Between Exclusion and Assimilation:
Experimentalizing Multiculturalism
Faisal Bhabha*
With increasing frequency, members of cultural
minorities are demanding not only equality and non-
discrimination as individuals, but also the legal recognition
of their collective identities. Their claims to cultural
protection and accommodation are necessarily philosophical,
political, moral, and (both constitutionally and normatively)
legal. This paper is a reflection on the last dimension, the
legal axis. The author sets out to delineate the descriptive,
interpretive, and normative scope of section 27 of the
Canadian Charter of Rights and Freedoms. He is influenced
by the approaches to constitutional innovation expounded by
theories of democratic experimentalism.
The first part of the paper outlines the textual and
normative framework of the Charters multiculturalism
provision. Section 27 creates two distinct types of interests
that give rise to claims: one individual and one group-based,
described
and
autonomy.
The second part of the paper applies the normative
framework to two case studies: female genital cutting and
sharia tribunals. These examples provide a setting in which
to explore the potential of section 27 to address the cultural
demands in ways that go beyond conventional doctrinal and
normative understandings. The author suggests that an
experimentalist interpretation of multiculturalism under
section 27 would create a space in which different
approaches and institutional arrangements could be tried in
order to determine the best practices for handling difficult,
highly contextual questions. Instead of limiting possibilities
by adopting restrictive approaches that extinguish cultural
claims and risk radicalizing groups, the author argues that
the normative force of section 27 includes an imperative to
create the institutional conditions within which measures can
be tried and tested, with the expectation that benchmarks
will emerge through practice.
accommodation
respectively
as
de
culturelle
protection
revendications
Les membres des minorits culturelles demandent, de
plus en plus frquemment, non seulement lgalit et
labsence de discrimination en tant quindividus, mais aussi
la reconnaissance par le droit de leurs identits collectives.
Leurs
et
daccommodation sont philosophiques, politiques, morales
et juridiques. Cet article est une rflexion sur laspect
juridique de ces revendications. Lauteur cherche dlimiter
ltendue descriptive, interprtative et normative de larticle
27 de la Charte canadienne des droits et liberts. Il est
influenc par les approches de linnovation constitutionnelle
mises de lavant par les thories de lexprimentalisme
dmocratique.
Dans la premire partie de larticle, lauteur traite du
cadre textuel et normatif de la disposition de la Charte sur le
multiculturalisme. Larticle 27 cre deux types dintrts
distincts qui donnent lieu des revendications : un intrt
individuel et un intrt collectif, dsigns respectivement par
les termes accommodation et autonomie.
Dans la seconde partie, lauteur applique le cadre
normatif deux tudes de cas : la coupe gnitale fminine et
les tribunaux de la charia. Ces exemples offrent un cadre
danalyse pour tudier la possibilit dutiliser larticle 27
dans le but daborder les revendications culturelles en allant
au-del des
et normatives
conventionnelles. Lauteur suggre quune interprtation
exprimentaliste du multiculturalisme crerait un espace au
sein duquel des approches et arrangements institutionnels
divers pourraient tre essays afin de dterminer les
meilleures pratiques. Au lieu de limiter les possibilits en
adoptant des mesures restrictives qui mettent fin aux
revendications culturelles et risquent de radicaliser certains
groupes, lauteur soutient que la force normative de larticle
27 inclut limpratif de crer des conditions institutionnelles
propices lessai et au test de pratiques, avec lide que des
standards mergeront de la pratique.
approches doctrinales
* B.A. (Toronto), LL.B. (Queens), LL.M. (Harvard), Adjunct Professor of Law, Osgoode Hall Law
School. The author thanks Martha Minow, Jennifer Langlais, Michael Fakhri, and Adam Shinar for
their helpful comments on earlier drafts. He is also indebted to participants at the Conference of the
Toronto Group for the Study of International, Transnational, and Comparative Law, held at the Faculty
of Law, University of Toronto, 1113 January 2008, for an engaging and probing dialogue on an
earlier draft of this paper.
Faisal Bhabha 2009
To be cited as: (2009) 54 McGill L.J. 45
Mode de rfrence : (2009) 54 R.D. McGill 45
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Introduction
I. The Textual and Normative Framework of Section 27
A. Multiculturalism Defined
B. Accommodation and Autonomy: Individual and Group
Interests
C. Enforcing Equality Through Multicultural Accommodation
D. Group Rights and the Equality Paradox
E. Autonomy Without Self-Government
F.
G. Dignity as a Limiting Principle for Group Rights
Internal Protections for Vulnerable Members of Minority Groups
47
51
51
53
55
57
58
61
62
64
65
66
67
70
72
74
77
79
80
82
84
86
89
II. Multiculturalism Applied
A. Accommodation: Genital Cutting
1. Female Genital Cutting as a Cultural Practice
2. Criminalization: Rationalizing Assimilation?
3. Applying the Section 27 Lens to the Problem
4. Toward a Methodology of Multicultural Accommodation
5. Experimentalist Accommodation: Incremental Affirmation,
Deferral, and Deliberation
B. Autonomy: Sharia Family Law Tribunals
1. Sharia Law in Canada?
2. The Boyd Report
3. Making Sense of the Discourse
4. More Constructive Approaches
5. Balancing Competing Normative Goals
Conclusion
2009]
F. BHABHA EXPERIMENTALIZING MULTICULTURALISM
47
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
Canadas democracy, ensuring
that a multicultural,
integrated and
inclusive citizenship will be every
Canadians 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
Introduction
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 peoples 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 roads5 to neighbourhood gyms,6 from polling stations7 to hospital
1 Canada, Department of Canadian Heritage, Canadian Multiculturalism: An Inclusive Citizenship
(Ottawa: Department of Canadian Heritage, 2007), online: Department of Canadian Heritage
2 Rosie DiManno, Sharia Solution a Fair One, and Not Racist The Toronto Star (16 September
3 See Timothy Appleby, Terrorism Raids Sweep Toronto: At Least 8 Suspects, Reportedly
2005) A2.
Muslims, Are in Police Custody The Globe and Mail (3 June 2006) A2.
4 The Royal Commission was formally known as the Consultation Commission on Accommodation
Practices Related to Cultural Differences and was co-chaired by Professors Charles Taylor and Grard
Bouchard. See online: Commission de consultation sur les pratiques daccommodement relies aux
diffrences culturelles
5 See Kirk Makin, Ontario Court Rejects Religious Exemption to Motorcycle Helmet Law The
Globe and Mail (6 March 2008), online: globeandmail.com
unsuccessfully challenged mandatory helmet legislation in Ontario on the basis of religious freedom;
Sikhs in Manitoba and British Columbia are already accommodated by way of an exemption).
6 See Ingrid Peritz, Gym, Jews Dont See Eye to Eye: Ys Workout Warriors Protest Frosted Glass
Installed at Behest of Synagogue Members The Globe and Mail (8 November 2006) A1 (regarding a
dispute between some members of a Montreal YMCA and a neighbouring Orthodox Jewish
synagogue after the YMCA installed frosted windows in the exercise room to block synagogue
members and children from viewing women exercising in the gym).
