The Cultural Defence: Mitigating Factor or Something Else?

Howard Doughty

“Invoking a cultural defence has become a popular but controversial legal strategy… It is used to mitigate punishment, create exemptions from policies, and increase the size of damage awards… Although it may be defended as a matter of principle, if this defense has any chance of being formally adopted, policies must be established to prevent its misuse.” —Alison Dundes Renteln

Simply put, the “cultural defence” is a legal claim that an offence committed by a defendant is, in whole or in part, attributable to the person’s background in a group that holds normative values at odds with society at large. In such cases, religion is almost always involved.

At the outset of the Western Christian tradition, words attributed to Jesus Christ (Matthew 22:21) distinguished between divine and secular law: “Render therefore unto Caesar the things that are Caesar’s, and unto God the things that are God’s.” 

Theologians differed about the implications. St. Augustine saw the “City of God” and the “City of Man” as mutually hostile. St. Thomas Aquinas saw human law as an imperfect effort to replicate divine law on Earth. Neither, however, doubted that divine law was perfect, universal, and eternal, and that mortal law was imperfect, contingent, and temporal. 

The supremecy of the sacred, however, was challenged in the mid-seventeenth century and the eighteenth century “Enlightenment” by Thomas Hobbes, John Locke, and David Hume, who subtly but irrevocably altered the script and introduced notions of “human rights” into the discourse. True, Thomas Jefferson credited a “Creator” with endowing humanity with those rights, but he also made us responsible for forming societies and making constitutional, civil, and criminal law. Humanism was born.

Faith communities and the ethno-cultural groups that sustain them, however, remained and seem now to be reasserting themselves — especially in revanchist, “fundamentalist” forms. Their influence is evident in contemporary North American “culture wars” over moral issues such as reproductive rights, non-binary sexual identities, and medically assisted dying. They inform racist prejudice against BIPOC peoples (particularly migrants), as well as in recently resurrected anti-Semitism, anti-Asian pandemic paranoia, and explosive Islamophobia. All invoke some measure of divine inspiration. Many challenge existing civil and criminal law and the legitimacy of the political institutions that create and apply them.

Accommodations

In common law jurisdictions, mechanisms exist to minimize unpleasantness when religious views complicate criminal justice. For instance, the “seal of confession” (a sacrament of penance and part the canon law of the Roman Catholic church) forbids priests from revealing what penitents divulge in their allegedly privileged three-way communications with their priest and “God.” In some jurisdictions, the seal of confession has attained the protected status of “lawyer-client” privilege. In Canada, however, the Supreme Court ruled, in R. v. Gruenke, that the “law does not recognize privilege in religious communications; however, there may be situations where such privilege may be required.” So, decisions are made on a case-by-case basis according to the established “Wigmore Test”; it’s a characteristically Canadian matter of privilege if necessary, but not necessarily privilege.

Those advocating religious exemption from legal consequences have contributed to a rich, inconsistent record of success and failure in the quest for religious exemption from legal consequences. As early as 1757, pacifist English Quakers were excused from compulsory military service as “conscientious objectors”; however, in Reynolds v. United States, the Church of Jesus Christ of Latter-Day Saints (Mormons) failed to persuade the U.S. Supreme Court that their cultural custom of polygyny be exempt from prosecution for bigamy. The court held that “religious duty [was] not a defence against a criminal indictment.” That seemingly decisive finding, however, merely began an increasingly fraught inventory of complex, contradictory jurisprudence.

Of at least passing interest is the case of Employment Division v. Smith, wherein the American Supreme Court held that freedom of religion did not exempt Indigenous peoples from criminal laws against banned substances, despite the defendants’ argument that smoking peyote had been part of their spiritual tradition since time immemorial.

On another hand, in Church of the Lukumi Babalu Aye, Inc. v. Hialeah, that same court held that members of the Santeria faith (a Yoruba religious tradition imported with the African diaspora) were exempt from a municipal ordinance in Hialeah, Florida, that forbade the killing of “an animal in a public or private ritual or ceremony not for the primary purpose of food consumption.” Peyote was not protected, but animal sacrifice was. 

We might assume an informal standard of a) weighing freedom of religion against potential public harm and b) providing a rationale for balancing the metaphysical and the empirical worlds. Alas, none have emerged. While the law might protect a chicken or a goat, it also might deny a murder victim what some might call justice. A controversial New York case involved one Dong-lu Chen, who smashed his wife’s skull with a hammer after learning of her adultery. Prosecutors charged him with second-degree murder, but a jury convicted him of the lesser charge of second-degree manslaughter, and the trial judge imposed the lightest possible sentence (five years’ probation). The judge explained that the defendant “was the product of his culture” and that although “culture is never an excuse… it is something that made him crack more easily.”

