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RESEARCH REPORT
Re-Thinking Access to Criminal Justice in Canada: A Critical Review of Needs, Responses and Restorative Justice Initiatives
Patricia Hughes and
Mary Jane Mossman
March 2001
The present study was funded by the
Research and Statistics Division,
Department of Justice Canada. The views
expressed in this report are those of the
authors and do not necessarily reflect the
views of the Department of Justice Canada.
EXECUTIVE SUMMARY
This paper provides a critical assessment of some current issues about access to
justice in Canada, with a special focus on criminal justice. The paper identifies recent
trends in the literature about criminal justice in Canada and in related common law
jurisdictions, including the United States, the United Kingdom, Australia and New
Zealand; and the development of restorative justice processes to augment or replace
traditional approaches to criminal justice. Overall, the paper is intended to provide a
review of selected literature with critical commentary about current trends in
criminal justice, and to offer suggestions about empirical and other research
initiatives designed to assess future needs.
Chapter 1 examines the context and concepts of criminal justice, exploring the change in emphasis
from access to justice to access to justice. The chapter begins by noting comments presented by
Michael Zander in the Hamlyn Lectures in 1999, suggesting that recent reforms in the United
Kingdom emanated "not from a desire to improve access to justice but from the Treasury's need to
control the budget". Such a comment reveals the complex social, political and legal context within
which current discussions about access to justice occur. Using Zander's comments as a starting
point, this chapter provides an overview of the challenges identified in the literature about how to
seek justice, rather than merely improving access to current legal processes. In particular, the
chapter focuses on three aspects:
- the context of access to justice developments, including the relationship between
civil and criminal justice, and recent initiatives in criminal justice;
- the public/private dimensions of justice, including issues about resources, capacities
and powers; and
- the concept of equality in promoting social justice.
1) the context of access to justice developments: Recent developments in access to justice have
been significantly influenced by the work of the Florence Access-To-Justice Project, a comparative
assessment of initiatives world-wide. According Cappelletti and Garth, there were three "waves" of
access to justice reforms: the "first wave" of the movement involved provisions for legal aid; the
"second wave" was a group of substantive and procedural reforms which enabled legal
representation for more "diffuse" interests including environmental and consumer protection. By
contrast, the "third wave" was labelled by Cappelletti and Garth the "access to justice" approach
because of its aspirations to attack barriers more articulately and comprehensively. Although the
focus of the Florence Access-To-Justice Project was civil justice, it is possible to identify a number
of similar "waves" of developments in the criminal justice context; for example, recent
developments in restorative justice for criminal law matters appear to be "third wave" reforms.
Moreover, beyond criminal justice, these new developments are also linked to "transformative
justice" - processes which take account of broader concerns, including traditional civil law matters.
Such an analysis of access to justice initiatives in civil law and criminal law contexts suggests a need to reassess the continuing validity of distinctions between these categories. At the same time, the
literature suggests that there is a crucial distinction in the processes used to respond to criminal, by
contrast with civil, wrongs. In the civil process, the victim is in charge; by contrast, a wrong done in
the criminal law context is a wrong done not only to the victim but also to the community. To the
extent that ideas of restorative justice create opportunities for greater involvement by victims in
criminal justice processes, and more substantial connection between victims and offenders, they tend
to blur existing distinctions between criminal and civil law processes. In addition, the literature
suggests that it may be important to consider the extent to which gender may need to be considered
in relation to both traditional criminal justice processes and restorative justice practices, an issue
which is addressed later in the paper.
Literature on criminal justice also reflects differing perspectives about the goals of criminal justice.
The paper outlines the competing models identified by Herbert Packer in 1964: "crime control" and
"due process", and the extent to which later commentators, including John Griffiths, suggested that
both of Packer's models represented different forms of the "battle model" of criminal justice, by
contrast with a "family model." In this context, Kent Roach has argued that these different models
reveal different assumptions about the extent to which the interests of individuals are always
opposed to those of the state, or, on the other hand, assume that "the state and the accused, like a
parent and child, had common interests if only because they continued to live together after
punishment". In this way, recent developments in restorative justice appear linked to earlier debates
about appropriate models for criminal justice.