7 See CBC News, Muslim Women Will Have to Lift Veils in Order to Vote in Quebec Election (23
March 2007), online: CBC.ca
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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 Lords 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 Muslimsand
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
reversed an earlier decision to accommodate Muslim women who wear face veils; the decision would
have allowed these women to vote without exposing their faces).
8 See Quebecs Healthy Identity Debate, Editorial, The Toronto Star (19 August 2007) A18
(mentioning a decision by the Quebec Human Rights Commission to award a non-Jewish ambulance
driver $10,000 in damages for his ejection from a publicly funded Jewish hospital for eating non-
kosher food in the kosher cafeteria).
9 Multani v. Commission scolaire Marguerite-Bourgeoys, 2006 SCC 6, [2006] 1 S.C.R. 256, 264
D.L.R. (4th) 577 [Multani].
10 See Sheema Khan, Why Does a Head Scarf Tie Us in Knots? The Globe and Mail (26
September 2003) A27 (regarding the 1994 case of the 12-year-old Quebec schoolgirl who successfully
complained to the Quebec Human Rights Commission for her right to wear a hijab to public school).
11 Adler v. Ontario, [1996] 3 S.C.R. 609, 140 D.L.R. (4th) 385 [Adler].
12 Zylberberg v. Sudbury Board of Education (Director) (1988), 65 O.R. (2d) 641, 52 D.L.R. (4th)
577 (C.A.).
13 Canada is unique in that it was the first country in the world to have legislated an official
multiculturalism policy: Canadian Multiculturalism Act, R.S.C. 1985 (4th Supp.), c. 24.
14 Syed Mumtaz Ali, President of the Canadian Society of Muslims, asked: Do you want to govern
yourself by the personal laws of your religion, or do you prefer governance by secular Canadian
family law? (Rabia Mills, Interview: A Review of the Muslim Personal/Family Law Campaign
(Canadian Society of Muslims, August 1995) at 1, online: Library of Congress Internet Archives
15 See Alia Hogben, Should Ontario Allow Sharia Law? No: The Laws of the Land Must Protect
All of Us, Irrespective of Gender or Religion, Editorial, Toronto Star (1 June 2004) A19.
49
F. BHABHA EXPERIMENTALIZING MULTICULTURALISM
2009]
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
intereststhe groups desire to separate and the individuals desire to integrateare 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 oppositions 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 communitiesethnic, cultural, or religiousand 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 Canadas 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 Canadas official
languages … 18 These four initiatives set the early benchmarks for a transformative
multiculturalismenshrined in section 27that 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
16 Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11
17 Multiculturalism and Collective Rights (2005) 27 Sup. Ct. L. Rev. 431 at 441.
18 House of Commons Debates (8 October 1971) at 8546 (Rt. Hon. P.E. Trudeau).
[Charter].
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with a view to broader, equality-enhancing transformations.19 Contrary to classical
liberal accounts, which view rights as
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
democraticnot to mention pragmaticflavour 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 Charters 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 27s potential to
address the demands of culture in ways that go beyond the conventional doctrinal and
normative approaches. I suggest
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.
that an experimentalist
19 See Michael C. Dorf & Charles F. Sabel, A Constitution of Democratic Experimentalism
(1998) 98 Colum. L. Rev. 267.
20 See e.g. Jamison E. Colburn, Democratic Experimentalism: A Separation of Powers for Our
Time? (2004) 37 Suffolk U.L. Rev. 287; Michael C. Dorf, Legal Indeterminacy and Institutional
Design (2003) 78 N.Y.U.L. Rev. 875.
F. BHABHA EXPERIMENTALIZING MULTICULTURALISM
2009]
I. The Textual and Normative Framework of Section 27
51
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 Canadas 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 Charters 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 provisions 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
21 See Magnet, supra note 17 at 440 (discussing the history of Canadas multiculturalism policy).
22 Charter, supra note 16.
23 Magnet, supra note 17 at 435.
24 The Charter, supra note 16, provides as follows:
15. (1) Every individual is equal before and under the law and has the right to the
equal protection and equal benefit of the law without discrimination and, in particular,
without discrimination based on race, national or ethnic origin, colour, religion, sex, age
or mental or physical disability.
(2) Subsection (1) does not preclude any law, program or activity that has as its
object the amelioration of conditions of disadvantaged individuals or groups including
those that are disadvantaged because of race, national or ethnic origin, colour, religion,
sex, age or mental or physical disability.
25 See Magnet, supra note 17 at 435.
26 Walter S. Tarnopolsky, The Equality Rights (Ss. 15, 27 and 28) in Walter S. Tarnopolsky &
Grald-A. Beaudoin, eds., The Canadian Charter of Rights and Freedoms: Commentary (Toronto:
Carswell, 1982) 395.
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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 Charters equality
guarantee. With developing intersectional approaches to section 15,27 it is likely that
cultural claims could emerge through equality doctrine. At present, howeverand
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.
27 See e.g. Dianne Pothier, Connecting Grounds of Discrimination to Real Peoples Real
Experiences (2001) 13 C.J.W.L. 37; Falkiner v. Ontario (Ministry of Community and Social Services)
(2002), 59 O.R. (3d) 481, 212 D.L.R. (4th) 633 (C.A.).
28 However, before the equality implications of cultural claims can be adequately explored within
the context of section 27, it is necessary to understand the legal implications of including section 27 in
the Charter. For this reason, I will leave it to others to develop and to analyze further the sites of
potential tension between section 27 and the other equality-oriented provisions of the Charter, such as
sections 23, 25, and 28.
29 The notion of a shared multicultural heritage is also found in the more fulsome elaboration of
government policy contained in the Canadian Multiculturalism Act (supra note 13), according to
which the policy of the Canadian government is to recognize and promote the understanding that
multiculturalism reflects the cultural and racial diversity of Canadian society and acknowledges the
freedom of all members of Canadian society to preserve, enhance and share their cultural heritage
and to recognize and promote the understanding that multiculturalism is a fundamental characteristic
of the Canadian heritage and identity and that it provides an invaluable resource in the shaping of
Canadas future (paras. 3(1)(a)-(b) [emphasis added]).
30 See Susan Wolf, Comment in Charles Taylor, Multiculturalism and The Politics of
Recognition, ed. by Amy Gutman (Princeton: Princeton University Press, 1992) 75 (stating not only
that all people have the same interest in the protection of each culture but that particular cultures have
value). See also Denise G. Raume, Justice Between Cultures: Autonomy and the Protection of
Cultural Affiliation (1995) 29 U.B.C.L. Rev. 117 at 119.
F. BHABHA EXPERIMENTALIZING MULTICULTURALISM
2009]
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.
53
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 Canadas 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 2732 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 discrimination33 and the right to cultural
31 [1992] 2 S.C.R. 731 at 817, 95 D.L.R. (4th) 202.
32 Commentators have noted that section 27 has rarely if ever been deployed as a free-standing,
rights-bearing provision. Its most common use has been in interpreting other rights, particularly under
the limitation analysis in s. 1. See generally Gerald L. Gall, Multiculturalism and the Canadian
Charter of Rights and Freedoms: The Jurisprudence to Date Under Section 27 in Lilian Ma et al.,
eds., Taking Stock: The Jurisprudence on the Charter and Minority Rights (Ottawa: The Canadian
Ethnocultural Council, 1991) 73; Gerald Gall, Jurisprudence Under Section 27 of the Charter: The
Second Decade (2002) 21 Windsor Y.B. Access Just. 307; Vern W. DaRe, Beyond General
Pronouncements: A Judicial Approach to Section 27 of the Charter [forthcoming?] (1995) 33 Alta. L.
