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Archived Content Contenu Archivé ARCHIVED - Archiving Content ARCHIVÉE - Contenu archivé Archived Content Contenu archivé Information identified as archived is provided for L’information dont il est indiqué qu’elle est archivée reference, research or recordkeeping purposes. It est fournie à des fins de référence, de recherche is not subject to the Government of Canada Web ou de tenue de documents. Elle n’est pas Standards and has not been altered or updated assujettie aux normes Web du gouvernement du since it was archived. Please contact us to request Canada et elle n’a pas été modifiée ou mise à jour a format other than those available. depuis son archivage. Pour obtenir cette information dans un autre format, veuillez communiquer avec nous. This document is archival in nature and is intended Le présent document a une valeur archivistique et for those who wish to consult archival documents fait partie des documents d’archives rendus made available from the collection of Public Safety disponibles par Sécurité publique Canada à ceux Canada. qui souhaitent consulter ces documents issus de sa collection. Some of these documents are available in only one official language. Translation, to be provided Certains de ces documents ne sont disponibles by Public Safety Canada, is available upon que dans une langue officielle. Sécurité publique request. Canada fournira une traduction sur demande. Department of Justice Ministère de la Justice Canada Canada WORKING DOCUMENT REVIEW OF MULTICULTURALISM AND JUSTICE ISSUES: A FRAMEWORK FOR ADDRESSING REFORM Professor Brian Etherington Faculty of Law University of Windsor May 1994 WD1994-8e Research and Statistics Directorate / Direction générale de la recherche et de la statistique Corporate Management, Policy and Programs Sector/ Secteur de la gestion, politiques et programmes ministériels WORKING DOCUMENT REVIEW OF MULTICULTURALISM AND JUSTICE ISSUES: A FRAMEWORK FOR ADDRESSING REFORM Professor Brian Etherington Faculty of Law University of Windsor May 1994 WD1994-8e The present study was funded by the Research Section, Department of Justice Canada. The views expressed herein are solely those of the author and do not necessarily represent the views of the Department of Justice Canada. TABLE OF CONTENTS ACKNOWLEDGEMENT................................................................................................................. vii EXECUTIVE SUMMARY............................................................................................................. ix 1.0 INTRODUCTION.............................................................................................................. 1 1.1 Purpose and Scope ............................................................................................... 1 1.2 Methodology ......................................................................................................... 2 2.0 BACKGROUND, MULTICULTURALISM INITIATIVES, PERSPECTIVES AND COMING TO TERMS WITH TERMS................................................................... 3 2.1 Multiculturalism and Justice Initiatives ................................................................ 3 2.2 Perspectives and Assumptions Underlying the Reports Reviewed....................... 4 2.3 Coming to Terms with Terms ............................................................................... 7 2.3.1 Multiculturalism........................................................................................ 7 2.3.2 Equality, Equal Access to Justice, Equitable Treatment and Respect ...................................................................................................... 8 2.3.3 Systemic or Adverse Effect Discrimination.............................................. 9 2.3.4 Racism..................................................................................................... 10 2.4 The Changing Needs of Modern Canadian Society ............................................ 12 3.0 RESEARCH ISSUES .................................................................................................... 15 3.1 Dearth of Research Data Available on Multiculturalism and Justice Issues in Canada............................................................................................................. 15 3.2 The Collection of Data Concerning the Race and Ethnicity of Offenders and Victims in the Criminal Justice System........................................................ 16 3.3 Other Research Issues: Problems of Proof......................................................... 19 3.3.1 Are Minorities Over-represented in the Criminal Justice System?......... 19 3.3.2 The Difficulty Proving Racism or Discrimination in the Operation of Various Aspects of the Criminal Justice System — Distinguishing between Justice System Factors and Other Factors ........ 20 3.3.3 The Validity and Merit of Different Research Methodologies and Sources of Data ....................................................................................... 26 4.0 CRIMINAL JUSTICE SYSTEM ISSUES................................................................. 27 4.1 Administration of Justice System Issues............................................................. 27 4.1.1 Distinction between Justice System Administration and Processing Issues and Substantive Law Issues .......................................................... 27 4.1.2 The Exercise of Discretion by Justice System Actors............................. 27 4.1.2.1 Police............................................................................... 27 4.1.2.2 Crown Prosecutors .......................................................... 30 4.1.2.3 Defence Counsel ............................................................. 32 4.1.2.4 Judiciary .......................................................................... 33 4.1.2.5 Jury Selection ................................................................. 35 4.1.2.6 Corrections ...................................................................... 43 4.1.3 Measures to Attain Objective of More Culturally Sensitive and iii Non-discriminatory Exercise of Discretion............................................. 45 4.1.3.1 Increased Presence of Minorities as Justice System Actors ............................................................................. 45 4.1.3.2 Cross-cultural (Anti-racism) Training of Justice System Actors.................................................................. 50 4.1.3.3 Community Liaison ........................................................ 53 4.1.3.4 Monitoring Bodies and Complaint Procedures ............... 54 4.1.3.5 Development of Non-discriminatory Risk Indicators for Discretionary Decisions ............................................ 62 4.1.4 Issues Concerning Language of Accused, Victims, and Witnesses ........ 63 4.1.5 Rules of Evidence and Multiculturalism................................................. 65 4.2 Substantive Criminal Law Issues Involving Race/Ethnicity, Culture and Religion ............................................................................................................... 67 4.2.1 Accommodating Minority Practices in Conflict with Statutory Criminal Offences: International Law and Charter Obligations and Principles................................................................................................. 67 4.2.2 Issues Arising from Conflicts between the Criminal Law and Minority Religious and Cultural Practices .............................................. 69 4.2.2.1 Drug Laws ....................................................................... 69 4.2.2.2 Weapons Offences........................................................... 70 4.2.2.3 Crimes of Bigamy and Polygamy.................................... 72 4.2.2.4 Parental Duty of Care Offences....................................... 72 4.2.3 The Relevance of Cultural and Religious Differences to the Criminal Fault Requirement, Defences, Justifications or Excuses ......... 73 4.2.3.1 Negating Mens Rea ......................................................... 74 4.2.3.2 Defences or Excuses ....................................................... 75 4.2.4 Creation of Statutory Exemption to Provide Accommodation for Religious Belief....................................................................................... 77 4.2.5 Issues Concerning Creation of Criminal Offences to Punish Racist Behaviour ................................................................................................ 78 4.2.5.1 Existing Offences: Hate Propaganda.............................. 78 4.2.5.2 Possible New Offences Such as Racial Assault .............. 80 4.2.5.3 Racism as an Aggravating Factor in Sentencing............. 81 5.0 CIVIL JUSTICE SYSTEM ISSUES ........................................................................ 83 5.1 Introduction ......................................................................................................... 83 5.2 Family and Custody Law Issues.......................................................................... 84 5.3 Employment Discrimination Issues..................................................................... 87 5.3.1 Matters of Substance ............................................................................... 87 5.3.2 Employment Equity................................................................................. 91 5.3.3 Dispute-resolution Processes................................................................... 96 6.0 PUBLIC LEGAL EDUCATION ISSUES ................................................................
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