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

Introduction

1.0 ETHNOCULTURAL DIVERSITY AND JUSTICE

Canada has traditionally been an ethnically diverse society, but today, the nature of ethnic diversity is changing. Because of the socio-political context within which the demographic changes are taking place, the demands placed on the justice system by minority groups and the responsiveness of the justice system to the demands of minorities are changing significantly. The "conjuncture" of contextual factors which appear to be providing pressure for change in the relationship between the justice system and ethnocultural minorities is discussed in this chapter.

Levels of immigration were very high in the early part of this century.<1> The proportion of the foreign-born people in the population was higher in the early and middle parts of this century than it is at present. Until the 1960s, the majority of immigrants were of European and United States origin and the largest majority were white Europeans. The non-British immigrants of the early and mid-20th century were subjected to similar "racial" prejudice and discrimination to that experienced by the non-white immigrants of the latter part of the century. Canadian sociologist John Porter explains the attitudes of the majority Canadian population: "In a logical error, simple but massive in its consequences (like so many spurious social doctrines) the high level of development of certain countries was taken as evidence of their superiority. They were more advanced because they were innately superior."<2>

Beginning in the 1960s, principal countries of origin of immigrants began to shift from Europe and the United States to Asian, South American and Central American nations. About 80 percent of immigrants now come to Canada from third world countries.<3> Most of these immigrants are people of colour. At present some 8.5 percent of the Canadian population is made up of visible minorities.<4> According to population projections, given the current long-range plans for levels of immigration, visible minorities will comprise about 20 percent of the Canadian population by the year 2015.<5> Given the propensity for immigrants to concentrate in major urban areas, the proportion of visible minorities in Canada's major cities will be much higher than the national figure.<6>

The demographic changes in the composition of the Canadian population are occurring within a changing socio-political context. The ascendency of the social doctrine of ethnic pluralism, the emergence of rights consciousness, and the decline in the social legitimacy of overt discrimination are among the main currents of this social change.

Following the breakup of the major European empires following World War II, ethnic pluralism has gained worldwide ideological hegemony,<7> and has gained respectability as an empirically based social reality.<8> This social reality is that in North America, while the European immigrant groups have been assimilated into society, there is still a significant retention of ethnic group identities and institutional structures. The strength and the social legitimacy of this ethnic persistence has coalesced in the ethnic pluralist movement. Many ethnic groups have come to demand that state policy should not require assimilation as the price of equality and full participation in the society, but facilitate the persistence of ethnic cultures and promote equality within diversity. This is the ideal expressed in Canada's multicultural legislation and policy.<9>

A companion social moveme-nt to ethnic pluralism is heightened rights consciousness. This is also a post-war global phenomenon which has been given expression in the 1948 United Nations Universal Declaration of Human Rights, and in numerous subsequent international and national declarations and charters. This movement reflects more assertive demands for individual rights and protection against discrimination. Combined with ethnic pluralism, rights- consciousness presents the potential for novel challenges to individual and collective rights. Although there is a strong orientation toward individual-liberal Canadian Charter of Rights and Freedoms guarantees among members of minority groups, there has been persistent criticism of Canadian multicultural policy concerning an alleged imbalance of constitutional guarantees for the collective rights of the French and English "founding peoples" as compared with collective rights of other ethnic groups.<10>

It is widely recognized by the general population and by members of ethnic minorities that subtle forms of discrimination are currently widespread throughout the society. However, overt discrimination is much less evident than in past decades. The hegemony of assimilationist ideology has been replaced by a pluralist ideology more tolerant of diversity. In turn, this has conferred legitimacy on the claims of minorities for equal treatment before and under the law.

Ethnic pluralism as a dominant social ideology, a heightened rights consciousness, and the decline of institutionalized discrimination make up a large part of the context within which the new ethnocultural diversity is taking hold in Canada. This social context is having a significant impact on the expectations that may be placed on the justice system to accommodate ethnic diversity. These implications are as yet unclear, but not unimportant. For instance, there has been pronounced racism and ethnic prejudice against Asian and Southern European peoples in past decades. The racism of earlier periods was more accepted and tolerated, if no less harmful than it is today. At present, overt racism is considered intolerable and would occasion a very strong reaction by targeted minorities. Racism is thus more likely to give rise to overt social conflict than in the past.

The social changes noted above, unfortunately, do not represent a completely positive social climate. Racism is considered to be an important social problem by Canadians.<11> Following street violence related to racial issues in Toronto and elsewhere, many Canadians feel that racial unrest is likely to occur in their cities.<12>

Strong anecdotal evidence such as street protests following police shootings of Blacks, the Toronto and Halifax riots and sorne limited quantitative evidence<13> suggest that minority groups feel the tensions in society. A 1993 study of minority groups in Vancouver asked key informants from five minority communities to rate the state of intergroup relations in the lower mainland of British Columbia on a scale from one (representing serene) to ten (representing very tense). "Most key informants chose seven or higher. " <14>

According to one recent survey of Canadian public opinion, there is a recognition by the public that there is "built-in bias" against ethnic and racial minorities in the justice system.<15> Further, according to the same survey, there is support within the population for race relations reforms in the justice system.<16>

1.1 Canadian Multicultural Policy

Ethnic diversity became official government policy in Canada in 1988, with the passage of The Canadian Multicalturalism Act.<17> The policy objectives of the Act are to encourage the recognition and preservation of culturally diverse communities in a number of aspects, including ensuring that all individuals enjoy equal treatment and equal protection under the law, and to encourage and assist the social, cultural, economic and political institutions of Canada to be both respectful and inclusive of Canada's multicultural character.<18>

1.2 Multiculturalism and Justice

The government recognizes the new demands placed on the justice system by members of minority groups, and is developing responses. Accessible justice is a policy theme of the federal government. Speaking about accessible justice, former Minister of Justice, the Honourable Kim Campbell, said:

In view of Canada's increasing ethnic diversity the Department of Justice Canada is taking steps to consider the multicultural nature of Canadian society in the development of laws, policy, programs and in the discharge of its responsibilities.

Rather than fragmenting the system of justice to special interests and particular needs, I believe that an inclusive justice system must be broad enough to accommodate the needs of all Canadians. <19>

These comments reflect several important ideas: justice is a central institution in Canadian society; direct contacts with the police and other aspects of the justice system can be confusing and unsettling, or even frightening, and can have powerful consequences for people's lives; apart from criminal justice, the justice system invisibly controls and limits people's lives in a great many ways; and benefits may be lost and people may be seriously disadvantaged in ways which have life-long consequences, by the operations of our modern regulatory bureaucracies.

The concept of justice carries a powerful symbolic value. Fairness, equality, treatment with dignity and respect are the embodiment of justice, and these form people's ideal expectations of the justice system.<20> To the extent that the justice system fails to give real meaning to this symbolism by means of concrete action, respect for the rule of law and confidence in the Canadian system of justice are placed in jeopardy. If such a key national institution fails in its mandate, the bonds of national unity become weaker.

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