Makes some sense to lump the two together as it is a reflection of political position--secretary of state for multiculturalism and the status of women. (For women this is a step down from full ministerial department status of the 1970s.)
The other commonality we can point to is the Charter of Rights and Freedoms
Alan Cairns states that along with aboriginals, women and ethnic minorities represent "Charter groups" or "Charter Constituencies" in Canadian politics
"The possessors of Charter (or aboriginal) rights, clauses, constitutional niches, and identities view themselves not as supplicants begging to be noticed but rather as legitimate participants entitled to try and advance their interests".
"The concerns of citizen groups brought into the constitution by the Charter and aboriginal clauses go beyond the narrowly instrumental to encompass issues of personal identity, symbolic considerations, and one’s relative place in constitutional hierarchy. The differences that shape their constitutional claims are defined by sex, ethnicity, indigenousness, race, disabilities, and so on, all of which now have a constitutional dimension. It is therefore, not surprising that these groups, defined non-territorially, do not see themselves as adequately represented in a closed session by government whose national bent is to defend territory [and] strengthen jurisdiction..."
The Charter gave these groups power
The 1982 constitution facilitated the restructuring of Canada’s traditional and regional political identities to that of a community of rights-bearing individuals.
The following are the passages that were read and commented on during the lecture (there is an additional passage at the end which we did not have time to cover):
Alain C. Cairns. 1992. "Introduction," in Charter versus Federalism: The dilemmas of Constitutional Reform. Montreal & Kingston: McGill-Queen's University Press, pp. 3-4.
"The traditional cleavages of federalism that required the constitution to fashion harmonious coexistence between our federal and provincial selves now encompass a diminishing proportion of who we are as a political people. They have been joined by new cleavages or reinvigorated old cleavages related to sex, ethnicity, the aboriginal communities, the disabled and others. The language of federalism is not central to these newly politicized social categories. Rather, those who speak for them see their "clientele" as possessing some common condition, such as sex or ethnic background, or as experiencing some situation particular to themselves such as some shared physical or mental disability that has major consequences for the way they live and the treatment they receive from their fellow citizens.
These groups have all developed enhanced constitutional self- consciousness as a result of being drawn into the extended bout of constitutional introspection that Canadians have recently undergone. Further, the constitution now speaks to them through the various clauses that single out specific characteristics as meriting specific Charter recognition. This section 27, by specifying that the Charter is to be interpreted "in a manner with the preservation and enhancement of the multicultural heritage of Canadians," speaks to those who are neither aboriginal Canadians nor descendants of the French and English "founding" peoples.2 Other clauses address the aboriginal peoples (section 25), women (section 28), 3 and the official language minorities (section 23), and section 15 singles out various characteristics that "in particular" should not be used to deprive an individual of his/her right to be "equal before and under the law and… to equal protection and equal benefit of the law."
These clauses, and other rights and freedoms of the Charter, give Canadians a direct linkage to the constitution they formerly lacked. The Charter gives constitutional identities and a legitimate basis for making further claims to those it recognizes in both general and specific terms. They are no longer constitutional outsiders. In a few short years, the Charter has generated a vast qualitatively impressive discourse organized around rights. The citizen- states discourse is a counter- discourse to the traditional language of federalism to which the constitution gave privileged status prior to 1982. A central task of our constitutional future thus becomes the finding of a rapprochement between a federalism discourse, of special interest to and dominated by governments, and the Charter discourse, which is more democratic in the elementary sense because involves an extensive cast of citizen actors."
Samuel V. Laselva. 2004. "Understanding Canada: Federalism, Multiculturalism, and the Will to Live Together," in James Bickerton & Alain-G Gagnon (eds) Canadian Politics (4th edition). Peterborough: Broadview Press, pp. 25-34.
Pages 25-27
In Trudeau’s conception of it, the Charter embodies common values and guarantees the equality of Canadians. Thereby, it expresses the identity of Canada and secures its unity. But the fundamental fact about Canada is its many- sided pluralism, and Trudeau knew as much. Why else did he sponsor official multiculturalism or remind Canadians, in a speech on Louis Riel, that a democracy is ultimately judged by the way the majority treats the minority? Trudeau went further still. "Canada’s population distribution," he noted as early as 1971, "has now become so balanced as to deny any one racial or linguistic component an absolute majority. "Every single person in Canada is now a member of a minority group" (Trudeau 1972: 32). What, then, is to e done about minority right? And how are minority rights to be reconciled with the equality of Canadians? Trudeau provided an answer to these questions, and his answer is rooted in his commitment to liberalism. He said that because Canada was a mosaic rather than a melting- pot, the Charter protected both individual rights and minority rights. In protecting the rights of minorities, however, the Charter sought, whenever possible and even in the case of official languages, "to define rights exclusively as belonging to a person rather than collectively." Trudeau went on to say, "the spirit and substance of the Charter is to protect the individual against tyranny- not only that of the state but also any other to which the individual may be subjected by virtue of his belonging to a minority group" (Trudeau 1990: 365). Put in another way, the Charter treats all Canadians equally because it does not privilege minority rights, but treats minority rights as derivative of individual rights. Had Trudeau’s liberalism solved the problem of minority rights and envisioned Canada with which all Canadians could identify?
