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Multiculturalism and criminal law. (Feature Report on Multiculturalism).


Canada has always been a multicultural entity, but it is only in the last few decades that we have seriously begun to grapple with the challenges of adapting our criminal laws to best fit or apply to the myriad of religious and social values held--and the practices observed--by the different ethnic, religious, and racial groups which make up our society. Over the last 30 to 40 years, the ethnic composition of our communities has changed, as more and more newcomers from different parts of the world have immigrated to Canada. The enactment of the Canadian Charter of Rights and Freedoms in 1982 gave minorities the means by which they could seek greater recognition and accommodation of their beliefs and practices.

Any discussion of the impact of multiculturalism upon Canadian criminal law must include an appreciation of the differences between substantive and procedural criminal law. In general, we have usually not been prepared to change our substantive criminal laws in major ways to accommodate cultural differences. At the same time, we have been somewhat more open to procedural changes in order to preserve and respect as many different ethnic and religious practices and values as possible.

Substantive criminal law arises from and defines the basic values by which members of society are able to live together with mutual respect. These are the rules by which citizens determine what is right and wrong, what conduct is tolerated and what behaviour is condemned by the larger community. There is not a great deal of variation when it comes to the most essential rules which define criminal offences. This is probably because across all of humanity, there seems to be a fairly consistent understanding and agreement of what conduct is wrong in and of itself (known by the old Latin expression mala in se). Thus, regardless of geographical origin, most cultures and religions have relatively consistent rules against such acts as arbitrary attacks upon--or the killing of--other members of the same community. Many cultures also have similar rules against the unjustified taking or destruction of another's property.

Canadian society is largely governed by the concept of equality among its members. Regardless of gender, ethnic or cultural background, social status, or religion, the goal of our substantive criminal law is to protect and preserve the personal safety and security of all individual members of the community. Thus, we may live together in peace and strive to fulfill our greatest personal potential. For this reason, significant changes to our substantive criminal laws--our definitions of what is right and wrong--are probably neither necessary nor appropriate as we welcome new Canadians into our society. Newcomers to Canada are expected to abide by our criminal laws as they adapt to life in this country. The criminal law applies to everyone, even regardless of the actual knowledge of that law, as ignorance of the criminal law is not considered an excuse for anyone--new arrival or Canadian-born charged with having committed an offence.

One example of a change to the substantive criminal law in order to address a possible gap in the protection available to a segment of society is the 1997 criminalization of female genital mutilation (sometimes referred to as "female circumcision"). This is a practice which is followed in some societies and cultures in Asia, Africa, and the Middle East, and involves removing or injuring parts of the female genitalia (usually that of underage girls). There is no medical or health reason for this practice, and there is no benefit to the female involved; in fact, after the initial mutilation takes place, the girl or woman often suffers long-term and permanent medical problems.

In 1997, the World Health Organization and other United Nations bodies condemned this practice, and the same year the Canadian Parliament amended the Criminal Code to ensure that this practice would be included within the scope of the crime of "aggravated assault." Aggravated assault is defined as being an assault which results in, among other things, the wounding or maiming of the victim. Parliament added to this legislative provision to ensure that the concepts of "wounds" and "maims" would include the mutilation of a female's genitals.

Another example of a change in substantive Canadian criminal law, which reflects the multicultural nature of our society, took place shortly after the enactment of the Canadian Charter of Rights and Freedoms in 1982. Unlike the previous example, however, this change in our law involved removing an offence, and was made by the courts instead of Parliament.

It had been against the law to conduct business on a Sunday since before Confederation in 1867. This prohibition was primarily based upon the belief that Canada was a Christian nation. In 1982, however, a Calgary drug store challenged the validity of The Lord's Day Act on the basis that, in light of the constitutional guarantee of freedom of religion for all persons, legislation which favoured the Christian religion--by protecting the sanctity of that religion's holy day--could no longer be considered valid and lawful. In 1985, the Supreme Court of Canada agreed and struck down the legislation on the basis that it infringed upon the freedom of religion of adherents and observers of other faiths and practices.

These two examples demonstrate ways our substantive criminal laws have been "fine-tuned" in order to address changes in our society brought about by multiculturalism. In the first situation, a social value or practice which causes serious harm has been outlawed in order to ensure that potential victims--girls and young women--are protected equally as would be any other member of Canadian society. In the second example, a legal impediment to full and equal participation in all aspects of our society by minority religious and cultural groups was struck down in order to ensure that as many individuals and groups as possible can equally share in the benefits offered by enshrinement of freedom of religion in our Constitution.

