The question which gave rise to this report, and the background research in multiculturalism and justice commissioned by the Department of Justice Canada, is: Is there bias against members of ethnocultural and visible minorities in the justice system? This was the issue concerning access to justice and treatment with equity and respect raised in the Minister's Reference<1> to the former Law Reform Commission of Canada, which initiated this body of research.
Because of the paucity of existing research in this area, this report does not attempt to draw conclusions about the quantum of bias or racism characterizing the justice system. It is clear, however, that the perception of racism in the justice system is strongly felt by members of many minority groups. It will be important to document carefully through further research and consultation with minority groups and with justice system representatives on the nature and extent of racism within the justice system, and to find ways to eliminate it.
A convergence of social forces makes a review of multiculturalism and justice extremely timely. Ethnocultural diversity in Canada is becoming a more high-profile public issue as the ethnic mix of the population changes with the arrival of larger numbers of visible minorities. This change in the demographic composition is occurring within a context of cultural changes that may be shaping the impact of the changes in ethnic composition on the justice system. One such change is the rise of rights consciousness which legitimizes more insistent demands by minorities for fair and equitable treatment by the justice system. In this connection, discrimination is defined as a more pressing problem, and is tolerated to a far lesser extent than a few decades ago. A second major cultural movement affecting relations between the justice system and ethnocultural minorities is ethnic pluralism. This cultural change, which has taken root over the last few decades, has legitimized the retention of cultural features and the characteristic social patterns of members of ethnic groups. However, ethnocultural groups, with considerable variations from one group to the next and among segments within ethnic groups, are expected to want to maintain aspects of their traditional cultures and social practices. Thesecontextual factors have important implications for how the justice system might successfully come to terms with a multicultural society.
Even though existing research does not provide conclusive evidence of racism in the justice system, the apparently widely held perception that racism exists should be addressed. The perception of racism, based on individual experiences and other anecdotal evidence, cannot be without foundation. The continued existence of perceived racism undermines respect for the rule of law and confidence in the justice system. There is still much to learn, but based on current knowledge, significant efforts can be made to create both the reality and perception of an accessible justice system. Greater effort devoted to research and development and to consultation with minority groups will be required to more effectively address the problems faced by ethnocultural minorities in the justice system.
A more accessible justice system must mean more than the concept of access to justice as it is currently revealed in practice. The main program elements of access to justice, such as the current approaches to legal aid, public legal information and alternativ dispute resolution, are now under critical attack for-doing little more than propping up the fundamental inadequacies of the existing justice system.<2> Something new is needed.
In one study on multiculturalism and justice prepared for the Department of Justice Canada, representatives of a large number of ethnocultural organizations in Canada identified what the study referred to as "gaps in justice."<3> Identification of the gaps between what the justice system provides and what the ethnocultural organizations expect, represents a point of departure to redefine what access to justice ought to embody in practice for ethnocultural communities in Canada.
The first dimension of a renewed approach to greater access to justice is the need for public legal education and information (PLEI). This was identified by most of the respondents representing ethnocultural organizations, in nearly all of the documentary materials reviewed, and in original research prepared for the Department. The needs for PLEI are discussed in detail in Chapter Two and elsewhere throughout the report. Newcomers to Canada experience an extensive range of needs for legal information; they want information about Canadian laws, on the availability of justice-related services, on the functioning of the justice system, and on fundamental Canadian values relating to justice. The legal information needs of longer-term immigrants appear to change over time, as they encounter challenges in adapting to Canadian society. A better understanding of the patterns linking legal information needs to aspects of integration might enhance our capacity to develop and deliver legal information to immigrant and minority groups. The PLEI needs of indigenous minorities have not been explored well, relative to those of immigrants. There are many PLEI organizations and other justice service organizations that provide legal information to immigrants and minorities. They are serving an important need, and their efforts should continue to be supported. Several points should be highlighted. There should be more focus on the "E" in PLEI -- i.e., more focus on the educative function. Public legal education is required on certain issues such as: family violence; how Canadian legal culture is different from that of a country of origin; and, how the Canadian justice system will respond differently from what might be expected by someone from another country with different experiences.
Some evidence suggests there is widespread fear of approaching the justice system, of seeking the protection of the justice system, or of cooperating with the justice system among minorities. This is very important with respect to relations between minority groups and the justice system. The issue has many dimensions, of which legal information is one.
Ethnocultural communities should play a greater role, in partnership with PLEI organizations and with other elements of the justice system and administrative bureaucracies, in developing PLEI programs. Communities are important resources for defining the nature of problems and for developing effective and culturally appropriate responses to them. Rather than simply an end product, PLEI may be used as a catalyst to mobilize community action to deal with justice problems affecting them. Information about the law and about how the justice system works, combined with empirical or other documented information about the nature of certain problems, might be used by community leaders or animators to promote community responses to justice problems, thus mobilizing the resources and capacities of ethnocultural communities.
The second dimension of access to justice is the requirement for cultural sensitivity in the administration of justice and the provision of justice-related services. Treatment with fairness, dignity and respect by a powerful institution is the sine qua non of justice. It is the symbolic core of the concept of justice. Members of ethnocultural minorities expect that justice system actors will be sensitive to cultural differences and to problems arising from language difficulties or unfamiliarity with the justice system. It is expected that cultural barriers will not limit the degree to which individuals are treated with dignity and respect by the justice system.
Providing cultural sensitivity training for all justice system actors is important to achieve cultural sensitivity. Over the past several years, there have been considerable efforts to provide sensitivity training. The review of existing literature indicates uncertainty on the effectiveness of existing cultural sensitivity efforts. Current efforts should be assessed from the perspective of established and tested theory and methods of adult education in order to assure the greatest degree of effectiveness for this important activity.
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