Exploring Perceptions of Cultural Difference in IRB
Family Sponsorship Decisions
by
Sarom Bahk
A thesis submitted in conformity with the requirements
for the degree of Master of Laws
Faculty of Law
University of Toronto
© Copyright by Sarom Bahk 2011
ii
Exploring Perceptions of Cultural Difference in
IRB Family Sponsorship Decisions
Sarom Bahk
Master of Laws
Faculty of Law
University of Toronto
2011
Abstract
This thesis analyzes the Canadian Immigration and Refugee Board (IRB)’s treatment of
culture in recent family sponsorship decisions. Drawing upon theories of cultural
difference, identity construction, and Critical Race Theory, it examines IRB decision-
makers’ assessments of cultural factors and their influence on the evaluation of parties’
credibility. This thesis argues that appellants and applicants before the Immigration
Appeal Division often had to demonstrate that their family class relationships were
“performed” in accordance with the norms of their culture. Many IRB Members relied
on essentialist conceptions of culture, and thus generated problematic images of both
cultural minorities and Canadian society. Further, the identity of parties was often
constructed in terms of defined categories such as ethnic background, religion, marital
status, age, and disability. In conclusion, this thesis offers reflections on how issues of
cultural identity can be more fairly and sensitively addressed by administrative
tribunals such as the IRB.
iii
Acknowledgments
I am enormously grateful to my thesis supervisor, Ayelet Shachar, for her generous and
thoughtful guidance throughout the course of this project. I also thank my S.J.D.
advisor, Howie Kislowicz, for his insightful comments. I gratefully acknowledge the
financial assistance of the University of Toronto’s Faculty of Law, which awarded me
with a Graduate Fellowship.
I am indebted to my friends and colleagues for many sanity-preserving discussions over
the years on law, academics, work, and everything in between.
Finally, I thank my parents for their endless love and support throughout this and every
other stage of my lengthy student career. I dedicate this thesis to them and to Niketh
Pareek, whose patience, understanding, and encouragement served as daily reminders
that marriage is about turning a person of your choosing into family.
iv
Table of Contents
ACKNOWLEDGMENTS ………………………………………………………………………………………….. iii
TABLE OF CONTENTS
………………………………………………………………………………………………
iv
CHAPTER 1 INTRODUCTION
…………………………………………………………………………………. 1
1.1. RATIONALE OF THIS STUDY …………………………………………………………………………………. 4
1.1.1. The IRB’s Regulatory Function …………………………………………………………………… 4
1.1.2. Identity Construction …………………………………………………………………………………. 5
1.1.3. Distributive Justice
……………………………………………………………………………………… 6
1.1.4. Understanding Credibility Assessments …………………………………………………….. 7
1.1.5. Public Policy
……………………………………………………………………………………………….. 7
1.2. OVERVIEW OF THE THESIS
……………………………………………………………………………………. 9
CHAPTER 2 CULTURE, RACE, AND IMMIGRATION LAW: A THEORETICAL
FRAMEWORK
…………………………………………………………………………………………………………… 12
2.1. CONCEPTIONS OF CULTURAL DIFFERENCE ………………………………………………………….. 13
2.1.1. The Importance of Culture ……………………………………………………………………….. 13
2.1.2. Problematic Representations of Culture
……………………………………………………. 15
2.1.3. Constructivist Accounts of Culture
…………………………………………………………… 22
2.1.4. Culture as Performance
…………………………………………………………………………….. 26
2.2. CRITICAL RACE THEORY
……………………………………………………………………………………. 30
2.2.1. The Prevalence of Racism …………………………………………………………………………. 30
2.2.2. Race as a Legal Construction
…………………………………………………………………….. 32
2.2.3. Anti-Essentialism and Intersectionality
…………………………………………………….. 34
2.3. IMMIGRATION LAW AS A SITE FOR CONSTRUCTING IDENTITY ……………………………….. 37
2.3.1. Constructing a National Identity ………………………………………………………………. 37
2.3.2. Constructing Outsiders …………………………………………………………………………….. 41
2.3.3. Constructing Refugees ……………………………………………………………………………… 45
2.4. CONCLUSION
……………………………………………………………………………………………………. 48
v
CHAPTER 3 PRESENTATION AND ANALYSIS OF IRB DECISIONS ………………… 49
3.1. BACKGROUND ………………………………………………………………………………………………….. 50
3.1.1. The IRB’s Structure and Process ……………………………………………………………….. 50
3.1.2. Critiques of the IRB’s Decision-Making Process ……………………………………….. 53
3.2. ANALYSIS OF IRB DECISIONS FROM 2004 TO 2010 ……………………………………………….. 59
3.2.1. Methodology
…………………………………………………………………………………………….. 59
3.2.2. The IRB’s Understanding of its Role …………………………………………………………. 61
3.2.3. The Cultural Validity of Marriage
…………………………………………………………….. 63
3.2.4. Spousal Compatibility ………………………………………………………………………………. 83
3.2.5. Cultural Conceptions of Adoption ………………………………………………………….. 103
3.2.6. Common-Law and Conjugal Partnerships
………………………………………………. 105
3.2.7. Parents and Cultural Duties of Care ……………………………………………………….. 108
3.2.8. Opinion and Documentary Evidence ……………………………………………………… 110
3.3. CONCLUSION
………………………………………………………………………………………………….. 117
CHAPTER 4 REFLECTIONS AND CONCLUSION
………………………………………………. 120
4.1. REFLECTIONS
………………………………………………………………………………………………….. 121
4.1.1. Knowing What We “Know” About Culture ……………………………………………. 121
4.1.2. Moral Respect and Institutional Humility ………………………………………………. 126
4.1.3. Increasing Diversity
………………………………………………………………………………… 131
4.2. CONCLUSION
………………………………………………………………………………………………….. 136
4.2.1. Further Directions …………………………………………………………………………………… 136
4.2.2. Concluding Remarks ………………………………………………………………………………. 137
BIBLIOGRAPHY
……………………………………………………………………………………………………… 138
1
Chapter 1
Introduction
Mélange, hotchpotch, a bit of this and a bit of that is how newness enters the world. It is the great
possibility that mass migration gives the world, and I have tried to embrace it.
