by Stephen Tierney (ed.). Vancouver, BC: UBC Press, 2008. 256pp. Cloth CDN$85.00/US$93.95. ISBN: 9780774814454. Paper CDN$32.95/US$36.95. ISBN: 9780774814461.
Reviewed by Diana Yoon, Department of Legal Studies, University of Massachusetts Amherst. Email: dyoon [at] legal.umass.edu.
In 2002, the government of Canada announced June 27th as Multiculturalism Day, an annual celebration to acknowledge “the contributions of Canada’s diverse people to Canadian society.” This declaration was certainly not the government’s first gesture to cultural pluralism as demographic reality and centerpiece of national character; it adopted multiculturalism as a national policy in 1971. However prominent in official narratives of Canadian society, multicultural policies have encountered criticism from various sources, including advocates of Quebec nationalism and Aboriginal sovereignty to critics arguing that multiculturalism undermines liberal equality and national cohesion. The purpose of MULTICULTURALISM AND THE CANADIAN CONSTITUTION is not to survey and clarify arguments for and against multicultural policy in Canada. Rather, the book presents a collection of essays – written by scholars in fields ranging from political theory, public policy, constitutional law and international law – on juridical and political questions essential to understanding the normative debate over multiculturalism.
The first part of the book focuses on the development of multiculturalism and federalism in relation to the Canadian constitution. Readers interested in the “etymology of multiculturalism” in Canada (p.43) should begin with Michael Temelini’s “Multicultural Rights, Multicultural Virtues.” Temelini examines how multiculturalism was articulated and adopted as a national policy, demonstrating that the concept “originated neither from constitutional negotiations nor from legislation nor from the courts; rather, its definition was a work in progress developed over time in the context of widespread public debate and championed by an organized public movement” (pp.43-44). The analysis of the process that shaped the discourse of multiculturalism is connected to understanding its content: multiculturalism was defined not only in juridical terms (concerned with rights and practice of law), but also with a “civic humanist language and practice of virtue” (p.43). The language of citizenship and civic engagement integral to the evolution of multiculturalism is well-documented in the essay, and it reminds us that while multiculturalism is often viewed as a question of “minority rights” (Kymlicka 1995), it should also be understood as “a virtue in the sense of being an ongoing practice of understanding that is acquired in dialogue and that shapes our character and makes us become better citizens” (p.56).
Ian Peach’s essay is similarly attentive to political movements and democratic engagement in telling the story of Canadian multiculturalism. His [*595] discussion is intended as a corrective to the conventional understanding of the 1982 adoption of the Canadian Charter of Rights and Freedoms as an “intergovernmental war story” (p.92), and thus focuses on the ways that citizen participation and the work of advocacy organizations (what he calls “equity groups”) shaped that constitutional moment. Peach and Temelini offer insightful analyses of historical context and political struggles in the development of multiculturalism, which certainly enhance the reader’s understanding of former prime minister Pierre Trudeau’s role in establishing the nation’s multiculturalist vision and policy, as discussed by Hugh Donald Forbes.
Marc Chevrier’s perspective on the evolution of multiculturalism and constitutional development focuses on Canada’s federal system. In assessing how political scientists and constitutional lawyers have addressed questions of federalism, Chevrier points to conceptual ambiguities (for example, unclear terms for “federalism” and “federation”) that pose a challenge in theorizing “the constitutional regime as a distinct aspect of the political system” (p.111). He offers a nuanced discussion of the uneven impact of the 1982 constitutional amendment on the politics of provincial governments, Aboriginal rights and cultural pluralism, suggesting that the national political community is being shaped by a “double process of federalization and defederalization” (p.122).
It is generally acknowledged that the 1982 Constitution Act enacting the Canadian Charter of Rights and Freedoms marked a new era of constitutional jurisprudence. Essays in the second part of MULTICULTURALISM explain post-1982 developments in the constitutional process, highlighting “the role of constitutional interpretation by the courts in the development and enhancement of Canada as a self-consciously multicultural state” (p.3).
Jameson Doig’s “New Constitutions and Vulnerable Groups” focuses on the Supreme Court’s interpretation of the Charter – specifically, the legacy of former chief justice Brian Dickson in shaping the jurisprudence of “rights of Aboriginal peoples, members of distinctive religious and ethnic groups, and other ‘vulnerable groups’” (p.164). A survey of cases in these areas would have been useful on its own, but Doig goes further to discuss how Dickson negotiated two forces that were positioned against the Supreme Court’s capacity to give life to the Charter’s provisions: the “long tradition of parliamentary supremacy,” and the similarly well-established tradition that “placed a high premium on individual liberty” (p.165).
