writ large, contested multiculturalism. Many Indigenous communities assert that multiculturalism as a policy and political idea fails to include Indigenous legal and autonomous jurisdiction, that it absolves the fact of Indigenous dispossession and subjugation, and that it potentially weaponizes cultural pluralism to justify settler-colonialism.31 There are many reasons Indigenous communities today are uneasy with multiculturalism. This includes that it insufficiently considers the distinct sui generis and inherent rights of Indigenous peoples under the guise of a promise of “tolerance” and formal equality.32 It also includes the fact that the initial political discourse on multiculturalism reframed the collectively held rights of Indigenous peoples as generic rights accorded to all “cultures” in disturbing resemblance to the “treat-Indigenous-peoples-like-everyone-else” assimilationism of the 1969 White Paper.33 Even under modern discourses of multiculturalism, the reality of Canada as a settler-colonial project is often reimagined and reframed through the lens of pluralism and the cultural mosaic, and even speaks of Canada as an “immigrant nation” eradicating the continued existence of Indigenous communities.34 Ultimately, it has to be recalled that multiculturalism as a model neglects the fact that Indigenous peoples never consented to being part of Canada’s nation-state project. As such, any meaningful discussion of minority rights and population diversity must grapple with the fact that Canada’s settler-colonial project imposed structural violence and cultural eradication, and more importantly, it impaired Indigenous self-determination.35
Nonetheless, while recognizing the valid criticisms of “multiculturalism,” its role in the Constitution matters, especially for the claims of many racialized Canadians and cultural minorities who have a vested interest in how it can enhance their rights.36 While the Charter recognizes official language minorities and Indigenous peoples, there are no provisions in the Charter that specifically speak to the collectiveprotection and rights of other cultural minorities including racialized communities. This is not to suggest that language provisions under the Charter, or constitutionally entrenched-Indigenous rights under sections 25 and 35 of the Constitution Act, 1982 are sufficient for either French Canadians or Indigenous peoples and their distinct justice interests. Nor is it to suggest that French Canadians and Indigenous peoples do not have valid and distinct rights as particular communities, separate from other minorities. However, I hope to underscore the fact that for groups like Vietnamese-Canadians, Jamaican-Canadians and Ukrainian-Canadians, amongst others, their particular cultural and collective interests in the Charter, not as individuals of diverse cultural backgrounds but as social and cultural communities, are culminated in how section 27 shapes the Canadian Constitution. Multiculturalism matters for groups like them, as they are the groups that stand to benefit the most from its protective promises.
An Analysis of Charter Values: Establishing a Basis for Comparison with Section 27
The Supreme Court of Canada has defined Charter valuesas the principles that “underpin each [Charter] right and give it meaning.”37 The underlying rationale is that entrenching rights into the supreme law of Canada entails that the purpose and reasoning of these rights are important for Canadian society “as a whole.”38 In this light, every Charter right can be re-expressed as a Charter value – or the substance of why each Charter right is important to Canadian society – but stated “at a higher level of generality” and without the same legal application as a corresponding Charter right.39 However, it should be emphasized that Charter values also extend to principles and ideals that are not direct parallels of entrenched Charter rights. For example, the Supreme Court of Canada has listed amongst Charter values matters like “dignity” and “democracy.”40
Peter Hogg traces the “invention” of “Charter values” to the 1986 RWDSU v Dolphin Delivery decision, a private litigation case responding to the fact that the fundamental liberties enshrined in the Charter only directly apply to governmental action.41 Here the Supreme Court determined that the common law, which applies to private persons and organizations, may develop “in a manner consistent with the fundamental values enshrined in the Constitution.”42 This provided a means for judicial discretion to consider foundational constitutional liberties even in the context of private legal affairs like contracts and torts. However, the application of Charter values has extended beyond mere common law development, having affirmed functions in public law matters.43 For example, in cases of genuine statutory ambiguity, courts may invoke Charter values to identify and apply favourable interpretations.44 In the administrative law context, administrative decision-makers must act consistently with Charter values as part of their discretion.45