Salman Rushdie1
If you are told “they are all this” or “they do this” or “their opinions are these”, withhold your
judgment until all the facts are upon you. Because that land they call “India” goes by a thousand
names and is populated by millions, and if you think you have found two men the same amongst
that multitude, then you are mistaken. It is merely a trick of the moonlight.
Zadie Smith2
On August 2, 2007, the Immigration Appeal Division of the Immigration and
Refugee Board (IRB) upheld a decision refusing a permanent resident visa to Kuldeep Kaur
Goraya.3 Ms. Goraya’s husband, Narinderjit Singh Goraya, had applied to sponsor her as a
member of the family class. The IRB dismissed the appeal based on the finding that the
marriage between them was not genuine, and had been entered into primarily to allow Ms.
Goraya to immigrate to Canada as a sponsored family member.
In refusing the appeal, the IRB Member found that there were several inconsistencies
in the evidence given by the husband and wife, both of whom were Sikhs from India. The
Member stated that the couple’s testimony regarding the events of their meeting,
engagement and subsequent marriage deviated substantially from her understanding of
Indian Sikh cultural traditions, and thereby undermined the genuineness of the marriage.
For example, the Member noted that Ms. Goraya, at age 24, was matched for the first time,
1 Salman Rushdie, Imaginary Homelands: Essays and Criticism, 1981-1991 (London, Granta Books, 1991) at 394.
2 Zadie Smith, White Teeth (London: Penguin Books, 2000) at 100.
3 Goraya v. Canada (Citizenship and Immigration), [2007] I.A.D.D. No. 1097 (QL) [Goraya].
2
whereas the “typical” age of Indian Sikh women at marriage is 21 or 22.4 In addition, the
IRB Member remarked that the difference between the husband and wife’s educational
levels—Mr. Goraya held a bachelor’s degree in political science; his wife had a Grade 12
education—was a “significant [departure] from the cultural norms.”5 Finally, the tribunal
noted that certain traditional rituals, such as the henna ceremony, were omitted from the
marriage celebration, and that the bride was not wearing traditional red bangles.6
I offer this decision as an example of the IRB’s treatment of cultural difference in
evaluating applications, and how such treatment can lead to negative determinations of the
parties’ credibility. The IRB Member explicitly situates her reasoning within the context of
an arranged marriage between Indian Sikhs. She uses these cultural factors to exclude the
couple from her perceived understanding of what a Sikh marriage should be like, and thus
excludes Ms. Goraya from Canada. However, the decision raises numerous questions
about the IRB Member’s analysis: What is the source of her knowledge about the
applicants’ cultural practices and traditions? How does her understanding of these
traditions affect her reception of the evidence? What does her reasoning imply about her
image of Indian culture, her perception of the shared characteristics of Indian women, and
implicitly, her view of mainstream Canadian culture?
In this thesis, I undertake an analysis of how administrative decision-makers deal
with cultural difference in the context of immigration law. I study recent decisions of the
Immigration and Refugee Board in which cultural issues play a role in the Member’s
4 Ibid. at paras. 7, 23.
5 Ibid. at para. 23.
6 Ibid. at paras. 25-27.
3
adjudication. A review of recent IRB jurisprudence reveals that most the tribunal’s
decisions involving cultural considerations consist of family sponsorship appeals rendered
by the IRB’s Immigration Appeal Division. I test the hypothesis that parties seeking to
establish the genuineness of their claims must demonstrate that their marriages, adoptions,
and other family class relationships were “performed” in accordance with the norms of
their culture. In other words, this thesis examines the possibility that some negative
decisions result from a failure to meet the decision-maker’s expectations of what the
applicant’s culture looks like.
Prior research conducted on the IRB’s decision-making process shows that cultural
considerations are vitally important to assessing the credibility of applicants before the IRB.
IRB Members often held stereotyped views of minority cultures or demonstrated
insufficient knowledge about different cultural contexts, leading to negative credibility
decisions.7 Since 2004, “cultural sensitivity” has been included in the list of behavioral
competencies that forms part of the IRB’s member selection criteria.8 One purpose of this
thesis is to ascertain whether IRB Members have truly displayed “cultural sensitivity” in
recent decisions. My work explores how IRB Members handle cultural issues arising from
family sponsorship cases, and how their treatment affects their evaluation of the parties’
credibility. Examining these questions through the lenses of Critical Race Theory and
7 Cécile Rousseau, François Crépeau, Patricia Foxen, and France Houle, “The Complexity of Determining
Refugeehood: A Multidisciplinary Analysis of the Decision-Making Process of the Canadian Immigration and
Refugee Board” (2002) 15 J. Refugee Stud. 43 at 55 [Rousseau et al.]; François Crépeau and Delphine Nakache,
“Critical Spaces in the Canadian Refugee Determination System: 1989–2002” (2008) 20 Int’l J. Refugee L. 55 at
98 [Crépeau and Nakache].
