The Nizkor Project: Remembering the Holocaust (Shoah)

Shofar FTP Archive File: orgs/canadian/canada/justice/ethnocultural-groups/ecg-003-01

Archive/File: orgs/canadian/canada/justice/ethnocultural-groups/ecg-003-01
Last-Modified: 1997/01/28
Source: Department of Justice Canada

3.1.4 Parental Duty of Care

The Etherington report examines the beliefs of parents in
faith healing and prohibitions against the use of medical
care that may conflict with the law to protect minors from
death or harm as a result of the refusal of their parents to
provide the necessities of life. The existing literature
does not support any accommodation to religious or cultural
practices that would endanger children in this manner. The
protection of life is one of the fundamental goals of the
criminal justice system. Because of the importance of this
principle, criminal sanctions are appropriate, and
therefore, no exemptions should be permitted.<74>

3.1.5 Female Genital Mutilation

The practice of female genital mutilation, including the
mutilation of young girls, exists to some extent in parts of
Africa and the Arabian peninsula.<75> The World Health
Organization reports that some 90 million girls and women
are affected worldwide.<76> Medical evidence suggests that
this practice can lead to a variety of serious health-
related difficulties for women.<77>

Inspired by international human rights provisions banning
cruel, inhuman or degrading treatment, the practice was
prohibited in Great Britain by the Female circumcision Act,
1985.<78> The extent of this practice should be examined in
Canada, and appropriate action considered.

3.2 The Relevance of Cultural and Religious Factors and
Criminal Liability

Despite the fact that issues relating to the relevance of
cultural and religious factors are rarely brought to court,
situations may arise where the cultural or religious
background of defendants will come into play with respect to
criminal liability. If the criminal law is to function in a
manner fully cognizant of the realities of a multicultural
society, and in a manner respectful of Canada's
multicultural policy, a consistent approach to the role of
cultural background must be developed.

3.2.1 Negating Mens Rea

Whether or not tests for mens rea should be decided on the
basis of the subjective awareness of the accused themselves,
or "objectively," on the basis of what "reasonable persons"
would have foreseen and done in the circumstances, was the
focus in the recent Supreme Court of Canada case, R. v.
Tutton and Tutton.<79> In this case the parents presented
evidence that because of their religious beliefs they were
no longer aware of the risks to their child when they failed
to secure medical treatment. According to Etherington,
Canadian courts have not yet viewed a cultural reason for
diminished mens rea favourably. However, in view of the
possibility that these claims will increase as ethnic
diversity increases, they deserve some consideration.<80>

3.2.2 Cultural Defence

Traditionally, Canadian courts have been reluctant to allow
any difference between an accused's culture and societies
dominant culture to form an independent substantive excuse
for criminal charges, as, for example in the case of R. v.
Baptiste.<81> According to Etherington, however, the
implications of the Canadian case of R. v. Lavallee, "where
expert evidence on the battered-wife syndrome was considered
relevant to the reasonableness of the accused's perceptions
of the threat faced and her belief in the force required in
response"<82> and "that reasonable person has to be fixed
with the personal history and experiences of the
accused,"<83> make it important to give some consideration
of cultural defence.

Two examples of cases from United States courts illustrate
the kinds of issues that can arise. In one case, a Hmong
tribesman from Laos was charged with kidnapping and rape
after practising "zij poj niam," which is a Laotian tribal
marriage ritual. "This is a marriage by abduction in which
the bride is expected to weep and moan, and the suitor is
expected to consummate the sex act in the face of such
protest."<84> In another case, a Japanese-American woman
argued a cultural defence against a charge of killing her
children after she attempted to commit "oyaku-shinju," or
parent-child suicide, when she learned her husband had
committed adultery. Members of the Japanese community
testified that this was an acceptable means within
traditional Japanese culture for the woman to purge the
shame of her husband's infidelity.<85>

Several of the reports reviewed by Etherington express
concern that any recognition of cultural defence must have
limits placed on it. Alleged cultural differences should not
overshadow the protections against violence against others
or become an excuse for violence against women and

3.2.3 Approaches to Cultural Differences

Young and Gold point out that one approach to the issue of
accommodating cultural differences is through judicial
decision-making based on the common law of excuses.<87>
However, as these authors point out, the courts have been
reluctant to accept cultural defences.- As well, there are
institutional limits to the capability of the courts to
render sensitive and appropriate decisions in these
matters.<88> Because of their reservations on "the
shortcomings of litigation in terms of policy information
gathering and awareness of the full range of issues and
implications for other groups religious-based claims,"<89>
Young and Gold discuss a range of options for legislation,
creating a general defence or excuse for religious practice,
with more specific exemptions to arise from case law.

The legislative or judicial approaches discussed above are
generally reactive. Prevention, another basic approach to
accommodating diversity, involves public legal education and
information strategies. The points raised in the discussion
of PLEI above, on offenses arising from ignorance of the law
and Canadian legal processes, may be relevant here as
well.<90> In Section 2:1.1, it was emphasized that offending
behaviours do not necessarily arise because the offenders do
not know that some activity is against the law per se.
Often, serious offences would be against the law in
countries of origin as well. Whether or not certain
behaviours contravene the laws of countries of origin,
however, is not the main issue. Newcomers still often fail
to understand and anticipate the evolving Canadian legal
culture and the extent to which the Canadian justice system
will respond to certain kinds of offences because of the
influence of larger currents of social change such as the
gender equality movement. This suggests that through public
legal education designed to educate newcomers on basic
Canadian values, and based on substantive illustrations
carefully chosen from known problems and from a thorough
knowledge of the points of conflict between ethnic minority
cultures and the main-stream values represented  by the
legal system, some of the circumstances which give rise to
claims for a cultural defence might be avoided.

In the context of the national PLEI strategy, the Department
of Justice Canada has extensive experience conducting
research and development in conjunction with public legal
education and information organizations in Canada. In
consultation with other governments and non-governmental
organizations, the Department could prepare a strategy to
assess the feasibility of developing PLEI strategies aimed
at the types of problems under discussion in this chapter.

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