Intersections of Canadian Common Law Doctrine and the New Multiculturalism

Abstract

Common law countries accord courts considerable latitude to shape common law doctrine, and which has significant impact on private ordering of relationships particularly through the law of torts. In a previous article I sought to illustrate that there were already a number of cases in which minority claimants had sought additional compensation based upon a loss, which, because of a particular cultural practice held by the claimant, was more intensely felt than if a member of the dominant culture had experienced the loss. I suggested that it was quite appropriate to make these awards in furtherance of Canada’s commitment to multiculturalism. However, I also explored the ‘dark side’ of such actions; whether a defendant could argue that a claimant’s adherence to a particular cultural practice or belief would have negative repercussions on their future economic prospects and thus could justify a deduction or negative contingency being applied to any compensation awarded. I argued that courts should not reduce or apply negative contingencies based solely on a cultural practice or belief largely on the basis that to do so would further victimize an individual of an already marginalized group. Because cultural practices and beliefs are subject to constant change in personal conviction and observance over a person’s lifespan, we need to respect the element of personal autonomy entailed by the claimant, rather than to allow the defendant to impose some stereotypical view of what impact a particular cultural belief or practice may have had, or will have, on the claimant.Subsequent to my earlier article, there have been two important decisions of the Supreme Court of Canada on religious freedom, which have the potential to impact on how a claimant may prove a loss which flows from some cultural or religious practice, and which, as a consequence, have the potential to increase the frequency of such claims. While not resiling from my earlier position, I now believe that courts need to clearly distinguish between recognition of a claim based on a cultural belief or practice, and determining the appropriate remedial response. As will be argued below, recognition is important for a variety of reasons that may advance multiculturalism and social harmony. However, any remedial response needs to be more nuanced than simply throwing money at the claim as if usual damage compensatory principles are being applied.In part A, I briefly explore Canadian policies towards multiculturalism. This provides a frame of reference in which judges must act. It also identifies conflicting models of multiculturalism, models that are at the heart of divisions within the two decisions of the Supreme Court of Canada on religious freedom. These decisions are explored in part B. In Part C I make my argument for clearly distinguishing between recognition of, and remedial response to multicultural claims.