8 Janet Cleveland and Delphine Nakache, “Attitudes des commissaires et décisions rendues” (2005) 13 Vivre
Ensemble 3 at 5 [Cleveland and Nakache]; Crépeau and Nakache, ibid. at 81-82.
4
theories of cultural difference, I identify ways in which visions of “Other” cultures are
articulated by these decision-makers.
1.1.
Rationale of this Study
1.1.1. The IRB’s Regulatory Function
My focus on the cultural aspects of IRB decisions is motivated by several
considerations. To begin with, administrative tribunals such as the IRB can be regarded as
instruments of social, political and economic regulation. The state’s policies and laws are
not coherent; rather, they constitute “an ensemble of discourses, rules and practices.”9 The
state “never stops talking,” imparting its values and ideologies through different modes of
regulation and sanction.10 Like the state, the law also develops in an ad hoc and often
contradictory manner.11 Indeed, Kim Lane Scheppele describes legal institutions as “a site
of contested meaning” upon which different perspectives struggle for dominance.12
Accordingly, the IRB could be viewed as a terrain upon which newcomers assert
their claims to Canadian citizenship, and the state communicates its visions of Canada.
Under this framework, we can recognize individual IRB decisions as expressions of state
policy about the composition of Canadian society: whom we should let in and whom we
should keep out.13 We can glean insights from these decisions about how “the state”
9 Wendy Brown, “Finding the Man in the State” (1992) 18 Feminist Studies 1 at 12.
10 Janine Brodie, “Canadian Women, Changing State Forms, and Public Policy” in Women and Canadian Public
Policy (Toronto: Harcourt Brace, 1996) 1 at 13.
11 Carol Smart, Feminism and the Power of Law (London: Routledge, 1989) at 97-98.
12 Kim Lane Scheppele, “Manners of Imagining the Real” (1994) 19 Law & Soc. Inquiry 995 at 996-997
[Scheppele].
13 For example, a Citizenship and Immigration Canada report indicates that the government intended to grant
11,200 family sponsorship visas to parents and grandparents of Canadian citizens and permanent residents in
2011, versus its target of 16,200 visas in 2010: Douglas Todd, “’Be honest’: Most parents will never immigrate
5
regards minority cultures, and how it perceives mainstream Canadian identity and values.
IRB decisions thus provide a rich backdrop for examining intersecting questions of culture,
race, gender, and national identity in the state’s dealings with new immigrants.
1.1.2. Identity Construction
Moreover, decisions rendered by IRB adjudicators contribute to our understanding
of how cultural identities are constructed. As Sonia Lawrence argues, doctrinally
insignificant cases such as lower court and tribunal decisions are major sites “for the
construction and reproduction of race, the practice of race-ing, and the furthering of racist
projects.”14 Textual or rhetorical analyses of such cases can help to illuminate problematic
representations of minority cultures, as well as visions of the mainstream culture. Thus,
studying the treatment of cultural difference by IRB Members hearing sponsorship cases
reveals the ways in which racial and cultural identities are shaped by the legal system.
I opened this chapter with two quotations. The first reflects the view that all cultures
are influenced and shaped by interaction with other groups, particularly within the context
of immigration. The second emphasizes that cultures are inherently diverse, not
homogenous. In a multicultural and multiethnic nation such as Canada, it is especially
important for public decision-making bodies to avoid “misrecognition” of diverse cultures
to Canada” The Vancouver Sun (26 February 2011), online: Vancouver Sun
14 Sonia N. Lawrence, “Cultural (in)Sensitivity: The Dangers of a Simplistic Approach to Culture in the
Courtroom (2001) 13 Cdn J. of Women & L. 107 at 124, note 85 [Lawrence].
6
through stereotyping and marginalization.15 Courtroom and tribunal decisions that
propagate essentialist or overly simplistic images of minority cultures can inflict harm upon
people of different backgrounds. We must therefore evaluate how public institutions like
the IRB assess identity-related claims, in order to develop normative criteria for doing so in
a fair and sensitive manner.16
1.1.3. Distributive Justice
The adjudication of immigration cases is also a matter of distributive justice. A
positive IRB decision, leading to the granting of permanent resident status and eventually,
Canadian citizenship, is an invaluable social good. Ayelet Shachar notes that entitlement to
birthright citizenship in an affluent country such as Canada is a “significant
intergenerational [transfer] of wealth and power, as well as security and opportunity.”17
Indeed, the presumption underlying assessments of the genuineness of family relationships
is that foreign nationals are liable to enter “bad faith” relationships for the sole purpose of
immigrating to Canada.18 Thus, if we regard Canadian citizenship and immigration laws
as linked to the allocation of “shares in human survival on a global scale,“19 it becomes
evident that family sponsorship rulings are a matter of redistribution.
15 Charles Taylor, “The Politics of Recognition” in Amy Gutmann, ed., Multiculturalism: Examining the Politics
of Recognition (Princeton, Princeton University Press, 1994) 25 at 25 [Taylor].