It is specifically in reference to their application within administrative law that Charter values have attracted the most controversy.46 To quote Justice Peter Lauwers of the Ontario Court of Appeal, use of Charter values in the development of the common law and the interpretation of statutes have “not yet proven to be exceptionally problematic.”47 In contrast, the “Charter values/administrative law” controversy has been especially apparent following the landmark decision Trinity Western University v Law Society of BC (hereinafter TWU), where the dissent led by Côté and Brown JJ criticized that Charter values were being used to “give priority to moral judgments under the guise of undefined “values” …over Charter rights themselves.”48 Despite this critique, years later the seminal case Comission scolaire francophone des Territoires du Nord-Ouest v Northwest Territories, which was decided by a unanimous Supreme Court,49 solidified that administrative decision-makers ought to weigh and consider Charter values where they are relevant even absent an actual Charter right at operation.50 Failure to do so questions the reasonableness of the decision.51 Ultimately, there is an ongoing debate as to whether the employment of Charter values in the administrative law context constitutes a judicial overreach into executive governance, particularly where no Charter right applies or a Charter value is measured against an actual right.
In looking at the similarities in how section 27 and Charter values are used, I am not arguing that “multiculturalism” is itself a Charter value. This is not to say that this is an invalid argument, or one that is unworthy of pursuit by practitioners or by scholars. In fact, courts have described and applied multiculturalism as a Charter value before.52 Be that as it may, to truly understand section 27 on its own merit, what I seek to isolate is how both multiculturalism and Charter values are configurationally situated within judicial reasoning and how they inform understanding of the Charter and its enumerated rights.
I also clarify that when I discuss jurisprudential “parallels” between Charter values and the application of section 27, it is not to suggest that they fully mirror each other. In fact, in many ways, Charter values have been used in a more robust fashion, especially in recent jurisprudence. “Multiculturalism” has yet to be explicitly named as a value advancing the common law. Moreover, “section 27” has not been used to judge the reasonableness of administrative decisions.
Charter Values and Section 27: Configurational Similarity in Court Reasoning
Three elements give raise to the configurational similarity in court reasoning on section 27 and Charter values. The first element is that multiculturalism and Charter values have been used by courts in a complimentary way – not as a primary or determinative factor of their reasoning – but rather in an additional fashion to support their conclusions.53 It should be noted that the role of supplementary reasoning is not without merits. Supplementary invocation of either Charter values or multiculturalism in judicial decisions can still be profound and carry important precedent. I merely highlight the pattern of how they are situated within judicial logics, starting first with Charter values.
In Hill v Canada, the Court was tasked with the statutory interpretation of section 44(2)(a) of the Unemployment Insurance Act 1971, and determined a proper interpretation based on the ordinary meaning and purpose of the act.54 This alone provided sufficient basis for judicial justification of their conclusion, however to bolster their reasoning, the majority stated that the “values embodied in the Charter must be given preference over an interpretation which would run contrary to them.”55 The TWU caseis similar. This case concerned whether the LSBC decision to deny recognition to a proposed law school by TWU was constitutional, in light of the fact that TWU would require prospective law students to sign a homophobic Covenant Agreement. While the Supreme Court majority invoked the principle of equality as a Charter value,56 the crux of their legal analysis was premised on how the LSBC’s statutory duty to protect public interest in the administration of justice.57 While the dissenting Justices Brown and Côté heavily criticized the majority’s application of “Charter values” by virtue that such “values” are amorphous and vague,58 discussion of Charter values was not pivotal in the majority’s reasoning which instead emphasized the “public interest” statutory mandate of the LSBC much more frequently throughout their reasons.59
Likewise, “multiculturalism” and section 27 have both been used by the courts to bolster support for their judicial decisions. This has been most obvious in the case of religious freedom under section 2(a). One of the first cases of the Supreme Court recognizing section 27 was in R v Big M Drug Mart.60 Here, the Supreme Court determined that the federal Lord’s Day Act, which compelled Sunday observance of stores and businesses, was not only a direct section 2(a) violation, but was also inconsistent with “the preservation and enhancement of the multicultural heritage of Canadians.”61 Later cases on freedom of religion have repeated this reference to multiculturalism to reinforce the Court’s legal analysis of the breadth, scope and application of section 2(a).62 In all of these cases, the basis for the state duty for religious freedom, and to remain religiously neutral, were animated by reasons and logics that stood independent of “multiculturalism,” but for which the reference to section 27 and multiculturalism leant greater support.63 The reference to section 27 was never determinative, but reinvigorated the legal analysis with extra authority.
