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Multiculturalism is a relationship between Canada and the Canadian people. Our citizenship gives us equal rights and equal responsibilities. By taking an active part in our civic affairs, we affirm these rights and strengthen Canada’s democracy, ensuring that a multicultural, integrated and inclusive citizenship will be every Canadian’s inheritance.[1]

The time has come for Canadians to be weaned off the teat of multiculturalism as a primary source of sustenance and self-identity.

Surely, in the 21st century, we are more than the sum total of our diverse parts and hyphenated definitions.[2]


Has multiculturalism gone too far? This question has resounded in the streets and editorial pages of Western Europe and North America in recent years, especially in the tense period since 11 September 2001. It was a question on many people’s minds in the summer of 2006, following the arrest of eighteen young men from the Toronto area on suspicion of plotting a terrorist attack on the Parliament buildings in Ottawa.[3] It is a question that motivated Quebec to appoint a Royal Commission on Reasonable Accommodation in 2007.[4] Multiculturalism has been blamed for creating discord everywhere from public roads[5] to neighbourhood gyms,[6] from polling stations[7] to hospital cafeterias.[8] Its most contentious and litigious impact has been in the arena of public education. Consider the Sikh teenager who litigated all the way to the Supreme Court for his right to attend school donning a kirpan, the ceremonial dagger worn by religious Sikh men;[9] the Quebec schoolgirls who won their battle to attend school wearing the hijab, a head cover worn by many Muslim women;[10] or the Jewish parents who argued unsuccessfully for their right to public funding for parochial schools,[11] but managed to get the Lord’s Prayer out of public school classrooms.[12]

Controversies surrounding multiculturalism are neither unique to Canada nor new.[13] However, their recent prominence, and a growing hyper-consciousness of culture in the public realm, reveals the profound underlying social cleavages of our modern, multi-ethnic society. Members of minority cultures are increasingly demanding not only equality and non-discrimination when integrating into the dominant culture but also that their collective identity be made a matter of public importance and accommodation. Claims can be complex and confusing; distinctions between groups and individuals are often muddled. For instance, during the now infamous sharia controversy in Ontario, the most acute debate raged between different factions of the same minority community. One segment was claiming, on behalf of all “devout” Muslims, a right to establish a tribunal to adjudicate personal law matters in accordance with Islamic legal principles.[14] The opposition claimed to speak on behalf of the “silent majority” of moderate Muslims—and especially on behalf of vulnerable community members, such as women and children—who wished to enjoy the benefit of the same legal process as all other Canadians.[15] These opposing views encapsulated the tension underlying multicultural accommodation between the desire of minority groups to preserve and to enhance their status through the establishment of exclusive spheres of authority, and the goal of many individual group members to gain admittance as equals in mainstream society. These two types of interests—the group’s desire to separate and the individual’s desire to integrate—are not as categorical or clearly distinguishable as they may seem. The fact that not all Muslims supported the sharia tribunal undermined the proponents’ claim that it represented the desires and needs of the community as a whole. The fact that some people, including “vulnerable” women, supported the tribunal undermined the opposition’s position that it was bad for Muslims and for Canada.

Members of minority groups struggle to navigate the territory between their interests as individuals within their communities—ethnic, cultural, or religious—and these communities’ collective goals, which transcend individual interests. Claims to cultural protection and accommodation are necessarily philosophical, political, moral, and (both constitutionally and normatively) legal. This paper is a reflection on this last dimension, the legal axis. Despite the rich body of interdisciplinary theoretical scholarship on multiculturalism, scholars and judges have devoted little work to developing an understanding of section 27 (as opposed to multiculturalism theory in general) within the framework of the Canadian Charter of Rights and Freedoms.[16]

In his study tracing the historical roots of Canadian multiculturalism policy, Joseph Eliot Magnet identifies “freedom from discrimination and group survival” as the two constitutional principles that formed the backdrop to the entrenchment of multiculturalism in section 27 of the Charter.[17] These two principles informed the four initiatives that were embraced in Canada’s 1971 multiculturalism policy: (1) to “assist all Canadian cultural groups ... to develop a capacity to grow and contribute to Canada ... ”; (2) to “assist members of all cultural groups to overcome cultural barriers to full participation in Canadian society”; (3) to “promote creative encounters and interchange among all Canadian cultural groups in the interest of national unity”; and (4) to “continue to assist immigrants to acquire at least one of Canada’s official languages ... ”[18] These four initiatives set the early benchmarks for a transformative multiculturalism—enshrined in section 27—that is prophylactic and preservationist, as well as proactive and experimentalist. This dual-track approach of protecting from discrimination while actively ensuring cultural preservation gives rise to the twin interests of “accommodation” (individual anti-discrimination) and “autonomy” (group survival).

In this paper, I delineate the descriptive, interpretive, and normative scope of section 27. I am influenced by the approaches to constitutional innovation expounded by theories of democratic experimentalism. The experimentalist project seeks to explore institutional alternatives within the liberal-democratic constitutional structure with a view to broader, equality-enhancing transformations.[19] Contrary to classical liberal accounts, which view rights as inherent and non-negotiable, the experimentalist agenda reflects the reality of institutional, social, economic, and political constraints that, in practice, make constitutional rights contingent, inconsistent, and indeterminate. Embracing rather than denying such indeterminacy, the experimentalist project puts rights negotiation into the hands of stakeholders and local actors, working in conjunction with policy makers and public institutions, to define constitutional rights by trial and error. A court (or agency) monitors this process.

In practice, constitutional experimentalism operates when the court prescribes general parameters for the enjoyment of a constitutional right or interest but leaves it to the stakeholders to negotiate and to articulate the specifics. Experiments are carried out at the local level and best practices emerge in time, with coordination and enforcement from the judiciary. The role of the court as a bestower of general principles and as an overseer of locally driven experiments gives the process a more democratic—not to mention pragmatic—flavour than the usual form of judicial intervention in rights disputes.[20]

In applying experimentalism to section 27, I have divided this paper into two parts. In the first part, I outline the textual frontiers of the Charter’s multiculturalism provision and postulate that this provision creates two distinct types of interests that give rise to claims: one individual and one group-based. I describe these interests as “accommodation” and “autonomy”, respectively. The identification of these two interests gives rise to the normative framework that I employ throughout the paper. In the second part, I apply this framework to two case studies: genital cutting and sharia tribunals. These difficult examples enable an exploration of section 27’s potential to address the demands of culture in ways that go beyond the conventional doctrinal and normative approaches. I suggest that an experimentalist interpretation of multiculturalism under section 27 would create a space in which to try different approaches and institutional arrangements in an effort to determine the best practices for handling difficult, highly contextual questions. I argue that the normative framework of section 27 does not mandate restrictive approaches to multicultural accommodation that extinguish cultural claims and risk radicalizing groups. Instead, section 27 includes an imperative to create the institutional conditions within which different approaches can be tried and tested, with the expectation that benchmarks will emerge through practice rather than through inflexible rule-making.

I. The Textual and Normative Framework of Section 27

A. Multiculturalism Defined

Multiculturalism has vastly different meanings across jurisdictions and societies. When multiculturalism was enshrined in the Charter, it had already been an official national policy for over a decade, articulated in Canada’s 1971 multiculturalism policy, the first of its kind in the world.[21] Section 27 provides: “This Charter shall be interpreted in a manner consistent with the preservation and enhancement of the multicultural heritage of Canadians.”[22] Read on its face, section 27 is an interpretive provision, providing context to our understanding of both the scope and the limits of the Charter’s application. It stands alongside other interpretive sections, which focus on minority language rights, religious education rights, Aboriginal rights, and the separation of powers. These other interpretive provisions are framed solely in “defensive” terms to preserve the balance created by the historical compromise that led to Confederation.[23]

Commentators have noted similar defensive features of section 27, which is drafted in the remedial spirit of preservation and survival. Together, section 27 and the section 15 equality guarantee combine the twin goals of protecting against discrimination and pursuing group amelioration.[24] The power to strike down discriminatory laws and the protection afforded to affirmative action under section 15 emphasize the provision’s remedial nature.[25] Others have pointed to a category of Charter provisions that can be understood as the “bundle” of equality rights, including section 15 equality, section 27 multiculturalism, and section 28 gender protection.[26] This bundle could also include section 23 official minority language rights and section 25 Aboriginal rights. For the purposes of this paper, which aims to delineate the scope of section 27 and to consider how this provision might inform current debates about multiculturalism, I will not offer a substantial treatment of these related equality provisions.