16 Avigail Eisenberg, Reasons of Identity: A Normative Guide to the Political and Legal Assessment of Identity Claims
(New York: Oxford University Press, 2009) at 9-11 [Eisenberg].
17 Ayelet Shachar, The Birthright Lottery: Citizenship and Global Inequality (Cambridge: Harvard University
Press, 2009) at 4 [Shachar, Birthright].
18 Immigration and Refugee Protection Regulations, SOR/2002-227, s. 4 [IRPR].
19 Shachar, Birthright, supra note 17 at 12.
7
1.1.4. Understanding Credibility Assessments
Further, mapping the treatment of cultural difference in IRB decisions is a useful
exercise for the practice of immigration law. For legal practitioners, it is imperative to
understand how IRB decision-makers assess the credibility of parties appearing before
them. Credibility is the touchstone of successful IRB hearings, since oral testimony is
generally the primary source of evidence in both refugee cases and family sponsorship
cases.20 As detailed in Chapter 3 of this thesis, the cultural norms governing family
relationships are key to establishing credibility in hearings before the Immigration Appeal
Division. In several decisions, IRB Members questioned the genuineness of relationships
where parties appeared to deviate from their cultural traditions. Hence, this work reviews
the IRB’s adjudication of cultural issues to gain a deeper understanding of how IRB
decision-makers evaluate credibility.
1.1.5. Public Policy
Finally, a study of family sponsorship decisions is timely from a public policy
perspective. In Canada, the topic of spousal sponsorship has become an increasingly hot-
button issue.21 Cases of “marriage fraud,” in which foreign nationals abandon their
Canadian spouses upon receiving permanent resident status, have received heightened
media attention.22 Immigration officials have also raised concerns that people are entering
20 Catherine Dauvergne, Humanitarianism, Identity and Nation: Migration Laws of Australia and Canada
(Vancouver: UBC Press, 2005) at 106-107 [Dauvergne].
21 Facilitating the reunification of family members is one of the stated goals of the Immigration and Refugee
Protection Act, S.C. 2001, c. 27, s. 3 [IRPA]. The provision states:
3. (1) The objectives of this Act with respect to immigration are […]
(d) to see that families are reunited in Canada.
22 See “New immigration rules aim to weed out marriage fraud” CBC News (28 September 2010), online: CBC
News
8
“marriages of convenience” in order to facilitate the entry of the sponsored spouse into
Canada.23 These types of cases are viewed as particularly widespread among members of
cultures in which arranged marriages are common.24 Conversely, immigrant advocates
argue that officials have a tendency to automatically flag arranged marriages as
fraudulent.25 Immigrant groups claim that this position ignores the social reality of many
traditional arranged marriages, in which “the relationship really begins after the marriage
happens.”26 As a result, parties from India, Sri Lanka, and other countries where marriages
are typically arranged face additional difficulties in proving the genuineness of their
relationships to immigration officials.
In March 2011, Citizenship and Immigration Canada (CIC) proposed changes to the
Immigration and Refugee Protection Regulations to prevent individuals from entering non-bona
fide relationships in order to facilitate entry into Canada. Firstly, the proposed amendments
would introduce a period of “conditional permanent residence” for spouses and common-
law partners sponsored under the IRPA, requiring them to remain in a relationship with
documentary film entitled True Love or Marriage Fraud? The Price of Heartache, following the stories of
Canadians who sponsored spouses to Canada, was aired by CBC News Network in November 2010: “True
Love or Marriage Fraud?” The Passionate Eye, online: CBC
23 David McKie, “Marriages of convenience problems persist” CBC News (10 November 2010), online: CBC
News
24 “Arranged marriages risk immigration scrutiny” CBC News (3 May 2010), online: CBC News
marriages”].
25 Avvy Yao-Yao Go, Anita Balakrishna and Atulya Sharma, “Marriage of Convenience” The Toronto Star (6
April 2011), online: TheStar.com
26 “Arranged marriages”, supra note 24.
9
their sponsor for a period of two years.27 Secondly, CIC proposes barring sponsors who
became permanent residents after first being sponsored as a spouse, common-law or
conjugal partner from sponsoring a new spouse, common-law or conjugal partner for a
five-year period.28 Immigrant advocates maintain that such initiatives would impose
serious hardships on sponsored partners, and that “characterizing relationship breakdown
as marriage fraud” engenders a negative portrayal of newcomers to Canada.29
Given the controversy generated by these issues, an examination of how IRB
Members evaluate parties’ credibility with respect to cultural issues in family sponsorship
cases is opportune. Such an examination could shed light on whether negative credibility
decisions are mainly due to fraudulent relationships, or whether some can be attributed to
cultural misunderstandings or flawed interpretations of cultural norms.
1.2.