It is important to qualify that Charter values are not uniquely invoked in a supplementary fashion. In the landmark Commission scolaire case, it was the values of section 23 (minority language education) alone that were at the heart of the Court’s analysis of whether the Education Minister’s decision to deny non-rights holders admission to Francophone schooling was reasonable.64 While we have yet to see how Charter values may come to be centred in future jurisprudence, the dominant trend has certainly been to invoke “Charter values” reasoning as complimentary rather than independently decisive.
The second element of the configurational parallels between Charter values and “multiculturalism” relates to their “adjectival” function in determining the scope and meaning of entrenched Charter rights. It could be argued that such a function is simply a re-iteration of a specific type of “supplementary” argument and therefore is not fully distinguished from the first element I outline. It is certainly true that certain lines of reasoning can be simultaneously adjectival in function, whilst also being supplemental within the overall legal analysis. However, the necessary configurational placement of an “adjectival” argument within judicial reasoning is functionally distinct from that of “supplemental” reasoning. For starters, I note that an “adjectival” argument might, completely on its own, shift the definition and understanding of a Charter right. It is not “supplementary” in this sense of simply validating a legal proposition for which there is already support, but rather independent in shaping legal meaning and scope. If section 15 rights to equality is to be animated and given life by reference to the Charter value of dignity, or by Canadian multiculturalism, then these become definitional reference points and not merely supplemental reasons. Whether we understand the adjectival function of section 27 or of Charter values as “adding” or “modifying” the definitional boundaries and application of Charter rights, or even just explicating what the reach of these rights are to begin with, is moot. Either way, it stands as a consistent and independent basis for circumscribing Charter rights.
The “adjectival” function of both Charter rights and section 27 is grounded in caselaw. In the case of Charter values, their invocation is often used to “explain or demarcate” Charter rights, including the extension of their scope.65 For example, in Health Services and Support – Facilities Subsector Bargainning Association v British Columbia, McLachlin CJ for the majority determined that the underlying values of the Charter, including dignity, personal autonomy, equality and democracy, inform that the scope of section 2(d) (freedom of association) must include protection for worker collective bargaining.66 Similarly, in Alberta v Hutterian Brethren of Wilson Colony, the Supreme Court underscored that Charter values ought to be considered as part of the “section 1” test for deleterious effects and ultimate justification of a Charter breach.67 In fact, this use of Charter values as an interpretive aid in the application of the section 1 Oakes test has been exemplified in early caselaw.68 In the trial decision for R v Butler, as well as in the dissenting opinion of Twaddle J. in the Manitoba Court of Appeal decision of Butler, “equality rights” as sourced in the Charter were determined to be sufficient grounds to analyze and judge legislation restricting obscene pornography as a “pressing and substantial objective.”69 In all these cases, Charter values are used to inform and instruct the reach, analysis and application of Charter rights.