Rev. 551; Magnet, supra note 17 at 453-79).
33 This objective is found in the Canadian Multiculturalism Acts promise to promote the full and
equitable participation of individuals and communities of all origins in the continuing evolution and
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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 minorities37 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
shaping of all aspects of Canadian society and assist them in the elimination of any barrier to that
participation, and to ensure that all individuals receive equal treatment and equal protection under
the law, while respecting and valuing their diversity (supra note 13 at paras. 3(1)(c), 3(1)(e)).
34 As expressed in the pledge to recognize the existence of communities whose members share a
common origin and their historic contribution to Canadian society, and enhance their development,
and to foster the recognition and appreciation of the diverse cultures of Canadian society and
promote the reflection and the evolving expressions of those cultures (ibid. at paras. 3(1)(d), 3(1)(h)).
35 The current multiculturalism policy is laid out in ten paragraphs under s. 3(1) of the Canadian
Multiculturalism Act, ibid.
(4th) 385.
36 See e.g. Eaton v. Brant County Board of Education, [1997] 1 S.C.R. 241 at para. 67, 142 D.L.R.
37 See Reference Re Secession of Quebec, [1998] 2 S.C.R. 217 at paras. 79ff, 161 D.L.R. (4th) 385.
38 The right of exit is embraced by many liberal theorists, including Will Kymlicka and Seyla
Benhabib. For a strident defence of the right of exit, see Chandran Kukathas, Are There Any Cultural
F. BHABHA EXPERIMENTALIZING MULTICULTURALISM
2009]
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.
55
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-involvementwhat 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 states only obligation is
to be neutral and to keep out of peoples 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
the majority or dominant groups. Liberal
power
multiculturalists distance
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.
imbalances by favouring
the formal equality,
themselves from
Rights? (1992) 20 Pol. Theory 105 at 116, 128 [Kukathas, Cultural Rights]. See also Chandran
Kukathas, The Liberal Archipelago: A Theory of Diversity and Freedom (Oxford: Oxford University
Press, 2003).
39 See infra note 67.
40 See Brian Barry, Culture and Equality: An Egalitarian Critique of Multiculturalism (Cambridge,
Mass.: Harvard University Press, 2001) (outlining the liberal critique of multiculturalism as being
overly communitarian and undemocratic).
41 See Bruce Ryder, Cidalia Faria & Emily Lawrence, Whats Law Good For? An Empirical
Overview of Charter Equality Rights Decisions (2004) 24 Sup. Ct. L. Rev. 103 at 108.
42 See e.g. Martha Minow, The Constitution and the Subgroup Question (1995) 71 Ind. L.J. 1 at 8
(Simply calling for neutrality by the state does not tell us what the starting point is … The state must
not be neutral, in the sense of doing nothing to accommodate those with religious beliefs, where the
states own starting point excludes or burdens them [emphasis in original]).
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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 1545 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 peoples Charter rights.
It would also allow for a consideration of competing demands for government
resources allocated to cultural accommodation and multiculturalism policies.
43 The legal duty to accommodate can be said to be rooted in John Rawlss concept of distributive
justice: A Theory of Justice, revised ed. (Cambridge, Mass.: Harvard University Press, 1999) at 3-10,
76-77 (defining distributive justice as the theory that all social values, including opportunity and
wealth, are generally to be distributed equally). As a legal doctrine, the duty to accommodate was
imported by the Supreme Court of Canada from the United States, where the theory of disparate
impact, or adverse effects discrimination, demanded an effective remedy. See Michael Lynk, A
Hardy Transplant: The Duty to Accommodate and Disability Rights in Canadian Labour Law (1998)
49 Lab. L.J. 962 at 963.
44 See British Columbia (Public Service Employee Relations Commission) v. British Columbia
Government and Service Employees Union, [1999] 3 S.C.R. 3 at para. 54, 176 D.L.R. (4th) 1
[BCGSEU].
45 In Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143 at 169, 56 D.L.R. (4th) 1, the
Supreme Court of Canada observed that the accommodation of differences … is the essence of true
equality.
46 The most significant recognition of cultural accommodation under the Charter thus far has been
in the context of s. 2(a) freedom of religion claims. For instance, in the context of education, the
Supreme Court of Canada held that a Sikh student could not be barred from wearing a kirpan to
school: Multani, supra note 9. In the workplace, the Court held that accommodation requirements can
trump collective agreement provisions where hours of work conflict with religious obligations:
Central Okanagan School District No. 23 v. Renaud, [1992] 2 S.C.R. 970, 95 D.L.R. (4th) 577. The
Court exempted religious Jews from contractual obligations that obstructed religious practice:
Syndicat Northcrest v. Amselem, 2004 SCC 47, [2004] 2 S.C.R. 551, 241 D.L.R. (4th) 1 [Amselem].
47 Magnet, supra note 17 at 435. Magnet appears to equivocate, at once stating that section 27
seems to contain independent substance (at 436), but also that it is not free-standing, but must be
applied as an interpretational tenet (at 452).
2009]
F. BHABHA EXPERIMENTALIZING MULTICULTURALISM
57
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 vulnerability50 is
created when the result of empowering cultural groups through multiculturalism
policies is to entrench oppressive elements of cultural traditions, placing internal
minoritiesespecially womenin 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
48 Kymlicka argues that cultural membership is the most common basis for self-identification and
thus defends state promotion of access to a societal culture, which he defines as a culture which
provides its members with meaningful ways of life across the full range of human activities, including
social, educational, religious, recreational, and economic life, encompassing both public and private
spheres (Will Kymlicka, Multicultural Citizenship: A Liberal Theory of Minority Rights (Oxford:
Clarendon Press, 1995) at 76 [emphasis omitted]).
49 Susan Moller Okin writes: I think weespecially those of us who consider ourselves politically
progressive and opposed to all forms of oppressionhave been too quick to assume that feminism
and multiculturalism are both good things which are easily reconciled (Is Multiculturalism Bad for
Women?, ed. by Joshua Cohen, Matthew Howard & Martha C. Nussbaum (Princeton: Princeton
University Press, 1999) at 10).
50 Ayelet Shachar, Multicultural Jurisdictions: Cultural Differences and Womens Rights
(Cambridge: Cambridge University Press, 2001) at 3 [Shachar, Multicultural Jurisdictions].
51 Radical feminists are skeptical of liberal feminist claims to protect vulnerable women through the
application of universal norms. They worry that feminist liberation in practice translates into a form of
cultural imperialism (see generally Sherene Razack, Geopolitics, Culture Clash, and Gender after
September 11 (2005) 32:4 Soc. Just. 11; Sherene H. Razack, Imperilled Muslim Women, Dangerous
Muslim Men and Civilised Europeans: Legal and Social Responses to Forced Marriages (2004) 12
Fem. Legal Stud. 129).