Overview of the Thesis
This work is divided into three chapters in addition to the present one. Chapter 2
sets out different theoretical perspectives which I use to frame my discussion of IRB
decisions. First, I give an overview of the relevant literature on culture and cultural
identity. I explain my belief that questions of cultural identity are important and deserve
27 Notice (Department of Citizenship and Immigration), C. Gaz. 2011.I.1077, online:
28 Regulations Amending the Immigration and Refugee Protection Regulations [Spousal Sponsorship], C. Gaz.
2011.I.1251, online:
29 See “Statement on Proposed ‘Conditional Permanent Residence’ for sponsored spouses” (April 2011),
online: Canadian Council for Refugees
organizations. See also the Canadian Bar Association’s submissions to the government regarding the
proposed amendments: Canadian Bar Association, “Immigration and Refugee Protection Regulations—
Amendments (5-Year Sponsorship Bar Residence for Spousal Sponsors): Letter to Citizenship and
Immigration Canada,” online: Canadian Bar Association
10
proper adjudication by public decision-making bodies. I highlight the problems of an
essentialist view of culture and make a case for a constructivist approach that sees culture
as complex, fluid and heterogeneous. I further argue that cultural identity can be
envisaged as the repeated performance of norms. In the second part of the chapter, I
outline various tenets of Critical Race Theory, including intersectionality, anti-essentialism,
and the legal construction of race. I describe how these concepts help us to understand and
critique IRB decisions dealing with cultural difference. Finally, in the third part of the
chapter, I examine accounts of immigration law and its role in the production of identity.
Chapter 3 consists of a critical analysis of recent IRB decisions dealing with cultural
difference. After briefly explaining the IRB’s structure and procedures, I give an overview
of recent criticisms of the IRB’s decision-making process. Although the studies discussed in
this section involve refugee decisions, the authors’ critiques are also relevant to family
sponsorship cases. The bulk of the chapter presents my research of published IRB decisions
from the years 2004 to 2010. I begin by analyzing the different ways in which IRB Members
understood their role in adjudicating cultural considerations that arise in family
sponsorship decisions. Next, I explore the specific cultural issues emerging from cases
concerning the genuineness of family class relationships, including marriages, adoptions,
and common-law and conjugal partnerships. I also review decisions in which appellants
before the IRB invoke a “cultural duty of care” toward their parents.
In my analysis, I apply the theoretical framework set out in Chapter 2 to highlight
the themes and patterns emerging from these decisions. I argue that various IRB
adjudicators failed to address issues of cultural difference in a sensitive and informed
11
manner. These Members relied on essentialist conceptions of culture and thus generated
questionable images of both “Other” cultures and “mainstream” Canadian culture. In
many decisions, parties were perceived as less credible if they failed to “perform” their
family relationships in accordance with their cultural norms. Further, I argue that parties’
identities were often defined in terms of categories such as ethnic background, religion,
marital status, age, and disability, which were used to establish the genuineness of their
relationships.
Lastly, in Chapter 4, I present my reflections on how issues of cultural identity can
be more fairly and sensitively assessed by the IRB. First, I discuss the production of “facts”
about cultures and suggest strategies for how IRB Members adjudicating family
sponsorship decisions could access accurate and up-to-date cultural information. Second, I
argue that IRB Members should foster inclusiveness and respect for diverse cultures,
including a willingness to acknowledge new perspectives and reflect upon incorrect
assumptions and biases. Finally, I assert that enhancing the level of diversity among IRB
decision-makers will help to address the problems of cultural essentialism identified in
Chapter 3.
12
Chapter 2
Culture, Race, and Immigration Law: A Theoretical
Framework
This chapter reviews different theoretical approaches in order to provide a
framework for studying recent Immigration and Refugee Board (IRB) decisions. I highlight
the relevant ideas of these theories, which are used to identify and critique the ways in
which cultural differences are perceived and handled by IRB Members. The ideas
discussed in this chapter will inform my analysis of the IRB decisions outlined in Chapter 3.
The first part of the chapter examines accounts of culture and cultural identity. I
begin by articulating my belief that questions of cultural identity are important and should
be assessed fairly and sensitively by public institutions. Next, I discuss the problematic
representations of culture engendered by an essentialist approach, arguing that a
constructivist view of culture can help to mitigate these problems. I also develop the notion
of cultural identity as a performance governed by the expectations of the majority. The
second part of the chapter describes various analytical tools and perspectives drawn from
Critical Race Theory. I argue that concepts such as intersectionality, anti-essentialism, and
the legal construction of race supplant and deepen our understanding of cultural identity
and its relationship to the legal system. Finally, in the third part, I explore the links
between immigration law and identity construction. This section canvasses the work of
other authors on this topic, describing various ways in which identity is produced in the
context of immigration law.
13
2.1.
Conceptions of Cultural Difference
2.1.1. The Importance of Culture
The significance of cultural identity as a matter of public policy is widely recognized
by scholars. Writings on multiculturalism focus on assessing the identity claims of
minority groups and responding to the needs of an increasingly diverse polity.30 While
some theorists oppose policies of multiculturalism,31 it is impossible to ignore the social fact
of cultural pluralism in contemporary democracies such as Canada.32
The debates about multiculturalism are too numerous and varied to outline in detail
here. In this thesis, I will not discuss whether, and to what extent, states should
accommodate cultural difference. Instead, I take for granted that “[c]ulture matters, as part
of the way we give meaning to our world, as an important element in self-ascribed
identity.”33 Put simply, I think that cultural identity34 is a central aspect of being human,
30 “Multiculturalism” signifies both the social fact of cultural pluralism and policies aimed at promoting or
maintaining cultural diversity. Here, I am referring to the latter context. For example, Charles Taylor’s
seminal essay advocates the equal recognition of cultural identities and argues that “[n]onrecognition or
misrecognition” of cultures can inflict “real damage”: Taylor, supra note 15 at 25. Will Kymlicka argues for
the preservation of minority rights within liberal societies to the extent that such rights are consistent with
liberal principles of freedom and autonomy: Will Kymlicka, Multicultural Citizenship: A Liberal Theory of
Minority Rights (Oxford: Clarendon Press, 1995). Iris Young argues that claims of difference can be used to
create institutions and social structures that promote respect for diverse groups: Iris Marion Young, Justice and
the Politics of Difference (Princeton: Princeton University Press, 1990) [Young, Justice]. Ayelet Shachar discusses
the challenges of accommodating group-based rights and simultaneously protecting the interests of
vulnerable group members: Ayelet Shachar, Multicultural Jurisdictions: Cultural Differences and Women’s Rights
(Cambridge: Cambridge University Press, 2001) [Shachar, Multicultural].