Multiculturalism and section 27 are referenced by courts in a comparable manner to guide their understanding of the exercise and meaning the Charter. In fact, Gerald Gall described section 27 as “adjectival” serving to modify or add meaning to Charter rights.70 Examples of this are many, however, I highlight four used in association with different Charter rights provisions. First, in Andrews v Law Society of British Columbia, the first Supreme Court of Canada decision to look at section 15 of the Charter (equality), the Court referenced section 27 in order to define equality71 – specifically that Charter equality does not seek to eliminate distinctions between groups nor rigidly apply identical treatment.72 Second, in R v Keegstra, the Supreme Court of Canada determined that in the context of hate speech, the value of multiculturalism and equality as animated by sections 27 and 15 respectively, ought to be measured against freedom of speech in a section 1 analysis of justifying Charter breaches.73 In other words multiculturalism is used to measure the reach of section 2(b) (free speech) protections. Third, in R v Tran, the Court highlighted that section 27 mandates section 14 (the right to an interpreter in criminal proceedings) must extend beyond just the official languages of French and English such that all Canadians have “real and substantive access to the criminal justice system.”74 Last, in R v Edward Books and Art Ltd, Justice Wilson determined in her partial dissent that under section 27, freedom of religion under section 2(a) must be applied as a protection for “all members of the [religious] group” without individuating them and thus “severing” the specific religious and cultural ties within a particular religious community.75 This is a distinct use of “multiculturalism” that favours a more essentialist view of cultural difference. Natasha Bakht underlined that this assumption of homogeneity of a cultural-religious community “may not always comport well with an intersectional account of culture of religion.”76 Nonetheless, and regardless of the interpretation of multiculturalism used, Justice Wilson elicited section 27 to scope out her understanding of section 2(a) rights.
The third element contributing to the similarities of Charter Values and section 27 is that they both can be invoked without being directly named. In R v Oakes, the Court was tasked with defining the scope of section 1, and what would constitute justification of a Charter breach in a “free and democratic society.” Here, Chief Justice Dickson described certain unwritten values essential to freedom and democracy, including:
[R]espect for the dignity of the human person, commitment to social justice and equality, accommodation of a wide variety of beliefs, respect for cultural and group identity, and faith in social and political institutions which enhance the participation of individuals and groups in society.77
These “essential values” have come to be redescribed explicitly as Charter values. In “Hutterian Brethren”, Charter values were listed to include things “such as liberty, human dignity, equality, autonomy and the enhancement of democracy.”78 These are very broad principles that are discussed and invoked in jurisprudence even without a direct reference to “Charter” values. While judges and scholars critical of Charter values have argued that they are overly “amorphous, ambiguous and undefined,”79 the principles behind them are often discussed in jurisprudence and given life even beyond explicit reference to the Charter.80 Indeed, even if there is no explicit and codified list of Charter values, many of the concepts behind them are well-established in jurisprudence and thus largely unassailable as constitutional principles irrespective of their status as Charter values.81 If the values behind “Charter values” exist independent of the Charter itself, this raises the question of whether Charter values can be invoked without the Court explicitly stating that they are invoking “Charter values”? I would argue yes.
To illustrate, I highlight the specific use of “equality” as a Charter value. Peter Hogg made a seminal argument in 2003 that equality exists not just as a right codified through section 15, but as a Charter value that animates interpretation of other Charter rights.82 He lists a number of cases where the principle of equality was invoked without any reference to it being a Charter value. For example, in “Big M Drug Mart”, the harm of the Lord’s Day Act compelling observance of Christian Sabbath on Sunday was counter to the importance of equality in a free society that protects religious freedom under section 2(a); Justice Dickson for the Court stated “a free society is one which aims at equality with respect to the enjoyment of fundamental freedoms and I say this without any reliance upon section 15 of the Charter.”83 Similarly, in the “Saskatchewan Electoral Boundaries Reference”,84 the Supreme Court justices, both the majority and dissent, determined that the principle of equality animated section 3 (the right to vote) principally through a concern of “effective representation”, “equity” and “parity of voting power.”85 What is compelling about Hogg’s argument here is that “equality” itself is not explicitly named as a value by the majority in the “Electoral Boundaries Reference”, but rather broad principles discussed in relation to equality are invoked and animate the judicial reasoning.86
Why would this matter for section 27? If we understand that Charter values can be invoked without being explicitly named as “Charter values”, then “multiculturalism” mirrors this in that it can be invoked without explicit reference to section 27. In other words, the influence of section 27 and role of “multiculturalism” in shaping Charter jurisprudence exists even when Canadian courts do not directly refer to their interpretive obligations under section 27. Drawing on this more expansive understanding of Charter values and multiculturalism in constitutional jurisprudence can reaffirm not just their structural similarities but their latent capacities to shape our Constitutional rights and expectations.
