Constitutional Multiculturalism: A Canadian Approach to Free Speech in America
The Canadian Charter of Rights and Freedoms, often referred to as the Charter, is a bill of rights added to the Constitution of Canada in 1982.1 The Charter was heavily influenced by a search for Canadian values,2 where Canadians are “equal and . . . share some fundamental values based upon freedom.”3 The Charter generally contains similar rights and protections as the American Bill of Rights, such as freedom of expression and protection against cruel and unusual punishments.4 However, the interpretation and application of each respective document differs greatly. Canadian jurisprudence mandates that “Charter rights be given a generous and liberal interpretation aimed at fulfilling the purpose of the [Charter] right.”5 Unlike the Bill of the Rights, the Charter explicitly gives Canadian courts broad discretion to create remedies as they see fit to enforce the rights and protections spelled out in the Charter.6 The focal point of this blog post is Section 27 of the Charter, which recognizes Canada’s constitutional goal of maintaining and promoting multiculturalism.7 The recognition of multiculturalism as an American value and constitutionally mandated goal would be a powerful tool in the American judge’s toolbox of statutory interpretation.
The history of settlement, colonization, and immigration had a profound influence on the development of Canadian society. Beginning in the late 1960s, the Canadian government began to take legislative measures to protect new immigrant groups from ethnic and racial discrimination and to assist their integration into Canadian society.8 These measures culminated in the creation of Section 27 of the Charter, which constitutionally mandated the promotion and protection of multiculturalism.9 Canadian courts began using the provision as a tool of statutory interpretation to balance “individual and multicultural (and often collective) rights.”10 In a landmark case, the Supreme Court of Canada held that although “hate propaganda” was protected by the Charter as free speech, Parliament may have the power to impose reasonable restrictions on hate speech by considering “Canada’s commitment to the values of equality and multiculturalism in [s.] 27 of the Charter.”11 In another landmark case, the Court held that a defendant in a criminal trial had the right to a non-English, non-French interpreter, given that the right “is intimately related to our society’s claim to be multicultural, expressed in part through s. 27 of the Charter.”12 However, Canadian courts are reluctant to interpret Section 27 as creating any substantive rights on its own and instead use Section 27 solely as a tool of statutory interpretation.13
Given the United States’ similar history, recognizing multiculturalism as both an American value and a constitutionally mandated goal would help guide judges when deciding if targeted hate propaganda could be reasonably restricted. It is well established in American jurisprudence that hate speech, so long as it does not advocate “imminent lawless action,”14 is protected under the First Amendment.15 With a similar Section 27 provision within the Bill of Rights as a tool of statutory interpretation, judges might be more inclined to balance between freedom of expression and laws that reasonably restrict targeted hateful expressions that do not “preserve and enhance” the multicultural heritage of the United States. Engaging in this balancing exercise would not remove hate speech from protections of the First Amendment. Instead, it would allow for an extremely narrow restriction of hateful or offensive speech propaganda targeted to an identifiable group that contributes “little to the…fostering of a vibrant democracy where the participation of all individuals is accepted and encouraged.”16 Although the adoption of multiculturalism as an American constitutionally mandated goal might appear unachievable, it is a new perspective on how to resolve difficult constitutional issues.
Kevin Lopez is a staff member of Fordham International Law Journal Volume XLIII.
This is a student blog post and in no way represents the views of the Fordham International Law Journal.
1 Paul Bender, The Canadian Charter of Rights and Freedoms and the United States Bill of Rights: A Comparison, 28 McGill L.J. 811, 814 (1983).
2 Canadian values are thought to be “core consensus values” that guide Canadians toward their “shared destiny.” Some of the most frequently noted values are fairness, inclusion, diversity, and equity. See Reflecting Canadian Values, U. Waterloo: Canadian Index of Wellbeing, https://uwaterloo.ca/canadian-index-wellbeing/about-canadian-index-wellbeing/reflecting-canadian-values (last visited Nov. 18, 2019).
3 Pierre Elliott Trudeau, Memoirs 323 (1993).
4 See Canadian Charter of Rights and Freedoms, §§ 2, 12, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act, 1982 c 11 (U.K.).
5 Can. Dep’t of Justice, General Principles for the Interpretation and Application of the Charter, https://www.justice.gc.ca/eng/csj-sjc/rfc-dlc/ccrf-ccdl/check/principles-principes.html (last modified June 17, 2019).
6 Canadian Charter of Rights and Freedoms, § 24(1), Part I of the Constitution Act, 1982, being Schedule B to the Canada Act, 1982 c 11 (U.K.) (“anyone whose rights and freedoms . . . have been infringed or denied may…obtain such remedy as the court considers appropriate and just in the circumstances); see, e.g., Vancouver (City) v. Ward, [2010] 2 S.C.R. 28 (Can.) (holding that Canadian courts have very broad power to award damages, including monetary compensation, to victims of Charter violations).
7 Canadian Charter of Rights and Freedoms, § 27, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act, 1982 c 11 (U.K.). Section 27 reads as follows: “This Charter shall be interpreted in a manner consistent with the preservation and enhancement of the multicultural heritage of Canadians.”
8 Laurence Brosseau and Michael Dewing, Parliamentary Info. and Research Serv. (Can.), Background Paper: Canadian Multiculturalism 3, https://lop.parl.ca/staticfiles/PublicWebsite/Home/ResearchPublications/ BackgroundPapers/PDF/2009-20-e.pdf (last revised Jan. 2018).
9 Id. at 4. The Canadian Parliament subsequently passed other Acts further cementing Canada’s commitment to protecting and promoting multiculturalism, such as the Canadian Multiculturalism Act in 1988, which was the first national multicultural law in the world. See Canadian Multiculturalism Act, R.S.C. 1988, c. 31.
10 See Brosseau and Dewing, supra note 8, at 4.
11 R. v. Keegstra, [1990] 3 S.C.R. 697, 699 (Can.) (upholding constitutionality of criminal code provisions prohibiting willful hatred against an identifiable group under which a high school teacher was charged for making anti-Semitic remarks).
12 R. v. Tran, [1994] 2 S.C.R. 951, para. 38 (Can.).
13 See, e.g., Roach v. Canada (Minister of State for Multiculturalism and Citizenship) (C.A.), [1994] 2 F.C. 406, para. 88.
14 Brandenburg v. Ohio, 395 U.S. 444, 447 (1969).
15 See, e.g., Matal v. Tam, 137 S. Ct. 1744, 1766 (2017) (Kennedy, J., concurring in part); see also R.A.V. St. Paul, 505 U.S. 377 (1992) (striking down city ordinance banning cross burnings aimed at African Americans as unconstitutional); Snyder v. Phelps, 562 U.S. 443 (2011) (holding that signs displaying anti-LGBT statements at military funerals are constitutional protected).
16 R. v. Keegstra, [1990] 3 S.C.R. at 701.