31 See e.g. Susan Okin, “Is Multiculturalism Bad for Women?” in Joshua Cohen, Matthew Howard, and
Martha C. Nussbaum, eds., Is Multiculturalism Bad for Women? (Princeton: Princeton University Press, 1999) 9
[Okin]; Brian Barry, Culture and Equality: An Egalitarian Critique of Multiculturalism (Cambridge: Harvard
University Press, 2001).
32 Statistics Canada has projected that by 2031, between 25% and 28% of Canada’s population will be foreign-
born, while between 29% and 32% of the population would belong to a visible minority group: Statistics
Canada, “Media advisory: Canada’s diversity in 2031” (5 March 2010), online:
33 Anne Phillips, Multiculturalism without Culture (Princeton: Princeton University Press, 2007) at 15 [Phillips].
14
and thus ought to be recognized by states.35 Accordingly, this work is based on the
assumption that cultural identity is something that should be taken seriously by public
bodies, including administrative tribunals such as the IRB.
In her book Reasons of Identity, Avigail Eisenberg makes the compelling argument
that identity-based claims have a legitimate place in legal and political decision-making,
and therefore, public institutions require better guidance to assess such claims in a just and
transparent manner.36 Eisenberg notes that an increasing number of identity-based claims
are being advanced in multicultural societies, and that public institutions should have the
capacity to acknowledge and respect the distinctive ways of life developed by minority
communities.37 She further argues that developing criteria by which to assess identity
claims will “engender institutional humility,” enabling public decision-makers to
interrogate the biases and assumptions underlying their supposedly neutral practices.38
Eisenberg maintains that the institutional capacity to fairly assess claims of religious,
cultural, and racialized difference is an important feature of a just society.
34 Much scholarly energy has been devoted to defining “culture”, “identity”, and “cultural identity”. I use
these terms interchangeably and my understanding of them is broad. For example, Avigail Eisenberg defines
“identity” as “the attachments that people have to particular communities, ways of life, sets of beliefs, or
practices that play a central role in their self-conception or self-understanding”: Eisenberg, supra note 16 at 18.
35 I also share Bhikhu Parekh’s belief that cultural diversity is inherently valuable, but this argument is
beyond the scope of this chapter: Bhikhu Parekh, Rethinking Multiculturalism: Cultural Diversity and Political
Theory, 2d ed. (New York: Palgrave Macmillan, 2006) at 167.
36 Eisenberg, supra note 16 at 3.
37 Ibid. at 9-11.
38 Ibid. at 10-11, 25-28.
15
Eisenberg’s argument is supported by other writings. For instance, Robert Currie
invokes the equality and multiculturalism provisions of the Charter39 to argue that
Canadian courts and judges should move beyond perceptions of formal equality to take
into account the perspectives of socially diverse litigants.40 Alison Dundes Renteln
advocates the admission of cultural evidence in American criminal law on the basis of a
right to culture that is grounded in concepts of liberty as well as in international law.41 In
the Supreme Court of Canada decision R. v. R.D.S., Justices L’Heureux-Dubé and
McLachlin’s concurring judgment emphasizes the importance of examining the social and
cultural context within which litigation arises.42
Adopting the position of these writers, my discussion of cultural identity is thus
premised on the belief that culture matters, and that legal and administrative decision-
makers should therefore develop the competence to assess identity claims in a fair,
sensitive and informed manner.
2.1.2. Problematic Representations of Culture
Theorists have analyzed the problematic representations of culture and encultured
subjects43 that can arise within legal discourse.44 As Sonia Lawrence maintains: “When
39 Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, ss. 15, 27, being Schedule B to the
Canada Act, 1982 (U.K.), 1982, c. 11 [Charter].
40 Robert J. Currie, “Whose Reality? Culture and Context before Canadian Courts” in Stephen Tierney, ed.,
Multiculturalism and the Canadian Constitution (Vancouver: UBC Press, 2007) 182 at 183-184 [Currie].
41 Alison Dundes Renteln, The Cultural Defense (New York: Oxford University Press, 2004) at 211-14 [Renteln].
42 R. v. R.D.S., 1997 SCC 324, [1997] 3 S.C.R. 484 at paras. 42-49.
43 I borrow this term from Audrey Macklin, “Multiculturalism Meets Privatisation: The Case of Faith-Based
Arbitration” in Anna Koretweg and Jennifer Selby, eds., Debating Sharia: Islam, Gender Politics, and Family Law
Arbitration (Toronto: University of Toronto Press) [forthcoming].
44 See e.g. Leti Volpp, “Talking ‘Culture’: Gender, Race, Nation and the Politics of Multiculturalism” (1996) 96
Colum. L. Rev. 1573 [“Talking ‘Culture’”]; Leti Volpp, “Blaming Culture for Bad Behavior” (2000) 12 Yale J. L.
