Ethnocultural Groups
&
The Justice System in Canada
A Review of the Issues

Executive Summary (Conclusion)
&
Footnotes

An important aspect of achieving cultural sensitivity is the recruitment of members of minority groups, especially visible minorities, as actors in all aspects of the justice system. In some cases, such as with the legal profession, the profession itself should be encouraged in its continuing efforts to promote recruitment to legal education. Recruitment of other justice system professionals in policing, corrections, regulatory bodies, and government policy should be promoted with equal vigour. Sensitivity training should be available with proactive recruitment so that socialization into established justice occupations and professions does not limit the value of bringing "fresh blood" into the justice system, and to limit the possible detrimental effects that existing intergroup hostilities might have on relations between justice system actors and those in conflict with, or being served by, the justice system.

With large numbers of immigrants continuing to arrive in Canada, it can be expected that many will wish to continue the cultural practices they bring. In some cases, the persistence of ethnocultural traits may continue with the native-born generations. There are many potential points at which some cultural practices of some of the many immigrant or minority groups in Canada will conflict with Canadian law. Individual rights guaranteed in the Canadian Charter of Rights and Freedoms are viewed as being of paramount importance to members of ethnocultural minority groups and to Canadians in general. At the same time, the principle that people should not be hindered in the enjoyment of their culturally based practices is fundamental to a multicultural society. Generally, an accommodation between the guarantee of Charter rights and respect for cultural pluralism, should be worked out at a policy level. Hopefully, this can be accomplished across the broad range of potential conflicts between Canadian law and minority cultures, ranging from female genital mutilation, to the use of drugs and the carrying of weapons for ceremonial purposes, to the accommodation of religious or other cultural values. This would promote the development of a consistent and principled approach to conflicts between group cultures and the law which would promote better intergroup relations between ethnic groups and the institutions of the dominant society.

A third element of access to justice is security of the person. Representatives of the ethnocultural organizations interviewed for this research identified two main issue areas which reflect a concern with security of the person. The first relates to the human rights system. There seems to be a general feeling of unease concerning protection of human rights and that the process for lodging human rights complaints is not accessible. This concern for the protection of rights is echoed in other research which reviewed the research literature concerning claims of racism and the human rights system in Canada. The existence of mechanisms of demonstrable and immediate consequence to protect the rights and freedoms enshrined in the Canadian Charter of Rights and Freedoms is of the greatest importance.

Another aspect of the apparent feeling of vulnerability among ethnocultural minorities is discomfort with the existence in Canadian society of hate-motivated activities and materials, and the activities of hate groups. Being a victim of a hate-motivated act is thought to be more profoundly damaging than being the victim of an assault because of unfortunate circumstance. A victim of a hate crime is, in theory, singled out and attacked because of who she or he is. Always vulnerable because of visible symbols of identity and status, the potential victim is constantly fearful. Intergroup tensions and conflicts may take important mechanism to achieve cultural sensitivity within the justice system, as well as an important dimension of access to justice in its own right.

Another important element in the schema of accessible justice is the existence of effective complaint and redress mechanisms. For the justice system to be inclusive, there must be accessible, timely, and effective mechanisms to report unfair treatment, and for a celerious resolution to be forthcoming. This will make the justice system fair and responsive, as it appears to people when they are most in need, or in fear, or observers of situations which are disturbing to them.

The seventh element of accessibility represents the process by which the other elements may be achieved. This dimension is recognition and participation. It is often observed that the justice system is ill-equipped to deal effectively with problems with complex underlying social, cultural, and economic dimensions. The problems that immigrants and ethnocultural minorities bring to the justice system are often laden with such complexities. The difficulty applies not only to the processing of cases through the criminal and non-criminal justice systems, but also to the provision of justice services such as crime prevention or victim-witness assistance.

Ethnocultural communities are sources of strength and they have resources that could be combined with the resources of the mainstream justice system to address their own problems. A promising approach to the justice problems affecting ethnocultural communities might be by establishing structured linkages between the communities and the various elements of the justice system. These would be partnerships where the communities play key roles in defining the problems affecting them and developing solutions. This should make the solutions more effective and durable and they might serve to enhance relationships between communities and the justice system as the ethnocultural groups develop the sense of real partnership with the justice system and a proprietary sense toward what the justice system does in their communities. This should be extended to involve ethnocultural communities in the law- making process and law reform; in the development and implementation of justice services; and in constitution- making. Infrastructure and expertise, requiring some infusion of resources, within communities would be necessary to effectively pursue this general idea of community and justice system linkages.

To achieve accessible justice, changes will be required. Change may be hard to introduce into the justice system, which is the repository of many of the dominant ethnic groups' cherished values and which is managed by members of those groups. Change may present special difficulties where the new structures toward which we are or should be moving involve dealing with new forms of cultural diversity in society. These may present a real challenge to the justice system at a time when, because of fiscal constraints, it is difficult to keep up with existing demands. The justice system may be faced with adopting new approaches in place of older ways, for fiscal reasons and for other reasons as well.

Achieving accessible justice will require that governments and ethnic communities search for a new approach to accessibility, and discover what accessibility means for ethnocultural groups and how it can be instituted in ways that are meaningful and feasible. In general, it will mean recognizing that relying entirely on the agencies of the justice system to preserve social order is not likely to be successful. The involvement of communities with the formal justice system in defining problems and devising solutions appears to be a promising approach.

In preparing this report, there has been considerable effort to determine the views of communities, through interviews with ethnocultural organization representatives, through visits to organizations, and by means of informal discussions and consultations. By following this approach it is hoped that enough will be learned in order to do things that make a difference. The report proposes a community- oriented approach to addressing justice issues. It is both assumed and hoped that by promoting constructive relationships between communities and the justice system, effective approaches to achieving success in addressing all aspects of access to justice can be accomplished. As a matter of public policy, it is important to ensure the stability of a heterogeneous, culturally diverse society.

Footnotes

1. See chapter one.

2. Roderick A. Macdonald, "Theses on Access to Justice," "Canadian Journal of Law and Society" 7(2) (Fall, 1992); and Allan C. Hutchinson, ed., Access to Civil Justice (Toronto: Carswell, 1990).

3. Patricia File (Minority Advocacy Rights Council), Gaps in Obtaining Justice: A Stud.,} of Justice Issues of Concern to Ethnocultural Community Organizations (Ottawa: Department of Justice Canada, 1994), at chapter two.

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