These are difficult questions. The answers to them can be partly gleaned from Trudeau’s opposition to the Meech Lake Constitutional Accord, which had as its basic purpose the recognition of Quebec as a distinct society within Canada. Such recognition was deemed necessary partly because the government of Quebec regarded the Charter as unduly restrictive of its autonomy. The accord was almost ratified but eventually failed. In rejecting it, Trudeau both defended the Charter and reformulated his long- standing opposition to special status for Quebec. According to hi, The Meech Lake Accord would require Canadians to "Say goodbye to the Dream of One Canada." "For Canadians who dreamed of the Charter as a new beginning for Canada," he wrote, "…where citizenship (is based on) commonly shared values, there is to be nothing left but tears" (Johnston 1990: 10). For Trudeau, the spirit of the Meech Accord conflicted with the spirit of the Charter, and special status for Quebec of any kind destroyed the dream of one Canada. But such a position encounters a host of difficulties, not the least of which is the fact that the Confederation Settlement of 1867 accommodated Quebec and even used Quebec’s distinctiveness to shape the Canadian federation. If Trudeau’s vision of the Charter cannot accommodate Quebec, then his conception of minority rights is problematic, and his Canada is not a Canada with which all Canadians can identify.
Trudeau’s vision of Canada contains a number of unsettling ironies. His most basic objective was to de- legitimate Quebecois separatism by creating a truly pluralistic Canada with which Quebeckers and other Canadians could identify. His formula he initially embraced was "multiculturalism within a bilingual framework. If the revised formula captures Trudeau’s vision of Canada, then the first irony is that it does nothing at all to satisfy the historic demand of Quebec, namely, the recognition of Quebec’s distinctiveness so the French- Canadian homeland can flourish within Canada. And even if Canada is conceived without Quebec, the formula remains untenable because it does not adequately accommodate Aboriginal Canadians.
Trudeau said that the Charter protects minority rights; it would be more accurate to say that it brigs minorities into conflict and thereby challenges the dream of one Canada (Cairns 1991: 108). The Charter does not protect the right of French- Canadians to a homeland within Canada or the right of Aboriginal Canadians to self- government. But it does protect the rights of "Charter Canadians" (women, gays, lesbians, the handicapped) and multicultural citizens (new immigrants). In The Charter Revolution and the Court Party, Morton and Knopff argue that the Charter has transformed Canadian constitutional system by transferring power from legislatures to courts. Moreover, although Trudeau often portrayed the Charter as a victory for minority rights over majority tyranny, these authors insist that the Charter revolution is not about tyranny at all. Canada, they write, would remain a liberal democracy "regardless of the outcome of such Charter issues as whether Sikhs in the RCMP are allowed to wear turbans or the legal definition of spouse is read to include homosexuals" (Morton and Knopff 2000: 36). For them, the most sinister aspect of Charter litigation is that it enables special interest groups to advance their agendas under the guise of inalienable rights and at the expense of democratic politics. Will Kymlickas takes a benign view. In Multicultural Citizenship, he argues that the recognition of multicultural or polyethnic rights deserve is nothing less than a requirement of liberal justice. Such minority rights deserve recognition, he insists, partly because individual choices are made in a cultural context and partly because to deny them is to unfairly privilege the dominant culture. But even Kymlicka believes that the recognition of such rights has made Canada a more difficult country to understand and that Canadians continue to lack a theory of what holds their country together (Kymlicka 1995: 76, 109, 192).
Will Kymlicka. 2004. "Citizenship, Communities and Identity in Canada," in James Bickerton & Alain-G Gagnon (eds) Canadian Politics (4th edition). Peterborough: Broadview Press, pp. 35-54.
Pg. 35
Much of the Canadian political system is founded on the premises that, in the words of the Supreme Court, the "accommodation of difference is the essence of true equality."1 While Canadian history contains its share of intolerance, prejudice, and oppression, it also contains many attempts to find new and creative mechanisms for accommodating difference. As a result Canada has developed a distinctive conception of the relationship between citizenship and identity.