The emergence of theories and, to a lesser extent, legal doctrines of multiculturalism, gives rise to unexplored equality implications. Culture can span numerous conventional grounds, including (among others) ethnicity, religion, race, national origin, and language. Read more broadly, culture could also encompass political opinion, socio-economic status, or sexual orientation. Yet, the notion of culture as such is not a ground of protection recognized under the Charter’s equality guarantee. With developing intersectional approaches to section 15,[27] it is likely that cultural claims could emerge through equality doctrine. At present, however—and notwithstanding the collective interests embodied in section 15(2)—the equality guarantee remains an individualized protection within a classical liberal rights paradigm. Section 27 has the potential to go beyond such conceptions and to allow for greater experimentation with institutional frameworks.[28]

The wording of section 27 refers to the “multicultural heritage of Canadians.” This phrase does not necessarily frame multicultural rights as justice between groups or as protections for minorities against the majority. Rather, it suggests that cultural diversity and pluralism are part of the shared, common heritage of all Canadians.[29] In philosophical terms, the wording of section 27 is based on the notion that diversity is a human good in itself.[30] It is worth emphasizing that the Charter not only defends culture through preservation, but also promotes it through the “enhancement” mandate.

From this textual analysis of section 27, it can be deduced that multiculturalism as conceived by the Charter takes integration and inclusion, rather than separation and self-government, as its defining features. In this sense, Canadian multiculturalism is pluralistic rather than particularistic. The language of section 27 implies that the cultural uniqueness of each person and group forms a constituent part of the collective multicultural heritage of Canadians rather than pockets of disconnected communities.

B. Accommodation and Autonomy: Individual and Group Interests

Multiculturalism creates two types of interests, individual and collective, which must be understood as distinct but interrelated. These interests give rise to potential rights claims. The two forms of rights that can be said to be protected by the Charter are the right to cultural “accommodation” for individuals and the right to “autonomy” for cultural groups. These two types of right are not expressly stipulated within the Charter, but can be derived from reading its text in light of historical circumstances and existing constitutional jurisprudence. Justices Cory and Iacobucci (in dissent, though not on this point) did so in R. v. Zundel, finding that multiculturalism

... recognizes that all ethnic groups are entitled to recognition and to equal protection. It supports the protection of the collective rights, the cultural integrity and the dignity of Canada’s ethnic groups. In doing so it enhances the dignity and sense of self worth of every individual member of those groups and thereby enhances society as a whole.[31]

Here we find the three dimensions of multiculturalism laid out and linked together: the recognition and protection of ethnic groups, the advancement of individual dignity, and the enhancement of society as a whole. The failure of courts to elucidate a clear doctrine of multiculturalism under section 27[32] is no reason to distance ourselves from the starting point offered by Justices Cory and Iacobucci.

In the sections that follow, I shall offer a series of observations about the weight that multiculturalism may carry as a normative Charter value. In so doing, I rely on the twin policy objectives of protection from discrimination[33] and the right to cultural and community survival,[34] which are identified in the 1971 multiculturalism policy and further developed and enshrined in the Canadian Multiculturalism Act, and together serve as the interpretive backdrop to section 27.[35] It is from these objectives that I have derived the two distinct forms of rights claims under section 27: the individual cultural right to accommodation and the group right to autonomy.

I use the immanent constitutional principle of equality as my frame of reference for developing these two forms of rights into an institutional model for recognition and protection. Distinguishing this model from conventional approaches, I argue that the most appropriate forum for, and means of, giving life to these multicultural interests is the public arena. It is through public discourse, regulation, and adjudication where necessary, that our institutions of multiculturalism can best promote the integration of cultures. Policies that foster isolation should be avoided. This approach is consistent not only with the equality mandate to promote inclusion,[36] but also with the conception of cultural pluralism as a public good that is part of the shared (and therefore necessarily) public heritage contemplated by section 27.

In this vein, I further suggest that the right to cultural autonomy does not necessarily imply a right to self-government for ethnocultural minorities under section 27. The principle of “autonomy without self-government” helps ensure that members of cultural minorities are fully integrated into the public fold as equals, rather than institutionally segregated in the name of cultural accommodation. This principle also ensures that the status of “minorities within minorities” remains a central public issue and that the treatment of internal minorities is not left without entrenched means of internal protection to the exclusive discretion of cultural groups.

To this end, I develop a balancing theory that uses the unwritten constitutional principle of the protection of minorities[37] as a mechanism for ensuring that internal minorities can secure their independent constitutional rights within the cultural group to which they belong. The development of a theory of internal protections rejects the conventional liberal view that internal minorities are adequately protected by the so-called “right of exit”.[38] The right of exit is a defensive principle used to assuage concerns about the devolution of authority to cultural subgroups: the group will be empowered on the condition that individual members retain the right to leave the group freely at any time. My critique, further developed below,[39] is that the right of exit fails to promote the inclusive, public form of multiculturalism envisaged by the Charter. Any protective mechanism that fits this form must promote justice and equality in all three relevant dimensions of the multicultural matrix: between groups, between the state and groups, and within groups.

C. Enforcing Equality Through Multicultural Accommodation

Liberal approaches to multiculturalism include competing conceptions of equality and of the place of equality within the rubric of multiculturalism policy. Conventional liberal formalism adheres to a principle of non-involvement—what I will call the “laissez-faire” approach to culture.[40] This view holds that culture as a “right” need only be “protected” through the removal of obstacles to individual self-fulfillment and expression. There is no protection or facilitation of “group rights” beyond ensuring basic freedom of association. In no way can there be positive obligations on government to promote cultural expression or survival. The state’s only obligation is to be neutral and to keep out of people’s private affairs.

Substantive equality principles hold that a laissez-faire approach is usually insufficient to ensure non-discrimination and equality between individuals and groups. Treating people equally is not synonymous with treating people identically; differential or special treatment is sometimes required.[41] In such circumstances, favouring members of disadvantaged groups is not the same as enforcing status quo power imbalances by favouring the majority or dominant groups. Liberal multiculturalists distance themselves from the formal equality, laissez-faire approach.[42] They recognize that it is not sufficient to create neutral, free space for individuals to do what they want without state interference, nor is it beneficial to grant formal recognition through self-government.

The accommodation approach looks for a middle way between laissez-faire neutrality and self-rule.[43] It is premised on the principle of equality and implies public intervention when necessary to safeguard rights of inclusion and equal access for internal minorities. For instance, where people are prevented from accessing public services, education, health care, or employment by virtue of personal, immutable characteristics, the doctrine of the duty to accommodate has been developed to ensure that barriers are removed, subject to reasonable limits, and that such claims are not only a matter of public policy but are also justiciable in the courts.[44] Similarly, if individuals of particular cultures are obstructed from enjoying the reasonable practice of their culture, the principle of accommodation up to the point of “undue hardship” (a standard that includes considerations of public, group, and competing individual interests) is reflected in the equality guarantee of section 15[45] and can inspire the development of principles of multicultural accommodation under section 27.[46]

In calling for the “enhancement” of multiculturalism through the application of the Charter, section 27 includes “a seeming reference to positive action.”[47] The requirement of positive action would be limited by the undue hardship standard to the extent that the request for accommodation might affect other people’s Charter rights. It would also allow for a consideration of competing demands for government resources allocated to cultural accommodation and multiculturalism policies.

D. Group Rights and the Equality Paradox

Classical liberal accounts acknowledge the individual liberty of people to express their culture as individuals or as groups of individuals. This form of simple cultural liberty includes aspects of free speech, association, and religion. Some contemporary approaches go further by recognizing that groups have status as groups to make claims for collective cultural expression. Such claims are what I call autonomy-based assertions of multiculturalism, which go beyond simple liberty or non-interference, and necessitate facilitation and financial support from the state.[48]

While empowering groups of free-willed individuals to express themselves collectively through publicly supported cultural initiatives may find some liberal justification, feminist critics argue that any benefit is outweighed by the attendant problem of in-group subordination.[49] This “paradox of multicultural vulnerability”[50] is created when the result of “empowering” cultural groups through multiculturalism policies is to entrench oppressive elements of cultural traditions, placing internal minorities—especially women—in a worse position than they would be in without such official group recognition. A disproportionate burden is placed on vulnerable group members in order to ensure the protection of the group at large.[51] Such a result is contrary to principles of equality and offends the basic values of liberal democracy.