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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–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
52 Kymlicka, supra note 48 at 36.
53 Ibid. at 37.
54 Ibid. at 41.
55 See Adler, supra note 11.
56 At this juncture, it is useful to recall that we are limited to discussing ethnic minority communities
that are typically scattered throughout the country, though they may have some areas of geographical
F. BHABHA EXPERIMENTALIZING MULTICULTURALISM
59
2009]
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
to
institutionalized criteria and are not free to evolve and to develop through generations
that are necessarily defined and formalized according
concentration. This line of reasoning does not apply to historical national minorities or Aboriginal
communities.
57 It is beyond the bounds of this paper to offer a developed theory of how such a test could be
framed doctrinally. Presumably, courts applying s. 27 would elaborate criteria for determining the
scope of the provisions protection. By way of general observations, as I have suggested, an
appropriate and historically contextualized reading of the text implies that s. 27 is designed to protect
cultural and ethnic minorities that do not enjoy other constitutional protection (that is, those that are
not Aboriginals, or English or French linguistic minorities). For greater elaboration of this topic, see
Faisal Bhabha, Navigating the Spheres of Multiculturalism, Bilingualism and Federalism:
Theoretical, Doctrinal and Constitutional Perspectives on the Reasonable Accommodation Debate
(2008) 43 Sup. Ct. L. Rev. (2d) 499 [Bhabha, Navigating the Spheres].
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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 dissentabout the communitys 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.
58 See Gila Stopler, Countenancing the Oppression of Women: How Liberals Tolerate Religious
and Cultural Practices that Discriminate Against Women (2003) 12 Colum. J. Gender & L. 154 at
202-205. Stopler argues strongly against the devolution of self-governing power to minority groups on
the basis that it harms the minority community itself, especially women within the community. She
writes that [b]y granting communities internal control over matters, such as family law, that are
essential for the leaders of the community to demarcate the boundaries of the community and
maintain power over it, the leaders of the state can control the various communities at what is
perceived to be a very low cost for the state, albeit it at a high cost for women (ibid. at 207).
59 Raume, supra note 30 at 135.
60 Ibid.
61 See Leslie Green, Internal Minorities and Their Rights in Judith Baker, ed., Group Rights
(Toronto: University of Toronto Press, 1994) 101 at 105.
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F. BHABHA EXPERIMENTALIZING MULTICULTURALISM
61
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
62 Kymlicka recognizes that collective cultural rights can be protected not only through self-
government, but also through other mechanisms, such as financial support, legal protection, and
special representation, including guaranteed seats in public institutions. He argues that self-
government is appropriate for national minorities and Aboriginal communities but not for ethnic
minorities. The distinction between national minorities (such as Aboriginals and French Canadians)
and ethnic minorities (that is, immigrants and their descendants) is a critical part of Kymlickas
theory. While the rights of national minorities are fixed and enshrined in the constitution, claims for
formal recognition by ethnic minorities demand different solutions: Kymlicka, supra note 48 at 11-15.
See also Bhabha, Navigating the Spheres, supra note 57.
63 Such problems are discussed in greater detail in Part II, below, where I examine the particularly
controversial cultural claims surrounding genital cutting and religious family law.
64 This term is a reconstruction of Kymlickas phraseology. Kymlicka expressly distances himself,
and liberal theory generally, from the possibility of public regulation of internal relations within the
group.
65 See supra note 38.
66 My challenge to the right of exit is not in any way addressed to the legitimate and necessary
right of individuals to leave groups voluntarily to which they belong by birth or by choice but with
which they no longer wish to be associated. There can be no justification for compelled adult
membership in a minority group under any liberal multicultural model. My critique rather goes to the
insufficiency of an either/or choice between retaining group membership and protecting rights. The
constitutional norm of multiculturalism surely demands a more contextualized and meaningful
response to the problem of in-group subordination.
to
the dilemma of
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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
in-group
accommodation.67 Moreover, the idea of exit itself is in tension with the fluid,
porous nature of culture. In much of todays world, people move between various
communities and navigate multiple and complex identities on a daily basis. How one
understands and projects ones own culture stems from the individual experience of
these overlapping identities and communities. It is difficult to imagine how one can
exit ones 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
that
multiculturalism extend its reach to protect all minorities from direct and indirect
state-sanctioned subjugation.68
to promote diversity,
imperative
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require
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
67 Green notes that
the mere existence of an exit does not suffice to make it a reasonable option. It is risky,
wrenching, and disorienting to have to tear oneself from ones religion or culture; the
fact that it is possible to do so does not prove that those who do not manage to achieve
the task have stayed voluntarily, at least not in any sense strong enough to undercut any
rights they might otherwise have (supra note 61 at 111).
68 In the Canadian context, such a positive-equality rationale could be defended on the basis of s.
15(2) of the Charter (supra note 16), which shields affirmative action programs from constitutional
scrutiny.
69 See Lorraine E. Weinrib, Human Dignity as a Rights-Protecting Principle (2005) 17 N.J.C.L.
325 (describing human dignity as a defining feature of the postwar model of human rights protection,
shared by Canada and many other liberal democracies whose constitutional structures tend toward
communitarianism, multiculturalism, welfarism, and legal pluralism).
70 There has been some recognition in the Supreme Court of Canadas jurisprudence of limited
positive obligations on the government mandated by the enforcement of a Charter right. See e.g.
Eldridge v. British Columbia (A.G.), [1997] 3 S.C.R. 624, 151 D.L.R. (4th) 577 [Eldridge] (provision
of interpretive services for hearing-impaired hospital patients); Vriend v. Alberta [1998] 1 S.C.R. 493,
156 D.L.R. (4th) 385 (inclusion of sexual orientation as a protected ground under provincial human-
rights legislation); Schachter v. Canada, [1992] 2 S.C.R. 679, 93 D.L.R. (4th) 1 (extension of parental
benefits to a natural father); and Gosselin v. Quebec (A.G.), 2002 SCC 84, [2002] 4 S.C.R. 429, 221
63
F. BHABHA EXPERIMENTALIZING MULTICULTURALISM
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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,
Canadas 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 cultures 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
communitys 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 minoritiesboth internal and external to the cultural unitare
important principles in this multiculturalism model. By applying section 27 as an
D.L.R. (4th) 257, Arbour J., dissenting (contemplation of positive obligations under the s. 7 right to
life, liberty and security of the person)).
71 The Supreme Court of Canadas conception of s. 15 equality has been used to shape the
interpretation of statutory anti-discrimination provisions that apply horizontally between individuals
but not vertically between the state and citizen (see e.g. BCGSEU, supra note 44).
72 See Eldridge, supra note 70 at para. 73.
73 See Barry, supra note 40 at 146.
74 See generally Kymlicka, supra note 48 at 84-93 (arguing that the preservation of cultural groups
is an important public objective because people are deeply connected to their own culture, and
because cultural membership contributes to individual autonomy).
75 Lalonde v. Ontario (Commission de restructuration des services de sant) (2002), 56 O.R. (3d)
505 at para. 187, 208 D.L.R. (4th) 577 (C.A.).
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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
76 See Dorf & Sabel, supra note 19 at 451-64.
77 I have opted to use neutral phraseology, notwithstanding the prevalence of other descriptive terms
such as female circumcision or mutilation, or of technical terms such as clitoridectomy,
excision, or infibulation. In 1990, the Inter-African Committee on Traditional Practices Affecting
the Health of Women and Children in Africa adopted the term female genital mutilation, which is
commonly used by international organizations and non-governmental activists working to eradicate
the practice. See Commission on Human Rights Sub-Commission on Prevention of Discrimination
and Protection of Minorities, Report of the United Nations Seminar on Traditional Practices Affecting
the Health of Women and Children, UN ESCOR, 1991, UN Doc. E/CN.4/Sub.2/1991/48 at para.