Multiculturalism, absent reference to section 27, has been an invigorating force in constitutional jurisprudence. In Bruker v Marcovitz, the Supreme Court set out that “multiculturalism” as value for cultural, religious and ethnic difference must be accommodated, but that this accommodation must be balanced against public interests over fundamental Canadian rights and freedoms.87 Thus, in a context where religious accommodation may brush against a particular Charter right or other legal public interest, this is to be judged on a case by case basis in a “complex, nuanced, fact-specific exercise that defies bright-line application.”88 In other words, a value of “multiculturalism” dictates the scope and application of rights and freedoms – specifically that they must be assessed on a contextual basis where they conflict with the accommodation of difference. Multiculturalism, absent section 27, has similarly been invoked to define the scope of religious freedom under section 2(a). In SL v Comission scolaire des Chênes, the Supreme Court of Canada pragmatically determined that while parents have a right to pass their religious beliefs to their children, a child’s exposure to other religious beliefs and religious expressions is a simple fact of reality in a multicultural society, and so this exposure in and of itself cannot amount to an infringement of section 2(a).89 The importance of multiculturalism to delineate the practical limits of religious freedom was repeated in Loyola High School v Quebec, where the Court determined that it was not a breach of religious freedom for anyone at a Catholic high school to be required to learn or teach “the doctrines and ethics of other world religions in a neutral and respectful way.”90 In none of these cases was section 27 explicitly mentioned, yet it is clear that as a value, principle and even practical reality of Canada, “multiculturalism” has guided judicial interpretation of the Charter.
Guiding Judicial Discretion: A Theory-Based Approach to Section 27 & Charter Values
Section 27 and Charter values stem from distinct architectural contexts within our constitution. Section 27 is enumerated, and as an interpretive provision it sets an explicit and formal guide for the interpretation of all else within the Charter, at least in its conception. Charter values, by contrast, are a method by which the Court can ground understanding of the Charter’s purpose and selectively animate it within jurisprudence. While critics argue Charter values are unsourced,91 they hold synergy with the unwritten principles of the Constitution laid out in the “Secession Reference”,92 and so can be argued to be grounded in Canadian jurisprudential values stemming from liberal democracy and liberal constitutionalism. Yet despite their different constitutional loci, section 27 and Charter values share a common jurisprudential purpose – they fill judicial penumbra – or in other words, questions that come before courts that prior caselaw and Constitutional texts fail to provide full guidance.93
The concept of judicial penumbra was first discussed by H.L.A. Hart in describing the separation of law and morality. Hart forwarded that there are cases in which there is unsettled meaning, or ambiguity of the law, to which prior legal standards cannot answer; these he called “problems of the penumbra.”94 Such “problems” include the very matters that captivate our caselaw like newfound fact scenarios or legal questions not yet decided or legislated on. Truly, the penumbra is a matter of legal inevitability as changes in our society, technology and social relations means that settled law cannot answer every legal question. Hart forwards that intelligent judicial determinations95 within the penumbra must be based on some form of rationale or logic, though he notes this need not be based on the moralistic inclinations of the judiciary but could be driven by goals of the nation-state or certain policy-aims.96 Lon Fuller, in response and contrast to Hart, raised that whatever the legal-determination or process of how to resolve questions within the penumbra, there is an “internal morality” to such choices. 97 For example, any kind of intelligible legal response to the penumbra would have to exist within a socio-political context that vests the law and legal decision-makers with authority and competency to their claims, and this social vesting-of-authority functions as an internal morality to the law itself.98 I note this debate on morality within the penumbra, given the contention that Charter values are a judicial tool to give “moral judgements” priority within Charter jurisprudence.99 Yet, irrespective of the charge of “morality,” Charter values and section 27 both answer to the penumbra, in that they are both tools to guide judicial reasoning within penumbra ambiguity.