Hugh Kindred’s essay explores the nexus of international law and the constitutional process by acknowledging the significance of international treaties for the nation’s “multicultural citizenry” (p.148). As Kindred demonstrates, the Supreme Court “established that Canada’s international human rights obligations should inform and nourish the interpretation of Canada’s domestic Charter of Rights and Freedoms” (p.154). This interpretive approach is noteworthy considering the absence of explicit reference to international treaties in the Charter as well as challenges of [*596] implementing international agreements within Canada’s federal system. Kindred’s analysis of these issues should be well-received by scholars interested in the “domestication” or local adaptations of international law.
Two other essays in MULTICULTURALISM address international implications of pluralism in Canada. Will Kymlicka comments on the ways that the “Canadian model” of diversity circulates internationally, leading into an insightful discussion on key features of multicultural policy in Canada, conditions for its success, and implications for “exporting” the Canadian model to manage pluralism in other multiethnic states. Daniel Bourgeois and Andrew F. Johnson discuss the 2003 Action Plan for Official Languages and analyze it as a policy initiative aimed at “strengthen[ing] the authority of the Canadian state” in light of challenges arising from within and beyond the nation’s borders (p.129).
The final three essays of the book address what is arguably the most expansive theme in multicultural constitutionalism: equality. Joan Small explores how translating multiculturalism into a constitutional principle has raised questions about the jurisprudence of equal rights for individuals and groups. She does so by analyzing section 27 of the Charter, which states: “This Charter shall be interpreted in a manner consistent with the preservation and enhancement of the multicultural heritage of Canadians” (p.234). In assessing the interpretive obligation of section 27, Small argues that it requires “a contextual inquiry that recognizes diversity, including cultural diversity, as an inherent aspect of human dignity” (p.209).
The concept of human dignity is also important in Katherine Eddy’s essay, which seeks to make the case for welfare rights. Approaching questions about equality and responsibilities of the state to its citizens within the framework of normative political theory, Eddy argues, “[T]he point is not just that a concern for equality can justify welfare rights provision but that it should” (p.212, emphases in original).
Robert Currie explores what a fair process of adjudication means in light of “complex social and cultural realities” (p.182) by looking at how forms of evidence concerning culture has been “received, rejected, and utilized by judges and (to some extent) juries” (p.183). Currie’s careful analysis demonstrates that courts have recognized the limits of formal equality and have employed modes of contextual analysis in the interest of fairness: “a ‘cultural discourse’ is under way, if only sotto voce, between and among the courts, that has fairness and equity as its basis” (p.190). Reading this essay in relation to scholarship on how questions of “culture” have emerged in US courtrooms (Renteln 2004) would be an excellent starting point for a comparative study. In fact, other themes in the development of multicultural constitutionalism – in particular, judicial approaches to equality that account for social inequalities and differences, jurisprudence of “group rights” and the trajectory of “equal citizenship” in the constitutional process (Karst 1989) – could form the basis of a comparative study of polities identified by a pluralist character (such as Australia, Canada, US). [*597] Similar to the manner in which Will Kymlicka addresses the assumption that Canadian multicultural policy is unique and worthy of reproducing in other places, one could adopt a comparative perspective to assess what, if any, distinct features can be observed in Canada’s multicultural constitutionalism (for example, an analysis of how US and Canadian courts have negotiated the tension between formal equality and concepts of equality that integrate cultural and other relevant social contexts).
Essays in MULTICULTURALISM AND THE CANADIAN CONSTITUTION reflect a plurality of methods, conceptual vocabulary and normative positions. Stephen Tierney’s introduction, rather than imposing a single framework through which to engage the authors, highlights points of productive tensions and questions for further study that emerge from reading each essay in conversation with the others. If the reader is to glean an overarching theme from Tierney’s introduction, it is one that insists on understanding multiculturalism through an ongoing, constantly evolving conversation – “a journey that can never be completed” (p.22).
Proclamation Declaring June 27 of each year as "Canadian Multiculturalism Day." Available at http://www.pch.gc.ca/progs/cpsc-ccsp/jfa-ha/journee-multi-day/proc_e.cfm.
Karst, Kenneth L. 1989. BELONGING TO AMERICA: EQUAL CITIZENSHIP AND THE CONSTITUTION. New Haven: Yale University Press.
Kymlicka, Will. 1995. MULTICULTURAL CITIZENSHIP: A LIBERAL THEORY OF MINORITY RIGHTS. New York: Oxford University Press.
Renteln, Alison Dundes. 2004. THE CULTURAL DEFENSE. Oxford; New York: Oxford University Press.
© Copyright 2008 by the author, Diana Yoon.