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Multicultural growing pains: recent panics about "reasonable accommodation," argues a Montreal philosopher, reflect an immaturity in Canadian thinking.

Uneasy Partners: Multiculturalism and Rights in Canada

Janice Gross Stein, David Robertson Cameron, John Ibbitson, Will Kymlicka, John Meisel, Haroon Siddiqui and Michael Valpy

Wilfrid Laurier University Press

165 pages, softcover

ISBN 9781554580125

Accommodements raisonnables: Droit a la difference et non difference des droits

Yolande Geadah

VLB Editeur

96 pages, softcover

ISBN 9782890059993

By any standard, Canadian multiculturalism has thus far been a remarkable success. It has woven a highly diverse population, drawn from the four corners of the planet, into a peaceful, prosperous and remarkably cohesive society. Cities such as Vancouver and Toronto and, to a lesser degree, Montreal have been in the course of a few decades utterly transformed by the combination of Canada's immigration policy, which brings somewhere on the order of a million new arrivals to the country every four or five years or so, and a policy of multiculturalism that allows them to maintain aspects of the cultures of their countries of origin while adapting to their new home. This transformation has moreover not given rise to largescale social upheaval. The profound social and cultural changes that Canada has undergone in the last 30 years or so have been a fairly sedate affair.

Lest our collective heads get too big, it should be borne in mind that the success of Canada's multicultural society, impressive as it is, has largely been at least as much the result of luck as it has of legislative genius. History and geography have both been on our side. Our fortunate location shelters us from the massive, uncontrollable population movements that our neighbours to the south have had to deal with. And despite Canada's self-image as an open and generous society, we cherry-pick prospective immigrants on the basis of their skills, financial resources and cultural compatibility, and now accept only a trickle of refugees. What's more, our historical relationship to the immigrants we take in is largely unproblematic. Unlike the former colonial powers of Europe, whose immigrant populations are to a significant degree made up of poor former subjects for whom the violence and humiliation of colonialism are still a living memory, Canada brings in middle-class individuals and families who view the country positively. Given this favourable set of circumstances, it is little wonder that we have managed our multicultural affairs fairly well.

There are signs, however, that our luck may be running out. Canada's two most populous provinces have in the last couple of years been hit with affaires that have severely tested their commitment to multiculturalism (or, as it is called here in Quebec, interculturalism). In Quebec, the Multani decision, in which the Supreme Court of Canada allowed a Sikh boy to wear an appropriately sheathed kirpan while attending public school, was met with howls of derision by the local chattering classes and by political elites, who saw the case as illustrating the madness of multiculturalism, Canadian-style. It was followed by a seemingly endless stream of cases in which members of religious minorities were perceived to have received some unfair advantage (prayer rooms in their educational institutions, dispensations from rules banning headdresses in sporting events, etc.) under the legal doctrine of "reasonable accommodation" of their Charter rights. The public outcry has been such that Premier Jean Charest felt the need to appoint a blue-ribbon commission, headed by two of Quebec's leading intellectuals, the philosopher Charles Taylor and the sociologist Gerard Bouchard, to propose guidelines to govern the practice of reasonable accommodation. In Ontario, a similar furor was unleashed by the publication of Marion Boyd's report on sharia courts, which led Premier Dalton McGuinty to decree that religious arbitration of family law matters would not be allowed in any shape or form in the province.

The lesson to be drawn from the recent experiences of Quebec and Ontario seems to me to be this. The claims made by minority cultural groups on the basis of Canada's commitment to multiculturalism have until recently been fairly modest and self-contained. They could largely be met by what civil servants within the multiculturalism bureaucracy jokingly refer to as "the three Fs: Fun, Food and Fashion." Members of cultural minorities have largely accepted the rules of the public sphere. (By public sphere I mean primarily public institutions such as hospitals, schools, elections and the like, but also the more informal settings in which citizens encounter one another in their daily interactions.) They appealed to the federal government for aid that might allow them to maintain a viable community life, but one that existed, as it were, on the margins of the public sphere.

What has changed in recent years is that some members of cultural minorities, and especially of religious minorities, have begun to make claims upon the public sphere. They have not asked so much for money with which to fund community organizations, but rather for exemptions from laws and policies applying to the broader society that might make room for the precepts that they derive from their religions.