In contrast to the situation concerning substantive criminal law, our rules of criminal procedure may be adapted somewhat more readily to meet the values and practices of many different cultures and ethnic groups. Criminal procedural law is the set of guidelines and requirements we follow as decisions are made concerning those who are alleged to have broken the substantive law. Criminal procedure includes everything from how allegations of criminal conduct are to be made and brought before the courts to the process followed in trials and other courtroom proceedings. It is possible, and quite appropriate, that criminal procedural laws be modified where necessary to accommodate the values and practices of religious and ethnic minorities. Otherwise, these groups might be denied the full protection of the substantive laws if forced to choose between their own beliefs and traditions and sometimes outdated and rigid legal habits.

A very early example of changes made to accommodate the beliefs and practices of minority groups is found in the legal requirement that evidence given in court be under oath. The two basic requirements of an oath were a belief in a supreme being and a system of reward and punishment in an afterlife. Long ago, the common law of England and Canada recognized that administering a Christian- and Bible-based oath to witnesses who did not believe in that religion would not be effective in binding such persons to tell only the truth as they gave their evidence. Therefore, courts began to permit witnesses to swear upon the holy books of their own religions and to engage in such other practices as would, according to the individual's own beliefs and values, represent a solemn undertaking to tell only the truth as he testified. A 1904 British Columbia case, for example, discussed an oath taken according to a Chinese practice of writing one's name on a piece of paper which was then burned to symbolize the burning of the soul of the witness if he then failed to tell the truth.

Another example of such a change to our laws of criminal procedure came with the explicit enshrinement in the Charter of Rights of the right of any party or witness in legal proceedings to have an interpreter. In light of Canada's officially bilingual character, criminal proceedings may be conducted in either English or French. However, members of First Nations communities, ethnic and religious minorities, and visitors from foreign countries who understand and speak neither of our official languages may also become involved in criminal proceedings. In order to ensure that they are able to understand what is taking place, and to participate fully, it is essential that the proceedings be translated and interpreted into a language they comprehend. A failure in proper and adequate interpretation can lead to an order for a new trial if an accused person has been convicted in the absence of required translation.

The most recent example of an effort to accommodate the practices and values of a minority may be the case of an Ontario sexual assault complainant who sought to testify wearing a niqab. A niqab is a face covering or veil which permits other persons to see only the eyes of the woman wearing it. In this case, the complainant testified her religious beliefs required that she not expose her face to any man except those who were part of her direct family. She was called to testify against an uncle and cousin who she said had committed sexual assaults against her a number of years before.

One of the accused objected to the witness being allowed to wear the naqib in court as she testified, citing the traditional principle that accused persons are entitled to challenge their accusers face to face. In October 2010, the Court of Appeal of Ontario held that a judge faced with such a situation must begin by assessing the religious nature of the values in question and the sincerity with which they are being asserted. Upon being satisfied that the beliefs are sincerely held, the judge must then determine the extent to which honouring those values or practices in the courtroom might infringe upon the fair trial rights of an accused person. Ultimately, the judge must attempt to balance and reconcile these two rights. The witness herself may have input into possible methods of achieving the most workable and fair balance of the competing interests. But in some cases, it may simply not be possible to achieve such a balance, in which case the fair trial rights of the accused must be preserved and given priority.

The Ontario Court of Appeal decision perhaps best represents the ongoing challenge faced by Canadian courts as we continue to attempt to accommodate the widely varied beliefs and practices of so many members of our modern, multicultural country. Rarely will there be a single, easy answer when rights and freedoms conflict. Yet it is necessary to find the proper balance if we are to ensure that all members of our ethnically, religiously, and racially diverse society have equal protection of our laws including equal access to the courts. If we truly value the multicultural makeup of present day Canada, we must ensure, to paraphrase the Court in the Ontario case, that participation in the justice system does not come at the cost of compromising one's religious or cultural practices and beliefs any further than is absolutely necessary in the circumstances.

Charles Davison is a lawyer practising criminal law in Edmonton, Alberta, and a past president of the Edmonton Criminal Trial Lawyers' Association.
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Author:Davison, Charles
Geographic Code:1CANA
Date:Jan 1, 2011
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