The Nizkor Project: Remembering the Holocaust (Shoah)

Shofar FTP Archive File: orgs/canadian/canada/justice/ethnocultural-groups/ecg-003-00

Archive/File: orgs/canadian/canada/justice/ethnocultural-groups/ecg-003-00
Last-Modified: 1997/01/28
Source: Department of Justice Canada

                                               CHAPTER THREE
                                       CULTURAL PRACTICES IN
                                  CONFLICT WITH CANADIAN LAW

Up to the 1960s, there was a strong belief that assimilation
in both social science and popular ideology was the social
process which would forge a common national identity<57>
among those who J. S. Woodsworth called "strangers within
our gates."<58> This belief is not as certain today.
Integration into Canadian society does occur, and in that
process immigrants and their descendants relinquish many of
the customs and practices of their ethnic origin groups.
However, the process of integration is complex, occurring
along many specific behavioral, attitudinal, cultural, and
structural (patterns of interaction such as marriage and
friendship) dimensions at different rates of change. It may
proceed at an uneven pace, and here may be reversals in the
direction of change toward traditional models.<59>

In the short term, virtually all immigrants retain many of
the customs brought from their countries of origin. Even
after lengthy periods of time in the country, some members
of ethnic minority communities, including some second-
generation Canadian-born people, continue to maintain some
of their traditional customs and social practices. The
majority ethnic groups in Canada have done so. English- and
French-speaking peoples have done so with respect to
language, and the Protestants and Catholics have done so
with respect to schools. It should be expected that in a
society where there is considerable legitimacy in pluralism,
other ethnic groups will do the same. It is, therefore,
important to determine public policy on how the law will
respond to this pluralist social context.

Young and Gold suggest that the Charter may require certain
accommodations to cultural and religious practices. In the
Charter, the guarantee of freedom of religion and conscience
in Section 2.(a), the protection against discrimination on
the basis of religion and national origin in Section 15, and
the requirement in Section 27 that it should be interpreted
in a manner consistent with the preservation and enhancement
of the multicultural heritage of Canadians may support the
protection of religious and cultural practices,<60> where
they do not violate the constitutional rights of another

Etherington points out that an accommodative approach to
cultural and religious practices of minorities may be
consistent with a basic premise of our criminal law.62 The
principle that restraint should be exercised in the use of
the criminal law, reserving its application for those crimes
which seriously violate essential societal interests and
values is a widely accepted principle in Canadian criminal
law policy.<63>

International law may further support the accommodation of
minority cultural practices. Article 27 of the International
Covenant on Civil and Political Rights states:

     In those states in which ethnic, religious or
     linguistic minorities exist, persons belonging to such
     minorities shall not be denied the right, in community
     with other members of their group, to enjoy their own
     culture, to profess and practice their own religion, or
     to use their own language.<64>

Any approach to accommodating diversity must meet the
objectives of respect for cultural diversity on the one
hand, and the guarantee of equality on the other. The
cultural practices of minorities should be respected in the
interests of liberal democracy and individual freedoms.
Cultural tolerance, however, must not be allowed to become a
mask for injustice. There must be protection for the rights
of individuals who may be harmed by, or may not wish to
participate in, certain traditional practices.

Some hold the view that accommodation of cultural practices
should not become a strain on national unity and social
harmony. The core of values which are fundamental to a
complex and diverse society -- i.e., those freedoms embodied
in the Charter of Rights -- must be respected. Judgements
about what is reasonable and what is repugnant will have to
be made on the basis of general public policy which will
inevitably be vague at times.

Etherington points to the need to develop a general approach.
Because of the great variety of particular issues relating to
specific groups with quite different cultures, this report
does not provide a detailed theory from which specific
prescriptions follow. What is required is what philosophers
call a "thin theory," i.e., laying out the broad outlines for
principled decisions. As Etherington points out, however,
there appears to be little consensus in Canada on the extent
to which there is a need for reform to bring about a more
accommodative posture through legislative or judicial

3.1 Conflicts between Criminal Law and Minority Cultural and
Religious Practices

Etherington summarizes lengthy discussions in a number of
reports<66> on conflicts between Canadian law and ceremonial
drug use, carrying weapons for reasons relating to religious
symbolism, bigamy and polygamy, and parental duty of
care.<67> These background reports reveal sharp differences
of opinion concerning accommodation of religious practices
with respect to drug use, weapons, and bigamy and polygamy.

