General

41 Section 27: Multicultural Heritage

Provision

27. This Charter shall be interpreted in a manner consistent with the preservation and enhancement of the multicultural heritage of Canadians.

Similar provisions

Provisions similar to some degree are found in the following international instruments binding on Canada: article 27 of the International Covenant on Civil and Political Rights; article 20(3) of the Convention on the Rights of the Child; article 13 of the American Declaration on the Rights and Duties of Man; the Convention on the Elimination of all Forms of Racial Discrimination.

Purpose

Case law has not provided detailed commentary on the purpose of section 27 beyond that which can be gathered from a reading of its text: i.e., to provide that Charter rights and freedoms are to be interpreted in a manner that preserves and enhances Canada’s multicultural heritage. Jurisprudence indicates that section 27 does not confer substantive rights that can be limited, but rather serves to interpret other Charter rights and freedoms (Roach v. Canada (Minister of State for Multiculturalism and Culture, [1994] 2 F.C. 406 (F.C.A.).

Analysis

Section 27 has been a factor in the courts’ interpretation of Charter rights and freedoms, in a variety of cases. It has been used in defining the content of freedom of conscience and religion under paragraph 2(a) in a broad fashion to include indirect coercion (R. v. Edwards Books and Art Ltd. et al, [1986] 2 S.C.R. 713) and to support a non-denominational approach to governing (R. v. Big M Drug Mart Ltd. [1985] 1 S.C.R 295; R. v. Gruenke, [1991] 3 S.C.R. 263). The Supreme Court has referred to the values of multiculturalism enshrined by section 27 as being related to a state duty of religious neutrality (Mouvement laïque québécois v. Saguenay (City), [2015] 2 S.C.R. 3). Section 27 also has been cited as a consideration in determining the circumstances under which a woman may be permitted to wear a niqab while testifying at a criminal trial (R. v. N.S., 2010 ONCA 670, aff’d, [2012] 3 S.C.R. 726, albeit without reference on this point by the majority of the Supreme Court, but with mention by LeBel J. concurring in the result). The section also has been used to help define the section 14 right to an interpreter to include more than just services in English and French (R. v. Tran, [1994] 2 S.C.R. 951).

The use of section 27 was, however, rejected respecting the interpretation of the content of minority language educational rights under section 23 (Mahe v. Alberta, [1990] 1 S.C.R. 342; Reference re Public Schools Act (Manitoba), [1993] 1 S.C.R. 839). Also, section 27 has been considered as not derogating from the special status conferred on English and French under section 16 of the Charter (Société des Acadiens v. Association of Parents, [1986] 1 S.C.R. 549 (minority reasons of Wilson J, concurring in the result); R. c. Entreprises W.F.H. ltée, [2001] R.J.Q. 2557 (C.A.), leave to appeal to SCC refused [2001] S.C.C.A. No. 625).

Section 27 was rejected in interpreting the scope of freedom of expression under paragraph 2(b) of the Charter, but was employed in considering a limitation of the paragraph 2(b) freedom under section 1 of the Charter. (R. v. Keegstra, [1990] 3 S.C.R. 697; see also Canadian Human Rights Commission v. Taylor, [1990] 3 S.C.R. 892; American Freedom Defence Initiative v Edmonton (City), 2016 ABQB 555; compare, however, R. v. Zundel, [1992] 2 S.C.R. 731 where, in finding paragraph 2(b) Charter infringement not to be justified under section 1, the majority did not agree with the particular nature of reliance placed on section 27 by the dissenting justices).

Case law has found section 27 not to be of assistance to accused seeking an independent right to a jury composed of jurors of their own race (R. v. Fiddler (1994), 22 C.R.R. (2d) 82 (Ont. Ct. (Gen. Div.)); R. v. Kent (1986), 27 C.C.C. (3d) 405 (Man. C.A.); R. v. Laws (1988), 41 O.R. (3d) 499 (Ont. C.A.). However, section 27 has been referred to as being of relevance to ensuring that a jury is representative of the diversity in Canadian society (R. v. Brown (Application to prohibit Crown discrimination in peremptory challenges) [1999] O.J. No. 4867 (Ont. Ct. (Gen. Div.)).

While not directly applicable, section 27 has been referred to in support of the consideration of multicultural values in the interpretation of division of powers under the Constitution Act (NIL/TU,O Child and Family Services Society v. British Columbia Government and Service Employees’ Union, 2008 BCCA 333, aff’d without reference to this point, [2010] 2 S.C.R. 696). There is case law similarly employing section 27 to help interpret ordinary legislation (Prus-Czarnecka (Next friend of) v. Alberta, [2003] A.J. No. 1026 (Q.B.)).