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Shofar FTP Archive File: orgs/canadian/canada/justice/ethnocultural-groups/ecg-001-01

Archive/File: orgs/canadian/canada/justice/ethnocultural-groups/ecg-001-01
Last-Modified: 1997/01/26
Source: Department of Justice Canada

1.3 The Minister's Reference to the Law Reform Commission of Canada

In June 1990, the Minister of Justice issued a reference to
the former Law Reform Commission of Canada to study the
extent to which bias exists in the justice system with
regard to aboriginal peoples and ethnocultural minorities in
Canada. The text of the reference is reproduced below:

     Access to Justice: Terms of the Minister's Reference

     It is desirable in the public interest that special
     priority be given to the Law Reform Comrnission to a
     study of the Criminal Code and related statutes, and
     the extent to which they ensure that: a) aboriginal
     persons and b) persons in Canada who are members of
     cultural or religious minorities have equal access to
     justice, and are treated equitably and with respect.
     The study would focus on the development of new
     approaches to, and new concepts of, the law in keeping
     with and responding to the changing needs of modern
     Canadian society and of the individual members of that
     society [per the Law Reform Commission Act Section
     11(d)] with particular regard to the rights and
     interests of aboriginal persons and to the diversity of
     Canadian society as recognized in the Canadian
     Multiculturalism Act, 1988.

The report on aboriginal justice was completed in 1991.<21>
The work on multiculturalism and justice had just begun when
it was announced that the Law Reform Commission of Canada
was to be abolished.<22>

At the time of abolition, the Commission was working on 30
papers covering a wide range of topics in multiculturalism
and justice, some of which were in very early stages of
development. A few topics -- such as hate crimes, jury
selection in a multicultural society, and complaint and
redress mechanisms for cases of discrimination -- were well
developed in the Commission's work. These became the
subjects of specific research projects. Based on a review of
the preliminary work which had been undertaken by the
Commission, it was felt that issue identification was the
important task, and research was undertaken to develop a
comprehensive overview of issues, based on the published
literature and on the views of representatives of ethnic

The Canadian literature in the area of multiculturalism and
justice is very limited. There is a limited basis in the
published literature on which to identify justice-related
problems experienced by members of multicultural groups.
Therefore, the research represented by the first two
projects described below is a crucial initial exploration in
this area.

1.4 Review of Law Reform Commission and Related Research on
Multiculturalism and Justice

A number of preliminary studies were undertaken by the Law
Reform Commission of Canada in response to the Minister's
Reference. This body of research covered a wide range of
topics. In addition, the Department of Justice Canada had
begun several studies in the multiculturalism and justice
field. The Review study was undertaken to develop a
systematic overview of the justice issues raised in the
literature noted above. As well, the researchers integrated
other relevant literature into the synthesis of justice

1.4.1 Survey of Justice Issues of Importance to
Ethnocultural Organizations

An essential element in developing a policy agenda is to
take into account the views of those who experience the
problems. A survey of some 300 ethnic community
organizations, advocacy groups, and multicultural services
organizations representing the multicultural diversity of
Canada was undertaken to identify those problems considered
to be priorities by ethnic group representatives. Questions
were included to ensure that the views offered represented
the problems experienced by the members of the various
ethnic groups. A small sample of specialists in ethnic
affairs, such as academics and lawyers, were also
interviewed for information to assist in interpreting the
results from the representatives of ethnic organizations.
The results of the study are an important element in the
definition of problems and their preliminary priorization.
Because the views of the ethnic organization representatives
may in themselves be partial, the results of this study will
serve as a basis for further research and consultation to
more carefully define the exact nature of problems
identified. <24>

Some issue areas were well-developed in the Law Reform
Commission of Canada research. Three areas were selected for
more focussed research projects, both because of the extent
to which the work was already developed, and because of
external considerations that seemed to indicate the
importance of the topic.