136(5). See also L. Amede Obiora, Bridges and Barricades: Rethinking Polemics and Intransigence
in the Campaign Against Female Circumcision (1997) 47 Case W. Res. L. Rev. 275 at 289-90
(discussing the phraseology debates).
65
F. BHABHA EXPERIMENTALIZING MULTICULTURALISM
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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 individuals 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 Canadas heritage, it may be appropriate to adopt the
78 See generally Ronald Dworkin, Hard Cases (1975) 88 Harv. L. Rev. 1057.
79 Supra note 46.
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minoritys 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 ones culture.
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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 clbre 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
80 Female genital cutting is practised to varying degrees among the populations in more than 20
African countries, as well as in Oman, Yemen, the United Arab Emirates, Indonesia, and Malaysia.
More than 80 per cent of women in Djibouti, Egypt, Eritrea, Ethiopia, Gambia, Sierra Leone, Somalia,
and Sudan are believed to be circumcised. The World Health Organization estimates that between 100
and 140 million women have undergone some form of genital cutting, including more than 3 million
girls per year, most under the age of 15: Female Genital Mutiliation (FGM), online: World Health
Organization
81 The four forms of genital cutting usually mentioned are: (1) clitoridectomy (also known as
sunna), whereby the clitoral prepuce is cut and all or part of the clitoris is removed; (2) excision,
whereby the clitoris and all or parts of the inner labia are removed; (3) infibulation (also known as
pharaonic mutilation), whereby the clitoris and most of the labia are removed and what remains is
stitched so as to leave a small opening for urine; and (4) pricking the clitoris and/or labia, sometimes
accompanied by stretching of the clitoris and/or labia (see Angela Wasunna, Towards Redirecting the
Female Circumcision Debate: Legal, Ethical and Cultural Considerations (2000) 5 McGill J. Med.
104 at 106).
82 According to Wasunna, [i]t is believed that clitoridectomy was an original African institution
adopted by Islam at the conquest of Egypt in 742 A.D. Though it is worth noting that female
circumcision is not practised in most Islamic countries and, in fact, it is not in accordance with the
Koran (ibid. at 106 [references omitted]).
83 See Declaration on the Elimination of Violence Against Women, GA Res. 48/104, UN GAOR,
48th Sess., Supp. No. 49, UN Doc. A/Res./48/104 (1993) 217 at 217 (defining violence against
women as including female genital mutilation and other traditional practices harmful to women).
On the choice of phraseology, see supra note 77.
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F. BHABHA EXPERIMENTALIZING MULTICULTURALISM
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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
84 See Ontario Human Rights Commission, Policy on Female Genital Mutilation (FGM) (Toronto:
OHRC, 2000) at 11, online: Ontario Human Rights Commission
Genital Mutilation (FGM) (Ontario Violence Against Women Prevention Section of the Ontario
Womens Directorate, 10 April 1995) [unpublished].
85 The Criminal Code, R.S.C. 1985, c. C-46, as am. by S.C. 1997, c. 16, s. 5 provides:
268. (1) Every one commits an aggravated assault who wounds, maims, disfigures
or endangers the life of the complainant. …
(3) For greater certainty, in this section, wounds or maims includes to excise,
infibulate or mutilate, in whole or in part, the labia majora, labia minora or clitoris of a
person, except where
(a) a surgical procedure is performed, by a person duly qualified by
provincial law to practise medicine, for the benefit of the physical health
of the person or for the purpose of that person having normal
reproductive functions or normal sexual appearance or function; or
(b) the person is at least eighteen years of age and there is no resulting
bodily harm.
(4) For the purposes of this section and section 265, no consent to the excision,
infibulation or mutilation, in whole or in part, of the labia majora, labia minora or
clitoris of a person is valid, except in the cases described in paragraphs (3)(a) and (b).
86 Pursuant to the Criminal Code, any person who takes steps for the purpose of removing a girl to
have genital surgery performed on her in another country is subject to criminal prosecution and
imprisonment for up to five years (ibid., s. 273.3).
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Opposition to genital cutting is grounded in evidencewhich some say is
controversialabout 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
87 The adverse health effects of female genital surgeries, especially the more invasive forms of
cutting, are well reported. Consequences can include hemorrhaging, infection, and urinary retention,
which can be fatal if untreated. Longer-term complications include blocking of the vaginal opening by
scar tissue, as well as chronic infections, obstetric complications, and increased sexual transmission of
HIV (Wasunna, supra note 81 at 107). Carla Makhlouf Obermeyer, a medical anthropologist and
epidemiologist at Harvard, published a review of the existing medical literature on the alleged adverse
reproductive and sexual-health consequences of female genital cutting in Africa, in which she
concludes that many of the claims of the anti-FGM movement are exaggerated and potentially untrue:
Female Genital Surgeries: The Known, the Unknown, and the Unknowable (1999) 13 Med.
Anthropology Q. 79. For a synthesis of Obermeyers article, see Richard A. Shweder, What About
Female Genital Mutilation? and Why Understanding Culture Matters in the First Place in Richard A.
Shweder, Martha Minow & Hazel Rose Markus, eds., Engaging Cultural Differences: The
Multicultural Challenge in Liberal Democracies (New York: Russell Sage Foundation, 2002) 216 at
227-29 (arguing that the data most commonly cited about the adverse health effects of female genital
alterations are fatally flawed).
88 See e.g. OHRC, Policy on FGM, supra note 84 at 5-6 (Since the sole function of the clitoris is
sexual stimulation, the main purpose of the practice is to control female sexuality, ensure chastity until
marriage and to render young women more desirable for marriage purposes).
89 Patricia A. Broussard, Female Genital Mutilation: Exploring Strategies for Ending Ritualized
TortureShaming, Blaming, and Utilizing the Convention Against Torture (2008) 15 Duke J.
Gender L. & Poly 19 at 35. Broussard writes: No matter how many terms one conjures to lessen the
impact of the horror visited upon women in the name of culture, mutilation is mutilation; it cannot be
diminished by semantics. In addition, I am my sisters keeper; their pain is my pain. I have an
obligation to use my words to speak truth to power in their name (ibid. at 19).
90 See Shweder, supra note 87 at 226-35.
91 See Wasunna, supra note 81 at 107.
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F. BHABHA EXPERIMENTALIZING MULTICULTURALISM
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only of womens 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 parents
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,
92 As Okin states, Unless womenand, more specifically, young women (since older women often
are co-opted into reinforcing gender inequality)are fully represented in negotiations about group
rights, their interests may be harmed rather than promoted by the granting of such rights (supra note
49 at 24).
93 For Okin, there is little reason to believe that minority rights can be part of the solution for
women when dealing with an especially patriarchal minority culture. In such cases, no argument can
be made on the basis of self-respect or freedom that the female members of the culture have a clear
interest in [the cultures] preservation. Indeed, they might be much better off if the culture into which
they were born were either to become extinct … or, preferably, to be encouraged to alter itself so as to
reinforce the equality of women … (ibid. at 22-23 [emphasis in original]).
