Section Twenty-seven of the Canadian Charter of Rights and Freedoms
Encyclopedia
Section Twenty-seven of the Canadian Charter of Rights and Freedoms is a section of the Charter
that, as part of a range of provisions within the section 25
to section 31
bloc, helps determine how rights in other sections of the Charter should be interpreted and applied by the courts. It is believed that section 27 "officially recognized" a Canadian
value, namely multiculturalism
.
The section reads,
observed that this section did not actually contain a right; namely, it did not say that Canadians have a right to multiculturalism. The section was instead meant to guide the interpretation of the Charter to respect Canada's multiculturalism. Hogg also remarked that it was difficult to see how this could have a large impact on the reading of the Charter, and thus section 27 could be "more of a rhetorical flourish than an operative provision."
Section 27 can be seen as a declaration of a national value
of multiculturalism. In 2002, polls found 86% of Canadians approved of this section.
In Canada, multicultural policy had been adopted in 1971 following the Royal Commission on Bilingualism and Biculturalism
, a government body set up in response to the grievances of Canada's French-speaking minority (concentrated in the province of Quebec
). The report of the Commission advocated that the Canadian government should recognize Canada as a bilingual and bicultural society and adopt policies to preserve this character.
. The Court of Appeal for Ontario in Videoflicks Ltd. et al. v. R. (1984) argued that section 27 should receive "significance" from the courts, and that the section could reinforce freedom of religion
(section 2
). As this court put it, if a law limits the free exercise of religion
, then the law is also of no use in promoting multiculturalism, since it effects a "part of one's culture
which is religiously based." Hence, section 27 demands that governments must respect and tolerate various religions, even if this means that some cultural groups may be exempted from certain things the government compels the people to do, even if this proves to place "inconveniences" on the government. This line of thinking was reaffirmed by the Supreme Court of Canada
in R. v. Edwards Books and Art Ltd.
(1986).
The Supreme Court also referred to section 27 in the landmark Charter case R. v. Big M Drug Mart Ltd.
(1985), in which the guarantee of freedom of religion in section 2 of the Charter was used to invalidate laws that required businesses to be closed on Sundays, the Christian
Sabbath. As the Court noted, the Parliament of Canada
requiring Canadians to observe "the day of rest preferred by one religion" contradicted multiculturalism and section 27.
Brian Dickson
in a different way in the Supreme Court case Canada (Human Rights Commission) v. Taylor (1990). In this case, Dickson found section 27 could reinforce limits on freedom of expression (in section 2), specifically hate speech
. Section 27, along with section 15 of the Charter
(the equality rights), would suggest fighting racial and religious discrimination would be a sufficient objective under section 1 of the Charter
for limiting free expression under section 2.
Despite this, section 27 does not indicate that there are built-in limits in freedom of expression based on multiculturalism. Limits are measured in section 1. In R. v. Keegstra
, also decided in 1990, the Court wrote that using sections 15 and 27 to limit the scope of freedom of expression contradicted "the large and liberal interpretation given the freedom of expression in Irwin Toy
" and at any rate "s. 1 of the Charter is especially well suited to the task of balancing."
speculated in 1982 that section 27 could probably be most relevant to the interpretation of the section 15 equality rights. As he wrote, section 15 already protects ethnic origin and religion, but section 15's guarantee of "equal benefit of the law," combined with section 27, could lead to governments financially supporting minority culture. This would be particularly true if there was any inequality between how cultural groups are funded.
a right to have a certain number of seats on a jury
in a trial
. The courts have instead said that section 27 supports the current practice that anyone can be asked to serve on a jury, since moving Canada toward a scenario in which one race could monopolize a jury could be a threat to multiculturalism.
Canadian Charter of Rights and Freedoms
The Canadian Charter of Rights and Freedoms is a bill of rights entrenched in the Constitution of Canada. It forms the first part of the Constitution Act, 1982...
that, as part of a range of provisions within the section 25
Section Twenty-five of the Canadian Charter of Rights and Freedoms
Section Twenty-five of the Canadian Charter of Rights and Freedoms is the first section under the heading "General" in the Charter, and like other sections within the "General" sphere, it aids in the interpretation of rights elsewhere in the Charter...
to section 31
Section Thirty-one of the Canadian Charter of Rights and Freedoms
Section Thirty-one of the Canadian Charter of Rights and Freedoms is a part of the Constitution of Canada, which clarifies that the Charter does not increase the powers of either the federal government or the legislatures of the provinces of Canada...
bloc, helps determine how rights in other sections of the Charter should be interpreted and applied by the courts. It is believed that section 27 "officially recognized" a Canadian
Canada
Canada is a North American country consisting of ten provinces and three territories. Located in the northern part of the continent, it extends from the Atlantic Ocean in the east to the Pacific Ocean in the west, and northward into the Arctic Ocean...
value, namely multiculturalism
Multiculturalism
Multiculturalism is the appreciation, acceptance or promotion of multiple cultures, applied to the demographic make-up of a specific place, usually at the organizational level, e.g...
