Beyond General Pronouncements: A Judicial Approach to Section 27 of the Charter (forthcoming)

Abstract

The author provides a thorough synthesis and evaluation of the multicultural provision in the Charter. He begins by exploring possible definitions of multiculturalism, deriving his concept from various academic disciplines as well as federal policies. The difficulty on settling for a comprehensive definition of multiculturalism is manifest in the mixed signals within both the federal government's Multiculturalism Policy of 1971 and the subsequent legislation, the Canadian Multiculturalism Act. He then selectively surveys the judicial approaches taken to s. 27. Current treatment is sparse and any discussion of the multicultural section is largely subsumed in a general discussion of other sections of the Charter such as ss. 1 and 2. Through this survey, he demonstrates the limited, restricted reading of s. 27 accorded by the judiciary. Finally, the author considers the inherent limits of the section; he compares it to a similar provision in Quebec's human rights legislation, general liberal theory and possible conflicts between s. 27 and other precepts of Canadian society, specifically bilingualism. He concludes that s. 27 must be expanded within its negative role, protecting individual communities and individuals from the acts of others rather than being used as a tool to entrench positive or collective rights of ethnic groups.