The approach pioneered by Will Kymlicka seeks to avoid and to resolve the tension between core liberal values and the accommodation of cultural practices. Responding to feminist concerns, Kymlicka pre-empts charges that multiculturalism could institutionalize gender inequalities. He develops a paradigm of “restrictions” and “protections” designed to better articulate and resolve potential rights conflicts. He argues that a liberal society can support “external protections” designed to ensure fairness and equality between cultural groups and to protect minority communities from encroachments on their cultural autonomy by society at large.[52] For example, measures such as legal exemptions from dress codes, public funding for heritage language programs, and special group representation in political institutions, are some ways in which minority groups can be afforded special protections to help equalize their status in the broader society. While empowering minority groups vis-à-vis the majority, Kymlicka maintains that the state must be sure not to endorse “internal restrictions” enforced by dominant group members or by the group as a whole on other members of the group in the name of cultural preservation.[53] While public reports often highlight extreme examples of oppressive practices, Kymlicka notes that very few mainstream immigrant organizations in Western democracies actually seek such power.[54]

Conceived in this manner, liberal multiculturalism endorses collective autonomy subject to the principle that groups cannot suppress the individual freedoms of group members. When the rights of the group conflict with the rights of an individual within the group, liberalism demands that the rights of the individual prevail. This response to the issue of in-group subordination illustrates a problem with liberal theories of multiculturalism. Because these theories rationalize their embrace of group rights with the language of individualism, they encounter an impasse when the individual appears to be at risk from the group. For the liberal multiculturalist, the interest of the group can seldom, if ever, trump that of the individual.

E. Autonomy Without Self-Government

One way of avoiding or minimizing the problem of in-group subordination is to devise inclusive public institutions that enhance group autonomy without giving groups the power to restrict the freedoms of internal dissenters. I call this approach the principle of “autonomy without self-government”. The problem with viewing culture through the “internal restrictions and external protections” paradigm is that it risks presenting a false choice between isolation (self-government) and assimilation (non-accommodation). This false choice is neither self-evident nor necessary to sustain a model of cultural equality when responding to the claims of ethnocultural minorities. The conception of multiculturalism under the Charter is not premised on structured separation as a means of protection. On the contrary, the shared “multicultural heritage of Canadians” requires a public and inclusive approach.[55] The goal of a public model of cultural equality is to foster the integration, not the segregation, of the group.[56] For this reason, the autonomy interest included under section 27 should not be read as a right to self-government. Rather, autonomy can be ensured through other institutional guarantees that promote a greater voice for members of cultural communities as individuals and as groups of individuals in concert.

There are numerous problems with self-government. Not only does it fail to promote the goals of multiculturalism adequately, but it can also operate to obstruct the multiculturalism project itself. To begin with, self-government presumes that established cultural groups have the institutional capacity and the necessary degree of legitimacy within their membership to self-govern. While this may be true for some ethnocultural groups or subgroups, it is not the case for many others. Many if not most cultural distinctions are malleable, and cultural groups are increasingly porous. It is difficult, if not impossible, to identify clearly contained groups with established, universally recognized boundaries and leadership, except in the case of some religious communities that have an established clergy and leadership hierarchy with legitimacy to speak for the group. Such communities, however, are in the minority. In the poly-ethnic world, it is the members who form and constitute the group. Membership is more a matter of self-ascription than of admittance. As a result, the potential for cultural group proliferation is massive, which is both desirable in a liberal democracy that sees diversity as a good in itself and a challenge in terms of defining what constitutes an ethnocultural group. It is necessary to develop limiting principles to ensure that cultural protections are not devalued by spurious, indecent, or insincere claims of cultural formation and membership. Such limiting principles could be established by devising a test inspired by the approach to equality, whereby claimants must establish membership in an enumerated or analogous group.[57]

In any case, the goal is to develop a legal interpretation of multiculturalism that does not atomize society or entrench a flawed conception of discrete and insular cultural groups. Self-government promotes this flawed conception of self-contained cultural groups that are necessarily defined and formalized according to institutionalized criteria and are not free to evolve and to develop through generations of shifting identities. As such, self-government has the potential to cater to and to strengthen the most retrograde segments of the subgroup.[58]

Equality principles do not require self-government as a vehicle to promote the multicultural heritage of Canadians. Moreover, any attempt to devolve authority and jurisdiction could undermine the very cultural rights that are to be protected. To the extent that self-government promotes essentialism and, as a result, the fossilization of culture and cultural affiliations, it runs contrary to the substantive equality and multicultural values of the Charter. Therefore, while self-government is one form of autonomy, it is not a necessary corollary to autonomy. Disaggregating autonomy from self-government provides the basis for ensuring the protection of group-based cultural claims without feeding the essentialist conceptions that can inadvertently support the forces of conservatism and thereby give rise to the dilemmas facing multiculturalists: “This focus on autonomy at the group level provides ... the ingredient needed to justify protections for particular cultures without relying on the existing character of the community in any static sense that might buy into fundamentalist argument.”[59]

The central features of cultural autonomy are that the group is entitled to determine its cultural direction for itself, to make choices about the practices that constitute its culture, and to enjoy the conditions that allow for creative debate—including dissent—about the community’s future.[60] Autonomy also requires that communities be able to rely on institutional safeguards as a protection against the threat of assimilation. These safeguards come in the form of established practices and structures in the social and political framework of the society, and can include measures such as collaborative participation in education policy, exemptions from certain general obligations, official recognition of distinctive practices and rites, and public support for minority cultural institutions.[61]

Of course, while avoiding self-government and accounting for the non-essentialist nature of cultural groups may help minimize the vulnerability of internal minorities, these measures do not entirely resolve that concern. What is needed is a theory that can justify a minimum-standards approach to regulating intra-group matters.

F. Internal Protections for Vulnerable Members of Minority Groups

The distinction between internal restrictions and external protections is only relevant or necessary when multiculturalism is coupled with self-government.[62] Concerns about the precarious status of minorities within minorities are not raised in the same way when representatives of minority communities are not granted state-endorsed decision-making power over other group members. However, notwithstanding the avoidance of formal, jurisdictional problems involving the protection of internal minorities, the problem of vulnerable members of cultural groups remains. This problem is not created by multiculturalism policies; it is rather a consequence of long-standing, entrenched social hierarchies. The concern arises within multiculturalism debates when the liberal state considers delegating authority to minority elites to self-govern, only to find itself potentially complicit in the oppression of vulnerable internal minorities.

While the avoidance of self-government helps avert most problems affecting internal minorities, there may still be situations in which the accommodation of groups or individuals creates competing interests.[63] In order to address such cases, it is necessary to devise a balancing mechanism that will accompany policies of accommodation in order to catch any potential claims of internal minorities adversely affected by the recognition of group autonomy. Rather than only distinguishing between external protections and internal restrictions, it is helpful to think about “internal protections.”[64] The right of exit, commonly cited as the liberal response to the need for internal protections,[65] is insufficient.[66] As a shared heritage and a public good, diversity needs to be fostered within both the minority and dominant cultures. Providing a choice between conformity to group norms and exit from the group is not a satisfactory response to the dilemma of internal dissent and in-group accommodation.[67] Moreover, the idea of “exit” itself is in tension with the fluid, porous nature of culture. In much of today’s world, people move between various communities and navigate multiple and complex identities on a daily basis. How one understands and projects one’s own culture stems from the individual experience of these overlapping identities and communities. It is difficult to imagine how one can “exit” one’s own culture.

Notwithstanding the pervasive liberal discomfort with state regulation of the internal affairs of groups of citizens, where the state has indirectly empowered a group to impinge on the rights and freedoms of its members, equality principles, coupled with a normative imperative to promote diversity, require that multiculturalism extend its reach to protect all minorities from direct and indirect state-sanctioned subjugation.[68]

G. Dignity as a Limiting Principle for Group Rights

To achieve the goal of protecting minorities both internally and externally, it is helpful to begin with the value of human dignity as embraced by the conception of equality in the Charter. Dignity is a core constitutional value that necessitates not only redressing past wrongs, but also ensuring recognition and protection in the future.[69] Conventional Charter application requires government action in the form of a limitation on a protected right in order to trigger judicial review.[70] In the case of the “interpretive” provisions, however, the potential scope of application may be wider. For instance, courts can apply section 27 as a dignity-preserving lens in their interpretation of all other Charter rights and possibly even in cases where the Charter is not directly raised. It may also be possible for courts to read the multicultural constitutional values enshrined in section 27 into human rights legislation that prohibits discrimination and mandates accommodation.[71] This approach could help ensure some degree of horizontal protection against encroachment by fellow citizens where the state has indirectly sanctioned measures that undermine the dignity of internal minorities.

