Chinese Medicine sans Chinese: The Unequal Impacts of Canada's “Multiculturalism within a Bilingual Framework”

• Published date: 01 October 2018
• DOI: http://doi.org/10.1111/lapo.12112
• Author: Nadine Ijaz,Heather Boon
• Date: 01 October 2018

Chinese Medicine sans Chinese: The Unequal

Impacts of Canada’s “Multiculturalism within

a Bilingual Framework”

NADINE IJAZ and HEATHER BOON

This work presents a critical analysis of the unequal consequences that may arise in a multicul-

turalist state when language is conceptually divorced from the human rights protections

afforded to ethnicity and national origin. Drawing on the results of twenty-three qualitative

interviews and a review of publicly available documents, our interpretive policy analysis exam-

ines the rationale, process, and impacts surrounding the controversial linguistic communication

and policy approach taken by a regulatory body governing practitioners of traditional Chinese

medicine in Canada’s multiethnic province of Ontario within an English–French bilingual pol-

icy environment. Our findings suggest a conceptual foundation for more equitable policy mak-

ing based on principles of demographics and demand in jurisdictions concurrently characterized

by state multiculturalism policies, significant ethnocultural pluralism, and a commitment to the

principle of substantive equality.

As a culturally pluralistic nation known the world over for its strong human rights pro-

tections, Canada has constitutionally entrenched equality rights in its Charter of Rights

and Freedoms (the Charter). Section 15 of the Charter states,

Every individual is equal before and under the law and has the right to the equal protection

and equal benefit of the law without discrimination and, in particular, without discrimina-

tion based on race, national or ethnic origin, colour, religion, sex, age or mental or physical

disability (Canadian Charter of Rights and Freedoms 1982).

As the Charter implies, equality rights may be understood to guide the formation of

law and policy and also as a measure by which to evaluate their impacts. However, the

principle of equality is an idealized concept that may be variously interpreted in

practice.

Canada’s Supreme Court has affirmed on multiple occasions that Charter-guaranteed

equality should be interpreted in a “substantive” rather than a “formal” manner (Fudge

2007; Faraday, Denike, and Stephenson 2006). Emphasizing fair and equitable out-

comes, substantive equality may be understood as a “redistributive right” aiming to

redress the unequal “distribution of rights, privileges, burdens, power and material

resources” among diverse Canadians (Faraday, Denike, and Stephenson 2006, 9).

Address correspondence to: Heather Boon, University of Toronto—Leslie Dan Faculty of Pharmacy, 27 King’s

College Circle, Suite 225, Toronto, ON M5S 1A1, Canada. Telephone: + 1 416-978-3742; E-mail: heather.

boon@utoronto.ca.

LAW & POLICY, Vol. 40, No. 4, October 2018

©2018 The Authors

Law & Policy published by University of Denver/Colorado Seminary and Wiley Periodicals, Inc.

ISSN 0265-8240

This is an open access article under the terms of the Creative Commons Attribution-NonCommercial-

NoDerivs License, which permits use and distribution in any medium, provided the original work is properly

cited, the use is non-commercial and no modifications or adaptations are made.

doi: 10.1111/lapo.12112

Formal conceptions of equality, by contrast, imply the equivalent or consistent treat-

ment of diverse groups (Fudge 2007) but do not directly address the unequal outcomes

that may result.

How to operationalize the concept of substantive equality in light of Canada’s

other constitutional commitments continues to pose challenges for legislators, policy

makers, and the courts. In particular, we draw attention to Canada’s constitutionally

entrenched policy of “multiculturalism within a bilingual framework” (Haque 2012).

Section 27 of Canada’s Charter defines the concept of multiculturalism as federal pol-

icy, requiring that rights and freedoms (like equality) “be interpreted in a manner

consistent with the preservation and enhancement of the multicultural heritage of

Canadians” (Canadian Charter of Rights and Freedoms 1982). The Charter further-

more designates English and French—the languages of the country’s two colonial set-

tler nations—as the official tongues of the federal state, warranting “equality of status

and equal rights and privileges as to their use in all institutions of the Parliament and

government of Canada.”

In some liberal democratic jurisdictions, such as across the European Union, language

is a protected class under human rights legislation (Thorpe-Lopez 2007), whereas in

Canada only French and English are granted protected status under the Charter. Situ-

ated within a multiculturalist policy framework, Canada’s legal approach thus separates

language from national and ethnic origin, except for those with ancestry in the country’s

two “founding” immigrant settler nations. “In both policy and practice,” Ricento (2013,

475–76) argues, Canadian “multiculturalism has come to mean ‘cultures and languages

other than English and French.’” As Haque similarly notes (2012, 18), “membership in

the Canadian nation is achieved through designation into one of four groups: English,

French, Aboriginal, and ‘Multicultural.’” This constitutional strategy, she argues, pro-

duces a “marginalization of all ‘non-official languages’ in Canada,” whether indigenous

or otherwise.

In this work, we draw upon a case study of traditional Chinese medicine (TCM)’s

recent statutory regulation in the Canadian province of Ontario in order to unpack

the linguistic policy making complexities that can arise in this context. Ontario’s

professional linguistic entry requirements for TCM practitioners, unsuccessfully con-

tested in a 2013–2014 Charter challenge case, point to the challenges of substantively

interpreting equality rights in Canada’s hybrid multicultural/bilingual context.

Reporting on an extensive documentary analysis, as well as twenty-three qualitative

interviews with state actors and TCM practitioners, we present a cautionary tale

about the unequal human rights consequences that may arise from a state “multicul-

turalism” in which language is conceptually divorced from culture, ethnicity, and

national origin. Our findings suggest a conceptual foundation for more equitable

policy making in a culturally pluralistic regulatory environment that systemically

privileges certain linguistic (and therefore some ethnocultural) groups over others.

These findings, we argue, have significance for regulators in a range of multicultural-

ist states.

I. LANGUAGE POLICY ACROSS CANADA

Canada’s national bilingualism policy is reflected not only in its delivery of federal

government and court services in both English and French but also in its citizenship

requirements. All applicants for Canadian citizenship between the ages of eighteen

and fifty-four are required to demonstrate a basic (but not vocational-level)

©2018 The Authors

Law & Policy published by University of Denver/Colorado Seminary and Wiley Periodicals, Inc.

372 LAW & POLICY October 2018