The literature also reveals different theories of punishment and sentencing, including goals of
rehabilitation, deterrence, and "just deserts". Although the "just deserts" theory of sentencing has
achieved a good deal of acceptance because it relates to "everyday conceptions of crime and
punishment, and is also consistent with liberal political theory," commentators like Barbara Hudson
have suggested that a theory of "just deserts" sentencing in an otherwise "unjust society" increases
punishment for those who are least able to conform to the ideal of autonomous individuals
exercising free choices. Criticisms such as these reveal the underlying political nature of sentencing
theory. Thus, for some commentators, there is a need for a new kind of justice. As John Braithwaite
argued, the restorative justice approach recognizes a relationship between offenders and the societal
context in which they offend; by contrast, the traditional emphasis on punishment in response to
wrongdoing represents "a failure of imagination".
Restorative justice proponents claim links to much earlier conceptions of crime and criminal
processes. They also characterize the commission of crimes in terms of interpersonal or community
conflict; thus, the goal of restorative justice is the resolution of this conflict. In this way, restorative
justice may be linked to alternative dispute resolution processes in the civil law context.
Significantly, the term "restorative justice" has been used to encompass a variety of practices,
including arrangements which provide for victim participation, community involvement in dispute
resolution, rehabilitative goals, restitution, etc. More significantly, the cultural context of restorative
justice is critical, and it is important to recognize that the strongest impetus for restorative justice
processes in Canada derive from concerns about the application of Eurocentric ideas of crime and punishment to First Nations offenders and communities. In this context, restorative justice processes
ensure that it is community elders, not professionals, who dominate the process; and that "the
offender's past victimization and present disharmony can be recognized as the reason for an offence
without denying the needs of the immediate victim or the responsibility of the offender".
In relation to this overview of the literature on access to justice, crime and punishment, there are two
cautionary comments. One is the need to examine how well reform goals are actually implemented
in practice, particularly in a context where there are pressing needs for immediate evidence of
change; the possibility of "gaps" between reform goals and their implementation in practice may be
exacerbated by pressures of instrumentalism and "the Treasury's need to control the budget". As
well, there is a need to be somewhat wary of the goal of community harmony in the context of
restorative justice, not only because harmony may be based on dominant ideologies but also because
there may be limits to the extent to which they can realistically guarantee voluntariness, agency and
voice to the parties.
2) public and private dimensions of justice: The literature on criminal justice developments also
reveals concerns about "private" dispute resolution and policies promoting the "privatization of
justice". Much of the literature now emphasizes the need for "community" involvement. As the
paper suggests, this literature derives from studies of small-scale societies in close cohesive social
systems where there is a need to maintain co-operative relationships. As Barbara Hudson has
suggested, the need for "communities" in Western society creates a problem: "without the
community, restorative justice is reduced to the competing perspectives of the victim and the
perpetrator".
At the same time, there has been positive evaluation of practices of circle sentencing within
Aboriginal communities, and there may be a need to reconceive a wider, more liberal construction of
the term "community". Yet, at the same time, enhancing the role of the community also means
diminishing the role of the Crown in some restorative justice processes. This development may
suggest informal recognition of Aboriginal self-government, but it may also subtly suggest that the
state has little interest in the concerns of the victim. Concerns have also been expressed about the
need for community members and community resources to be allocated to informal justice
processes, as well as the extent to which the allocation of greater power to communities in fact
empowers those who have traditionally exercised power, thus reinforcing power imbalances and
socio-economic inequities in communities.
These concerns are also linked to the need for procedural protection to ensure that victims and
offenders, as well as community participants, all of whom may have differential access to economic,
psychological or other aspects of individual capacity, may participate effectively. The literature
identifies, for example, the possibility that domestic abuse cases may not be appropriate because of
power imbalances. As well, opportunities to permit offenders to understand, through the
participation of the victim, the human consequences of their actions is only a short step from claims
that greater victim involvement is, in fact, for the benefit of the offender and the wider community.
While there may be a need, according to some commentators, to reconsider the involvement of victims in criminal justice processes, it is important to adopt a principled approach based on sound
evidence in the formulation of criminal justice policies.
These issues also link to the relationship between "privatized justice" and the potential for social
change. According to David Garland, the state's "responsibilization strategy" reveals the abdication
of direct state intervention through police, courts, prisons, social work, etc. and the adoption of
indirect action through non-state agencies, which are encouraged to take responsibility to prevent
crime (including neighbourhood watch programmes, security guards, security devices for cars, etc.).
