Between exclusion and assimilation: experimentalizing multiculturalism.

• Author: Bhabha, Faisal
• Position: Canada

With increasing frequency, members of cultural minorities are demanding not only equality and nondiscrimination 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 Charter's multiculturalism provision. Section 27 creates two distinct types of interests that give rise to claims: one individual and one group-based, described respectively as "accommodation" 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.

Les membres des minorites culturelles demandent, de plus en plus frequemment, non seulement l'egalite et l'absence de discrimination en tant qu'individus, mais aussi la reconnaissance par le droit de leurs identites collectives. Leurs revendications de protection culturelle et d'accommodation sont philosophiques, politiques, morales et juridiques. Cet article est une reflexion sur l'aspect juridique de ces revendications. L'auteur cherche a delimiter l'etendue descriptive, interpretative et normative de l'article 27 de la Charte canadienne des droits et libertes. I1 est influence par les approches de l'innovation constitutionnelle mises de l'avant par les theories de l'experimentalisme democratique.

Dans la premiere partie de l'article, l'auteur traite du cadre textuel et normatif de la disposition de la Charte sur le multiculturalisme. L'article 27 cree deux types d'interets distincts qui donnent lieu a des revendications : un interet individuel et un interet collectif, designes respectivement par les termes et >.

Dans la seconde partie, l'auteur applique le cadre normatif a deux etudes de cas : la coupe genitale feminine et les tribunaux de la charia. Ces exemples offrent un cadre d'analyse pour etudier la possibilite d'utiliser l'article 27 dans le but d'aborder les revendications culturelles en allant au-dela des approches doctrinales et normatives conventionnelles. L'auteur suggere qu'une interpretation experimentaliste du multiculturalisme creerait un espace au sein duquel des approches et arrangements institutionnels divers pourraient etre essayes afin de determiner les meilleures pratiques. Au lieu de limiter les possibilites en adoptant des mesures restrictives qui mettent fin aux revendications culturelles et risquent de radicaliser certains groupes, l'auteur soutient que la force normative de l'article 27 inclut l'imperatif de creer des conditions institutionnelles propices a l'essai et au test de pratiques, avec l'idee que des standards emergeront de la pratique.

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. Internal Protections for Vulnerable Members of Minority Groups G. Dignity as a Limiting Principle for Group Rights 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 Multiculturalism is a relationship between Canada and the Canadian people. Our citizenship gives us equal rights and equal responsibilities. By taking an active part in our civic affairs, we affirm these rights and strengthen Canada's democracy, ensuring that a multicultural, integrated and inclusive citizenship will be every Canadian's inheritance. (1)

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

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

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

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

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

In his study tracing the historical roots of Canadian multiculturalism policy, Joseph Eliot Magnet identifies "freedom from discrimination and group survival" as the two constitutional principles that formed the backdrop to the entrenchment of multiculturalism in section 27 of the Charter. (17) These two principles informed the four initiatives that were embraced in Canada's 1971 multiculturalism policy: (1) to "assist...