In the context of a “penumbra” regarding the Charter, there is no debate about what the Charter says explicitly, but rather its specific application, interpretation and meaning. Ronald Dworkin has outlined that where there are theoretical disagreements about the law – not on the sources of law or its provisions but rather the application and meaning behind it – it is comparable to a poem.100 There is often debate about what a poem is really saying, not in the literal sense of what words it uses, but the essential message, interpretation and meaning behind it.101 In the context of the Canadian constitution, the number of possible interpretations and various applications of the Charter are boundless – there are many ways to understand and interpret “freedom of expression” or “equality.”102 In face of this, Charter values and section 27 function to direct judges towards a certain calibre or range of possible interpretations and meanings. Neither necessitate that judges “pick” any particular interpretation.
It must be qualified that Charter values and section 27 attend to the penumbra in structurally distinct ways. They respond to different “stanzas” and “verses,” and different questions of meaning within the “poem” of the Canadian Constitution. As mentioned, the structural invocation of Charter values, as identified by Peter Hogg, has applied in three specific contexts: the advancement of the common law, the interpretation of statutes, and administrative decisions under Charter scrutiny.103 Only two of these apply to matters of direct Constitutional concern. By contrast section 27 can theoretically apply in a more inexhaustible fashion. As an interpretive provision, section 27 can, and ought to, freely direct consideration whenever a Charter matter calls for it. Section 27 provides an instruction to the courts to resolve ambiguities inherent in the Charter and how the Charter may be applied to support cultural pluralism within Canadian society.104
This interpretive guidance stands on the fact that section 27’s existence is meaningful and purposeful. I earlier discussed section 27’s history, and the efforts of ethno-cultural and racialized minorities to have it included. However, while important, this is not to dive into historicalargumentation that emphasize the intention of the original drafters, a form of constitutional interpretation I note has generally had little persuasive force in Canadian jurisprudence.105 Instead I highlight that such a provision is sourced and codified within the Charter itself, and so it directs all Charter interpretation writ large when we consider the Charter holistically and its provisions as valuably-included and non-hierarchical. After all, every word of the Charter as a document must have purpose and meaning. Canada differs from the United States, where no such interpretive provision exists in the US constitution. American debates about whether the “Constitution itself provides meaningful guidance for its own interpretation” has limited bearing in the Canadian context.106
I also highlight that the Supreme Court determined it is “anomalous” to interpret the constitution non-holistically.107 Namely, in Daniels v Canada, the Supreme Court found that the “meaning” and “purpose” of defining “Aboriginal” in section 35(2) in the Constitution Act 1982 is relevant to determine the scope of the federal head of power over “Indians” in section 91(24) of the Constitution Act 1867 to avoid anomaly, despite the latter pre-existing the former by nearly a century.108 Could it not be argued as anomalous to ignore section 27 as it exists in the Constitution?It would appear highly hypocritical and frankly nonsensical if some sections of the Canadian Constitutionmust be considered in a holistic account of constitutional law, whilst others may be neglected.