In this way, Garland argued that the state remains responsible for punishment of crime through its
"law and order" agenda, while defusing into the community responsibility for crime control. In this
way, Garland's analysis is linked to broader concerns about the "downloading" of the costs of
criminal justice onto communities.
In addition, however, privatization of criminal justice contributes to political goals of law and order
by individualizing the victims of crime rather than recognizing "the public" as a whole. In this way,
a new relationship is established between the individual victim, the symbolic victim, and public
institutions, which represent their interests and administer their complaints.
3) equality and social justice: Such concerns are also linked to the need to reassess ideas about
access and justice. While much of the literature emphasizes the need for commitment to the rule of
law, it is important to recognize the extent to which such a commitment will not, by itself, achieve
substantive justice. As Alan Norrie argued, adherence to the rule of law may simply re-enforce
existing unequal and perhaps unjust class relationships. In this context, to the extent that restorative
justice practices may relinquish formal procedural protections, including legal representation, it may
be important to assess how these new developments meet goals of substantive social justice. Some
commentators have suggested that restorative justice processes may empower participants in ways
that traditional criminal courts cannot, but even proponents like David Trubek recognize that such
processes may be captured or co-opted as measures to relieve courts and court congestion - but
without making justice more accessible. By contrast, in his recent assessment of restorative justice
and social justice, John Braithwaite argued that if both victims and offenders get restoration out of a
process, it has progressive rather than regressive implications for social justice. At the same time,
others like Richard Delgado have identified the absence of potential for social transformation as a
major problem for restorative justice. In such a context, goals of substantive equality and social
justice pose hard questions for both restorative justice and traditional criminal justice processes.
These questions provide the context and conceptual framework for our discussion of "needs" and
"responses" in the chapters which follow. We return to these concerns in the critique in Chapter 4.
Chapter 2 explores the complexity involved in identifying legal needs. For example, while the
circumstances of being poor may well create legal needs, it is important to recognize how the needs
of poor clients are seldom congruent with just "legal needs". Thus, it has been argued that legal aid
initiatives may not necessarily contribute much to social justice and may even perpetuate social
injustice. The literature provides a good deal of analysis about the concept of "legal needs" in the
context of civil law, but much less in relation to criminal law. Thus, while there is some consensus
about minimum standards for legal aid in criminal law matters, for example, there is a more
fundamental question about whether legal aid actually addresses "needs" in this context, or whether
it simply replicates the legal categories of the criminal justice process. Moving beyond the
requirements of legal representation, moreover, some commentators have suggested a need for
assessments of communities in relation to crime and other kinds of legal needs. Others have argued
that a focus on "legal needs" in relation to the sentencing of offenders raises policy questions about
differences among offenders whose needs may differ from each other as well as from some idealized
norm.
In the context of restorative justice developments, proponents have asserted that we should redefine
the purpose of law as fulfillment of needs rather than protection of rights. While recognizing the
vulnerability of needs-based justice practices, particularly in relation to aspirations of empowerment,
proponents of restorative justice have nonetheless asserted its ability to respond to crime by
addressing the need for safe communities as well as the need for resolving specific crimes. In a
well-known interchange between Daniel Van Ness and Andrew Ashworth, the authors identified
some of the positive attributes, as well as the limits, of restorative justice practices. In providing an
assessment of the literature about "needs" in criminal justice, this chapter examines these competing
ideas in three contexts where restorative justice practices have been advocated: the needs of
Aboriginal accused in their communities; the needs of offenders including young offenders and
those from racial minorities, and the needs of victims and communities.
1) "needs" for aboriginal justice: No-one associated with the criminal justice system in Canada
can ignore its impact on Aboriginal people. Even in provinces such as Ontario, where the rate of
incarceration for Aboriginal people is less than in the western provinces, there are good reasons to
believe that the figures may underestimate the numbers of Aboriginal people involved with the
justice system. Beyond the statistics, however, there is a need to identify why there are
disproportionate numbers of Aboriginal people in the criminal justice system, in order to design
appropriate responses.