A twin feature of equality is that minorities must be not only accommodated but also protected. Protection can be defensive in nature or can require positive action.[72] Much attention has been devoted within liberal discourse to the question of whether survival is an appropriate goal of multiculturalism policy. While liberal purists tend to reject such “collective” goals and to see no role for government in facilitating group survival,[73] modified liberal approaches have acknowledged the fact that, since 1971, Canada’s multiculturalism policy has included the survival of culture as a central aim.[74] Some Canadian courts have endorsed the modified liberal stance that, in certain cases, the state is responsible for ensuring a culture’s survival. For example, in Lalonde v. Ontario, the Ontario Court of Appeal applied the unwritten constitutional principle of the protection of minorities in a positive manner to proscribe government action that would have dismantled an important institution of the French-language minority in Ontario. In so doing, the court ruled with the mandate of ensuring that community’s “survival”.[75]

The survival mandate can be extended not only to ensure diversity and cultural pluralism in society at large but also to protect diversity within groups. If the protection of minorities within minorities were incorporated directly into the understanding of multiculturalism itself, potential internal tensions could be resolved within the multicultural model and would not have to be seen as a conflict between culture and gender, or between multiculturalism and equality. Equality and the protection of minorities—both internal and external to the cultural unit—are important principles in this multiculturalism model. By applying section 27 as an enhancement provision, along with the unwritten constitutional protection of minorities as a limiting or defensive provision, the courts could develop the necessary legal framework for adjudicating and overcoming the problems facing internal minorities wherever such problems might arise.

The combination of a regime of autonomy without self-government, and a legal framework for adjudicating the grievances of internal minorities, should provide the institutional protections necessary to allay concerns about “strong” multiculturalism policies eroding the constitutional guarantee of equality or the liberal foundations of our political order. By institutionalizing the processes by which such tensions are resolved in the public realm, it is likely that multiculturalism (defined as the accommodation of minority cultural interests) and equality (in the sense of promoting inclusion and anti-discrimination) can be reconciled and thereby mutually enforced.

II. Multiculturalism Applied

I have offered a view of multiculturalism that is descriptive as well as normative, and that establishes a mandate for both accommodation and autonomy. I have outlined a number of conclusions about the meaning of accommodation and autonomy, which may illuminate the guiding principles underlying section 27. I have suggested that accommodation is an individualized cultural right while autonomy is a collective right. With respect to the latter, my central normative observation has been that multiculturalism should not be interpreted to create a mandate for self-government. I have, however, embraced the exploration of creative possibilities as advocated by democratic experimentalists, who propose the development of institutional mechanisms designed to enable a continual process of exploration through tinkering with various means of achieving constitutional goals.[76] I will now examine the application of section 27 to two case studies in order to illustrate better the propositions that I have made up to this point.

The first example, genital cutting,[77] is one of accommodation because it would involve a claim by an individual, either on her own or, more likely, by a parent on her behalf, for an exception to a widely enforced norm militating against the practice with regard to women in Canadian society. Looking at this example, I hope to demonstrate how a potential claim could be brought under section 27, what its basis would be, how it might implicate other Charter rights, and whether section 27 would do any work that is not already done by other rights-conferring sections of the Charter. I will then offer a theory of how the case could be adjudicated, drawing from the textual, theoretical, and doctrinal framework that I outlined in the first part of this paper.

The second example, sharia tribunals, is one of autonomy because it would involve a claim by a community, or a segment of a community, for institutional-legal recognition of a collective initiative that would be applicable and enforceable only against members of the community at issue. In this instance, I wish to demonstrate ways in which the group claim could be supported without imperilling the rights of internal minorities. This analysis involves looking at creative mechanisms of group autonomy. I pick up on my earlier comments distinguishing autonomy from self-government and illustrate how the normative weight of Canadian multiculturalism does not necessitate self-government. I suggest that the greater challenge is rather to use deliberation and experimentalism as strategies for identifying public institutional arrangements that are capable of promoting cultural autonomy within the shared multicultural space of the broader society.

A. Accommodation: Genital Cutting

Admittedly, I have selected a case study that is charged and controversial. For the purposes of paradigmatic testing, the value of studying not only easy cases but also hard ones is that the latter make it easier to distinguish the principles from the policies at stake.[78] The methodology that I use to assess how an individual rights claim pertaining to female genital cutting would be adjudicated under section 27 is largely normative and speculative, given that no such claim has ever been brought. I suggest a test for determining whether a particular government measure imposes a burden on the exercise of an individual’s culture in a way that undermines the shared “multicultural heritage of Canadians.” Fidelity to the text and spirit of section 27 requires that this test involve both subjective and objective elements. Charter claims typically involve both elements, though the Supreme Court of Canada was divided on this issue in Amselem.[79] For the majority, freedom of religion is triggered where a claimant sincerely believes in a practice or belief that has a nexus to religion, even if it is a heterodox variation or is practised only by a minority of religious group members. Concerned about the indeterminacy of potential claims, the minority would have required some objective corroboration of the practice to attract Charter protection.

Because multiculturalism is not framed in section 27 as an individual “freedom”, but rather as a descriptor of Canada’s heritage, it may be appropriate to adopt the minority’s approach in Amselem and consider both subjective and objective elements in the analysis. Thus, while not as robust as freedom of religion in terms of an individual rights-based analysis, section 27 could nonetheless give rise to a fair and fulsome judicial contemplation of an array of individual and societal cultural interests. In the event that the government-imposed restriction is found to be in breach of section 27, the adjudication process must balance governmental objectives against the individual interest that inheres in the exercise of one’s culture.

1. Female Genital Cutting as a Cultural Practice

Female genital cutting refers to a range of practices concentrated mainly in Africa but also found in some Asian countries.[80] The common feature of the practices is that they involve the cutting, to varying degrees, of young females’ genitalia. Female genital cutting almost always occurs prior to adulthood, though not in early infancy.[81] It is practised by members of a wide range of cultural, religious, and ethnic groups, across geographical and political boundaries.[82] The practice repulsed early European colonizers but did not receive widespread international condemnation until it was picked up as a cause célèbre among liberal feminists and human rights advocates beginning in the 1980s. Since at least the early 1990s, there has been a growing international consensus, both among official institutions and within the human rights movement, that “female genital mutilation” (FGM), as it has widely come to be known, is a form of discrimination and violence against women and girls.[83]

With waves of immigration to Europe and North America from the countries where female genital cutting is performed, cutting is no longer seen as an issue solely to be addressed abroad but as one of increasing social importance in the heart of Western democracies. Unsurprisingly, evidence has emerged that genital cutting is being practised within immigrant communities in Europe and North America, and that it is either being “medicalized” and performed in local health facilities, or that members of immigrant communities take their young daughters abroad to have genital surgeries performed.[84] This evidence provoked a strong governmental will to curb the practice. Multiculturalism and liberal values were in apparent conflict, and the overwhelming response was that there is a baseline of Western values that cannot be compromised in the name of cultural accommodation.

2. Criminalization: Rationalizing Assimilation?

The approach adopted by most Western democracies was to criminalize non-medical genital surgeries on girls. In 1997, the Canadian government tabled Bill C-27 to amend the Criminal Code so as to include express reference to female genital cutting as a form of aggravated assault.[85] The legislation was intended to curb the “medicalization” of the practice by putting physicians at risk of criminal prosecution for performing genital surgeries on children. It also targeted parents considering taking their daughters abroad to have surgeries performed.[86]

Opposition to genital cutting is grounded in evidence—which some say is controversial—about the adverse physical and psychological consequences of the procedure.[87] In addition to the health risks, the practice has been blamed by liberal feminists and human rights defenders for entrenching and advancing patriarchy.[88] This argument holds that cutting female genitalia amounts to stripping girls and women of their sexual identity and relegates them to a life of male-dominated, pleasureless baby-making.

Because all of the discussion around genital cutting has centred on the adverse health and equality concerns, there is little in the literature about the countervailing cultural importance of the practice. Attempts to acknowledge the cultural centrality of genital cutting in some communities are dismissed as misguided forms of “[c]ultural [r]elativism”.[89] However, contrary to the line taken by feminist critics, who focus on the worst instances of female victimhood and frame genital cutting solely as male domination and violence, the reality is that the cultural context in which cutting occurs is nuanced and complex.[90] In fact, studies demonstrate that the practice is overwhelmingly urged by mothers, performed by female practitioners, and reinforced by women as a condition of entry into the community of women.[91] Liberal feminists dismiss such reports as evidence of the extent of male co-option and domination not only of women’s bodies but also of their minds.[92] The views of women who defend and practise genital cutting are thus sidestepped in the interest of universal liberal values.

The criminalization of genital cutting gives rise to interesting questions from a multiculturalism perspective. Does criminalization represent Canada standing in solidarity with women in the developing world who are trying to effect change from within their societies, or is it evidence of an assimilationist policy that directly targets members of minority cultures? Does it promote gender equality by undermining cultural equality? Do liberal values have to bend to cultural demands? Should conflicts surrounding the practice be resolved with particularistic accommodation or with universalistic proscription? Does the criminalization of female genital cutting, but not of male genital cutting (circumcision), impermissibly disadvantage one cultural practice relative to an analogous one, and does this disadvantage constitute gender discrimination?

