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

Ethnocultural Diversity and Justice

1.3 The Minister's Reference to the Law Reform Commission of Canada

In June 1990, the Minister of Justice issued a reference to the former Law Reform Commission of Canada to study the extent to which bias exists in the justice system with regard to aboriginal peoples and ethnocultural minorities in Canada. The text of the reference is reproduced below:

Access to Justice: Terms of the Minister's Reference

It is desirable in the public interest that special priority be given to the Law Reform Comrnission to a study of the Criminal Code and related statutes, and the extent to which they ensure that: a) aboriginal persons and b) persons in Canada who are members of cultural or religious minorities have equal access to justice, and are treated equitably and with respect.

The study would focus on the development of new approaches to, and new concepts of, the law in keeping with and responding to the changing needs of modern Canadian society and of the individual members of that society [per the Law Reform Commission Act Section 11(d)] with particular regard to the rights and interests of aboriginal persons and to the diversity of Canadian society as recognized in the Canadian Multiculturalism Act, 1988.

The report on aboriginal justice was completed in 1991.<21> The work on multiculturalism and justice had just begun when it was announced that the Law Reform Commission of Canada was to be abolished.<22>

At the time of abolition, the Commission was working on 30 papers covering a wide range of topics in multiculturalism and justice, some of which were in very early stages of development. A few topics -- such as hate crimes, jury selection in a multicultural society, and complaint and redress mechanisms for cases of discrimination -- were well developed in the Commission's work. These became the subjects of specific research projects. Based on a review of the preliminary work which had been undertaken by the Commission, it was felt that issue identification was the important task, and research was undertaken to develop a comprehensive overview of issues, based on the published literature and on the views of representatives of ethnic organizations.

The Canadian literature in the area of multiculturalism and justice is very limited. There is a limited basis in the published literature on which to identify justice-related problems experienced by members of multicultural groups. Therefore, the research represented by the first two projects described below is a crucial initial exploration in this area.

1.4 Review of Law Reform Commission and Related Research on Multiculturalism and Justice

A number of preliminary studies were undertaken by the Law Reform Commission of Canada in response to the Minister's Reference. This body of research covered a wide range of topics. In addition, the Department of Justice Canada had begun several studies in the multiculturalism and justice field. The Review study was undertaken to develop a systematic overview of the justice issues raised in the literature noted above. As well, the researchers integrated other relevant literature into the synthesis of justice issues.<23>

1.4.1 Survey of Justice Issues of Importance to Ethnocultural Organizations

An essential element in developing a policy agenda is to take into account the views of those who experience the problems. A survey of some 300 ethnic community organizations, advocacy groups, and multicultural services organizations representing the multicultural diversity of Canada was undertaken to identify those problems considered to be priorities by ethnic group representatives. Questions were included to ensure that the views offered represented the problems experienced by the members of the various ethnic groups. A small sample of specialists in ethnic affairs, such as academics and lawyers, were also interviewed for information to assist in interpreting the results from the representatives of ethnic organizations. The results of the study are an important element in the definition of problems and their preliminary priorization. Because the views of the ethnic organization representatives may in themselves be partial, the results of this study will serve as a basis for further research and consultation to more carefully define the exact nature of problems identified. <24>

Some issue areas were well-developed in the Law Reform Commission of Canada research. Three areas were selected for more focussed research projects, both because of the extent to which the work was already developed, and because of external considerations that seemed to indicate the importance of the topic.

1.4.2 Jury Selection in a Multicultural Society

This report assesses the adequacy of the current jury selection process in view of the diverse, multicultural nature of Canadian society, The purpose is to highlight problems and indicate whether or not there are reasons to consider reform of certain aspects of the jury selection process in order to better reflect or accommodate the needs and aspirations of visible and ethnocultural minorities. The report is critical of current provincial procedures for selecting jury panels. It is also critical of challenge for cause and peremptory challenge procedures contained in the Criminal Code.<25>

1.4.3 Racially Motivated Crimes

This research provides a theoretical analysis of issues involved in the creation of criminal offences against racially motivated acts, such as assaults. The study reviews the practices and experiences in other countries concerning the enactment and enforcement of laws to control crimes variously referred to as bias crimes, hate crimes, or racially motivated crimes.<26>