As in all other liberal democracies, one of the major mechanisms for accommodating difference in Canada is the protection of the civil and political rights of individuals, such as those listed in sections 2- 15 of the Canadian Charter of Rights and Freedoms. Freedom of association, religion, speech, mobility, and political organization enable individuals to form and maintain the various groups and associations which constitute civil society, to adapt these groups to changing circumstances, and to promote their views and interests to the wider population. The protection afforded by these common rights of citizenship is sufficient for many of the legitimate forms of diversity in society.
However, it is widely accepted in Canada that some forms of difference can only be accommodated through special legal measures above and beyond the common rights of citizenship. Some forms of groups’ difference can only be accommodated if their members have what Iris Marion Young calls "differentiated citizenship" (Young 1989). These special measures for accommodating difference are the most distinctive, and also the most controversial, aspect of the Canadian conception of citizenship identity.
Pg. 38- 44
Three Forms of Group- Differentiated Citizenship
There are at least three forms of differentiated citizenship in Canada intended to accommodate these ethnic and national differences: a) self- government rights, b) accommodation rights, c) special representation.
a) Self- government rights: Aboriginal people and the Quebecois view themselves as "peoples" or "nations", and as such, as having the inherent right of self- determination. Both groups demand certain powers of self- government that they say were not relinquished by their (initially involuntary) federation into the larger Canadian state. They want to govern themselves in certain key matters in order to ensure the full and free development of their cultures and the best interests of their people.
b) Accommodation rights: Many immigrant groups and religious minorities have demanded various forms of public support and legal recognition of their cultural practices. These demands take a variety of forms, including recognition of Jewish religion holidays in school schedules; exemption from official dress- codes so that Sikh men can wear turbans; revision to the history and literature curricula in public schools to give greater recognition to the historical and cultural contribution of immigrant groups; greater representation of immigrant groups in the police; Canadian Radio- television and Telecommunications Commission (CRTC) guidelines to avoid ethnic stereotyping in the media; anti- racism educational campaigns; cultural diversity training for the police, social workers, or health- care professionals; workplace or school harassment codes prohibiting racist comments; funding for ethnic festivals and ethnic studies programs; and so on. Most of these demands have been accepted as part of policy of "multiculturalism," and a general commitment to such measures is reflected in section 27 of the Canadian Charter of Rights and Freedoms, which says that "This Charter shall be interpreted in a manner consistent with the preservation and enhancement of the multicultural heritage of Canadians." Unlike self- government rights, these accommodation rights are usually intended to promote integration into the large society, not self- government.9
c) Special representation rights: While the traditional concern of national minorities and immigrant ethnic groups has been with either self- government or accommodation rights, there has been increasing interest by these groups, as well as other non- ethnic social groups, in the idea of special representation rights. Many Canadians believe the political process is "unrepresentative," in the sense that it fails to reflect the diversity of the population. This was illustrated most vividly during the constitutional negotiations leading up to the Charlottetown Accord, in which the fundamental terms of Canadian political life were negotiated by 11 middle- class, able- bodied, white men (the prime minister and the premiers of the 10 provinces). A more representative process, it was said, would have included women, members of ethnic and racial minorities, and people who are poor or disabled. This has led to increasing interest in the idea that a certain number of seats in the Senate should be reserved for the members of disadvantaged or marginalized groups. During the debate over the Charlottetown Accord, for example, the National Action Committee on the Status of Women recommended that 50 per cent of Senate seats should be reserved for women and that proportionate representation of ethnic minorities also be guaranteed; others recommended that seats be reserved for the members of official language minority, or for Aboriginal peoples. The recent demands for special representation by women and other disadvantaged groups are largely an extension of long- standing demands for increased Senate representation by disadvantaged regions. Canada currently has an unelected Senate, which is widely viewed as illegitimate and ineffective.
Paul Marshall. 2002. "The Importance of Group Rights" in Mark Charlton and Paul Barker (eds.) Crosscurrents: Contemporary Political Issues, (4th edition), Scarborough, ON: Nelson Thomson Canada Ltd., pp. 49-51.
This widespread international pattern is also followed in Canada. Canada’s principal constitutional document before the constitutional changes of 1982 was the British North America Act of 1867.5 Section 93 of this act stipulated that the provinces could not "prejudicially affect any Right or Privilege with respect to Denominational Schools." This meant that Catholics and Protestants had a constitutionally entrenched right to schools reflecting their beliefs. Similarly, when Newfoundland joined Canada in 1949 it had five denominational school systems: Roman Catholic, United Church, Anglican, Pentecostal, and Salvation Army. The arrangements for admitting Newfoundland included guaranteed constitutional protection for this system.
