In praise of ‘the multiculturalism clause’

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This article was published 18/04/2022 (1429 days ago), so information in it may no longer be current.

PUSHING for the federal government to include a statement of multiculturalism in its new Charter of Rights and Freedoms, Ukrainian Canadian academic and activist Manoly Lupul once wrote: “A new constitution is like a new house. In it there must be room for the whole family.”

The Charter, which turns 40 this month, did just that with the addition of Section 27:

“This Charter shall be interpreted in a manner consistent with the preservation and enhancement of the multicultural heritage of Canadians.”

As the only charter or bill of rights in the world to include a commitment to multiculturalism, the Charter of Rights and Freedoms is, in this sense, uniquely Canadian. There is some evidence to suggest that Section 27 has enjoyed broad support: a poll conducted for the charter’s 20th anniversary found that some 86 per cent of Canadians approved of it. But its inclusion was by no means predetermined.

Advocates for the inclusion of multiculturalism in the Charter included, among other groups, the Ukrainian Canadian Committee, the Canadian Polish Congress and the Canadian Consultative Council for Multiculturalism. All had hoped that a statement of multiculturalism would be placed in the preamble, a position of symbolic importance.

As the earlier 1972 Molgat-MacGuigan Commission on the Constitution put it, the preamble was the only place to define “what kind of country Canada is and what it aspires to be.” Indeed, its final report, responding to presentations from many Ukrainian Canadian organizations, recommended that the preamble “formally recognize that Canada is a multicultural country.”

However, consensus on a sweeping preamble eluded the federal government in 1980. Despite previous statements that it had no objections to including a reference to multiculturalism in the charter, the government’s initial draft did not. Disappointed, advocates then fought to include multiculturalism in Section 15, guaranteeing the right to the equal protection and equal benefit of the law.

The Ukrainian Canadian Committee proposed the following wording: “Everyone has the right to preserve and develop their cultural heritage.”

That didn’t happen. But Section 27 did. Because it didn’t grant a right to cultural heritage, but rather ensured that the charter would be interpreted in light of Canada’s multicultural heritage, legal scholars were largely unimpressed. Peter Hogg, the foremost expert on the Canadian Constitution, immediately suggested the section “may prove to be more of a rhetorical flourish than an operative provision,” while another expert, Elmer Dreidger, bluntly dismissed it as “meaningless.”

But these critics overstated their case. For, beyond its powerful symbolism, Section 27 has played a role in numerous cases over the past four decades. Among other things, it has been used to limit the use of hate speech, strengthen freedom of religion, ensure the right to an interpreter and enhance minority language education rights.

Additionally, as Justice Katherine Swinton has argued, Section 27 educates: it reminds judges of Canada’s societal vision, which is one of a multiculturalism and not assimilation.

There is also the possibility that it will someday be used more expansively, for Section 27 is unique among the other interpretive provisions in the charter in that the word “enhancement” makes it dynamic. As constitutional scholar Joseph Magnet puts it, this seems to be a “reference to positive action.”

Enhancement is essential, as official multiculturalism does not preclude racism or even notions of preferred immigrants and refugees. Still, as more people from all corners of the globe seek to make Canada their new home, it is comforting to know Canada’s commitment to preserving and enhancing its multicultural heritage remains safeguarded in that most secure and privileged of places – its Constitution.

In part, they can thank Canada’s Ukrainian community. For that matter, we all can.

Daniel R. Meister is a Banting postdoctoral fellow at the University of New Brunswick. He is the author of The Racial Mosaic: A Pre-History of Canadian Multiculturalism.