The Nizkor Project: Remembering the Holocaust (Shoah)

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

Access to the Protection of the Criminal Justice System


The study on the needs of immigrants in British Columbia<148> suggests that many immigrants in the Vancouver area do not generally cooperate with, or they avoid seeking the protection of, the justice system. In another study in Vancouver on legal information requirements, the Law Courts Education Society documented the reluctance of members of several immigrant groups, particularly the Chinese, to come forward as witnesses to crimes.<149> The review of justice issues relating to ethnocultural groups by Etherington,<150> and a recent study carried out by Pomerant,<151> point out that the process of selecting jury members may systematically exclude members of ethnocultural minorities. All these problems of access to justice reflect the limitations of full and equal participation in, or access to the protection of, the justice system. There is usually some combination of factors involved relating to the characteristics of individuals, the manner in which the system operates, and the attitudes and behaviour of justice system actors.

Chapter Four covered issues relating to accused persons. The discussion focussed mainly on the issue of differential treatment and was organized by critical points within the criminal justice process where discretionary treatment may be exercised. This chapter addresses issues relating to individuals seeking the protection of the justice system or cooperating with the justice system. The issues relating to witnesses, victims, and jurors are considered.

5.1 Witnesses

Witnesses are essential to the justice process. When people are reluctant to come forward to the police to report crimes, the functioning of the justice system is jeopardized significantly. Following are several possible reasons why people are reluctant to act as witnesses:

* cultural origin;
* language barriers;
* fears of the justice system rooted in experiences in countries of origin;
* cultural or social structural barriers within the Canadian ethnic community;
* lack of information about the justice process; and
* in cases of family violence situations, women may be afraid of how they will be treated by the police and courts, and the adverse reaction that may result and alienate them from their communities if they violate community norms by exposing private family matters to public scrutiny.<152>

There is limited evidence of witness problems in a study of legal education needs carried out in Vancouver in 1952.<153> Through focus groups and key informant interviews, this research found that both Chinese and Indo-Canadian people expressed a reluctance to act as witnesses. <154>

The evidence on Indo-Canadians was particularly complete. Many were reluctant to act as witnesses because they perceived that the police treated IndoCanadians unfairly.<155> As well, Indo-Canadian informants indicated they felt a certain "impatience" on the part of court staff.<156>

In addition to these external barriers, there were clearly sources of reluctance rooted within communities. This was evident from the conditions respondents said must be met before they would be willing to act as witnesses. The ideal circumstances for people to become witnesses were that it should be done anonymously; the accused should not be too powerful; the safety of the witness should be guaranteed; and potential witnesses should feel that their families would not be in danger. Women were especially concerned about reprisals from the community.<157> Key informants suggested that members of their communities were generally reluctant to serve as witnesses. They also said it was unlikely that witnesses would be objective, and that an individual would be more likely to "take sides" as a third- party witness to a dispute.

All three groups studied -- Chinese, Indo-Canadians, and Latin Americans -- indicated that an absence of reliable interpreters posed a problem when a person served as a witness. <158>

There is no empirical evidence based on actual incidents pointing to serious problems that have occurred because witnesses would not come forward or did not communicate fully and effectively. If the principle of accessibility by witnesses is important, however, there is sufficient evidence to suggest that some measures should be taken. Information such as that presented above should continue to be gathered, through formal research if the problems require careful methodologies, and through systematically documented community consultation methods. Programs to encourage members of minorities to come forward as witnesses should take into account the range of barriers to witnesses, especially those rooted in community social structure and culture.

At the same time, sensitization programs might be directed at justice system officials. The development of these programs should consider the range of factors which constitute barriers to access the justice system as witnesses -- linguistic, informational, and those reflecting cultural and social structural aspects of minority communities.

5.2 Victims

In his discussion of discretionary treatment by both police and Crown attorneys, Etherington cites problems on dealing with victims.<159> Brodeur suggests that if there are conflicts between minority communities and the police, the police may be less enthusiastic in responding to calls.<160>

Crown attorneys play a critical role in assuring that minority victims and witnesses are treated with sensitivity and dignity.<161< According to Toronto bail court workers, largely because of the pace of activity in the courts, Crown attorneys and other court officials can easily fail to take into account the needs of victims and witnesses.<162> In his review, Etherington cites a study by the Law Reform Commission of Canada which recommends that specific guidelines be put in place to assure that Crown prosecutors take the following measures in dealing with victims and witnesses:

* the accusation of criminal conduct made by a minority complainant must be taken seriously and acted on appropriately;

* there must be methods and materials developed to explain the trial process to victim/witnesses;

* careful attention must be directed toward whether or not the complainant needs an interpreter, and interpretation services must be provided expeditiously; and

* where required, complainants must be provided with assistance in attending trial to give evidence in court.<163>

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