The liberal-feminist approach posits that female genital cutting is an especially barbaric practice that victimizes women and must be systematically eradicated. This view gives no weight whatsoever to cultural considerations, the broader social and cultural context, or even the desires of women themselves:[93] it considers a parent’s desire to circumcise his or her daughter only as grounds for triggering criminal prosecution and child-protection intervention by the state. Liberal opponents of the practice contend that women ought to be treated as legally incapable of giving informed consent to genital cutting under any circumstances,[94] and that in the interest of protecting the best interests of children, parents cannot be entitled to “consent” on behalf of their child.[95]

On the other side, proponents of a culturally sensitive or critical feminist approach argue that female genital cutting is an integral part of many cultures and that, while it may be incomprehensible or even offensive to people of other cultures, cutting must be understood within its cultural context. They may point to the essentializing, stereotyping, and neo-colonialist assumptions underlying Western feminist opposition to female genital cutting,[96] which often overemphasize female sexual pleasure as a “good” and even as a fundamental “right”, when in truth it is a patriarchal, male-oriented standard.[97] They may also point to the prevalence of aesthetic surgeries such as liposuction, breast enhancement, and facial reconstructions in the West, which may be equally incomprehensible and even offensive to people of other cultures.[98] The question comes down to how we distinguish between improving the body and mutilating it, and this question necessarily has a cultural dimension.

A further question—the central question that I wish to address—is whether some cultural practices are so fundamentally offensive that it is not enough to criticize them because criminal prosecution of those who practise them is warranted. Does section 27 mandate a distinctive treatment of this question? Does it result in unique constitutional hurdles that Canada, as compared to other liberal democracies that do not have constitutionally entrenched multiculturalism, must overcome in legislating against cultural practices?

3. Applying the Section 27 Lens to the Problem

Section 27 does indeed provide a lens through which to examine the question of female genital cutting. It is clear that, in the push toward criminalization, concerns about multiculturalism were deliberately set aside: female genital cutting was seen as being beyond what a liberal state can accommodate.

It is easy to sympathize with the liberal-feminist absolutist stance. Most Canadians understandably recoil at the thought of a prepubescent girl being subjected to the surgical alteration or removal of her genitals. Such a practice may indeed seem barbaric and pointlessly brutal, even if performed in a safe hospital setting. In the case of children (who form the majority of those undergoing genital surgeries), the irreversible nature of the procedure seems to justify the limit on parental prerogatives.[99] But what about the case of adult women?[100] At what point does government intervention to protect the vulnerable become discriminatory infringement of a woman’s autonomy over her own body? The Criminal Code creates an exception to the absolute ban in the case of a woman who has reached the age of eighteen and who gives informed consent to undergo the procedure. This exception pre-empts potential challenges by adult women who wish to undergo the procedure voluntarily. However, it runs into a problem of gender discrimination since boys are not legislatively protected against being circumcised as children by their parents. Viewed differently, girls are effectively barred from the freedom to experience a childhood rite of passage, while boys are not. Is this apparent legislative inconsistency a case of discrimination? Does section 27 suggest an approach different from a simple discrimination analysis?

Looking at genital cutting within the constitutional framework of shared heritage, there are two possible ways that the conundrum can be assessed. First, we can think about shared heritage as privileging male circumcisions. There may be historical, moral, cultural, or other reasons for this privilege. Whatever the reasons, there appears to be a consensus, whether arrived at through conscious reflection or by mere historical circumstance, that male circumcision, but not female genital cutting, is a practice to be embraced by the community as a part of the shared heritage of Canadians.[101] The question, then, is whether there is a way to admit a “new” practice into the protective sphere of shared heritage. Are there conditions of admission? If there are conditions, then is the process of admission not just another way of imposing a false neutrality—assimilation disguised as universalism?

A second manner in which we can approach the conundrum is to ask whether there is a place for exceptionalism within the concept of shared heritage. Could there be room for deviations from the generally accepted norms where individuals can make persuasive cases for accommodation? Is exceptionalism a way to experiment with practices as a process of incremental admission to shared heritage? How would such accommodation be adjudicated?

4. Toward a Methodology of Multicultural Accommodation

I would suggest an approach that begins with a presumption in favour of accommodation after the claimant meets a low preliminary standard. For instance, once a claimant is able to demonstrate a bona fide cultural practice for which she or he is seeking accommodation, the burden would shift to the denying authority to justify the denial. The claim of cultural protection pursuant to section 27 would then be weighed against any countervailing claim of protection for vulnerable internal minorities, such as women or children. The countervailing interests could themselves be grounded in other equality-enhancing provisions of the Charter, including sections 15 (equality) and 28 (gender equality). A section 27 claim could also be weighed against direct societal considerations, such as public or personal health and safety. In certain matters concerning children—including religion, education, and other, related areas of private, family interest—there would be strong public-policy reasons to defer to parental preferences.[102]

A multicultural approach with internal protections, as described earlier, would balance the harms of the cultural practice with the value ascribed to this practice by the culture at issue. This balancing attention to the practice’s cultural context is critical: ascribing value is almost never neutral, but the multicultural imperative requires that the best possible efforts are made to understand practices from the perspective of the person and group at issue. Balancing does not mean pitting the person against the group; rather, I suggest that a complete picture of all relevant factors must be assembled in order to weigh the harm and value of the practice. This test in its entirety is necessarily a hybrid subjective-objective test.

As to female genital cutting, it may be that the end result of this balancing is the conclusion that total criminalization goes too far. Criminalization could open the door to Charter challenges grounded in freedom of religion, or in equality on the basis of sex (given that circumcisions are available to underage males but not to underage females), or of race or national or ethnic origin (given the ban’s disparate impact on people of particular backgrounds). Section 27 may be invoked in support of an argument that an absolute ban that fails to account for cultural factors denies recognition of Canada’s shared multicultural heritage by privileging some cultural practices over others. An absolute ban may also be deemed too blunt an instrument to guard against the identified harms of female genital cutting, including harm to children. The age of consent, set at eighteen, could be challenged to the extent that it imposes a burden on girls but not on boys, and on parents of girls but not on parents of boys. Even if an age of consent is affirmed, the selected age could raise criticisms about cultural appropriateness. In many cultures, for instance, the age at which girls are considered to enter womanhood is associated with puberty. This paradigm loosely corresponds to Canadian law, under which girls may consent to sex as early as age twelve[103] and to marriage at age sixteen.[104] Thus, age eighteen may itself be challenged as inappropriate, either in respect of the girl/woman’s ability to make choices about her body, or with respect to her parents’ “right” to make decisions about their child’s religious or cultural upbringing. From the other side, some may argue that even a “consenting” adult woman may be prevented from exercising real choice by virtue of “false consciousness”.[105] Inevitably, the lens through which we view such issues will be shaped by our own experiences, prejudices, and values. Endeavouring to escape from an ideological framework that prevents us from seeing the “other” as a moral equal might widen the scope for creative institutional thinking.

5. Experimentalist Accommodation: Incremental Affirmation, Deferral, and Deliberation

There are both normative and instrumental reasons to consider experimenting with forms of accommodation for controversial practices like genital cutting. Room for experimentalism is created in the spectrum of options between the extremes of criminalization of any form of female genital cutting on one hand, and state-sanctioned infibulation[106] on the other. My purpose here is not to advocate in favour of the protection or eradication of the practice in any form. My intention is rather to explore the challenges presented by the fact that female genital cutting is a meaningful and significant practice for many individuals and families who are, in increasing numbers, citizens of Western democracies. Recognition of the value of the practice to potential claimants is critical to affirming the life experiences, needs, and aspirations of all people on equal terms. This recognition is mandated by the principle of substantive equality and by the avoidance of reductive, ethnocentric judgments, both of which are implied within the multiculturalism project.

The inquiry must adopt a subjective lens to examine the minority culture on its own terms; but at the same time, this approach can be complicated by internal movements for change, which must not be subverted. For instance, in regions of the world where female genital cutting persists, many women from within practicing communities have themselves been working for its eradication. In numerous instances, they have succeeded in persuading their governments to ban female genital surgeries while simultaneously working within communities to change cultural practices.[107] It could be argued that, while African countries are increasingly moving towards criminalizing female genital surgeries in an attempt to eradicate the practice in response to both local advocacy and international pressure, it is counterproductive and even obstructionist for a Western liberal democracy to adopt a permissive policy of experimenting with accommodation in the name of preserving immigrant cultures.

