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

Cultural Practices in Conflict with Canadian Law

3.0 INTRODUCTION

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 person.<61>

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 action.<65>

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 women.<73>

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.

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