94 The Criminal Code does not go this far, as it allows a woman over the age of 18 to consent to
non-medical genital surgeries (supra note 85, s. 268(3)(b)).
95 Yael Tamir wonders whether even consent could make the tradition defensible: Women
consent to such practices because the alternative is even more painfula life of solitude,
humiliation, and deprivation (Hands Off Clitoridectomy: What Our Revulsion Reveals About
Ourselves Boston Review XX1:3 (Summer 1996) 21 at 21).
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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 questionthe central question that I wish to addressis 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.
96 As Homi K. Bhabha states:
Okin is in danger of producing the monolithic discourse of the cultural stereotype.
Cultural stereotypes may well have the ring of truth and accurately register aspects of a
cultural tradition. However, they are reductive insofar as they claim, for a cultural
type, an invariant or universal representability. Stereotypes disavow the complex,
often contradictory contexts and codessocial or discursivewithin which the signs
and symbols of a culture develop their meanings and values as part of an ongoing,
transformative process (Liberalisms Sacred Cow in Okin, supra note 49, 79 at 81).
97 As Yael Tamir has written,
Referring to clitoridectomy, and emphasizing the distance of the practice from our own
conventions, allows us to condemn them for what they do to their women, support the
struggle of their women against their primitive, inhuman culture, and remain silent on
the status of women in our society …
One cannot help thinking that the gut reaction of many men against clitoridectomy
reflects the fact that in our society the sexual enjoyment of women is seen as a measure
of the sexual power and achievements of men. Men in our society are more intimidated
by women who do not enjoy orgasms than by those who do. In societies in which
clitoridectomies are performed, men are more intimidated by women who do enjoy
their body and their sexuality. In both cases, a masculine yardstick measures the value
of female sexuality (supra note 95 at 22 [emphasis in original]).
98 Richard Shweder calls this reaction the mutual yuck response (supra note 87 at 222).
71
to protect
intervention
F. BHABHA EXPERIMENTALIZING MULTICULTURALISM
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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
the vulnerable become discriminatory
infringement of a womans 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
99 See Martha Minow, About Women, About Culture: About Them, About Us in Shweder, Minow
& Markus, supra note 87, 252 at 262 [Minow, About Women] (discussing the issue of government
attempts to protect immigrant children against the cultural practices of their parents).
100 Shweder recounts the story of Fuambai Ahmadu, an anthropology student originally from Sierra
Leone who grew up in the United States and who, at the age of 22, returned to her country of birth to
undergo a genital alteration. She then delivered a paper to the American Anthropological Association
Meetings in Chicago in November 1999 in which she described her experience, in opposition to
contemporary human rights discourse, as an empowering rite (supra note 87 at 217-18).
101 It is interesting to note that male circumcision has not always been tolerated in Western society.
In eighteenth-century Enlightenment Europe, ritual mutilation was associated with the practices of
the despised Jewish minority, even among liberal thinkers like Voltaire (Sander L. Gilman, Barbaric
Rituals in Okin, supra note 49, 53 at 53). There has in recent years emerged a small but vocal
movement in Canada and abroad calling for the eradication of male circumcision (dubbed Male
Genital Mutilation, or MGM) on the basis of fundamental human rights (Arif Bhimji, Infant Male
Circumcision: A Violation of the Canadian Charter of Rights and Freedoms, online: (2000) L. &
Governance
Zoossmann-Diskin [Executive Director of the Israeli Association Against Genital Mutiliation], Male
Genital Mutilation in Any Society Is Surely Abhorrent Too (2000) 321 Brit. Med. J. 571.
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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 neutralityassimilation 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 childrenincluding religion, education, and other, related
areas of private, family interestthere 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 practices 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
102 Minow highlights the question of childrens rights as one of the most challenging issues in
liberal democracies. State intervention in family lifehistorically shielded from the reach of the
lawhelps protect children from abusive parents; parental prerogatives defend against unwieldy state
power. Parental control, however, remains the norm and state intervention the exception. Minow
argues that it is sensible that
democratic legal systems expect parents and immediate communities to be the frontline
providers for children … This acknowledges that nurture is a face-to-face task and that
parents are the ones most likelythough not universallyable and motivated to do
what is best for their children. This also establishes a framework of pluralism and
avoids state standardization of children; and it privatizes most decisions about children
(Minow, About Women, supra note 99 at 262-63).
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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 bans 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 Canadas 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
twelve103 and to marriage at age sixteen.104 Thus, age eighteen may itself be
challenged as inappropriate, either in respect of the girl/womans ability to make
choices about her body, or with respect to her parents right to make decisions
about their childs 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.
103 In February 2008, the federal government amended the Criminal Code to raise the basic age of
consent from fourteen to sixteen. However, exceptions exist where sexual partners are relatively close
in age. For twelve- and thirteen-year-olds, consent is a defence where there is less than a two-year age
difference, and for fourteen- and fifteen-year-olds, consent can be given where there is less than a
five-year age difference: supra note 86, ss. 150-53, as am. by S.C. 2008, c. 6, s. 13.
104 See e.g. Marriage Act, R.S.O. 1990, c. M.3, s. 5. The age of consent for marriage is determined
by provincial legislatures. In Ontario, a marriage licence may only be issued to a sixteen-year-old with
the written consent of both parents.
105 Minow, About Women, supra note 99 at 256:
Dueling accusations of false consciousness can escalate with no end. Indeed, here is
a risk of infinite regression. You say that women in my culture have false
consciousness, but you say this because of your own false consciousnessor I think
this because of my own false consciousness, and so forth. These kinds of exchanges
essentially are incorrigible. No facts of the matter can prove or disprove false
consciousness without a prior agreement about what one ought to want.
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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 infibulation106 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
106 Infibulation is the most extreme form of female genital cutting (Wasunna, supra note 81 at 106).
107 See ibid. at 108 (stating that while most anti-circumcision laws in Africa were passed by colonial
powers and were rarely if ever enforced after independence, some states, such as Egypt, Sudan, the
Ivory Coast, and Burkina Faso, have enacted specific legislation as part of a strategy to curb the
practice).
108 See ibid. at 108-109 (pointing to the African experience, the author argues that it is unlikely that
a purely legal solution to the problem of female circumcision, such as a prohibition on its practice,
will bring this practice to a halt and contends that education is a far more effective instrument of
social change than is criminalization).
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phenomenon, whereby a community that feels besieged by assimilationist policies
clings to the practices it views as endangeredoften 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
109 Shachar, Multicultural Jurisdictions, supra note 50 at 11. A good example of reactive
culturalism is the cultural retrenchment among Muslims in France following the governments
banning of the hijab in public schools pursuant to its enforcement of lacit, a policy roughly
equivalent to the American anti-establishment principle but applied in a more anticlerical form. For an
overview of the French hijab affair, see John R. Bowen, Why the French Dont Like Headscarves:
Islam, the State, and Public Space (Princeton: Princeton University Press, 2007).