From an instrumental or tactical standpoint, if the goal is to reduce, to modify, or to eradicate a cultural practice like female genital cutting, evidence suggests that criminalization fails to achieve these objectives.[108] In fact, in some cases, attempts to use the law to eradicate a cultural practice can backfire and give buoyancy to a fading tradition by imbuing it with fresh and radical meaning as a manifestation of resistance and cultural survival. Ayelet Shachar gives the label “reactive culturalism” to this phenomenon, whereby a community that feels besieged by assimilationist policies clings to the practices it views as endangered—often its most regressive traditions—in an attempt to save its culture from the perceived threat of extinction.[109]

But again we fall into the trap of constructing an unnecessary dichotomy between the two radical extremes of eradication and entrenchment.[110] Within the shared-heritage tradition, accommodation could be seen not as the antithesis to eradication or the conduit to entrenchment. Rather, through the “soft” or “incremental affirmation” of an orthodox practice, accommodation could further the instrumental end of encouraging heterodox variations of that same practice. Such incremental affirmation may be able to provide opportunities for members of cultural minorities to experiment with orthodoxy within the shared space created by constitutional multiculturalism.[111]

Deliberative projects, which operate to maximize public discourse and to enhance input by members of marginalized communities, can lead to public, dialogical exchanges in which minority communities are able to engage with others in a constructive, culture-defining process.[112] Out of this process can emerge a new consensus and fresh normative conceptions. For example, Joseph H. Carens and Melissa S. Williams, two theorists who endorse the deliberative-project approach, find that room for compromise about female genital cutting must be narrow. Nevertheless, they allow for some experimenting by providing that “the most prevalent forms of the practice to which the critics object should indeed be prohibited, but that modified forms might be permissible ... ”[113] Monique Deveaux pushes the deliberative experiment further and argues that if the process is sufficiently inclusive and meets a necessary standard of democratic legitimacy, even illiberal outcomes should be tolerated.[114]

Experimenting with accommodation can lead not only to incremental affirmation within the shared heritage model but also to a creative process of internally reshaping cultural practices.[115] Without empirical data to support this theory, I offer only the unsubstantiated speculation that, in contrast to the effect of reactive culturalism, which tends to fossilize and to entrench the most conservative practices in a culture, experimentalist accommodation would tend to cultivate more progressive and liberal versions of cultural practices. This process of experimentation would in turn help the modified practice to secure legitimacy within the minority culture itself, and to gain admittance to the dominant, “shared” culture.

In light of global trends and the reality of widely divergent cutting practices across cultures, and even within cultures, it could be suggested that experimentation with this practice is already underway. It is therefore unfortunate that attempts to experiment with models of accommodating female genital cutting in the West have been met with ideological opposition. In one instance, a group of Somali immigrants living in Seattle sought to have their daughters symbolically circumcised by a state hospital.[116] The hospital initially agreed to work with the families to accommodate their needs but later abandoned the initiative under tremendous public pressure. The procedure sought was not a traditional circumcision; rather, it was a compromise proposal that would have involved a slight incision on the hood of the clitoris, but with no tissue removal or scarring, and would have therefore posed little to no risk to the girls in question.[117] Such attempts to explore creative compromises are especially relevant to the difficult issue of navigating between parental prerogatives and children’s interests. While it may be easier to reach general consensus on the freedom of adult women to consent to surgical modifications to their bodies, the question of choice with respect to children is more troubling. If a “symbolic circumcision” is able to satisfy the cultural interests of the family while posing little or no medical risk to the child, it deserves to be explored seriously.

The fact that varying degrees of cutting currently exist across groups and regions suggests the potential for flexibility and modification. It may also be possible to support a move towards deferring the procedure. In the case of new immigrants without children or those with young children, deferral would provide an opportunity for the family to reorient itself in its new surroundings, with the possibility that its cultural priorities would change over time through the process of integration into the dominant culture. In the case of families for whom cutting remains an important practice, deferral could also lead to ways of reconciling parental rights with children’s choice. Deferring the procedure until early adolescence could include involving girls in the determination of which kind of procedure to undergo, even if parents would continue to exercise some influence on this decision. Experimenting with models of consultation and joint decision making involving the child, the family, and the state is just one possible way to reconcile the competing interests at stake.

In this context, a model that uses democratic institutions to engage the minority community in deliberation about the practice, both internally and with the broader community, can promote progressive voices from within communities in a collaborative endeavour with the dominant culture. Models that suppress and criminalize practices are likely to push them underground rather than to eradicate them. The democratic, collaborative system is not guaranteed to prevent abuses; but what can be hoped is that an accommodationist approach will enable important internal cultural debates, whereby dissenters are empowered to work for change within their communities and are supported by a society that recognizes both the importance of group cohesion and, significantly, the evolutionary nature of culture. Working from the assumption that culture is never static avoids the problem of essentializing cultures and overcomes the flawed dichotomy of “entrenchment versus eradication”. The imperative of a publicly conceived, shared multicultural heritage is to find a workable accommodation through minority deliberation in the public realm, in an effort to ensure the survival of cultures within the parameters of Canadian Charter values.

B. Autonomy: Sharia Family Law Tribunals

Section 27 can also give rise to claims by groups for special recognition. It is not controversial that the Charter protects collective as well as individual interests. Some rights can only be enjoyed communally and therefore have an inherently collective element. While the survival of ethnocultural groups is both an aspiration and a purpose of the Charter, it is unclear to what extent the courts will adjudicate claims based on group autonomy where these claims do not raise specific instances of direct rights violations by the state. The issue of whether the Charter can oblige positive state action is prevalent in respect of all claims for positive rights,[118] and present jurisprudence, at least, precludes a case that would compel the government to take proactive steps towards developing institutions in support of group-based autonomy claims. However, a Charter case resulting in obligatory, positive state action need not be considered beyond the realm of possibility in the future.

Moreover, beyond the question of justiciability, it is worth reflecting on the institutional obligations that might be created by the proclamation of multiculturalism within government policy and its entrenchment in the Charter. Specifically, I wish to assess an example of a claim made by a group for autonomous rights, and thereby to revisit the issue of whether self-government necessarily results from a claim for autonomy. This example—the launching of a sharia[119] tribunal in Ontario—can be characterized as a regime of partial self-government. The sharia tribunal was indirectly authorized by the state and was intended by its crafters to operate as an autonomous, quasi-judicial body with binding authority over consenting parties. I will argue that the principal weakness of this regime as a form of multicultural autonomy—and a leading cause of its misunderstanding and ultimate defeat—can be traced to its features of minority self-government. In Kymlicka’s terms, the model failed to delineate sufficiently the boundary between praiseworthy external protections (as an instance of group autonomy) and prohibited internal restrictions (as empowering the group to violate the rights of its members). The debate incorrectly focused on multiculturalism as the problem, rather than on the model of multicultural accommodation that was adopted. In the result, the progressive possibilities of multiculturalism were overshadowed by the spectre of multiculturalism gone awry.

In exploring this case study, I will attempt to apply the theoretical and textual understandings of multiculturalism under the Charter that I have developed up to this point, and I will treat such questions as: How should we respond to a cultural community seeking to operate a parallel legal system? Do principles of legal pluralism allow for or require the accommodation of a minority legal system within the existing liberal constitutional order? If pluralism is possible, how can conflicts between systems be avoided or resolved? How can we balance claims of autonomy with the protection of vulnerable internal minorities? How can pluralism contribute to the shared multicultural heritage of Canadians, as envisaged under section 27 of the Charter?

1. Sharia Law in Canada?

In late 2003, a now well-known debate erupted when the Canadian Society of Muslims, led by a retired lawyer and long-time Muslim activist, Syed Mumtaz Ali, announced plans to launch an arbitration tribunal to adjudicate contractual and family law matters using sharia.[120] The tribunal, or Darul Qada, established under the name of the Islamic Institute of Civil Justice (IICJ), was set up for the stated purpose of meeting the religious needs of Muslims in Ontario by enabling Muslims to govern interpersonal matters according to the dictates of their faith. The tribunal’s crafters positioned themselves as defenders of democracy and representatives of their community seeking the fulfillment of their collective right to self-government. The tribunal was established without direct government involvement or support. It offered services that its crafters claimed were in demand and essential to Canadian Muslims.

