Ethnicity in the Context of Multiculturalism: Perspectives from the Courts of Canada 1950-2009

Abstract

An understanding of how ethnicity is interpreted by the courts and tribunals of Canada is important for any theoretical conceptualisation of multiculturalism or any evaluation of multiculturalism policy implementation. This dissertation examines how ethnicity is defined in court judgments and what attributes were used to discuss it, and by whom? Specifically, this dissertation examines variations in the articulation and meaning of ethnicity since the term first appeared in Canadian case law in 1955. For the years 1950 and 2009, a search of the term "ethnicity" (ETHNIC*) in the Canadian Legal Information Institute database of cases revealed an astounding 2,358 federal-court and tribunal judgments/cases. For the purposes of this research, the number of cases was reduced to only 36 cases and 46 text segments, with the reference to ethnicity and examined via a qualitative "discourse analysis" technique. The dissertation applies a Bourdieusian theoretical framework postulating that ethnicity, which is an important ingredient of Canadian multiculturalism, is shaped in relation to power and meaning. The sample revealed a nuanced multiplicity of discursive effects in juridical language, underlining the use of the concept of ethnicity. It highlights some aspects of the "excluding" dynamics of the concept of ethnicity in case law for the time period studied. It appears that when adjudicating cases where ethnicity is implied, judges were inclined to equate ethnicity with skin colour, ancestry, and regional location. Applying the sociology of the law to my empirical research results suggests that legal professionals may articulate ethnicity in such a way that a particular conceptualization is rendered legitimate. Within the limits of my sample, such a process of rendering ethnicity as legitimate often meant that the scientific knowledge and experience of others was disregarded. Furthermore, my empirical analysis suggests that even if the meaning of ethnicity in judgments was influenced by the ideology of multiculturalism, the influence, if viewed through the notion of ethnicity, was normative and prescriptive until 2009. By revealing the decision-making process associated with adjudicating the cases where ethnicity is mentioned, this dissertation offers a better understanding of how Canadian courts and tribunals understood ethnicity from 1955 to 2009. This is the dissertation's main contribution to the advancement of knowledge.