Three possible explanations for the over-representation of Aboriginal people in the justice system
have been presented. One is the "culture clash" theory, the lack of familiarity of Aboriginal people
with the system of justice in Canada, and the resulting need to assist them to participate in it more
effectively. For those who espouse this rationale, there is a need for more and better legal services,
as well as cross-cultural training programmes and translation services. All the same, a number of
commentators have suggested that the culture clash theory is not entirely satisfactory since it does
not explain the over representation in the justice system of Aboriginal people who have lived for
many years in urban areas of Canada.
A second explanation is the socio-economic theory. According to this theory, the over-representation
of Aboriginal people in the criminal justice system is related to their poverty; that is, the likelihood
of incarceration has greatly increased for those who are poor, and since Aboriginal people are often
the poorest of the poor, they are more likely than others to be represented. Carol La Prairie has
suggested that factors such as relatively higher Aboriginal birth rates and the disproportionate number of Aboriginal people currently in the age group most vulnerable to criminal law intervention
may also need to be considered, but she has also suggested that poverty may be the explanation for
over-representation on the part of Aboriginal people in the justice system. Thus, initiatives based on
a culture clash theory will not substantively address problems relating to socio-economic
marginalization. Instead, if one accepts this second explanation for Aboriginal over-representation,
it appears that initiatives designed to develop self-sufficiency will be more effective. A third theory
is regarded by Jonathan Rudin as most persuasive: the theory that colonial policies of assimilation
destroyed the lives of thousands upon thousands of aboriginal people. Agreeing with the
recommendations of the Royal Commission on Aboriginal Peoples that the colonial legacy must be
taken into account in designing interventions, Rudin argued that very different "needs" must be met:
indeed, there is a "need" for an indigenous justice system. Others like Kent Roach have also
suggested that recognition of Aboriginal justice could reduce incarceration and victimization of
Aboriginal people.
Other commentators have carefully identified differences between traditional processes of criminal
justice and Aboriginal justice and assessed their relative merits. Some authors point to the decision
of the Supreme Court of Canada in R. v. Gladue as bringing the notion of healing into the
mainstream as a principle that a judge must weigh in every case involving an Aboriginal person.
Such approaches recognize "legal needs" on the part of Aboriginal people to be judged within their
own culture and system of justice. In such a context, Phil Lancaster suggested a need for resources
to be provided to Aboriginal communities for justice initiatives, and that these communities should
have discretion in the use of funds and in the distribution of specific justice roles.
By contrast, some of the literature about Aboriginal justice focuses on "needs" in terms of particular
kinds of criminal activity, specifically domestic violence, and suggests that there is a need for
attention to competing and conflicting goals in community justice. As Evelyn Zellerer argued, it
may be difficult to achieve restoration successfully in a context where both gender and culture are
taken into account; care must be taken to ensure that family networks and power structures do not
perpetuate the victimization of women. Others have suggested a need for caution in expecting or
assuming communities to have the interest and/or expertise to respond, treat and control offenders
convicted of acts involving serious violence and sexual assault. Thus, while there may be
substantial consensus that the "needs" of Aboriginal accused can be met more effectively within a
holistic Aboriginal justice system, the "needs" of victims of violence may require careful attention to
underlying values within traditional processes of Aboriginal justice.
2) the "needs" of offenders: The National Council of Welfare's report, Justice and the Poor,
suggested that the Canadian criminal justice system is not only unjust but also an abysmal failure
that pushes young people into crime instead of helping them to stay out of it. The literature includes
a wide range of studies about connections between crime and unemployment, and relationships
between crime, broken families and histories of abuse. These studies suggest that large numbers of
young people, especially young men, may engage in activities which violate the law, and many of
them are likely to have little familial support (and even a history of familial abuse) as well as no job
or much prospect of obtaining employment. In such a context, it is easy to conclude that traditional criminal justice processes may not respond appropriately to the "needs" of these accused; in this
context, the alternative of restorative justice is examined in more detail in chapter 3. At this point,
however, there are three general issues to be addressed.