It must be reminded, nonetheless, that mere invocation of section 27 does not guarantee any particular outcome in a given case but rather attends what might be considered within judicial reasoning. In other words, it informs the courts they ought to turn their minds to cultural plurality, but that does not mean any particular substantial outcome, or even an equitable one, will emerge. As alluded to, “multiculturalism” is still largely undefined in Canadian jurisprudence. This leaves room for greater judicial flexibility in how it may be understood. For example, in their dissent in R v NS, LeBel and Rothstein JJ noted that multiculturalism concerns an openness to the differences of people and communities in Canada that must be balanced with “the roots of our contemporary democratic society.”109 This liberal-democratic model of multiculturalism was used as justification for their reasoning that a niqab-wearing woman should always be required to remove her niqabin criminal proceedings so the defendant has the right to make full answer and defence, a stance seemingly at odds with more accommodating visions of multiculturalism by political and legal theorists.110
I end by noting that courts have already recognized that section 27 provides direction for how they conduct their reasoning. Even with the understanding that section 27 is not a constitutional entrenchment of “multicultural heritage” itself, it was noted by Justice Veit of the Alberta Court of Queen’s Bench (as it was then) that a purposive interpretation of section 27 requires consideration of fundamental matters of identity and culture, such as family law naming regulations, with a level of “multicultural sensitivity.”111
Conclusion
Section 27 has not been given its due respect in the contemporary legal imagination. While not commonly invoked, it is certainly more than a “rhetorical flourish” in our constitution,112 and Canadian courts have treated it in configurational patterns that mirror how they have used Charter values. These patterns describe various different functions that animate judicial reasoning and legal meaning in constitutional caselaw. This includes a supplemental function, that helps bolster the validity of other legal arguments. Once supplemental reasons are established in case law, there is a basis to forward they gain stand-alone status under stare decisis such that future cases ought to stand in line with their logic. At least, this is a persuasive argument that can and should reasonably be made in a relevant litigation context. Indeed, understanding the persuasive nature of such supplemental arguments can help litigators think strategically about how to incorporate section 27 into their factums and oral submissions.
Another important function is the adjectival function. If multiculturalism animates the meaning and boundaries of Charter rights, then questioning the meaning of constitutional multiculturalism becomes a parallel inquiry to clarifying the scope of Charter rights like equality or freedom of speech. This is an important inquiry for scholars, practitioners and courts alike when contemplating our constitution.
Finally, the value of multiculturalism can be, and has been, referenced in constitutional jurisprudence without explicitly invoking section 27. In the same way that prior judicial references to “dignity” ought to inform the Charter value of dignity, the multitude of constitutional cases in which courts discuss “multiculturalism,” and values associated with multiculturalism, help carve out the constitutional function of section 27. This is important to highlight. While many practitioners may think there is little caselaw on section 27, there is a more expansive swath of caselaw that is relevant for constitutional research on multiculturalism, and matters related to multiculturalism.
Finally, like Charter values, section 27 is intended to guide judicial discretion in cases of a “penumbra.” Yet beyond Charter values, section 27 is a codified interpretive provision, and as such, it ought to come into play whenever a Charter question arises that requires consideration of “multicultural heritage.” True, as an interpretive provision, section 27 does not guarantee any substantive outcomes. Yet, it is still important that multiculturalism is contemplated where it is relevant to a legal question. It primes judicial decision-makers to consider cultural minority groups, and pounder their collective and cultural interests, where these interests may otherwise be completely ignored. In this light, it becomes a matter of procedural justice for many minority groups to have these collective concerns and interests contemplated tangibly in constitutional legal analysis. Haitian-Canadians, Korean-Canadians and Syrian-Canadians, amongst numerous others, have collective interests that matter, even in the analysis of individual rights to equality, freedom of religion, and freedom of speech. Section 27 is what gives these interests constitutional weight, and relegating it as merely a “symbolic” provision denies the extent to which it has already informed our Charter, and the extent to which it has continued untapped potential. It is high time we as Canadians take notice of the materiality of multiculturalism, and the collective interests it upholds, in law and under the Charter.