Reinvigorating Section 27: An Intersectional Approach

Abstract

It is in contemplating how equality can be most fully understood and reinvigorated in parts of the Canadian Charter of Rights and Freedoms other than s. 15 that this paper is written. In several recent controversies in Canada, the claims by minority groups for recognition of their diverse and deep commitments to their cultural/religious specificity have produced the reaction that multiculturalism has gone too far, that it threatens the core values of Canadian society. This construction of minority rights, necessarily in opposition to Canadian values, creates a false opposition; one that many have argued permits the demonizing of a minority group typically seeking equality, while simultaneously and uncritically putting on a pedestal Canadian law and policies that continue to perpetuate inequality for many groups in Canadian society. In this article, I argue that the protection of minority rights as articulated in section 27 of the Charter’s multiculturalism provision need not be understood in opposition to the protection of equality. Rather, section 27 should inform all Charter rights through an intersectional analysis that more readily captures the lived realities of many individuals, women in particular.

In Part II of this article, I outline the theory behind intersectionality and demonstrate the way in which intersectional interests were not taken into account by opponents and proponents of faith-based family arbitration in a recent debate in Ontario. In Part III, I provide a brief description of the way in which section 27 has been used to date, and I explain the perils of comprehending culture as merely the absence of equality. In Part IV, I outline the potential of section 27. I suggest that section 27 ought to be utilized more regularly as an interpretive section that gives additional meaning to other Charter rights and that this interpretation should bring an intersectional lens to any analysis. The potential of section 27 is that it may assist in mediating a middle ground when interconnected and mutually enforcing oppressions are in the balance. Finally in Part V, I briefly provide an example of how intersectionality might inform a current Charter case, that of polygamy, using section 27.

Keywords: Equality, Multiculturalism, Women, s. 27, Charter