The Contextualised Court: Litigating ‘Culture’ in 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.