3.1.1 Drug Laws

Much of the available literature on drug laws suggests that,
in principle, the objective should be to allow the use of
drugs to bona fide religious groups without making the drug
more widely available to the population in general.
Etherington, however, maintains that the current reports
dealing with this issue are "operating in a vacuum concerning
information about the need for such exemptions in
Canada."<68> The Law Reform Commission of Canada (LRCC)
report on Statutory Criminal Law notes that with the
exception of Rastafarians and their use of marijuana, the
Commission was unaware of any group in Canada that might seek
an exemption from current drug laws, and was aware of no
court actions relating to the use of drugs for religious
purposes.<69> This is an area where further consultation and
research is necessary to provide information on the actual
use of drugs and the nature of the religious churches, cults,
and sects which may be using various substances. With such
knowledge, more informed policy development can occur.

3.1.2 Weapons

The literature summarized in the Etherington report does not
support the position to allow weapons to be carried to
observe religious requirements. For the most part, the
arguments are based on the need to protect society and
reduce the risk of violent crimes.<70> The courts have thus
far refused to allow an accommodation to practices such as
Sikhs carrying ceremonial daggers known as kirpins.<71>

Anyone who wishes to carry a small concealed knife for
nefarious purposes would seemingly have little need for
religion as a guise for doing so. Research on the extent to
which weapons carried for symbolic religious purposes are,
in fact, involved in crimes, would assist the development of
legal policy as well as provide evidence which judges might
consider in this area. Methodological difficulties could be
overcome, because the practice is currently illegal.
Empirically-based research on the issue would be valuable.

3.1.3 Bigamy and Polygamy

There is a sharp difference of opinion in the literature
reviewed by Etherington concerning accommodation of the
cultural practices of bigamy and polygamy. Young and Gold
point to the 1985 Law Reform Commission of Canada
recommendation to remove this Criminal Code offence as an
example of a recommendation which would permit religious
accommodation.<72> On the other hand, Criminal Law Issues
Involving Religion and Conscience recommends against
exemptions on the grounds that such an accommodation would
support patriarchal religious practices denigrating

Despite the recognition of the increasing diversity of
family and household forms emerging in Canada because of
divorce and remarriage, single parenting, and cohabitation
of both homosexual and heterosexual couples, polygamy
presents a problem from the point of view of gender
inequality. Traditionally, polygamous marriages appear to be
almost universally associated with inequality between the
sexes. The argument against recognizing polygamous marriages
in _Criminal Law Issues Involving Religion and Conscience_
seems to be the most compelling one.

Recognizing existing polygamous marriages of immigrants and
providing spouses with the benefits and entitlements
normally available to spouses defined by Canadian law is an
outstanding issue. A legal analysis should be carried out to
determine if providing these benefits and entitlements would
have the effect of legitimizing polygamous marriages through
indirect means. If so, other normal mechanisms to provide
assistance to women in polygamous marriages or women who
leave polygamous marriages should be assured.

With respect to other important related issues, ways must be
found to assure the full range of rights of women and
protection against abuse by provision of legal information,
supporting outreach services, and other measures, regardless
of the domestic circumstances involved. This is a policy
issue, requiring sound empirical information, which should
be carefully considered.

Home ·  Site Map ·  What's New? ·  Search Nizkor

© The Nizkor Project, 1991-2012

This site is intended for educational purposes to teach about the Holocaust and to combat hatred. Any statements or excerpts found on this site are for educational purposes only.

As part of these educational purposes, Nizkor may include on this website materials, such as excerpts from the writings of racists and antisemites. Far from approving these writings, Nizkor condemns them and provides them so that its readers can learn the nature and extent of hate and antisemitic discourse. Nizkor urges the readers of these pages to condemn racist and hate speech in all of its forms and manifestations.