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

Cultural Practices in Conflict with Canadian Law

3.1.4 Parental Duty of Care

The Etherington report examines the beliefs of parents in faith healing and prohibitions against the use of medical care that may conflict with the law to protect minors from death or harm as a result of the refusal of their parents to provide the necessities of life. The existing literature does not support any accommodation to religious or cultural practices that would endanger children in this manner. The protection of life is one of the fundamental goals of the criminal justice system. Because of the importance of this principle, criminal sanctions are appropriate, and therefore, no exemptions should be permitted.<74>

3.1.5 Female Genital Mutilation

The practice of female genital mutilation, including the mutilation of young girls, exists to some extent in parts of Africa and the Arabian peninsula.<75> The World Health Organization reports that some 90 million girls and women are affected worldwide.<76> Medical evidence suggests that this practice can lead to a variety of serious health- related difficulties for women.<77>

Inspired by international human rights provisions banning cruel, inhuman or degrading treatment, the practice was prohibited in Great Britain by the Female circumcision Act, 1985.<78> The extent of this practice should be examined in Canada, and appropriate action considered.

3.2 The Relevance of Cultural and Religious Factors and Criminal Liability

Despite the fact that issues relating to the relevance of cultural and religious factors are rarely brought to court, situations may arise where the cultural or religious background of defendants will come into play with respect to criminal liability. If the criminal law is to function in a manner fully cognizant of the realities of a multicultural society, and in a manner respectful of Canada's multicultural policy, a consistent approach to the role of cultural background must be developed.

3.2.1 Negating Mens Rea

Whether or not tests for mens rea should be decided on the basis of the subjective awareness of the accused themselves, or "objectively," on the basis of what "reasonable persons" would have foreseen and done in the circumstances, was the focus in the recent Supreme Court of Canada case, R. v. Tutton and Tutton.<79> In this case the parents presented evidence that because of their religious beliefs they were no longer aware of the risks to their child when they failed to secure medical treatment. According to Etherington, Canadian courts have not yet viewed a cultural reason for diminished mens rea favourably. However, in view of the possibility that these claims will increase as ethnic diversity increases, they deserve some consideration.<80>

3.2.2 Cultural Defence

Traditionally, Canadian courts have been reluctant to allow any difference between an accused's culture and societies dominant culture to form an independent substantive excuse for criminal charges, as, for example in the case of R. v. Baptiste.<81> According to Etherington, however, the implications of the Canadian case of R. v. Lavallee, "where expert evidence on the battered-wife syndrome was considered relevant to the reasonableness of the accused's perceptions of the threat faced and her belief in the force required in response"<82> and "that reasonable person has to be fixed with the personal history and experiences of the accused,"<83> make it important to give some consideration of cultural defence.

Two examples of cases from United States courts illustrate the kinds of issues that can arise. In one case, a Hmong tribesman from Laos was charged with kidnapping and rape after practising "zij poj niam," which is a Laotian tribal marriage ritual. "This is a marriage by abduction in which the bride is expected to weep and moan, and the suitor is expected to consummate the sex act in the face of such protest."<84> In another case, a Japanese-American woman argued a cultural defence against a charge of killing her children after she attempted to commit "oyaku-shinju," or parent-child suicide, when she learned her husband had committed adultery. Members of the Japanese community testified that this was an acceptable means within traditional Japanese culture for the woman to purge the shame of her husband's infidelity.<85>

Several of the reports reviewed by Etherington express concern that any recognition of cultural defence must have limits placed on it. Alleged cultural differences should not overshadow the protections against violence against others or become an excuse for violence against women and children.<86>

3.2.3 Approaches to Cultural Differences

Young and Gold point out that one approach to the issue of accommodating cultural differences is through judicial decision-making based on the common law of excuses.<87> However, as these authors point out, the courts have been reluctant to accept cultural defences.- As well, there are institutional limits to the capability of the courts to render sensitive and appropriate decisions in these matters.<88> Because of their reservations on "the shortcomings of litigation in terms of policy information gathering and awareness of the full range of issues and implications for other groups religious-based claims,"<89> Young and Gold discuss a range of options for legislation, creating a general defence or excuse for religious practice, with more specific exemptions to arise from case law.

The legislative or judicial approaches discussed above are generally reactive. Prevention, another basic approach to accommodating diversity, involves public legal education and information strategies. The points raised in the discussion of PLEI above, on offenses arising from ignorance of the law and Canadian legal processes, may be relevant here as well.<90> In Section 2:1.1, it was emphasized that offending behaviours do not necessarily arise because the offenders do not know that some activity is against the law per se. Often, serious offences would be against the law in countries of origin as well. Whether or not certain behaviours contravene the laws of countries of origin, however, is not the main issue. Newcomers still often fail to understand and anticipate the evolving Canadian legal culture and the extent to which the Canadian justice system will respond to certain kinds of offences because of the influence of larger currents of social change such as the gender equality movement. This suggests that through public legal education designed to educate newcomers on basic Canadian values, and based on substantive illustrations carefully chosen from known problems and from a thorough knowledge of the points of conflict between ethnic minority cultures and the main-stream values represented by the legal system, some of the circumstances which give rise to claims for a cultural defence might be avoided.

In the context of the national PLEI strategy, the Department of Justice Canada has extensive experience conducting research and development in conjunction with public legal education and information organizations in Canada. In consultation with other governments and non-governmental organizations, the Department could prepare a strategy to assess the feasibility of developing PLEI strategies aimed at the types of problems under discussion in this chapter.

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