One is the differential enforcement in Canada of youth and street crime on one hand, and whitecollar
crime on the other. According to the National Council of Welfare, white collar criminals are
responsible for more deaths and steal much more money than the poor, but are seldom called
criminals. Its study recommended equality of treatment, and special arrangements to ensure that
poverty did not contribute to the perpetuation of criminal activity. The second issue is the connection
between "needs" of accused persons and the definition of criminal activity itself. As Ron Levi
argued, zero tolerance policies and other "get tough" measures mean that youth are often brought
before the criminal justice system for activity that should be dealt with otherwise. The National
Council of Welfare has also noted the relationship between ratios of police officers and population
figures in different areas, and how increasing the number of police in some communities has resulted
in immediate "crime waves". As well, recent legislation such as Ontario's Safe Streets Act increases
the number of accused persons charged with criminal offences; and the prohibition of activities in
public, such as drinking or loitering, may result in criminality among the poor. In this way, it is
arguably important to re-examine the kinds of activities which are labelled "criminal", rather than
simply responding to current definitions.
The third issue is the characteristics of offenders, including their gender and race.
Disproportionately, many more offenders are male rather than female. Even though some recent
studies have demonstrated an increase in the rate of criminality among women, it appears that they
are still much less likely to be involved in criminal activity than are males. Indeed, women who are
prisoners appear to be generally poor, young, white, and single mothers, with few, if any, previous
convictions. Many of them have experienced violence and abuse in the past. In addition, research
for the Commission on Systemic Racism in the Ontario Criminal Justice System revealed a
significant over-representation of Blacks among accused in the Ontario criminal justice system. In
such a context it is not surprising to find research revealing that members of many racial and ethnic
minorities in Canada have strong perceptions that they are discriminated against by the criminal
justice system. In this way, problems within the criminal justice system are often linked to broader
concerns about racial discrimination and issues of economic poverty and social justice. Thus,
broader approaches to criminal activity reveal how "needs" of offenders may encompass matters that
go beyond individual acts of criminal offences, revealing the interrelationship of issues of poverty,
gender and race in the definition of criminal activity.
3) the "needs" of victims and communities: As explained earlier, there has been a marked
increase in recognition of the "needs" of victims in the criminal justice system in recent decades. In
the 1980s and 1990s, there have been numerous studies about the "needs" of victims and proposals
for alternatives to criminal courts for meeting these needs. Indeed, the inability of the criminal
justice system to meet the "needs" of victims is the basis of many developments in restorative
justice, in which offenders can be held (more) accountable for their actions. Some commentators
have also suggested that victim offender mediation, for example, can better respond not only to the needs of victims, but also more appropriately to the needs of all involved.
Restorative justice approaches are, of course, related to other measures to meet victims' "needs".
Thus, for example, requirements for counsel to ensure the participation of victims and other similar
measures in traditional criminal processes derive from the same goal of recognizing victims'
"needs". Some literature suggests that victims' needs should be considered "rights". There are also
studies which seem to suggest that in a number of cases, victims have indicated higher levels of
satisfaction with victim offender mediation, rather than with traditional criminal justice processes.
Some of the literature has also identified the benefit of restorative justice practices for communities.
Such processes require a balancing of the needs of victims and offenders, as well as their
communities. In this context as well, the gender of victims may be an important factor. Thus, in
spite of legislation concerning violence against women, the literature suggests a need for a more coordinated
and integrated approach to reduce and prevent victimization of women. These goals are
also reflected in specialized courts which have been adopted in a number of parts of Canada for
prosecuting child abuse cases and domestic violence cases. Yet, a number of other studies have
revealed the difficulty for some women, particularly those in immigrant communities, to access
these special services. Dianne Martin and Janet Mosher have proposed a more complex strategy,
one that "neither homogenizes the experiences of abused women, nor denies them the status of
rational agents competent to exercise choice in their own best interest," and which recognizes
criminal justice intervention as only one of a multitude of services and interventions which may be
necessary.
Concerns about the failure of the criminal justice system for women who are victims may also apply
to some victims who are members of visible minorities. In this context, of course, differential power
relationships within society create social inequality, which may result in economic marginality. In
such a context, victim offender mediation processes may in fact reinforce the imbalance of power
rather than confronting the offender with the power of the state acting on behalf of the victim. And,
as Barbara Hudson has argued, the need for a "community" for restorative justice practices may be
unrealizable: "most of us now inhabit not communities, but shifting, temporary alliances which
come together on the basis of private prudentialism".