16
faced with cultural questions, the legal system often produces distorted and questionable
versions of the content of non-mainstream cultures.”45 In such cases, the perspective of the
“Other” is rendered invisible, while their image is stereotyped and marginalized by the
dominant culture.46
First of all, the law often propagates an essentialist image of people from non-
European immigrant cultures. For example, Sherene Razack argues that women’s claims
for gender-based refugee status in Canada are most successful where the women are
presented as victims of exceptionally patriarchal cultures and communities.47 Essentialist
portrayals treat culture as monolithic and homogenous, despite acute differences in values,
traditions or practices that often exist among members of the same culture.48 Uma Narayan
has dubbed this phenomenon “the Package Picture of Cultures,” which is an understanding
of cultures as “neatly wrapped packages … possessing sharply defined edges or contours,
and having distinctive contents.”49 An essentialist view effaces any dissent within cultures
& Hum. 89 [“Blaming Culture”]; Leti Volpp, “The Culture of Citizenship” (2007) 8 Theoretical Inquiries in
Law 571 [“Culture of Citizenship”]; Sherene Razack, Looking White People in the Eye: Gender, Race, and Culture
in Courtrooms and Classrooms (Toronto: University of Toronto Press, 1998) [Looking White People]; Seyla
Benhabib, The Claims of Culture: Equality and Diversity in the Global Era (Princeton: Princeton University Press,
2002) [Benhabib]; Sarah Song, Justice, Gender, and the Politics of Multiculturalism (New York: Cambridge
University Press, 2007) [Song]; Young, Justice, supra note 30; Phillips, supra note 33; Eisenberg, supra note 16;
Lawrence, supra note 14.
45 Lawrence, ibid. at 111.
46 Young, supra note 30 at 58-60.
47 Looking White People, supra note 44 at 107-125. Razack writes that such images rely on “readily accessible
orientalist tropes,” indicating that Indian and continental African women are more easily perceived as “exotic
victims” of patriarchy than, for example, African-Caribbean women.
48 “Talking ‘Culture’”, supra note 44 at 1588-89 [“Talking ‘Culture’”]; Benhabib, supra note 44 at 4-5; Eisenberg,
supra note 16 at 61-62.
49 Uma Narayan, “Undoing the ‘Package Picture’ of Cultures” (2000) 25 Signs: J. Women in Culture & Soc’y
1083 at 1084 [“Package Picture”].
17
and assumes that cultural values and practices are shared by all members. This stance fails
to recognize that cultural traditions are contested, variable, and change over time. For
instance, Narayan observes that marriage for girls at puberty is no longer viewed as
“customary” among middle-class Indian families, while some Indian women are also
challenging the tradition of arranged marriages.50
In addition to creating a one-dimensional portrait of “Other” cultures, essentialism
also produces a distorted vision of the mainstream culture. The West is seen as liberal and
progressive in opposition to the backward, traditional values of minority cultures.51
Accordingly, principles such as democracy, tolerance and equality are construed as
uniquely “Western” values. As Anne Phillips notes, “[t]he idea that support for these
values might end at the borders of Europe … draws on and reinforces stereotypical
distinctions between liberal and illiberal, modern and traditional, Western and non-
Western cultures.”52 Often, the discussion is framed in terms of gender: non-Western
cultures are viewed as “bad for women,”53 while Western society is seen as a paragon of
gender equality. Leti Volpp asserts that such a perspective ignores that “’Western’ or
‘American’ culture is also patriarchal, and non-European immigrant women are also
feminists.”54
50 Uma Narayan, “Essence of Culture and a Sense of History: A Feminist Critique of Cultural Essentialism” in
Uma Narayan and Sandra Harding, eds., Decentering the Center: Philosophy for a Multicultural, Postcolonial, and
Feminist World (Bloomington, IN: Indiana University Press: 2000) 80 at 90 [“Essence of Culture”].
51 “Talking ‘Culture’”, supra note 44 at 1576-80. As Razack states: “Cultural differences are used to explain
oppression; if these differences could somehow be taken into account, oppression would disappear”: Looking
White People, supra note 44 at 61.
52 Phillips, supra note 33 at 23.
53 See Okin, supra note 31.
54 “Talking ‘Culture’”, supra note 48 at 1577. Volpp further notes that perceptions of the subjugation of
women in the Third World were historically used to justify colonialist projects: ibid. at 1602. See also
18
Essentialist portraits also ignore characteristics that are shared by both Western and
non-Western societies, since mainstream culture is presented as completely distinct from
“Other” ideologies and traditions.55 However, essentialism casts a selective gaze on
minority cultural practices, failing to acknowledge any similarity to Western cultural
practices. For example, sati murders and dowry murders of women in India are denounced
as manifestations of a barbaric culture, but no parallel is drawn with North American
women who are murdered in equally horrific ways using guns.56 Sarah Song calls this “the
diversionary effect,” noting that by focusing on the patriarchal practices of minority
cultures, the majority can divert attention from its own gender hierarchies.57
Furthermore, liberal democracies and their institutions are viewed as “culture-free” or
culturally neutral in comparison with encultured minority subjects. As Wendy Brown
writes:
Liberal politics and law are self-represented as secular not only with regard to religion
but also with regard to culture, and above and apart from both. This makes liberal
legalism at once cultureless and culturally neutral (even as legal decisions will
sometimes allude to standards of ‘national culture’ or ‘prevailing cultural norms’).58
Whereas culture tends to be equated with non-Western or minority culture, it remains
“relatively invisible to those in the hegemonic position, who rarely cite culture as
“Blaming Culture”, supra note 44 at 108; Uma Narayan, Dislocating Cultures: Identities, Traditions, and Third-
World Feminism (New York: Routledge, 1997) at 17-21 [Dislocating Cultures].