1.4.2 Jury Selection in a Multicultural Society

This report assesses the adequacy of the current jury
selection process in view of the diverse, multicultural
nature of Canadian society, The purpose is to highlight
problems and indicate whether or not there are reasons to
consider reform of certain aspects of the jury selection
process in order to better reflect or accommodate the needs
and aspirations of visible and ethnocultural minorities. The
report is critical of current provincial procedures for
selecting jury panels. It is also critical of challenge for
cause and peremptory challenge procedures contained in the
Criminal Code.<25>

1.4.3 Racially Motivated Crimes

This research provides a theoretical analysis of issues
involved in the creation of criminal offences against
racially motivated acts, such as assaults. The study reviews
the practices and experiences in other countries concerning
the enactment and enforcement of laws to control crimes
variously referred to as bias crimes, hate crimes, or
racially motivated crimes.<26>

1.4.4 Compliant and Redress Mechanisms

This study provides a review of complaint and redress
mechanisms, such as those under human rights and employment
equity legislation, currently operating in Canada. Complaint
and redress mechanisms operating in other countries are also

1.5 Review of Justice Issues

The Minister's Reference, which gave rise to this report and
the several background studies on which the report is based,
asked: Is there bias in the justice system against members
of ethnocultural minorities? There is a widespread
perception among the general public, which is reflected in
public opinion polls, that there is bias in the justice
system against members of ethnic minorities.<28> As well,
Etherington says that in many of the reports he reviewed
"perhaps the most important shared finding is that members
of ethnic and racial minorities have strong perceptions that
they are discriminated against by the criminal justice
system."<29> Minority groups expect that law reform in the
area of multiculturalism and justice should be guided by an
explicit anti-discrimination framework.

There is a paucity of conclusive empirical information on
racism or unwarranted differential treatment of
ethnocultural minorities within the justice system.
Etherington characterizes the situation as a "dearth of
research data."<30> While this review cannot point to
conclusive evidence of racism in the justice system, there
is sufficient basis in anecdotal evidence and experimental
accounts to have created the perception of racism in the
justice system. Perceptions often take on a reality of their
own. Once established in the collective beliefs of a segment
of the population, perceptions of injustice can produce what
the early American sociologist W. I. Thomas termed "self-
fulfilling prophesies," where what is perceived to be true
becomes true in its consequences.
Even though bias cannot easily be proven on the basis of
reliable scientific evidence, several themes have emerged
which suggest general directions for policy, programming,
and further research and development. These themes are
discussed in this report.

Many justice-related problems may be understood in terms of
the process of integration into Canadian society. New
arrivals to Canada have many immediate needs for information
about the law and the functioning of the justice system.
There are immediate needs for legal information to assist
them with numerous problems at the outset. In addition, new
sets of needs emerge as people encounter new problems with
increasing length of residence in Canada.

There is also an important attitudinal issue to address. The
reluctance of newcomers as well as longer-term immigrant and
indigenous minorities to cooperate with the justice system
and seek the protection of the justice system must be
overcome. Chapter Two on public legal education and
information deals with these issues.

Accommodating the diverse cultural practices brought to
Canada by immigrants, while maintaining some degree of
conformity to the important cultural values of Canadian
society, creates both immediate and longer-term problems for
the society. Chapter Three on accommodating cultural
diversity addresses such issues.

It is of paramount importance that the institution of
justice and all of its constituent elements ensure that the
justice system is not the source of the problem. The system
must not operate in ways to produce unequal treatment
within, and barriers to access the justice system. The three
chapters dealing with unequal treatment in the criminal
justice system, access the protection of the justice system,
and unequal treatment in administrative bureaucracies
address this theme.

Successful integration into society by both immigrant groups
and indigenous minorities requires that the manner in which
the organizations of the dominant society deal with these
groups conveys the message of full and equal participation.
There must be clear and unequivocal expressions by the
society that people of different ethnic backgrounds are
valued members of the society. The message must be conveyed
that within the limits of fundamental Canadian values,
individual rights will be respected by the institutions of
the dominant society. Where alleged violations of rights
occur, effective complaint and redress mechanisms must be
available, and action must occur with celerity. The chapter
on human rights issues addresses this theme. As well, in
various different ways, the chapter on alternative dispute
resolution deals with this general issue.

Ethnic communities emerge in host societies in large measure
as a response to the necessities and challenges of adapting
to the host society. They are not relics of old-world
societies. They are complex social mechanisms by which
minorities adjust to the new society. They are thus dynamic
communities which are, in important ways, their own resource
and a source of strength to address community problems.
Communities are sources of strength on which the justice
system can draw to address the justice problems affecting
minority communities. A theme running throughout this report
is a necessity for all aspects of the justice system to
establish structured linkages with the organized ethnic
communities. The problems facing ethnic communities can be
more clearly defined, and more durable solutions can be
developed, if the justice system works in partnership with
minority community organizations. In turn, at a broader
level, these sorts of linkages and partnerships between the
justice system and minority communities will contribute to
diminishing the sense of alienation from the justice system
which may be felt by members of many minority communities.

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