All of these comments reveal the political content of discussions of victims' needs. In fact, the
literature suggests that there has been a convergence between those who have drawn attention to the
needs of victims, and those, primarily politicians, who want to demonstrate "get tough" policies in
relation to crime. David Garland argued, for example, that current punitive policies adopted by
governments have been shaped, at least in part, by this linkage with the interests and feelings of
victims. In this way, it is arguable that the needs of individual victims have been appropriated, even
transformed, by political agendas and rhetoric. Thus, the needs of victims, as well as the needs of
offenders in communities (including Aboriginal communities), continue to be both complex and
contested in relation to the goals and values of criminal justice in Canada.
Chapter 3 of the paper, "Challenging the Mainstream: Approaches to Increasing Access to Criminal
Justice," considers approaches to increasing access to criminal justice based on the critique of the mainstream system developed in Chapter 1 and the needs which any approach to access ought to
address as argued in Chapter 2. It briefly refers to the broad transformative approach, but focuses on
restorative justice as the main approach to increasing access to justice identified in the literature and
implemented -- or purportedly implemented -- in practice by governments. It explains that
restorative justice is defined not by a particular process but by reference to a set of principles: the
assumption that crime is a breach of relationship, rather than an offence against the state; that the
goal is to restore the relationship or at times develop a relationship where one did not exist; and that
the process of restoration should involve not only the offender, but the victim and relevant
communities. This process is directed at bringing home to offenders an understanding of the harm
created by their acts and the need to accept responsibility for them, encouraging victims to identify
harms they have suffered and to participate in the determination of the appropriate consequences for
the offender and involving the community in helping to reintegrate both offender and victim. A
major characteristic of restorative justice processes is the notion of "encounter" among those
affected by crime.
As Chapter 3 explains, restorative justice has been described as "a revolution in criminal justice" and
"a paradigm shift;" yet it argues that it is at least premature to label restorative justice as a form of
transformative justice. The chapter recognizes that the term restorative justice has been applied to a
wide range of initiatives, many of which are better characterized as modifications of the existing
system than as reflecting wholesale changes in assumptions or processes. Chapter 3 examines the
relationship between restorative justice practices and traditional criminal justice in Canada,
indicating that most commentators believe that even an extensive restorative justice system would
have to be "backed up" by punishment; other commentators maintain that government should
provide the order within which community-based restorative justice approaches could operate.
Commentators differ on the extent to which government actors (Crowns or judges, for example)
should be involved in restorative justice processes, depending on whether they emphasise the
potential in participation by the state for coercion by the state or the necessity of the state's
involvement in directing accused and offenders towards these processes. In Canada government
restorative justice initiatives are authorized by and must comply with the requirements of
"alternative measures" set out in the Criminal Code and the Young Offenders Act and thus are
circumscribed by state-imposed parameters. Some commentators favour restorative processes
because in their view they appropriately blur the boundary between the criminal and civil legal
systems; other advocates, as well as opponents, however, argue that these two streams of the legal
system serve different purposes and should not be confused. While the greater involvement of the
victim in criminal processes integral to (but implemented independently of) restorative processes
diminishes the gap between the two, the boundary between them is far from dissolved.
Chapter 3 also assesses how restorative justice responds to "needs" of participants in the criminal
justice system, suggesting that these processes tend to identify generic needs (victims want to be
"empowered" through greater involvement in the process, for example) without addressing needs
relating to sex, race or class. The one exception, in intent and appearance, are the aboriginal
community initiatives. The Chapter then reviews a number of "piecemeal" initiatives, including
conditional sentencing, victim impact statements, lay tribunals, community courts and other similar
initiatives. The Chapter suggests that while these may make the system "better" for offenders and victims and may involve the community more than do centralized systems, they do not radically
change the system and perhaps more importantly, are not intended to do so whatever the claims of
their merits; nevertheless, many of these initiatives are explicitly identified as "restorative justice"
approaches in the literature or by those who implement them.