110 Experience has shown that this dichotomy, usually constructed by liberal universalists and
feminists, rarely achieves the objectives of its crafters. Fear that accommodation results in the
entrenchment of retrograde practices leads universalists to call for absolute bans as the only method of
eradication and progress. This approach fails to appreciate cultural context and can undermine internal
movements for change. Forcing peopleusually womento choose between their rights
(eradication) and their culture (entrenchment) leaves people with no meaningful choice at all and
radicalizes the discourse.
111 While some may dismiss the notion of incremental affirmation as unrealistically optimistic, it is
worth recalling Kymlickas response to the problem of illiberal cultures. While arguing that liberals
cannot endorse cultural membership uncritically, he goes on to state that the goal should not be to
dissolve non-liberal nations, but rather to seek to liberalize them. … To assume that any culture is
inherently illiberal, and incapable of reform, is ethnocentric and ahistorical (supra note 48 at 94).
112 Various deliberative projects are endorsed by theorists. See e.g. Seyla Benhabib, The Claims of
Culture: Equality and Diversity in the Global Era (Princeton: Princeton University Press, 2002);
Shachar, Multicultural Jurisdictions, supra note 50; Joseph H. Carens & Melissa S. Williams,
Muslim Minorities in Liberal Democracies: The Politics of Misrecognition in Rajeev Bhargava, ed.,
Secularism and its Critics (Oxford: Oxford University Press, 1998) 137. For further discussion of
Shachars theory, as well as that of Anver Emon, see Part II.B.5, below.
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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
childrens interests. While it may be easier to reach general consensus on the freedom
113 Ibid. at 144.
114 A Deliberative Approach to Conflicts of Culture in Avigail Eisenberg & Jeff Spinner-Halev,
eds., Minorities within Minorities: Equality, Rights and Diversity (Cambridge: Cambridge University
Press, 2005) 340. Deveaux undertakes a fascinating study of the case of traditional practices under the
South African Constitution. She finds that the compromises that emerged from the deliberative
process in the form of the Customary Marriages Act were fair and legitimate, despite yielding illiberal
outcomes like the legalization of polygyny and bride-wealth payment.
115 The more modified that genital surgeries become, the more the analogy to male circumcision
takes hold. Wasunna has noted that the main qualitative difference between male and female
circumcisionaside from the gendered differences in the genitalia themselvesis the amount of
cutting. If the amount of cutting is reduced substantially in the female procedure, not only do the risks
decrease, but the analogy in support of an anti-discrimination argument becomes more persuasive
(supra note 82 at 107).
116 See Doriane Lambelet Coleman, The Seattle Compromise: Multicultural Sensitivity and
Americanization (1998) 47 Duke L.J. 717 at 723.
117 See ibid. at 736-37.
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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 childrens
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
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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 examplethe launching of a sharia119 tribunal in Ontariocan 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
autonomyand a leading cause of its misunderstanding and ultimate defeatcan be
traced to its features of minority self-government. In Kymlickas 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
118 This obstacle is particularly notable in the realm of social and economic rights. A complete
discussion of the issue, however, is beyond the scope of this paper.
119 There is no universally accepted definition of sharia. It is generally understood to reflect a
body of personal law inspired by scripture (the Quran) and by the recorded traditions or precedents of
the Prophet Muhammad (the Hadith). The controversy arises in how these sources of law are
developed and constituted into a coherent legal system (Anver Emon, Islamic Law and the Canadian
Mosaic: Politics, Jurisprudence, and Multicultural Accommodation (2006) U Toronto, Legal Studies
Research Paper No. 947149 at 3-7, online:
Law]). For a further discussion of Emons argument, and for its extrapolation within the Singaporean
context, see Anver M. Emon, Conceiving Islamic Law in a Pluralist Society: History, Politics and
Multicultural Jurisprudence [2006] Sing. J.L.S. 331.
F. BHABHA EXPERIMENTALIZING MULTICULTURALISM
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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?
79
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 tribunals 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 Jews122 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
120 See Marina Jimenez, Islamic Law in Civil Disputes Raises Questions The Globe and Mail (11
December 2003) A1. The Family Law Act, R.S.O. 1990, c. F.3 allows couples to enter into domestic
contracts, which include marriage contracts, cohabitation agreements, and separation agreements.
Domestic contracts specify the rights of the parties to the contract with respect to property, support,
children, and any other matter in the settlement of their affairs (ibid., ss. 52-54). Couples are then
free to devise an arbitration agreement outlining the process they will use to resolve problems arising
out of the domestic contract. Arbitration agreements must comply with the Arbitration Act, 1991, S.O.
1991, c. 17.
121 Arbitration Act, ibid.
122 Known as Beis Din (literally meaning house of law). See Ontario, Ministry of the Attorney
General, Dispute Resolution in Family Law: Protecting Choice, Promoting Inclusion by Marion Boyd
(20 December 2004) at 55-56, online: Ministry of the Attorney General
123 Known as Ismaili Conciliation and Arbitration Boards (CABs) (ibid. at 57-59).
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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 tribunals authority and about
community members religious obligations while exaggerating the communitys 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 Womens 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 Boyds 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,
124 See e.g. Margaret Wente, The State Should Not Give Its Blessing to Muslim Courts The Globe
and Mail (23 December 2004) A23; Sheema Khan, The Sharia Debate Deserves a Proper Hearing
The Globe and Mail (15 September 2005) at A21.
125 See Haroon Siddiqui, Sensationalism Shrouds the Debate on Sharia The Toronto Star (12 June
2005) A17.
126 Opponents went so far as to condemn the University of Toronto Faculty of Law for hiring two
specialists in Islamic law in August 2005. Homa Arjomand, the coordinator of the International
Campaign Against Sharia Court in Canada (online:
a green light to sharia (Boyd Erman, Islamic Law Course Hears Opening Arguments The Globe
and Mail (6 August 2005) M3).
127 In an online interview, posted on the Canadian Society of Muslims website, the architect of the
Darul Qada, Syed Mumtaz Ali, provides some background for the motivations and views behind the
project: We live in a non-Muslim country which subjects us to laws which, for the most part, do not
allow us to live our faith to the best of our ability. … As Canadian Muslims, you have a clear choice.
Do you want to govern yourself by the personal law of your own religion, or do you prefer
governance by secular Canadian family law? If you choose the latter, then you cannot claim that you
believe in Islam as a religion and a complete code of life actualized by a Prophet who you believe to
be a mercy to all. In response to a question about whether the tribunal would be obligatory for all
Muslims, Ali responded: Those Muslims who would prefer to be governed by secular Canadian
family law may do so. It would be more preferable, however, for Muslims to choose governance by
Muslim PFL [personal family law] for reasons of conscience (Mills, Interview, supra note 14 at 4).
128 See generally Boyd Report, supra note 122.
129 Ibid. at 5.
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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 Boyds recommendations included
amending the Act to permit courts to set aside arbitral awards under certain
circumstances.131 The most dramaticand costlyrecommendations 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 haveand should havegenerated
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 unconstructivea 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
130 Boyd stressed that private arbitration could not and should not be used to promote a separate
political identity, a separate form of citizenship, or separate legal system for Muslims, noting that
Aboriginal peoples are the only minority group that have a defined right to negotiate with the
government about political autonomy (ibid. at 87-88).
