The Nizkor Project: Remembering the Holocaust (Shoah)

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



In the l9th century, miners took canaries in cages into the mines to warn them of the presence of dangerous gases. If the canary died, the miners knew the environment was too dangerous. The way Canadian society treats cultural diversity is a bit like the miner's canary. The extent to which the society conveys to ethnocultural minorities that their contribution to the diversity of Canada is welcome and valuable, that it adds to the richness of the country, and that it is a source of strength to the nation in a global context where Canada is increasingly implicated in international issues are indicators of the health of our social environment. At the same time as we accept diversity and acknowledge its strengths, the extent to which the nation can assure that all people, regardless of ethnicity, are treated with equality, fairness, and dignity is also a measure of the health of our social environment.

Canada has a long history of changing ethnic diversity that is continuing through another major period of change. Because of-the relatively low birth rates in the country, the contribution of "natural increase" (births minus deaths) to overall population growth is relatively small compared with the contribution of immigration. When this effect is combined with the shift of immigration from European to Asian, South/Central American, and African countries, which has greatly increased the visible minority component of the Canadian population in recent years, the result has been a more culturally and racially mixed society. This new diversity has become a public issue. Managing the new diversity is an important issue of public policy.

The justice system is a key social institution. The concept of justice that it represents can be a powerful unifying force if people have a respect for the rule of law and confidence in the justice system. It can be a highly divisive force if the justice system is seen as unfair or corrupt. Thus, the justice system is central in the management of ethnocultural diversity in Canada.

The justice system should, therefore, be managed to assume a role as an important social institution in Canada. It should become a positive and proactive force in society. For the various elements of the justice system to respond to that diversity with clear objectives and strategies to promote fairness, equality, and dignity of treatment; to promote inclusiveness as a central feature of the system; and to ensure a proprietary sense of participation by individuals in the system, it is necessary to learn how the changing social and cultural diversity affects and is affected by the justice system.

In this era when the society is increasingly more diverse and complex, and the demands on public institutions are greater, justice officials must assume a corporate responsibility for assuring social harmony and national unity through the development of a fair, accessible and equitable justice system in which people have trust and confidence and where they are treated with dignity and respect.

13.1 A Cautionary Tale

Multiculturalism and justice is not yet an issue area which has reached crisis proportions, either in terms of the scale and seriousness of problems or in terms of political dimensions. However, there are compelling reasons to begin now working toward clear definitions of issues and developing solutions. The area of aboriginal justice provides a cautionary tale. Between the publication of the Hawthorne Report in 1966332 when aboriginal justice problems began to emerge, and the present, there has been little concerted effort to define carefully, through empirical research and consultations, the nature of the problems faced by aboriginal people in the justice system. At present, the aboriginal justice situation has become highly politically volatile with demands for solutions being driven by political agendas as much as by sound information about the nature of the problems. To a large extent, Canada is still unclear, after decades of less than careful and systematic research and a less than a serious effort to alleviate the problems, on how to precisely characterize the nature of aboriginal justice problems. Consequently, the most workable and durable solutions are clouded by uncertainty and a great deal of political rhetoric. We avoid the lessons of history at our peril, as the anonymous sage once said. Now is the time to begin a concentrated effort to understand the justice-related problems of an increasingly large visible minority and immigrant segment of the population and to develop effective and durable solutions. This should be done with extensive collaboration with ethnic organizations, to ensure that the issues are framed in ways that reflect the experience and the priorities of those communities, and to build bonds of trust and cooperation between Canada's ethnocultural communities and the justice system.

13.2 A Social Policy Approach

The approach to multiculturalism and justice in this report is broadly based. It assumes the view that to a large extent the justice-related problems encountered by ethnocultural minorities are products of the social and political forces which shape the lives of ethnic group members, the stresses and strains of integration into the mainstream society, and discrimination and the hidden injuries of racism. The "Clients Study" suggests, for example, that certain problems may be related to the integration process, emerging with progressively longer periods of residence in the country.<333> Similarly, Australian research on Vietnamese youth suggests that problems relating to integration are related to youth crime<334>

13.3 Summary of Main Issues

A number of issues have been identified throughout this report. In this section, the main themes around these issues are summarized.

13.3.1 Discrimination in the Justice System

The study of concerns of ethnocultural organizations by the Minority Advocacy Rights Council (MARC), the literature review by Etherington, the study of legal problems of clients of multicultural services agencies by the Social Planning and Research Council of British Columbia, and the study of application of alternative dispute resolution techniques to settle disputes in minority cultural settings all suggest that racism is frequently encountered throughout the justice system. A small proportion of discriminatory treatment is attributable to direct or overt discrimination. The research literature, and commentary from informed observers suggests that individual acts of racism are very subtle and covert, and that there is a great deal of inequality arising from systemic racism. Addressing racism in this context presents an especially difficult challenge. With regard to systemic racism, there is no intention to discriminate. The manner in which the processes normally function can put people at a disadvantage when unequals are treated equally. In a case where it is essential to know English or French to understand what is expected of the accused person or what the options are, the processes discriminate against the person when a higher level of language skill is assumed in order to understand what is occurring and to be able to react in an informed way. Educational qualifications or other individual characteristics necessary for certain occupations are discriminatory against members of groups who typically do not have the skills or characteristics. Clearly, in this case efforts are required to identify the differential treatment and the extent to which the differential treatment can be explained by legitimate and pertinent factors.

Direct racism probably also exists in the justice system, but in a very subtle form. Subtle or covert racism, reflecting the prejudices of individuals, can be so thoroughly hidden in a system where there is a great deal of discretionary treatment, that it is virtually impossible to detect. As well, racist attitudes are likely to be deeply rooted in the individual's psyche, and very resistant to change.

Eliminating racism by changing attitudes may be necessary, therefore, but it is not sufficient given the nature of the direct but covert racism extant in the system. Attitude change as a strategy is not appropriate with regard to systemic racism. It would seem that changing rules, procedures and outcomes should be the strategy.

In the legal view of discrimination it is recognized that to ensure equality of condition it may be necessary to treat members of minority groups unequally in order to remedy disadvantages of opportunity or background. 335 To accomplish that, it must first be determined how the process is operating to produce a given outcome. Then a compensatory procedure can be put in place and the outcome observed to establish whether or not it has had the desired effect of eliminating the differences between the target group and the general population.

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