.
The section reads,
Purpose
When the Charter was enacted in 1982, constitutional scholar Peter HoggPeter Hogg
Peter Wardell Hogg, CC, QC, FRSC is a Canadian lawyer, author and legal scholar. He is best known as a leading authority on Canadian constitutional law....
observed that this section did not actually contain a right; namely, it did not say that Canadians have a right to multiculturalism. The section was instead meant to guide the interpretation of the Charter to respect Canada's multiculturalism. Hogg also remarked that it was difficult to see how this could have a large impact on the reading of the Charter, and thus section 27 could be "more of a rhetorical flourish than an operative provision."
Section 27 can be seen as a declaration of a national value
Value (personal and cultural)
A personal or cultural value is an absolute or relative ethical value, the assumption of which can be the basis for ethical action. A value system is a set of consistent values and measures. A principle value is a foundation upon which other values and measures of integrity are based...
of multiculturalism. In 2002, polls found 86% of Canadians approved of this section.
In Canada, multicultural policy had been adopted in 1971 following the Royal Commission on Bilingualism and Biculturalism
Royal Commission on Bilingualism and Biculturalism
The Royal Commission on Bilingualism and Biculturalism was a Canadian royal commission established on 19 July 1963, by the government of Prime Minister Lester B...
, a government body set up in response to the grievances of Canada's French-speaking minority (concentrated in the province of Quebec
Quebec
Quebec or is a province in east-central Canada. It is the only Canadian province with a predominantly French-speaking population and the only one whose sole official language is French at the provincial level....
). The report of the Commission advocated that the Canadian government should recognize Canada as a bilingual and bicultural society and adopt policies to preserve this character.
Freedom of religion
Section 27 has been referred to by the courtsCourt system of Canada
The court system of Canada is made up of many courts differing in levels of legal superiority and separated by jurisdiction. Some of the courts are federal in nature while others are provincial or territorial....
. The Court of Appeal for Ontario in Videoflicks Ltd. et al. v. R. (1984) argued that section 27 should receive "significance" from the courts, and that the section could reinforce freedom of religion
Freedom of religion
Freedom of religion is a principle that supports the freedom of an individual or community, in public or private, to manifest religion or belief in teaching, practice, worship, and observance; the concept is generally recognized also to include the freedom to change religion or not to follow any...
(section 2
Section Two of the Canadian Charter of Rights and Freedoms
Section Two of the Canadian Charter of Rights and Freedoms is the section of the Constitution of Canada's Charter of Rights that lists what the Charter calls "fundamental freedoms" theoretically applying to everyone in Canada, regardless of whether they are a Canadian citizen, or an individual or...
). As this court put it, if a law limits the free exercise of religion
Religion
Religion is a collection of cultural systems, belief systems, and worldviews that establishes symbols that relate humanity to spirituality and, sometimes, to moral values. Many religions have narratives, symbols, traditions and sacred histories that are intended to give meaning to life or to...
, then the law is also of no use in promoting multiculturalism, since it effects a "part of one's culture
Culture
Culture is a term that has many different inter-related meanings. For example, in 1952, Alfred Kroeber and Clyde Kluckhohn compiled a list of 164 definitions of "culture" in Culture: A Critical Review of Concepts and Definitions...
which is religiously based." Hence, section 27 demands that governments must respect and tolerate various religions, even if this means that some cultural groups may be exempted from certain things the government compels the people to do, even if this proves to place "inconveniences" on the government. This line of thinking was reaffirmed by the Supreme Court of Canada
Supreme Court of Canada
The Supreme Court of Canada is the highest court of Canada and is the final court of appeals in the Canadian justice system. The court grants permission to between 40 and 75 litigants each year to appeal decisions rendered by provincial, territorial and federal appellate courts, and its decisions...
in R. v. Edwards Books and Art Ltd.
R. v. Edwards Books and Art Ltd.
R. v. Edwards Books and Art Ltd. [1986] 2 S.C.R. 713 is a leading Supreme Court of Canada decision on the constitutional validity of an Ontario provincial Sunday closing law...
(1986).
The Supreme Court also referred to section 27 in the landmark Charter case R. v. Big M Drug Mart Ltd.
R. v. Big M Drug Mart Ltd.
R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295, is a landmark decision by Supreme Court of Canada where the Court struck down the Lord's Day Act for violating section 2 of the Canadian Charter of Rights and Freedoms...
(1985), in which the guarantee of freedom of religion in section 2 of the Charter was used to invalidate laws that required businesses to be closed on Sundays, the Christian
Christianity
Christianity is a monotheistic religion based on the life and teachings of Jesus as presented in canonical gospels and other New Testament writings...
