The Nizkor Project: Remembering the Holocaust (Shoah)

Shofar FTP Archive File: orgs/canadian/canada/justice/ethnocultural-groups/ecg-005-00


Archive/File: orgs/canadian/canada/justice/ethnocultural-groups/ecg-005-00
Last-Modified: 1997/01/28
Source: Department of Justice Canada


                                                CHAPTER FIVE
                                    ACCESS TO THE PROTECTION
                              OF THE CRIMINAL JUSTICE SYSTEM
                                                             
5.0 INTRODUCTION

The study on the needs of immigrants in British
Columbia<148> suggests that many immigrants in the Vancouver
area do not generally cooperate with, or they avoid seeking
the protection of, the justice system. In another study in
Vancouver on legal information requirements, the Law Courts
Education Society documented the reluctance of members of
several immigrant groups, particularly the Chinese, to come
forward as witnesses to crimes.<149> The review of justice
issues relating to ethnocultural groups by Etherington,<150>
and a recent study carried out by Pomerant,<151> point out
that the process of selecting jury members may
systematically exclude members of ethnocultural minorities.
All these problems of access to justice reflect the
limitations of full and equal participation in, or access to
the protection of, the justice system. There is usually some
combination of factors involved relating to the
characteristics of individuals, the manner in which the
system operates, and the attitudes and behaviour of justice
system actors.

Chapter Four covered issues relating to accused persons. The
discussion focussed mainly on the issue of differential
treatment and was organized by critical points within the
criminal justice process where discretionary treatment may
be exercised. This chapter addresses issues relating to
individuals seeking the protection of the justice system or
cooperating with the justice system. The issues relating to
witnesses, victims, and jurors are considered.

5.1 Witnesses
Witnesses are essential to the justice process. When people
are reluctant to come forward to the police to report
crimes, the functioning of the justice system is

jeopardized significantly. Following are several possible
reasons why people are reluctant to act as witnesses:

     * cultural origin;
     * language barriers;
     * fears of the justice system rooted in experiences in
     countries of origin;
     * cultural or social structural barriers within the
     Canadian ethnic community;
     * lack of information about the justice process; and
     * in cases of family violence situations, women may be
     afraid of how they will

be treated by the police and courts, and the adverse
reaction that may result
and alienate them from their communities if they violate
community norms
by exposing private family matters to public scrutiny.<152>

There is limited evidence of witness problems in a study of
legal education needs carried out in Vancouver in 1952.<153>
Through focus groups and key informant interviews, this
research found that both Chinese and Indo-Canadian people
expressed a reluctance to act as witnesses. <154>

The evidence on Indo-Canadians was particularly complete.
Many were reluctant to act as witnesses because they
perceived that the police treated IndoCanadians
unfairly.<155> As well, Indo-Canadian informants indicated
they felt a certain "impatience" on the part of court
staff.<156>

In addition to these external barriers, there were clearly
sources of reluctance rooted within communities. This was
evident from the conditions respondents said must be met
before they would be willing to act as witnesses. The ideal
circumstances for people to become witnesses were that it
should be done anonymously; the accused should not be too
powerful; the safety of the witness should be guaranteed;
and potential witnesses should feel that their families
would not be in danger. Women were especially concerned
about reprisals from the community.<157> Key informants
suggested that members of their communities were generally
reluctant to serve as witnesses. They also said it was
unlikely that witnesses would be objective, and that an
individual would be more likely to "take sides" as a third-
party witness to a dispute.

All three groups studied -- Chinese, Indo-Canadians, and
Latin Americans -- indicated that an absence of reliable
interpreters posed a problem when a person served as a
witness. <158>

There is no empirical evidence based on actual incidents
pointing to serious problems that have occurred because
witnesses would not come forward or did not communicate
fully and effectively. If the principle of accessibility by
witnesses is important, however, there is sufficient
evidence to suggest that some measures should be taken.
Information such as that presented above should continue to
be gathered, through formal research if the problems require
careful methodologies, and through systematically documented
community consultation methods. Programs to encourage
members of minorities to come forward as witnesses should
take into account the range of barriers to witnesses,
especially those rooted in community social structure and
culture.

At the same time, sensitization programs might be directed
at justice system officials. The development of these
programs should consider the range of factors which
constitute barriers to access the justice system as
witnesses -- linguistic, informational, and those reflecting
cultural and social structural aspects of minority
communities.

5.2 Victims

In his discussion of discretionary treatment by both police
and Crown attorneys, Etherington cites problems on dealing
with victims.<159> Brodeur suggests that if there are
conflicts between minority communities and the police, the
police may be less enthusiastic in responding to calls.<160>

Crown attorneys play a critical role in assuring that
minority victims and witnesses are treated with sensitivity
and dignity.<161< According to Toronto bail court workers,
largely because of the pace of activity in the courts, Crown
attorneys and other court officials can easily fail to take
into account the needs of victims and witnesses.<162> In his
review, Etherington cites a study by the Law Reform
Commission of Canada which recommends that specific
guidelines be put in place to assure that Crown prosecutors
take the following measures in dealing with victims and
witnesses:

     *  the accusation of criminal conduct made by a
     minority complainant must be taken seriously and acted
     on appropriately;
     
     *  there must be methods and materials developed to
     explain the trial process to victim/witnesses;
     
     * careful attention must be directed toward whether or
     not the complainant needs an interpreter, and
     interpretation services must be provided expeditiously;
     and
     
     * where required, complainants must be provided with
     assistance in attending trial to give evidence in
     court.<163>


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