The authority for the establishment of a religious arbitration tribunal already existed under the Arbitration Act (Act), which allows private arbitration for civil matters.[121] The Act had been adopted in 1991, largely to lessen the load on the judicial system by allowing for alternative dispute resolution (ADR) in cases where both parties agree to be bound by a process of their own choosing. Through the 1990s, the system operated without much public attention, and consensual religious arbitration tribunals proliferated among Orthodox Jews[122] and Ismaili Muslims,[123] among others. The relative quiet ended when the Darul Qada was launched, and a very public opposition quickly mobilized. The proposal to establish the Darul Qada gained notoriety across the country, and indeed the world, as its opponents and supporters openly sparred in a tense public relations battle.[124] The debate was often polemical and reductive, and it did little to foster informed public discourse.[125] Opponents presented the issue as an institutional embrace of the archaic Islamic legal “code” in Canada, and argued that it would have the effect of undermining the Charter and putting Muslim women at risk of serious victimization.[126] On the other side, proponents gave misleading statements about the tribunal’s authority and about community members’ religious obligations while exaggerating the community’s need and demand for the system.[127]

2. The Boyd Report

In June 2004, the government commissioned Marion Boyd, a former Attorney General and Minister Responsible for Women’s Issues, to investigate the use of family law arbitration in the province and to report back to the government with findings and non-binding recommendations.[128] Boyd’s mandate included extensive consultation with community members and interested groups. She was asked to investigate the prevalence of the use of arbitration in family and inheritance disputes, and the extent to which the courts had been used to enforce arbitral awards. She was specifically asked to examine the differential impact that arbitration could have on women or members of other vulnerable groups.[129] In her December 2004 report, Boyd summarized her findings and issued a number of recommendations. The Boyd Report affirmed the important role of voluntary ADR mechanisms like arbitration, including arbitration using religious law. It concluded that the accommodation of minority groups wishing to use ADR must balance the autonomy interests and rights of individuals within the minority group.[130] Boyd’s recommendations included amending the Act to permit courts to set aside arbitral awards under certain circumstances.[131] The most dramatic—and costly—recommendations came under the heading of “Further Policy Developments”. This section of the Boyd Report looked at longer-term goals, such as the professional regulation of arbitrators and a stronger mandate for judicial oversight of arbitral settlements and awards.[132]

The Boyd Report was an example of positive public deliberation, and it offered an informed consideration of the issues. It could have—and should have—generated public dialogue among Canadian Muslims, and between Muslims and broader society, about the recognition of group autonomy and the place of legal pluralism in multiculturalism policy. On both sides of the controversy, there were legitimate claims and interests that deserved an informed public debate. Reasonable voices, however, were suppressed and overshadowed by poor public discourse and by the unquestioning reproduction of misinformation in the media.[133] As a result, to the extent that the Muslim public or the broader Canadian public engaged in the debate, such engagement was largely unconstructive—a perfect example of shoddy democratic deliberation. The public pressure on the government continued to escalate, and on 11 September 2005, Premier Dalton McGuinty announced that the Act would be amended to bring an end to the use of faith-based arbitration in the province.[134]

3. Making Sense of the Discourse

The public discourse surrounding the Darul Qada was remarkable in that both proponents and opponents employed the same essentialized, reductive interpretations of sharia. Boyd noted the controversial and politicized use of the word “sharia” in the submissions she received, and preferred the phrase “Islamic legal principles”. According to Anver Emon, Professor of Islamic Law at the University of Toronto, the debate was plagued by a fundamental misunderstanding and mischaracterization of sharia by both supporters and objectors:

whether one was an opponent or proponent of Islamic law, there was little effort by either party to think of Islamic law historically, methodologically, or as a rule of law system. The views were based on relatively synchronic, colonial and post-colonial paradigms of Islamic law without serious reference to Sharia as a rule of law system sensitive to doctrine, institution, and context. ... there was little detailed legal discussion about the kind of jurisprudence that could lead to a mutual accommodation of Sharia and Charter values.[135]

While there was little the IICJ and the Canadian Council of Muslim Women (CCMW)—one of the Darul Qada’s chief detractors—agreed on, they both talked about sharia as a “legal code” that was somehow fixed and unchanging.

It may be helpful to look a bit more closely at the arguments the CCMW used against the Darul Qada. The CCMW appears to have had two principal concerns. First, it argued that, through the Act, the government had given legitimacy and authority to forms of private adjudication that would have binding force over participants and would operate without public oversight or review.[136] The second concern was that a largely misunderstood and controversial “system of law”, viewed by some as “immutably divinely ordained”, was effectively sanctified and institutionalized in the Canadian legal system.[137] It is notable that, on their face, these objections do not appear to entail an outright rejection of the possibility of religious communities engaging in dialogic processes with public institutions; nor is the CCMW position a rejection of any and all forms of experimentation with legal pluralism. As a progressive Muslim women’s organization, the CCMW might have been expected to welcome the opportunities that religious arbitration could present in terms of challenging orthodox doctrine and imagining the possibilities of reinterpreting Islamic law.[138] The CCMW’s concern appears not to have been with religion or religious principles per se, but rather with the institutional structure of the Act, which the CCMW feared would legitimize a particular, retrograde understanding of Islamic principles and law. The CCMW’s opposition can be understood, then, as a plea for the government not to abdicate its duty to protect vulnerable minorities using the justification of the private law of contract.

One of the most prevalent slogans of the opposition movement was “[o]ne law for all.”[139] This slogan accompanied the notion that denying Muslims and other religious people the right to use private arbitration would have entirely equality-positive implications. Such logic ignored the discriminatory impact of arguing that family law arbitration should permit any rules of the parties’ choosing except religious rules. The “one law for all” movement failed to account for the reality that legal pluralism, whether formalized or not, is a fact of life in Canada, as in any multicultural society. It was clear that at least a portion of the Canadian Muslim population did sincerely desire to govern their personal lives and interpersonal relations in accordance with Islamic legal principles, and to have some formal recognition (and protection) of these systems of personal governance. Informal mediation and arbitration had been used widely in Muslim communities for many years. The Darul Qada was one response to the demand of the minority community for formal recognition. The amendments to the Act preventing the formalization of religious arbitration did not effect the disappearance of religiously inspired dispute resolution processes from Muslim communities in Ontario. Rather, it pushed those processes back to the informal level, where people—women and children in particular—are arguably at even greater risk of being victimized by unjust rulings than in a formalized system.[140] Thus, for the opponents of sharia, who focused only on the content of Islamic law as the problem and failed to engage seriously with the question of how to improve the arbitration process and its institutions, their campaign may have been a pyrrhic victory for the vulnerable Muslim women who they sought to protect.

4. More Constructive Approaches

I will now turn to analyzing how the question of minority rights might have been explored had there been an opportunity for more thoughtful, good-faith public dialogue. Such dialogue could have given rise to two strong approaches as well as to a range of intermediary approaches. I will briefly summarize the two strong approaches and then sketch out some of the possibilities that exist between these two positions, tying in the normative imperatives created by section 27.

The first possible strong response to a request for particularist accommodation such as private religious tribunals is an outright and categorical refusal. There are different grounds for this response: aside from bigoted extremists, there is a solid contingent within liberal circles that views the devolution of power to any form of collective self-government for minorities as illiberal, undemocratic, and potentially unconstitutional.[141] Members of this camp include those committed to public institutions and opposed to the privatization of the judiciary in any form, especially where privatization has the potential to empower illiberal minority groups. This view is shared by segments of the human-rights movement and, especially, by many liberal feminists who are skeptical of multicultural accommodation on the grounds that it is anti-egalitarian.[142]

On the other end of the spectrum are those who would endorse measures designed to empower cultural minorities and to enable groups to govern themselves, especially in matters of personal law. This approach welcomes a degree of self-segregation and tolerates the possibility of in-group subordination, believing that the personal affairs and internal governance of members of cultural communities ought to be free from government interference.[143] Proponents of this view see public institutions as agents of the majority and therefore as inherently assimilationist.

The tension between these two extremes concretely illustrates the stark and unjust choice between assimilation and self-government that confronts minorities. Denise Réaume characterizes these two extreme responses as the “philosopher’s” model, which aspires to perfect universalism by eliminating cultural differences altogether, and the “extreme nationalist” model, which seeks to eliminate conflict between groups by eliminating contact between groups.[144] I have attempted to argue that the Charter envisages a model of diversity enhancement in the public realm that aspires neither to segregation nor assimilation, but instead offers a range of possibilities for accommodation and autonomy between these poles. Emphasizing the value of autonomy, Réaume advocates the development of principles that seek to regulate relations between cultural groups and between individuals, with a view to fostering a political culture that treats social diversity as an inherent good.[145] Concrete frameworks for such an experimentalist, accommodationist scheme are offered by Shachar’s “joint governance” model[146] and Seyla Benhabib’s “deliberative” approach.[147] Similarly, Suzanne Last Stone develops a model of “dialectical interaction” in her analysis of American and Jewish law,[148] while Veit Bader espouses an “associative democracy” model of institutional pluralism.[149]

A constructive discussion about sharia must begin with recognition of the legitimacy both of the claim to autonomy issued by proponents of the cultural institution and of opponents’ concerns about coercion, women’s rights, and the lack of judicial oversight. This point of departure requires open-mindedness and willing understanding on both sides of the debate. It is not only the case that members of minority groups must accept that citizenship entails the responsibility to comply with liberal-democratic norms. There are also reciprocal responsibilities for the multicultural state, reflecting the fact that “before members of a liberal democratic polity such as Canada can truly understand what the values of liberty, equality and multiculturalism can and cannot accommodate, they must also make an effort to understand the Other that seeks accommodation.”[150] Part of understanding the Other—and therefore part of meeting the demands of equality and a shared multicultural heritage—is not creating institutions that empower some elements within a community over others.