The Question of Culture in Canada

What about Canada? We might recall Canada acknowledged cultural differences at Confederation, by incorporating Roman Catholic education rights into Section 93 of the British North America Act. That provision secured the principle of differential religious/cultural treatment in law. Over a century later it yielded legislation providing for a federal commitment to bilingualism and biculturalism, French language protection, and constitutionally entrenched Indigenous rights as well as measures such as Canada’s official policy on “multiculturalism.” Together, they nullified the American national metaphor of a “melting pot” in which cultural differences are boiled down into a hegemonic “American way of life.” They reinforced heterogeneity of ideology, customs, and social relations in Canada.

This acceptance of diversity might seem to make Canada at least as amenable as the U.S. to accepting the cultural defence. The opposite, however, can apply, as evidenced by cases involving a so-called “honour-killing.” A recent dramatic example is a Canadian trial involving the murder of four family members because of the shame they allegedly brought upon the family for disobeying the patriarch on matters of marriage choice. The defendants were found guilty and the presiding judge expressed his sentiments while imposing life sentences. Religious traditions notwithstanding, he opined: “It is difficult to conceive of a more despicable, more heinous crime.”

A Conservative Vision

If we accept the admittedly unproven claims that Canada is a more diverse and tolerant society than the U.S. and that the U.S. is more committed than Canada to individual rights against the state, how are we to interpret Canada’s apparent reluctance to accept the cultural defence against criminal charges in court or in public?

One line of thought was articulated by conservative Canadian historian W. L. Morton in his influential book, The Canadian Identity. Morton observed that the United States was brought together in a cataclysmic event, the “revolution,” which united its people at the base by a “compact,” an almost Freudian pact to deflect the guilt of patricide. Added conservative Canadian philosopher George Grant: “The platitude cannot be too often stated that the U.S. is the only society which has no history (truly its own) from before the age of progress.” So, the dominant American myth was erected ex nihilo from the adventure of the rupture. 

The contrary Canadian myth was constructed over centuries from the experience of “survival” and given literary expression by Margaret Atwood. It confirms a society united at the top by allegiance. Put simply, the fragility of the Canadian nation cannot sustain a unified, almost messianic self-image; it persists not by demanding allegiance to an idea-cum-ideology, but to contentless principles of “peace, order, and good government.” In exchange for commitment to procedural norms associated with deference to public authority, communities are permitted to identify with a multitude of substantive norms or “identities.” 

In this telling, Canadian cultural diversity and ideological heterogeneity depend on allegiance to the superordinate rule of law. This understanding is not exclusive to “conservatives.” A significant number of “leftists” within the New Democratic Party during the hey-day of “left nationalism” and the far-famed (if short-lived) “Waffle movement” were influenced by Grant (somewhat to his chagrin) and given political support in academic arguments by Gad Horowitz in his seminal article, “Conservatism, Liberalism, and Socialism in Canada: An Interpretation” and by others seeking workable alternatives to American continentalism.

The Stern Hand of the Law

Given the rise in hate speech, hate crimes, and hateful acts of exclusion in Canada, we might expect the cultural defence to be frequently deployed; alhough religious belief has been tried, it has not generally been successful. 

The landmark case remains R. v. Keegstra, in which James Keegstra was convicted under Section 319(2) of the Criminal Code of Canada of wilful promotion of hatred against an identifiable group. The Keegstra was a crucial test of the newly passed Charter of Rights and Freedoms that has now been reinforced by such decisions as R. v. Harding, in which the court held that the accused did “express opinions of religious belief that he appeared to sincerely hold, but that the opinions expressed went above and beyond the expression of religious belief and were not made in good faith” and that religious opinion could not “be used with impunity as a Trojan Horse to carry the intended message of hate forbidden by s. 319.”

The stern hand of the law — which demands obedience in exchange for a soft hand of cultural tolerance and acceptance of the “Canadian mosaic” — may be in danger. As citizens become less aware of (and interested in) the foundations of Canadian political culture, as social media and opportunistic politicians promote life in the specious present, and as venerable institutions are vaporized by virtual reality and technologically mediated recombinant history, the relevance and reality of foundational thinkers and thought will inevitably dissipate.

If it is not to become yet another source of institutional cynicism, the cultural defense as a mitigating factor will have to be legitimized as more than a clever ruse. Cogent arguments in support of the “cultural defence” as a mitigating factor in sentencing are being made. As Renteln writes, “taking a person’s cultural background into account is fundamentally no different from judges taking into consideration other social attributes such as gender, age, and mental state. Insofar as individualized justice is an accepted part of legal systems, the cultural difference is simply another factor to review in the context of meting out condign punishment.” Can more be done? 

A Note of Optimism

Redemptive change depends largely on the internally diverse but commonly identifiable community that has been the most oppressed Canadian minority, has fought longest and hardest, and has had the most success in terms of its recent influence on the law itself — the Indigenous peoples of Canada. Given recent successes in achieving a) political recognition, b) bits and shards of legal autonomy, and c) broad recognition of the healing powers of Indigenous methods of correction that appear far more successful than punitive prisons, it is possible to imagine steps toward systemic reorganization of the criminal justice system. So configured, the cultural defence would not appear as a strategy to evade justice, but a step toward achieving it. That, however, is a topic for another day.