Both these constitutional guarantees were kept in the new provisions of the Constitution Act, 1982. Nor did this act simply maintain group rights because they were impossible to change. It reaffirmed them and in fact introduced new provisions for group rights. Section 15(2) allows governments to develop programs to help particular disadvantaged groups, even though such programs would treat people in different groups in very different ways. The Constitution Act, 1982, also gives language rights to the speakers of two languages- French and English (Sections 16 to 23 of the Charter of Rights and Freedoms). These languages of the founding communities, and moreover, they are the most widespread. These are good reasons and I support the policy. But we should not hide from ourselves the fact that we are giving advantages to some language groups rather than to others. Meanwhile, Sections 25, 35, and 37 recognize the rights of Aboriginal peoples, and Section 27 calls for interpretations consistent with "multiculturalism." In short, Canada is still finding it necessary to establish rights for groups as well as for individuals.
In commenting on this, the majority of the Ontario Court of Appeal said that "the Constitution of Canada…has from the beginning provided for group collective rights… As Professor Hogg….has expressed it: these provisions amount to ‘a small bill of rights.’ The provisions of this ‘small bill of rights,’ now expanded as to…language rights…constitutes major difference from a bill of rights such as that of the United States, which is based on individual rights. Collective or group rights, such as those concerning language and those concerning certain denominations to separate schools, are asserted but individuals or groups of individuals because of their membership in certain ascertainable groups. Individual rights are asserted equally by everyone despite membership in certain ascertainable groups."6
A common criticism of these types of observations, one offered by Mr. Trudeau himself, is to agree that collective rights are important and should be protected, but to insist that they should never override individual rights. Only if there is no threat to individual rights should collective concerns and collective rights then be considered. While Mr. Trudeau thinks both types of rights have a place, he asserts that individual rights must always have priority. He believes that unless this happens the result will be oppressive. One of the principle reasons he argued so strenuously against the Meech Lake Accord and the Charlottetown Accord was that he thought each agreement gave some priority to collective rights over individual rights. His criticism was so effective that it actually became a factor in helping to defeat these constitutional proposals.
In many cases, this criticism is undoubtedly correct. Some fundamental rights, such as the right to life, should never be subordinated to any collective interest that does not itself involve protecting someone’s life. A group cannot demand that human life be sacrificed to its benefit. But for many other individual rights there is no automatic priority. In most cases there is more than one right at stake, and one does not simply override another. Usually courts have to try to balance them in some way. A famous example of this conflict occurred inn Canada in the Lovelace case several years ago. The Indian Act, the law governing Indian people in Canada, allowed a form of discrimination against women. If an Indian woman married a non- Indian man then she lost her legal status as an Indian. But this regulation did not apply to Indian men who married non- Indians. Women’s groups, including Native women’s groups, protested this situation. Many Native leaders acknowledged that there was a problem, but they objected that white people were once again trying to impose their own view from outside instead of letting Native people work out their own solutions. The result was a conflict of group and individual rights, between the right of Native peoples to govern themselves and the rights of Native women to have an equal status with Native men. As Marc Lalonde put it: "Discrimination against women is a scandal but imposing the cultural standards of white society would be another scandal."7
In this instance, it was the individual rights that eventually won out. Nevertheless, this does not support the claim that they should always do so. Rather, it shows that the conflict is very real and that there are two important things that are together being weighed in the balance. In different instances either a group interest or an individual one might win out, depending on how important the particular rights are in the particular instance. In cases such as Native self- government in general, or Native fishing and hunting rights, then the collective rights of Native people have won out. Natives can hunt and fish in ways and at times that non- Natives cannot. They have rights to self- government that others do not. They have rights to land that others do not. In all these cases a group right has won out over various individual claims to nondiscrimination. Similarly, in the case of denominational schools, the collective rights of Catholics to have schools that reflect their religious beliefs have won out over individual claims to have all schools give equal access to people regardless of their beliefs. In these different issues one or the other type of right may legitimately have priority. There is no automatic procedure where one or the other must always necessarily be successful. It is a case of trying to deal with both of them together. But what this means is that we must always be prepared to recognize groups rights and when necessary to give them priority over individual rights.
I have argued that Canada must be understood not only in terms of individual people, but also in terms of the groups and communities in which these people live. These groups may need to be protected by recognizing that they have rights as groups. While individual rights can never be ignored or dismissed, at times they may need to be overridden by important group rights. Such recognition is not a violation of human rights, but is an internationally known and respected human rights practice, and one that is also firmly rooted in Canadian history and legal practice. As we consider future constitutional amendments or any other arrangements for our living together in Canada, we cannot assume that all group claims are necessarily valid. But neither can we accept the view that no group right is valid, nor the view that they can never override individual rights. We must be open to either claim, and in the diverse circumstances that our political life produces group rights will often take priority.