5. Balancing Competing Normative Goals

We return to the normative conception of multiculturalism under section 27 as one that overcomes the liberal discomfort with regulating internal affairs between people and within groups. The sharia controversy highlights the problem with the state taking a laissez-faire approach. The liberal rights principle of state non-interference is tested by the women’s rights principle that state neutrality and non-intervention can legitimize gender inequality. The idea of internal protections allows us to think about group autonomy and internal minority protection as complementary group rights, and not as being in necessary conflict with one another.[151] Shachar emphasizes the need to give representation to disempowered voices, especially women, within communities.[152] She argues that it is possible to design institutions promoting coordination between state and religious authorities in order to reduce the potential for gender inequality and thereby to avoid the unwitting role of the state in perpetuating internal injustice. She points to her joint governance approach as a way of addressing the dilemmas of religious tribunals, arguing that her model “creates a dynamic division of powers between competing authorities, and generates an impetus for both group and state to better serve their constituent members.”[153] In this power-sharing structure, Shachar offers three “core principles” that would govern the terrain between legal systems. These principles are: (1) clearly delineated zones of competence and authority for each legal system; (2) the “no-monopoly rule”, which holds that neither the state nor the group can ever acquire exclusive control over a contested social arena; and (3) the establishment of “reversal points”, allowing individuals engaged in the legal process to turn to the parallel system for a remedy where such a remedy is denied in the forum of first choice.

Shachar’s approach offers a concrete and creative way of thinking about the challenges presented by religious arbitration, and specifically about the Darul Qada. However, her model has two potential weaknesses. First, on the question of authority and legitimacy, Shachar remains within the bounds of the Act’s scheme, which she recognizes was not designed for the purpose of authorizing multicultural, autonomous regimes. Thus, the structure remains one that is expressly outside of the public law realm—it is created by contract—meaning that the parties are only bound by their voluntary accession to the terms by which they agree to be governed. Those terms are often safely guarded from state oversight or involvement. The lack of oversight may fail to ensure adequately broad representation from within the group, and can tend to privilege community elites. Joint governance within the framework of the Act would likely still be plagued by the inherent problems of using private contract models for adjudicating what are in many respects public law questions of religious pluralism. Joint governance within the existing arbitration framework of the Act offers few guarantees of power redistribution and of protection for internal minorities.

The second, related problem with Shachar’s approach is that it is difficult to see how joint governance within the framework of Ontario’s arbitration legislation will not fall into the kind of reductive, essentializing discourse that plagued the public debate and that has harmed public discourse about multiculturalism in general. Sharia will continue to be understood as a unified “code” of law, interpreted by an arbitrator playing the role of the qadi, or religious judge. A restrictive approach to the understanding of Islamic law would mean few, if any, opportunities to advocate progressive theories and to advance transformational doctrinal interpretations. The creative possibilities afforded to dissenting voices—especially women—would be outweighed by the risks of emboldening the orthodox elites. It is therefore difficult to see how there would be any substantive benefit to the Muslim who chooses to participate in an arbitration system under the joint governance approach other than having the option to exercise an institutionalized right of exit by virtue of reversal points. The result would effectively be the concretization of the unjust and unrealistic choice between one’s culture and one’s rights.

Emon develops an approach to religious arbitration that extends the ideas of joint governance or dialogical interaction into a model of cooperation between liberal governments and Muslim civil society organizations aiming to “create spaces for Muslims to engage in critical thought about the accommodation of Islamic law within national rule of law frameworks founded upon fundamental values of liberal states.”[154] He proposes a “marketplace” concept whereby “Muslims who desire religiously-based family services would have different organizations to choose from, thereby giving them a choice between competing visions of Islamic law.”[155] These community-based groups would be set up as non-profit “family service organizations”. Through corporations law and tax law, the state would create institutional conditions allowing for the proliferation of multiple models of religious arbitration, all of which would compete for a share of the Muslim marketplace.[156] The goal would be to revive the tradition of an Islamic legal system that is doctrinally pluralistic, dynamic, and diverse.[157] Emon’s model also incorporates a mechanism for judicial oversight through an appeal process, which would operate as an additional forum for public deliberation about appropriate interpretations of Islamic law.[158] Through the development of a doctrine of review, the minority agencies and the government would reach a shared understanding about the role for Islamic law in the Canadian legal tradition.[159]

The most attractive feature of Emon’s model is that it aspires to create a level playing field on which different community groups with divergent views could deliberate with one another, and with the state, in a publicly regulated forum, thereby creating a “spectrum of choice” for Muslims seeking ADR services that reflect features of their faith. While Emon’s proposal represents an instructive model for resolving some of the tensions inherent in creating space for multicultural autonomy within the liberal democratic state, issues remain that deserve further reflection. One question is whether extreme proliferation and an uncontrolled supply of religious arbitration services are necessarily public goods. While deliberative models do require as wide an array of perspective and choice as possible, there must be limits to the kinds of approaches that can be accommodated in the multicultural framework. Should private citizens be left to work out such limits for themselves when creating their family service associations? Will the “marketplace” be adequately self-regulated so that the availability of options will ensure real choice and not coercion?

Government involvement and strong judicial oversight are two features that were absent from the Act’s regime, but which would be crucial in any resurrected model of multicultural group autonomy in family law. Although the Darul Qada never had the potential to be imposed on members of the minority group in the way that, for instance, First Nations legal tribunals have been, the concerns about coercion remain important. The technicalities of an institution’s legal legitimacy and authority are irrelevant if there is a general perception that the institution represents a binding and mandatory authority. Any experimentation with religious pluralism within the framework of multicultural autonomy must neither impose a regime on groups nor create one that vulnerable group members perceive as being imposed on them. This imperative places responsibility on the government to ensure sufficient public awareness and education about any parallel legal systems available to members of minority communities. Any cultural benefits that members of minority communities may receive from autonomous regimes would be eclipsed by instances of coercion or misrepresentation on the part of dominant group members, who could mislead vulnerable members without a full and proper understanding of the choices available to them.

The challenges that the Ontario government ultimately evaded in the sharia episode are not likely to disappear. The question of free choice and concerns about “false consciousness” remain inadequately resolved. Future deliberations on these issues will need to shift the questions away from what is wrong with religion—something that was particularly charged in the post-9/11 climate of rising Islamophobia[160]—and toward a focus on what can be improved in the institutional and legislative frameworks that accommodate the aspirations of religious and cultural minorities. The challenge of such accommodation will be to realize the virtues of multiculturalism while protecting and strengthening the other rights and freedoms enshrined in the Charter.


The claims of culture will not be resolved solely by attempts to create rights and to seek their enforcement within the legal system. Legal instruments like constitutions and bills of rights do more than simply create legal causes of action. They are descriptive and normative, delineating the scope of the rights and immunities that regulate the relationship between the state and citizens. They can also be aspirational and imaginative, creating space for discursive practices that enhance core values such as democracy, diversity, and freedom.

Charles Taylor writes that “the modern democratic state needs a healthy degree of what used to be called patriotism, a strong sense of identification with the polity, and a willingness to give of oneself for its sake.”[161] Some have suggested that the adoption of the Charter provided Canadians with such an instrument of social and political cohesion.[162] The Charter transcends the many differences that compose the Canadian mosaic, giving Canadians something to admire, to cherish, to protect, and to develop—together. For many Canadians, it is the embracing of rights and freedoms, and the view that Canadians are united in their diversity, that define the new Canadian patriotism. As a matter of legal analysis, the Charter can be said to offer not only a declaration of how society is, but also a reflection of how society wishes to view itself. The Charter defines the relationships and maps the normative ideals to which individual, group, and collective consciousnesses aspire. In that respect, the Charter is more than a simple legal text; it is a social compact that both defines and dreams. It says both how things are and how things can be.

If the democratic state needs something that citizens both identify with and are willing to give of themselves for, multiculturalism tests the terrain of what identification and sacrifice mean. As Martha Minow states, “we will have to acknowledge that debates over cultural conflict and assimilation are not just about women, and not just about immigrants, minority groups, or Third World nations; they are about all of us.”[163] This idea of shared investment in issues of cultural identity and pluralism is central to the Charter’s conception of multiculturalism as a form of shared heritage. The claims of culture are significant not only to the individuals and groups that assert interests in accommodation and autonomy but also as a part of the evolving, fluid, and intersecting cultural identities to which we all ascribe in some way or another. Embracing the possibilities that the Charter provides as an aspirational and experimentalist project affords dignity-enhancing opportunities to ethnocultural minorities, and it also helps to ensure that the Charter will fulfill its role as an instrument of national cohesion and pride.