The reaction to this new generation of multicultural claim shows just how shallow the thinking that has underpinned Canadian multicultural policy really has been. Rather than being able to fall back on a settled doctrine on the basis of which to adjudicate these claims, we have quite simply been sent into a panic. Despite their many differences, the two largest provinces in the country have panicked in roughly the same way. That is, they have opted for blanket prohibition, rather than sympathetic engagement. The careful and nuanced proposals set forth in the Boyd report, which would have allowed sharia courts to exist whilst being overseen by the mainstream legal system and circumscribed by the Charter of Rights and Freedoms, gave way to McGuinty's "Just Say No" policy. And while there is every reason to believe that the Taylor-Bouchard commission will produce an equally balanced and thoughtful report, the positioning of political parties in Quebec suggests that the Quebec government's response will be similarly blunt and ham-fisted. The Action Democratique du Quebec owes its political resurgence to its having made itself the champion of the province's historical, cultural and religious majority and of its prerogatives and rights, which had in its view for too long been trampled on by Canadian-style multiculturalism. The Parti Quebecois, which in the wake of Jacques Parizeau's infamous "money and ethnics" speech on the night of the 1995 referendum had attempted to portray itself as putting forward a more open and inclusive brand of nationalism, has reverted under Pauline Marois to a narrow, mean-spirited nationalism, one that would deny the right to vote to Quebeckers whose French was deemed wanting and that would affirm the political prerogatives of the historical "nous." And Jean Charest has quite plainly jumped the gun by stating unequivocally, even as Taylor and Bouchard conduct their hearings, and months before their report is scheduled to be delivered, that equality of the sexes should always trump religious freedom and that Quebec's Charte des droits et libertes should be amended accordingly. (An irony of the debate in Quebec that has not gone unnoticed is that it has made strange bedfellows of old-style ethnic nationalists and rights-affirming laicistes.)

Janice Gross Stein is therefore right when she writes, in the lead essay to the collection Uneasy Partners: Multiculturalism and Rights in Canada, that Canada must develop a deep, rather than a shallow, multiculturalism. (1) She points to three challenges that must be taken by Canadians if we want to be able to develop a multiculturalism capable of responding to the challenges brought on by the changing social and economic reality of multiculturalism as it is being lived in Canada today. First, she claims, we must attend to the overlap between cultural and economic boundaries. This is true and important. One of the most worrying trends in contemporary Canadian society is the fact that while immigrants of earlier generations rapidly reached, and often surpassed, the average Canadian in terms of income and professional advancement, newer immigrants have been lagging behind. Economic inequality can, as we know, fuel resentment that can sometimes express itself culturally. Causes of economic inequality must be identified and decisively addressed through appropriate public policy. Most importantly, the recognition of foreign credentials must become a priority for the Canadian government. The country is full of Iranian engineers driving cabs and Romanian nurses cleaning houses. Successful integration begins through integration to the economy. We have been causing needless problems for ourselves by forgetting this simple fact.

Second, Stein argues, we must encourage cultural groups to build bridges rather than enclaves. This is an unexceptionable wish on Stein's part, although I wonder whether the creation of cultural enclaves really does account for the problems we are currently facing in dealing with multicultural claims. De facto neighbourhood segregation has always been a feature of immigrant societies. The Jewish community, from which both Stein and I hail, has tended to be quite close-knit, but this has in no way prevented it from fully integrating and taking part in all aspects of the broader society's life. And while I agree with Stein that parents do their children a disservice when they send them to schools that segregate them along religious lines, there is little to offset this trend that the Canadian government can do, as it is committed by a number of international agreements to provide its citizens with the ability to provide their children with the education of their choosing.

Third, and most important, Stein advises us to engage in the difficult conversation to do with the conflicts between culture and religion, on the one hand, and the rule of law, on the other. But I am surprised by the direction in which she would have this conversation go. In brave and compelling passages, she bemoans her synagogue's refusal to accord recognition to men and women as equal participants in services and in the broader life of the shul. The suggestion seems to be that the commitment to gender equality that constitutes the backbone of the Canadian legal system, and to its system of values, should reach into the life of voluntary associations such as churches and synagogues.

But surely what we must be concerned with is religious institutions getting in the way of particular groups within a community being able to exercise their economic, social and political rights in the public sphere. When such communal institutions prevent young girls from obtaining the education that might allow them to pursue a career, there is cause for concern, and perhaps, for government action. But the exercise of rights within the community's organizations and institutions is a different matter altogether. The state risks becoming meddlesome and intrusive when it requires that the norms that obtain in the broader society also hold sway in synagogues, churches and mosques. You can easily exit a religious institution if it does not carry on its affairs in a manner consonant with your values. It is a much more difficult, life-altering decision to leave one's country. States are not really voluntary associations. That is why it is essential that the state enforce people's rights within the public sphere, but equally important that they allow groups some latitude in the way in which they organize their internal affairs. Thus I agree with Stein that we must enter into the difficult conversation that the tension between religious traditions and the rule of law gives rise to. I am less convinced that such conversation should have to do with the content of these religious traditions themselves.

If there is a leitmotiv running through the responses to Stein's essay that have been assembled in this volume, by contributors such as John Ibbitson, Haroon Siddiqui and Will Kymlicka, it is that Canadian multiculturalism policy is fine as it is. Or, in any case, that it is not responsible for the intrusion of minority cultural, and largely religious, claims into the public sphere that I have identified here as contributing to Canadian multiculturalism's recent growing pains. Any society that recognizes freedom of religion but that also seeks to secure other liberal values such as gender equality, Stein's respondents generally argue, will end up faced with these problems.