1.4.4 Compliant and Redress Mechanisms

This study provides a review of complaint and redress mechanisms, such as those under human rights and employment equity legislation, currently operating in Canada. Complaint and redress mechanisms operating in other countries are also reviewed.<27>

1.5 Review of Justice Issues

The Minister's Reference, which gave rise to this report and the several background studies on which the report is based, asked: Is there bias in the justice system against members of ethnocultural minorities? There is a widespread perception among the general public, which is reflected in public opinion polls, that there is bias in the justice system against members of ethnic minorities.<28> As well, Etherington says that in many of the reports he reviewed "perhaps the most important shared finding is that members of ethnic and racial minorities have strong perceptions that they are discriminated against by the criminal justice system."<29> Minority groups expect that law reform in the area of multiculturalism and justice should be guided by an explicit anti-discrimination framework.

There is a paucity of conclusive empirical information on racism or unwarranted differential treatment of ethnocultural minorities within the justice system. Etherington characterizes the situation as a "dearth of research data."<30> While this review cannot point to conclusive evidence of racism in the justice system, there is sufficient basis in anecdotal evidence and experimental accounts to have created the perception of racism in the justice system. Perceptions often take on a reality of their own. Once established in the collective beliefs of a segment of the population, perceptions of injustice can produce what the early American sociologist W. I. Thomas termed "self- fulfilling prophesies," where what is perceived to be true becomes true in its consequences. Even though bias cannot easily be proven on the basis of reliable scientific evidence, several themes have emerged which suggest general directions for policy, programming, and further research and development. These themes are discussed in this report.

Many justice-related problems may be understood in terms of the process of integration into Canadian society. New arrivals to Canada have many immediate needs for information about the law and the functioning of the justice system. There are immediate needs for legal information to assist them with numerous problems at the outset. In addition, new sets of needs emerge as people encounter new problems with increasing length of residence in Canada.

There is also an important attitudinal issue to address. The reluctance of newcomers as well as longer-term immigrant and indigenous minorities to cooperate with the justice system and seek the protection of the justice system must be overcome. Chapter Two on public legal education and information deals with these issues.

Accommodating the diverse cultural practices brought to Canada by immigrants, while maintaining some degree of conformity to the important cultural values of Canadian society, creates both immediate and longer-term problems for the society. Chapter Three on accommodating cultural diversity addresses such issues.

It is of paramount importance that the institution of justice and all of its constituent elements ensure that the justice system is not the source of the problem. The system must not operate in ways to produce unequal treatment within, and barriers to access the justice system. The three chapters dealing with unequal treatment in the criminal justice system, access the protection of the justice system, and unequal treatment in administrative bureaucracies address this theme.

Successful integration into society by both immigrant groups and indigenous minorities requires that the manner in which the organizations of the dominant society deal with these groups conveys the message of full and equal participation. There must be clear and unequivocal expressions by the society that people of different ethnic backgrounds are valued members of the society. The message must be conveyed that within the limits of fundamental Canadian values, individual rights will be respected by the institutions of the dominant society. Where alleged violations of rights occur, effective complaint and redress mechanisms must be available, and action must occur with celerity. The chapter on human rights issues addresses this theme. As well, in various different ways, the chapter on alternative dispute resolution deals with this general issue.

Ethnic communities emerge in host societies in large measure as a response to the necessities and challenges of adapting to the host society. They are not relics of old-world societies. They are complex social mechanisms by which minorities adjust to the new society. They are thus dynamic communities which are, in important ways, their own resource and a source of strength to address community problems. Communities are sources of strength on which the justice system can draw to address the justice problems affecting minority communities. A theme running throughout this report is a necessity for all aspects of the justice system to establish structured linkages with the organized ethnic communities. The problems facing ethnic communities can be more clearly defined, and more durable solutions can be developed, if the justice system works in partnership with minority community organizations. In turn, at a broader level, these sorts of linkages and partnerships between the justice system and minority communities will contribute to diminishing the sense of alienation from the justice system which may be felt by members of many minority communities.

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