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

Conclusion

13.3.2 Ignorance about Different Cultural Contexts

Both the MARC study of perceptions on justice issues of ethnic group organizations and the Etherington literature review show that ignorance of the cultural aspects of ethnic groups that relate to the justice problems faced by those groups is common among justice system actors. This is true for all actors in the criminal justice system, in family courts, and in regulatory bureaucracies. The issue is extremely important given the concern of treating members of minorities with sensitivity within the justice system that was expressed repeatedly in interviews with representatives of ethnocultural organizations.

The need for cross-cultural sensitivity training at all levels and in all sectors of the criminal and civil justice systems is clear. Extensive training is already provided to police and to the judiciary, but questions have been raised about the adequacy and effectiveness of current sensitivity training for them. A first step in this effort must be to review the effectiveness of approaches to existing training. The field of adult education has a well-established body of theory, method and considerable accumulated experience that would be highly valuable in this effort. An assessment of existing programs should be carried out on the basis of this body of knowledge.

As well, there must be some assessment of the current coverage of existing programs. A plan to extend the scope of cross-cultural training to the police and to the judiciary should be developed. This effort should be carried out in close collaboration with ethnocultural groups and the professional associations representing justice system actors.

The cross-cultural training must go beyond assumptions about negative attitudes held by justice system personnel and attempt to bring about attitude change at a general level. As emphasized in the previous section, much of the unequal treatment experienced in the justice system by members of minority groups may stem from systemic factors, which are otherwise neutral characteristics of all persons. Unequal treatment may stem from the fact that the normal assumptions and processes of the justice system simply do not fit the realities of life of many members of minority groups. As well, it would be difficult to slow down or divert the usual frenetic pace of operation in the overcrowded system to accommodate the special needs of certain members of minorities.

Therefore, research and related efforts to uncover the extent and the processes recommended in Chapter Four should form an important part of the substantive basis for sensitivity training. This would make the factors and processes producing systemic discrimination more transparent to those in positions to control the process, and thus make change more likely. As well, to the extent that ignorance can itself be the basis for prejudice,<336> the cross- cultural training would attack some of the roots of direct discrimination.

13.3.3 Representation of Minorities as Justice System Actors

It would seem from all reports that the face of the justice system is white. There is a need to recruit members of minority groups into all aspects of the justice system, into positions that place them in contact with the public, and in positions where they are instrumental in decision-making processes within organizations. This refers not only to recruitment to the legal profession but to all occupations within the justice system.

Until recently, the emphasis in terms of representation of minorities has been on the criminal justice system. However, some of the background research for this report shows that contact with the administrative bureaucracies of the non- criminal justice system are considerably more frequent that contacts with the criminal justice system. Thus, efforts at assuring equitable representation are at least as important within this sector of the Canadian justice system.

Within occupations and professions other than the legal profession, equitable representation can probably be accomplished through employment equity programs. In-house training programs could operate effectively as adjuncts to these programs. The limitations on recruitment of non-legal professionals that might arise from lack of access to university or other professional training is not known.

Access to the legal profession is obviously limited by the accessibility of legal training. At present, there is serious under-representation of visible minorities in the legal profession in Canada. Although research by the Department of Justice Canada shows that minority students are not under-represented in the 10 law schools included in the study,<337> there was perceived inappropriateness or irrelevance of curriculum for minority students.

The legal profession, which is largely self-governing, is an important and influential profession in Canadian society. As such, the profession should assume some responsibility for encouraging the adoption of the values of a multicultural society within the justice system. The legal profession should be encouraged and supported in its efforts to recruit members of minority groups to the profession, to make legal education relevant to minority students and to ethnocultural issues, and to encourage full participation and mobility within the profession.

13.3.4 Involving Ethnic Communities in the Justice Process

The marginalization of minorities is the norm. In her discussion of how minorities are included or excluded from the justice system, Minow<338> describes mechanisms by which the majority creates social institutions, and because the majority constructs the rules and the structures according to its own values and preferences, it creates differences between the majority and minorities. With the operation of normal ethnocentricity, these differences translate into disapproval of minority values and behaviour patterns. The rules and processes on how things are done in the system reflect the values of the dominant group. An "in-group" and an "out-group," a "we" and a "them" are created and the minority group becomes marginalized within the institution of justice.

Accessibility and full participation by ethnocultural communities in the justice system are important objectives. It is widely acknowledged that the justice system is poorly equipped to address the important underlying social, cultural, and economic dimensions of problems faced by the police, the courts, and administrative bodies as crime problems or legal problems per se. It is difficult, therefore, for the justice system to deal effectively with many of the problems laid before it, and moreover to develop effective and durable solutions.

A society which depends solely on the constructs of its criminal justice system as a means of maintaining social order will be a society riddled with crime. Unwieldy administrations have never been, nor should they ever become, substitutes for the pervasive socializing influences of family, religion, and community groups. Wherever the social and moral foundation of a community group has been undermined_as in the case of Australian aboriginal people_the foundation has been almost impossible to reconstruct. <339>

One argument made in this report is that ethnic communities are products of the necessity to adapt to life in the new society. They are not holdovers from the past, but rather, integral parts, albeit transitional for some group members of Canadian society. Ethnic communities have a vitality and the resources which are their sources of strength. They have important potential resources for dealing with problems of adjustment to Canadian society which involve conflict with the law or access to justice.

In all aspects where the justice system attempts to deal with justice problems involving ethnocultural communities, the relevant sector of the justice system should establish linkages with the communities to use their resources and strengths to develop effective responses and durable solutions together. The justice system and society as a whole can, through these linkages which establish partnerships between the justice system and communities, support the viability of ethnic communities and thus support the existence of an important resource for dealing with justice problems -- the community itself. Ghettoization and marginalization of ethnocultural communities can be avoided if the linkages are true partnerships. The value of ethnic diversity and viable ethnic communities is thus reaffirmed in ways which are reflected not only at the level of rhetoric but in matters of consequence for the ethnic communities and for Canadian society as a whole.

Through such partnerships, communities will have a greater opportunity to define problems of concern to them and to influence the programs and strategies developed to deal with them. It is more likely that holistic and multi- institutional approaches will be developed in this kind of context. This can contribute significantly to the maturing of the entire justice system in Canada as it proceeds into the next century, developing the necessary tools and approaches (as it has already begun to do with initiatives like community policing) to deal with a more complex and diverse society, and which will place greater demands for accountability and results on the justice system.

Action-oriented experimental projects and program changes should be initiated to promote justice system and community linkages. Developmental research, monitoring, and evaluation should be an integral part of all experimental projects so that gains in accumulated knowledge are not lost. Since such projects may occur across a wide spectrum of criminal family law and administrative law, involving many justice issues and many communities, some mechanism for coordination of the research and knowledge transfer should be put in place. The Department of Justice Canada, in cooperation with other federal departments and provincial governments, should take the lead in spearheading research and development in this area, and coordinate research and development activities with other jurisdictions in Canada. There is a real danger that many multicultural and justice projects will proceed without adequate documentation and evaluation. Thus, over a period of years, an immensely valuable body of knowledge and accumulated experience can be lost. The experience of the Department of Justice Canada in compiling an inventory of aboriginal justice projects and research beginning in 1990<340> has highlighted this problem in the native justice area. Many native justice projects carried out over the past decade were discontinued for various reasons, and the lessons learned have been lost. This should not be repeated.

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