This is true if one focuses on multiculturalism policy narrowly construed as fun, food and fashion, as well as on section 27 of the Charter, which officially enshrines multiculturalism as a constitutional value. But a broader, and to my mind more plausible, view of multiculturalism policy would see it as encompassing not only policy administered through Canada's official multiculturalism apparatus, but all policies and legal principles that affect the way in which cultural diversity is governed in this country. So policies to do with accreditation of foreign academic and professional credentials, and with the organization of the religious sphere, properly belong to this more expansive conception. Although there may be no need to start a conversation about the relatively anodyne prescriptions of official multiculturalism, this broader policy agenda probably, narrowly construed, does need to be looked at and talked about by Canadians and their representatives.

While I disagree with Stein on some details of the conversation necessary in this country to address the difficult issues that arise when religion clashes with secular law, I wholeheartedly agree with her that it is conversation, rather than one community imposing its views upon the other, that must be central to the way in which we deal with these issues. Sadly, that is not what Yolande Geadah has in mind in her short book on the reasonable accommodation debate in Quebec in Accommodements raisonnables: Droit a la difference et non difference des droits.

Geadah's position is easily summarized: Canadian multiculturalism takes a too individualistic view of cultural claims. In her view, while any such claim, taken on its own, might well be settled in favour of individual claimants, Canadian multiculturalism as it has been enforced by the courts fails to consider the impact that individual decisions might have upon the social fabric. In Geadah's view, individual cases always serve as exemplars. And so we should decide such cases not just on the basis of their individual merits, but rather with a view to the downstream consequences that they might have. Thus, again in her view, acceding to a Muslim girl's wish to wear a hijab to school or to cover her head when she plays competitive sports is never simply about her individual right to religious freedom or to freedom of expression. The hijab stands for the oppression of women by men, and so a decision in favour of a girl wishing to wear one in public spaces also says something about our community's commitment to the value of gender equality. On this reasoning, the religious rights and freedom of expression of minorities must always give way before majority concerns about equality.

Taken at the most general level, Geadah's position is reasonable. The problem for her argument is that it cannot be marshalled against Charter jurisprudence on issues of multiculturalism, because the Canadian Charter already includes, through section 1, a requirement that courts balance the protection of rights with the attainment of important policy objectives. Individual rights are thus not absolute in the Canadian charter. But they can be overturned only when evidence exists that they stand in the way of some important political goal. In the Multani case, the Supreme Court considered the existing evidence and concluded that no evidence existed to suggest that wearing a kirpan to school, subject to the conditions imposed by the court, represented a risk sufficient to warrant the limitation of a religious freedom.

But unlike the Supreme Court, Geadah adduces impressions and intuitions rather than evidence and argument as grounds for limiting religious freedoms. What evidence she does present speaks massively against the abridgement of religious freedoms, at least in the case of Quebec, on the basis of the risks that the exercise of these freedoms might give rise to. As she notes, Quebec's population is still dominated by old-stock Quebeckers of Catholic origin, who make up, as of the 2001 census, 83.2 percent of the population. Muslims represent 1.5 percent of the population, while Jews account for 1.3 percent. What's more, only a small proportion of Jews and Muslims choose to give a public face to their religious membership, by wearing kippas, hijabs or any other overt sign of faith. And only a small proportion of that already very small group has ever gone before the Commission des droits de la personne to claim a reasonable accommodation. Is it really plausible to claim that accommodations granted to a handful of people represent a threat sufficient to warrant the limitation of religious freedom? Can one claim with a straight face that the accommodation, say, of a hijab-wearing Muslim girl might spread to the majority of the Muslim population and beyond? Above and beyond the question of symbols and of the moral sensitivities of members of the cultural and religious majority, what concrete risks exist for Quebec society from respecting the religious freedoms of a very small number of people?

Canada has benefited from favourable circumstances in putting in place a peaceful and prosperous multicultural society. But we have let good fortune take the place of hard thinking, and we have not sufficiently engaged in the democratic discussion to do with the kind of multicultural society that we want. It is past time that we take up Janice Gross Stein's invitation to face up to this difficult but unavoidable societal challenge.

Note

(1) Stein's essay, to which the rest of the contributors in this collection respond, grew out of her LRC article "Living Better Multiculturally" (September 2006).

Daniel Marc Weinstock holds the Canada Research Chair in Ethics and Political Philosophy in the Department of Philosophy of the Universite de Montreal. He is a member of the advisory committee of the Taylor-Bouchard Commission.
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Title Annotation:Uneasy Partners: Multiculturalism and Rights in Canada; Accommodements raisonnables: Droit a la difference et non difference des droits
Author:Weinstock, Daniel Marc
Publication:Literary Review of Canada
Article Type:Book review
Date:Jan 1, 2008
Words:2967
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