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

Justice Issues Relating to Women and the Family

7.2.3 Accounting for Cultural Diversity in Family Courts

The general problem of accommodating differences between strongly engrained cultural and religious practices and Canadian law is dealt with in the chapter on accommodating diversity. There are several family law issues of this type, including accommodating cultural prescriptions regarding child custody with regard to the "best interests of the chi d" principle; recognition of customary marriage and divorce; and polygamy.

Apart from specific points of law, there is the general question of how the courts might deal with these issues. It is important in a pluralistic society that the justice system, at least as much as all other societal institutions, develop the capacity to accommodate the ever-changing diversity of Canadian society. As Raj Anand points out, where individuals are rejected by the dominant group, or perceive themselves to be rejected, there is increased potential for conflict with the dominant group.<215> By showing respect for diversity, and by showing visible and genuine efforts to accommodate the cultural values of ethnocultural minorities, the courts can contribute to social harmony and national unity and help to achieve the multicultural objectives of Canada with authority and dignity within the justice system.

As discussed above, this could be a particularly difficult task in the area of family law in view of the extent to which the family is considered isolated from the public domain. There are no template answers to the general problem of sensitivity in family law to the multicultural reality of Canada. The Canadian legal system must deal with many different ethnic cultures, as is evident from the results of the "Clients Study." Integration into Canadian society is the process which defines much of the reality for ethnic groups. Change is omnipresent. Integration is a complex and multifaceted process. There will be many variations in customs, and degrees of adherence to traditional ways among groups. Within ethnic groups, there will be many variations in customs and degrees of adherence to traditional ways between the genders, age groups, class groupings, and ethnic or regional groupings from countries of origin. While, there are no templates, there are two possible general approaches_ cross-cultural sensitization and community-based advice for the judiciary.

7.2.4 Cross-Cultural Sensitization

Cross-cultural sensitization is a crucial element in family law as well as criminal law. Sensitization programs for all justice system personnel, developed on the basis of carefully researched areas where cultural values and practices conflict with Canadian statute law and case law should be developed. Further, these should be developed and tested in terms of approaches and methodologies in adult education to assure the most effective possible results with regard to changing attitudes and beliefs; to increase knowledge about minority groups; and to reduce the frequency of complaints of bias by those who seek the protection of the justice system or are brought before it as accused.

7.2.5 A Mechanism for Community-based Advice for the Judiciary

From the aboriginal justice field, there is the experience of elders' panels and community justice committees. These knowledgable and respected members of a community are able to provide special insights and information to a judge to allow her or him to make decisions that take into account relevant knowledge of the culture or other special circumstances involved. By making available to the presiding judge such knowledge and insights not normally or readily available to "outsiders," the courts can help to achieve more culturally sensitive treatment of minorities. The strength of the community becomes a resource which the justice system calls upon to deal sensitively, and in a culturally appropriate way, with matters which are complicated interlacings of social and legal problems.

In urban settings, ethnocultural communities made up of immigrants and the descendants of immigrants, also possess the resources to deal with justice-related problems. Communities do not dissipate in a process of assimilation over time. Rather, ethnic communities are formed in the host society as they develop mechanisms to adapt to the new society. In a classic statement, Glazer and Moynihan wrote:

But as the groups were transformed by influences in American society ... they were recreated as something new, but still identifiable groups .... The ethnic group in American society became not a survival from the age of mass immigration but a new social form.<216>

Judges may need more information than strict legal knowledge pertaining to a case<217> in order to properly understand the facts and circumstances about the customs and the social patterns of ethnocultural groups. Within the adversarial

framework of the Canadian legal system, and given the limitations of ability, experience, preparation time, etc., affecting counsel, the quality of justice may be enhanced by the availability of some structured process by which judges could, through the mechanism of "judicial notice," consult with people in the relevant communities. This could be as an arm of the court or a non-governmental organization in the justice field such as a public legal information organization which would make the appropriate community contacts at the discretion of the judge. There could be a pilot project to examine the efficacy of this idea, following some preliminary developmental work on its feasibility and acceptability within the Judiciary.

Well-intentioned efforts to promote the recognition of minority cultures in the Canadian social fabric, and genuine attempts by the justice system to deal with ethnic diversity in a sensitive and respectful manner must guard against the possible unintended consequence of ghettoizing minority groups. The Windsor Roundtable report cautions against the inappropriate use of ethnic factors to support discriminatory attitudes and practices, relating to gender bias for example, that might be detrimental to large segments of certain ethnic groups.<218> Finally, several studies carried out by<219> or sponsored by<220> the Department of Justice Canada express concerns that maintaining cultural differences may prevent some members of ethnocultural groups from learning about, and enjoying the full range of rights and protection of the Canadian justice system.<221>

7.3 Family Law Issues

One particularly important issue is-the need for more information and support for immigrant and ethnocultural minority women concerning separation, divorce, matrimonial property, child custody, and related matters. Legal information should be available in many languages with respect to these matters. Information on separation and immigration regulations should also be available in various nonofficial languages. There are reports that many recent women immigrants are afraid they will be deported from Canada if they separate from their husbands. Partly because of their lack of information about the law, there is a danger that women and their children would remain in abusive and possibly life-threatening situations. Access to the law is a particularly difficult problem for many immigrant and ethnocultural minority women. Such information and summary legal advice should be made available through the efforts of ethnocultural organizations, provincial legal aid organizations, and public legal information agencies.

Some issues and potential factors inhibiting access to the protection of the law have been identified. More consultation and research should be carried out. However, given the need to assist victims of family violence, the appropriate next step would be developing projects to provide the service, taking into account all that is currently known about the factors inhibiting women from seeking the protection of the justice system. Action- oriented research could be carried out in the context of pilot projects in order to refine our knowledge and modify and improve approaches.

7.4 Foreign Domestic Workers

Domestic workers, who are typically female, may face many of the same problems with respect to physical and sexual abuse as spouses because of the dependency relationship which may exist with their employer.<222> It would appear that they face the same types of barriers accessing the protection of the justice system.

One reported barrier is inadequate knowledge of their rights under Canadian law, with respect to immigration law, labour standards, and laws regarding physical and sexual abuse. Public legal information programs should attempt to identify and address the legal information needs of these women, and the most appropriate means for delivering legal information to them. Like many immigrant women in need of the protection of the law, domestic workers may distrust the justice system, and their problems may remain hidden because of their reluctance to seek protection. This mistrust applies equally to mainstream intermediaries providing services and information. The problems may be compounded for women with language difficulties. A victim may be reluctant to tell her story through a translator who is also a member of the community because she is afraid the information will not remain confidential and, as a consequence, the community will disapprove or the employer will- become aware of the complaint.

These concerns may apply equally to spouses experiencing abuse. To effectively address domestic worker and spousal abuse issues, it is important to determine the mix of legal information, the availabilit,v of complaint mechanisms within the community, and the link between community organizations and elements of the mainstream justice and social services systems.

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