Sabbath. As the Court noted, the Parliament of Canada
Parliament of Canada
The Parliament of Canada is the federal legislative branch of Canada, seated at Parliament Hill in the national capital, Ottawa. Formally, the body consists of the Canadian monarch—represented by her governor general—the Senate, and the House of Commons, each element having its own officers and...
requiring Canadians to observe "the day of rest preferred by one religion" contradicted multiculturalism and section 27.
Freedom of expression
Section 27 was applied by Chief JusticeChief Justice of Canada
The Chief Justice of Canada, like the eight puisne Justices of the Supreme Court of Canada, is appointed by the Governor-in-Council . All nine are chosen from either sitting judges or barristers who have at least ten years' standing at the bar of a province or territory...
Brian Dickson
Brian Dickson
Robert George Brian Dickson, , commonly known as Brian Dickson, was appointed Chief Justice of Canada on April 18, 1984. He retired on June 30, 1990 and died October 17, 1998.-Career:...
in a different way in the Supreme Court case Canada (Human Rights Commission) v. Taylor (1990). In this case, Dickson found section 27 could reinforce limits on freedom of expression (in section 2), specifically hate speech
Hate speech
Hate speech is, outside the law, any communication that disparages a person or a group on the basis of some characteristic such as race, color, ethnicity, gender, sexual orientation, nationality, religion, or other characteristic....
. Section 27, along with section 15 of the Charter
Section Fifteen of the Canadian Charter of Rights and Freedoms
Section Fifteen of the Canadian Charter of Rights and Freedoms contains guaranteed equality rights. As part of the Constitution, the section prohibits certain forms of discrimination perpetrated by the governments of Canada with the exception of ameliorative programs and rights or privileges...
(the equality rights), would suggest fighting racial and religious discrimination would be a sufficient objective under section 1 of the Charter
Section One of the Canadian Charter of Rights and Freedoms
Section One of the Canadian Charter of Rights and Freedoms is the section of the Charter that confirms that the rights listed in that document are guaranteed. The section is also known as the reasonable limits clause or limitations clause, as it legally allows the government to limit an...
for limiting free expression under section 2.
Despite this, section 27 does not indicate that there are built-in limits in freedom of expression based on multiculturalism. Limits are measured in section 1. In R. v. Keegstra
R. v. Keegstra
R. v. Keegstra, [1990] 3 S.C.R. 697 is a landmark freedom of expression decision of the Supreme Court of Canada where the Court upheld the Criminal Code of Canada provision prohibiting the wilful promotion of hatred against an identifiable group as constitutional under the freedom of expression...
, also decided in 1990, the Court wrote that using sections 15 and 27 to limit the scope of freedom of expression contradicted "the large and liberal interpretation given the freedom of expression in Irwin Toy
Irwin Toy Ltd. v. Quebec (Attorney General)
Irwin Toy Ltd. v. Quebec , [1989] 1 S.C.R. 927 is a landmark Supreme Court of Canada decision on freedom of expression in section 2 of the Canadian Charter of Rights and Freedoms...
" and at any rate "s. 1 of the Charter is especially well suited to the task of balancing."
Equality rights
Legal scholar Walter TarnopolskyWalter Tarnopolsky
Justice Walter Surma Tarnopolsky was a Canadian judge, legal scholar, and pioneer in the development of human rights law and civil liberties in Canada.-Background and education:...
speculated in 1982 that section 27 could probably be most relevant to the interpretation of the section 15 equality rights. As he wrote, section 15 already protects ethnic origin and religion, but section 15's guarantee of "equal benefit of the law," combined with section 27, could lead to governments financially supporting minority culture. This would be particularly true if there was any inequality between how cultural groups are funded.
Aboriginal rights
In various cases, courts have refused to use section 27 (or section 25) to give First NationsFirst Nations
First Nations is a term that collectively refers to various Aboriginal peoples in Canada who are neither Inuit nor Métis. There are currently over 630 recognised First Nations governments or bands spread across Canada, roughly half of which are in the provinces of Ontario and British Columbia. The...
a right to have a certain number of seats on a jury
Jury
A jury is a sworn body of people convened to render an impartial verdict officially submitted to them by a court, or to set a penalty or judgment. Modern juries tend to be found in courts to ascertain the guilt, or lack thereof, in a crime. In Anglophone jurisdictions, the verdict may be guilty,...
in a trial
Trial (law)
In law, a trial is when parties to a dispute come together to present information in a tribunal, a formal setting with the authority to adjudicate claims or disputes. One form of tribunal is a court...
. The courts have instead said that section 27 supports the current practice that anyone can be asked to serve on a jury, since moving Canada toward a scenario in which one race could monopolize a jury could be a threat to multiculturalism.
Legislation
Section 27 is referenced by the Canadian Multiculturalism Act, legislation enacted in 1988.External links
- Overview of section 27 case law in the Canadian Legal Information Institute.
- Fundamental Freedoms: The Charter of Rights and Freedoms - Charter of Rights website with video, audio and the Charter in over 20 languages