The Contextualised Court: Litigating ‘Culture’ in Canada
| Date | 01 March 2005 |
| DOI | 10.1350/ijep.9.2.73.64809 |
| Author | Robert J. Currie |
| Published date | 01 March 2005 |
| Subject Matter | Article |
THE INTERNATIONAL JOURNAL OF EVIDENCE & PROOF 73
CONTEXTUALISED COURT: LITIGATING ‘CULTURE’ IN CANADA
E
The contextualised court:
Litigating ‘culture’ in
Canada*
By Robert J. Currie
Faculty of Law, Dalhousie University, Halifax, Nova Scotia, Canada
Abstract This article surveys the manner in which the courts of Canada have
treated the concept of ‘culture’ as a justiciable matter in litigation. It starts
from the premise that a constitutionally ‘multicultural’ society has manifest
impetus to factor cultural realities into court-based decision-making, and
acknowledges that judicial use of ‘contextualism’ appears to have provided the
framework for reception of cultural evidence. Using the rules of evidence as a
lens, the article: surveys how courts have found culture to be relevant, material
and admissible in various kinds of legal disputes; analyses the trends; and
offers some preliminary thoughts as to how the law of evidence should continue
to adapt in order to accommodate culture in a principled manner.
Introduction
Culture in context
quality before and under the law is a fundamental requirement for equality
in citizenship, and a key for social participation. In Canada, this equality is
enshrined in the Charter of Rights and Freedoms,1 and acts as an essential
informant to all kinds of state action, whether executive, legislative or judicial.
Arguably, the demands which equality places upon the law are highlighted most
starkly in situations where citizens are facing the courts for determination of rights
and obligations. Equality and fairness, naturally enough, go hand-in-hand in
* Email: Robert.Currie@Dal.ca. An earlier version of this article was presented at
‘Constitutionalism and Cultural Pluralism: Lessons From Canada’, a conference held by the
Centre of Canadian Studies, University of Edinburgh, 29 April 2004. I am grateful for the
interesting feedback I received from participants in that conference, as well as for the comments
and thoughtful criticism of my colleagues Bruce Archibald and Richard Devlin. Thanks are
also due to Phillip Saunders, Brian Noble and this article’s anonymous peer reviewers.
1 Canadian Charter of Rights and Freedoms, Part I of the Constitution Act 1982, being Sched.
B to the Canada Act 1982 (UK), c. 11 (hereinafter ‘the Charter’), s. 15.
(2005) 9 E&P 73–109
74 THE INTERNATIONAL JOURNAL OF EVIDENCE & PROOF
CONTEXTUALISED COURT: LITIGATING ‘CULTURE’ IN CANADA
litigation as easily as in other settings. The right to a fair trial is enshrined in Canadian
law, both in criminal trials2 and civil trials.3 Appellate courts bear an equally grave
obligation, given that these are often the fora in which social policy decisions, as
well as individual conflicts, fall to be resolved.
In turn, a fundamental requirement for rendering a trial or appeal decision that is
‘fair’ in any meaningful sense is the ability of decision-makers to accommodate
properly the myriad of interests before them, and formulate responses that adequately
address the diverse needs of citizens. This is true of all government decision-makers,
but is immediately relevant for courts since they are charged with making some of
the most complex, important, sometimes life-changing decisions for people and for
society.
A major issue emerges: do Canadian courts and judges have the tools they need to
make decisions that take into account complex social and cultural realities? After
all, multiculturalism, too, is constitutionally enshrined.4 In its landmark 1997
judgment in the case of R v S (RD),5 the Supreme Court of Canada recognised that lack
of awareness of social and cultural context was an impediment to judges and courts
truly being able to accommodate diversity and multiculturalism. However, in many
ways the law has yet to catch up.
