The Role of Cultural Considerations in Criminal Sentencing

October 19th, 2015 by

Canada is a proudly pluralistic society. This country is, not a melting pot, but a mosaic. Diversity and cultural differences are celebrated and embraced. While international culture may take a prominent role in Canadian identity, a recent Court of Appeal decision has confirmed that such cultural considerations do not carry weight in Canadian criminal sentencing law.

R v. E(H) was an appeal against sentence heard in July, 2015. The defendant had been convicted of numerous counts of assault and sexual assault, stemming from a pattern of abusive behaviour towards his wife and children. By all accounts, the defendant was a domineering man, who employed violence and fear to keep control over his family. The violence was routine, and continued after the family immigrated from Iran in 2009. At trial, the wife testified that behaviour like that of the Respondent’s was commonplace in Iran, she felt powerless to stop it and thought the Canadian authorities, like those in Iran, would ignore her complaints.

After conviction at trial, the Crown sought a sentence of four years incarceration. The Respondent sought twelve months incarceration with a period of probation after. In her victim impact statement, the wife expressed surprise that there were potentially serious consequences to the Respondent’s conduct. In his reasons, the sentencing judge said that this “suggests a significant cultural gap between what is not accepted in this country, and what is accepted in her native country.” The sentencing judge then continued,

In my considerations, I ask how much weight [should] the cultural impact of moving from Iran to Canada be given. [The Respondent’s wife] testified in Iran if she complained about any abuse she would be ignored. It is a different culture, it is a different society. As far as I’m able to ascertain from the evidence those cultural differences moved with them from Iran to Canada. It is only a factor in my deliberations, and not a sentencing principle.

A sentence of eighteen months was imposed and the Crown appealed.

The Court of Appeal agreed with the Crown that the sentencing judge had erred in treating Iranian cultural norms as a mitigating factor on sentencing. The Court held that cultural practices or considerations do not excuse criminal conduct, and the fact that the behaviour is accepted in a person’s country of origin has no bearing on the sentence a person should receive. The Court stated that such considerations are underscored in cases of domestic violence, where there is a need to strongly denounce cultural practices that render women as acceptable targets for male violence. In fact, the Court noted that in certain cases cultural norms may be an aggravating factor, in that the Court must strongly deter an individual who continues to hold such cultural beliefs from acting on them.

If you have been charged with an offence, or have an inquiry related to criminal law, contact our experienced Criminal Law team at Devry Smith Frank LLP

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