55 See generally Edward W. Said, Orientalism (New York: Pantheon Books, 1978) [Said].
56 Dislocating Cultures, supra note 54 at 113-117.
57 Song, supra note 44 at 7.
58 Wendy Brown, Regulating Aversion: Tolerance in the Age of Identity and Empire (Princeton, NJ: Princeton
University Press, 2006) at 170 [Brown].
19
explaining why they think or act they way they do.”59 Thus, the cultural specificities of
dominant groups and institutions are treated as universal rules of conduct.60 This attitude
is particularly prevalent in legal discourse, which is rife with the language of abstract
universalism.61 However, Brown contends that liberalism itself is “a cultural form,” with
its own values, assumptions, and practices.62 Similarly, Volpp challenges the presumption
that law and democratic citizenship are devoid of culture and based on universal values, in
contrast with “culturally-laden Others” whose practices must be tolerated or banned by the
state.63
Such perceptions also tend to regard members of minority groups as motivated by
cultural dictates to act in certain ways. Volpp maintains that deviant behaviour by people
from racialized minorities is generally perceived to be reflective of their group’s cultural
norms.64 She cites a highly publicized Texas case in which a 22-year-old immigrant man
from Mexico had a child with a 14-year-old girl, also a Mexican immigrant. The man’s
defence attorney and the press depicted the case as a “collision” between Mexican and
American values, suggesting that the couple was merely following Mexican customs. By
59 Phillips, supra note 33 at 63. See also Dislocating Cultures, supra note 54 at 100-112 (arguing that dowry-
murders of women in India are viewed as incidents of “death by culture”, but no “cultural” explanations are
offered for the high rates of domestic violence in the United States).
60 Phillips, ibid. at 64.
61 Martha Minow, Making All the Difference: Inclusion, Exclusion and American Law (Ithaca: Cornell University
Press, 1990) at 60 [Minow]. To give an example, Article 6 of the International Covenant on Civil and Political
Rights sets out a right to life, which is narrowly defined as a right to be free from “arbitrary deprivation of
life” through state action. But this does not wholly reflect the experiences of women, who often encounter
threats to their right to life in the private, rather than the public, spheres: see Hilary Charlesworth, “Human
Rights as Men’s Rights” in Julie Peters and Andrea Wolper, eds., Women’s Rights, Human Rights: International
Feminist Perspectives (New York: Routledge, 1995) 103 at 107.
62 Brown, supra note 58 at 23. See also Benjamin Berger, “The Cultural Limits of Legal Tolerance” (2008) 21
Can J.L. & Juris. 245 at 246-247 (arguing that law is, in itself, a cultural system and that the interaction
between religion and the constitutional rule of law should be viewed as a “cross-cultural encounter”).
63 “Culture of Citizenship”, supra note 44 at 576-77.
64 “Blaming Culture”, supra note 44 at 95-96.
20
contrast, a case with near-identical facts involving a white couple from Maryland was
characterized as child sexual abuse—an aberration in the pattern of normal white people’s
behaviour.65 Phillips argues that culture is “employed in a discourse that denies human
agency, defining [non-Western] individuals through their culture, and treating culture as
the explanation for virtually everything they say or do.”66 On the other hand, people
belonging to the majority culture are viewed as acting out of autonomous choice. In the
latter cases, deviations from socially acceptable behaviour are justified by individual
character flaws rather than attributed to the norms of the dominant culture.67
Moreover, the language of culture often masks discussions about race, as
perceptions of cultural difference become correlated with racial or ethnic difference.68 For
example, allusions to a so-called “culture of poverty” among African-Americans suggest
that the latter are governed by cultural practices that foster poverty, violence and
dysfunction. In this way, racist ideas are couched in the rhetoric of cultural difference.69
Lawrence describes the way this phenomenon plays out in a judicial setting:
What goes on in courtrooms can be seen as a modern project of racialization, a more
‘sophisticated’ version of the blunt attribution of inferior traits to non-Whites that
thereby attaches the inferiority label not the individuals but rather to their culture. In
belittling the content of other cultures and depicting the members of these cultures as
either ignorant victims or zealous followers of deviant norms, legal processes are
65 “Blaming Culture”, ibid. at 91-93.
66 Phillips, supra note 33 at 9. See also Shachar, Multicultural, supra note 30 at 66 (arguing that in such
accounts, women who remain loyal to minority group’s cultures are viewed as “victims without agency”).
67 “Blaming Culture”, supra note 44 at 96; Phillips, ibid. at 64. As Brown states: “’[W]e’ have culture while
culture has ‘them,’ or we have culture while they are a culture. Or, we are a democracy while they are a
culture”: supra note 58 at 151.
68 “Talking Culture”, supra note 44 at 1600-02; Phillips, supra note 33 at 53-56.
69 “Talking Culture”, ibid. at 1601, n. 137.