What this article does not seek to do
This article represents the first stage of my current research and critical commentary
on how the ‘culture issue’ plays out before Canadian courts. The larger, more
ambitious goal is to explore fully the tension which exists between the constitutional
mandating of multiculturalism, on the one hand, and the manner in which the
courts are equipped, functionally and practically, to acknowledge, factor in and
employ cultural realities in their decision-making. This will require engagement
with judicial culture itself, including the social realities that underpin judges’
decision-making, and also with the functional tools by which the courts receive the
material that informs their decision-making, i.e. the rules of evidence. Critical
assessment of the current state of affairs will lead to suggestions for reform to the
parameters of court decision-making so as to dispose of litigation in a manner that
comports with larger notions of ‘fairness’ and ‘equality’.
2 See s. 7 of the Charter.
3Société des Acadiens du Nouveau-Brunswick Inc. v Association of Parents for Fairness in Education,
Grand Falls District 50 Branch [1986] 1 SCR 549.
4 Section 27 of the Charter states: ‘This Charter shall be interpreted in a manner consistent
with the preservation and enhancement of the multicultural heritage of Canadians.’ See
generally J. Jedwab, ‘To Preserve and Enhance: Canadian Multiculturalism Before and After
the Charter’ (2003) 19 SCLR (2d) 309.
5 [1997] 3 SCR 484 (hereinafter ‘RDS’).
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CONTEXTUALISED COURT: LITIGATING ‘CULTURE’ IN CANADA
What will not be attempted here, however, is to adopt or formulate a theoretical
framework to push towards the ultimate goal. For present purposes, I would posit
that there is a decidedly post-modern dynamic at play in the manner in which
culture has come before the courts, and how it has been treated under the rules of
evidence. The case law surveyed here appears to indicate some willingness to
deconstruct the manner in which courts find facts generally, and specifically to
acknowledge that the lack of shared realities among people of different cultures has
an impact on how facts are constructed.6 Critical disciplines, and critical race theory
in particular,7 will have a great deal to say about explaining these developments.
More sweepingly, it seems clear that the emergence of ‘contextualism’ as a means of
judicial analysis has had a profound impact on the openness of courts to cultural
issues.8
Yet, must the law accommodate and give normative legitimacy to every facet of
every cultural perspective? Surely court-based dispute resolution cannot be completely
relativist, using sliding scales rather than legal standards in order to take into account
various subjective views of how facts are constructed. Ultimately, this would be
destructive of the role of the courts in articulating and applying legal norms.
Habermas’ discourse theory of norms offers respite from post-modern scepticism,
positing that it is analysis of the presuppositions that inform different plural
perspectives that can lead to agreement on a baseline of rational norms among
different participating groups.9 The operative point is that there is a way to maintain
a legal system premised on common values, while arriving at this commonality in a
manner that validates each individual’s cultural autonomy. ‘[C]onversations about
multiculturalism advance only if participants are not forced to choose between a
normatively weak contextualism, on the one hand, and a context-insensitive
universalism, on the other.’10
The text of this article may, at times, betray certain biases and assumptions and
preliminary stabs at identifying the underlying framework that my larger research
6 Acknowledging that in the post-modern view, culture itself, as well as concepts like ‘race’, can
be viewed as constructs which animate power relations in society; see generally E. Comack,
‘Theoretical Excursions’ in E. Comack et al. (eds), Locating Law: Race/Class/Gender Connections
(Fernwood Publishing: Halifax, 1999) 19–68, esp. 54–68.
7 See C. Aylward, Canadian Critical Race Theory: Racism and the Law (Fernwood Publishing: Halifax,
1998); R. Delgado and J. Stefanic, ‘Critical Race Theory: Past, Present and Future’ (1998) 51
Current Legal Problems 467.
8 See the stimulating article by S. Sugunasiri, ‘Contextualism: The Supreme Court’s New
Standard of Judicial Analysis and Accountability’ (1999) 22 Dalhousie LJ 126.
9 See generally J. Habermas, Between Facts and Norms (MIT Press: Cambridge, MA, 1996), and the
companion volume, The Inclusion of the Other: Studies in Political Theory (MIT Press: Cambridge,
MA, 1998).
10 Habermas, The Inclusion of the Other, above n. 9 at xxxii.
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