131 Boyd proposed that the parties should be unable to waive a courts ability to set aside an arbitral
award under any of the following conditions: (1) if the award fails to reflect the best interests of any
children affected; (2) if a party did not have or waived independent legal advice; (3) if the parties did
not have a copy of the arbitration agreement and a written decision with reasons; or (4) if a party did
not receive a statement of principles (ibid. at 134).
132 Greater government involvement and oversight trigger cost concerns, leading one commentator
to predict that the public reaction would result in questions like Why should we pay for them to apply
their bad law? (James Thornback, The Portrayal of Sharia in Ontario (2005) 10 Appeal 1 at 11
[emphasis in original]).
133 See Siddiqui, supra note 125.
134 Family Statute Law Amendment Act, 2006, S.O. 2006, c. 1. For a critical examination of whether
the amendments do in fact create an absolute ban on religious arbitration, see Natasha Bakht, Were
Muslim Barbarians Really Knocking on the Gates of Ontario?: The Religious Arbitration
ControversyAnother Perspective (2006) 40th Anniv. Ed. Ottawa L. Rev. 67 at 79-82.
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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 Qadas chief detractorsagreed 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 womens organization, the CCMW might have
been expected to welcome the opportunities that religious arbitration could present in
the possibilities of
terms of challenging orthodox doctrine and
imagining
135 Emon, Islamic Law, supra note 119 at 22-23.
136 There were mechanisms for judicial review and appeal under the Act in some circumstances:
supra note 116, ss. 6, 46, 48. The feminist critique was that either review or appeal would require
knowledge by the party seeking judicial oversightusually women, who in many cases would be the
weaker, more vulnerable, and less knowledgeable party. The Canadian Council of Muslim Women
made this point in Submission to Marion Boyd (30 July 2004), online: Internet Archive:
137 CCMW, ibid.
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reinterpreting Islamic law.138 The CCMWs 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 CCMWs 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 peoplewomen and children in
particularare 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
138 Some elements within the opposition movement seemed to operate on the assumption that
religion is on its face bad for women. In contrast, the CCMW maintained in their Position Statement
that:
The Canadian Council of Muslim Women, a pro-faith national organization, makes a
clear statement that we are not against Sharia, as that would be too categorical a
statement. However, we know that there is no uniform understanding, interpretation or
application of the law which is complex, applied differentially in different countries,
and in some instances the practices are detrimental for women. It is difficult to
comprehend how it will be applied in Canada (Canadian Council of Muslim Women,
Position Statement on the Proposed Implementation of Sections of Muslim Law
[Sharia] in Canada, 2 (31 March 2004)).
139 See CCMW, Submission to Marion Boyd, supra note 132. Indeed, in the governments
announcement that the Act would be amended, Premier McGuinty invoked the one law for all
mantra: There will be no Shariah law in Ontario. There will be no religious arbitration in Ontario.
There will be one law for all Ontarians (See CTV.ca News, McGuinty Rules Out Use of Sharia Law
in Ontario (12 September 2005), online: CTV.ca
140 Law professor Julie Macfarlane notes:
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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.
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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
[I]mams and other leaders within the Muslim communities have continued to perform
Islamic divorces, but with none of the public scrutiny or oversight that Marion Boyd
proposed in her December 2004 report. Muslims still ask their imams to perform
marriage ceremonies, marriage counselling where they face difficulties and sometimes
to conduct divorce hearings, using arbitration or mediation (Research Project to
Explore the Many Forms of Islamic Dispute Resolution The Lawyers Weekly (22
September 2006) 7 at 7).
141 See e.g. Barry, supra note 40.
142 See e.g. Okin, supra note 49 at 10 (those of us who consider ourselves politically progressive
and opposed to all forms of oppression … have been too quick to assume that feminism and
multiculturalism are both good things which are easily reconciled).
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2009]
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
Raume characterizes these two extreme responses as the philosophers 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, Raume 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
Shachars joint governance model146 and Seyla Benhabibs 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, womens 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
Otherand therefore part of meeting the demands of equality and a shared
143 For the communitarian version of this theory, see Avishai Margalit & Moshe Halbertal,
Liberalism and the Right to Culture (1994) 61 Soc. Res. 491; for a libertarian version, see e.g.
Kukathas, Cultural Rights, supra note 38.
144 Supra note 30 at 117-18.
145 Ibid. at 119, 141.
146 Shachar, Multicultural Jurisdictions, supra note 50 at 5.
147 Supra note 112 at 19, 114.
148 Suzanne Last Stone, The Intervention of American Law in Jewish Divorce: A Pluralist
Analysis (2000) 34 Isr. L. Rev. 170 at 190.
149 Veit Bader, Associative Democracy and Minorities Within Minorities in Eisenberg, supra note
114, 319 at 319.
150 Emon, Islamic Law, supra note 119 at 25.
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multicultural heritageis not creating institutions that empower some elements
within a community over others.
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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 womens 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.
Shachars 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 Acts 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
realmit is created by contractmeaning 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
151 See the above discussion of the protection of internal minorities and in-group diversity as a
mandate of multiculturalism under s. 27 at Part I.A, above.
152 Religion, State, and the Problem of Gender: New Modes of Citizenship and Governance in
Diverse Societies (2005) 50 McGill L.J. 49 at 52.
153 Ibid. at 71.
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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 Shachars approach is that it is difficult to see
how joint governance within the framework of Ontarios 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 voicesespecially womenwould 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 ones culture and ones 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 Emons model also incorporates a mechanism for
judicial oversight through an appeal process, which would operate as an additional
154 Emon, Islamic Law, supra note 119 at 3.
155 Ibid. at 26.
156 Though Emon writes specifically about the Muslim community, this model could presumably be
generalized to other religious and cultural communities.
157 Emon, Islamic Law, supra note 119 at 25.
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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 Emons 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 Emons 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 Acts 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 institutions 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.
158 While there is little precedent to support the involvement of secular courts in interpreting
religious law, a recent judgment of the Supreme Court of Canada, which awarded a woman damages
because her ex-husband refused to honour an agreement to grant a Jewish religious divorce, suggests
that the separation of religious and secular law may be blurred where Charter equality considerations
are at play: Bruker v. Marcovitz, 2007 SCC 54, [2007] 3 S.C.R. 607, 288 D.L.R. (4th) 257.
159 Emon, Islamic Law, supra note 119 at 26.
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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
Islamophobia160and 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.
Conclusion
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 developtogether. 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
160 See Faisal Bhabha, Tracking Terrorists or Solidifying Stereotypes?: Canadas Anti-Terrorism
Act in Light of the Charters Equality Guarantee (2003) 16 Windsor Rev. Legal Soc. Issues 95 at
117.
161 Charles Taylor, Modes of Secularism in Bhargava, supra note 112, 31 at 44.
162 Political scientist Alan C. Cairns emphasizes the unifying force of the Charter, especially for
minorities:
The Charter, in other words, generates centrifugal pressures within provinces and a
Canadian rights-bearing identity that transcends provinces. The possessors of Charter
rights were labelled and came to see themselves as Charter Canadiansa phrase which
indicated that their link to the constitution was through the Charter, and that as a result
they had stakes in the constitution (Searching for Multinational Canada: The Rhetoric
of Confusion (2001) 6 Rev. Const. Stud. 13 at 19-20).
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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 Charters 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.
163 Minow, About Women, supra note 99 at 264.