The Chapter explores in greater detail three main restorative justice approaches as they have been
discussed in the literature or implemented in Canada and other jurisdictions, particularly the United
States, England, Scotland, Australia and New Zealand: victim-offender mediation, (family)
conferencing and aboriginal circles. While initially begun as volunteer efforts, and remaining so in
some cases, these programs have increasingly been proposed or implemented by governments
responding to criticisms about the traditional criminal legal system, sometimes as individual
projects, but in other instances as part of a comprehensive program. The three major approaches
differ with respect to the participants (sometimes only the victim and the offender in victim-offender
mediation, while the offender's family may also be involved in family group conferencing and
community members are involving in aboriginal sentencing circles) and their focus (victim-offender
mediation is more likely to focus on the victim than is conferencing, for instance). Despite similar
nomenclature, family group conferencing (more than the other restorative processes) may differ
from jurisdiction to jurisdiction; in Australia, for example, it is based on Braithwaite's "reintegrative
shaming" theory. Although more often employed for minor crimes, the three major restorative
justice approaches may also be used for crimes as serious as murder or sexual assault. They may be
used at different points in the mainstream system, from pre-charge to sentencing. All three
approaches require considerable preparation; for example, preferably a mediator will meet with the
victim and offender separately before the actual encounter between them and there may be a number
of preparatory steps before a sentencing circle takes place. Studies have indicated high levels of
victim and offender satisfaction with these approaches, with high levels of agreement and
considerably greater likelihood of compliance with the agreements than with court-ordered
restitution. As we indicate in Chapter 4, however, a number of criticisms have been leveled at the
studies raising doubt about the appropriateness of governments embarking on restorative justice as a
solution to the problems with the mainstream criminal justice system when it has not been
adequately shown that these programs are either consistent with their own promises or otherwise
effective in addressing problems giving rise to and arising from crime.
Thus in Chapter 4, "A Step Back . . . Towards the Future," the paper offers some reflections on
restorative justice and its challenges. Recognizing the limits of current criminal justice processes,
and the "needs" of criminal justice participants, the paper provides a critical assessment of
restorative justice alternatives. It raises concerns about the identity of community, the potential for
conflict between victims and communities, whether restorative justice programs are more a form of
downloading of government services than an attempt to develop radical new approaches to criminal
justice, the relationship between the mainstream criminal system and restorative justice practices and
whether restorative justice practices are sufficiently cognizant of structural imbalances of power and
the impact of gender, race and class on victims and offenders. As well, the paper identifies directions
for further research to enable us to better assess the potential use of restorative justice principles in
practice in Canada, with particular emphasis on general evaluation of restorative justice programs
and the need to assess programs to determine whether they satisfy equality principles. Ironically, the criticisms raised in the context of discussions about restorative justice primarily fit into two
categories: those which are aimed at the principles and practices themselves and those which are
directed at forces which threaten to undermine the principles and practices. The two categories
come together if one recognizes that the terminology is often applied loosely and the practices often
implemented uncritically.
The community is a major element in many restorative justice initiatives, whether piecemeal or more
comprehensive programs. The Chapter points to critiques based on the difficulty of identifying "the
community" in a pluralist and post-modern age, both terms which, although perhaps contradictory,
are said to characterize western contemporary mobile societies. Ironically, although the mainstream
system has begun to implement some processes (particularly aboriginal circles) as a way of
recognizing "difference," some commentators and jurisdictions have advocated approaches
(especially reintegrative shaming) for western jurisdictions, which are premised on the norms of
values of non-western societies. More prosaically, other commentators ask how we measure
"community harm." Furthermore, the degree to which community initiatives should be monitored
by government is a difficult question. On the one hand, government intervention or control may
result in the co-optation of restorative justice initiatives, while on the other hand, inadequate
monitoring may permit powerful members of the community to control the processes at the expense
of vulnerable groups. For some, restorative justice raises the specter of social control as a substitute
for state control. Community accountability in the exercise of government programs may also run
into conflict with claims of community autonomy, particularly in relation to aboriginal programs
which may be intended as part of a move towards self-government. Conflicts may also rise with
respect to differing expectations about appropriate behaviour and sanctions between victims and
communities or about the extent to which communities take victims' concerns into account; these
problems may arise particularly in relation to domestic abuse and sexual assault cases because these
are heavily emotive crimes which historically have often resulted in the isolation of victims from
their communities, but they are not limited to these kinds of offences.
With increased government interest in these programs, it is inevitable that concerns are raised about
whether the programs are more an attempt to download government functions onto local
communities than to develop greater access to justice. While this may invoke ideological
arguments, it also elicits concerns about whether the downloading or decentralization is
accompanied by adequate resources to implement the programs and even if so initially, questions
about the stability of the funding. These processes are labour intensive and require heavy
expenditure of time, community education and adequate training for mediators and facilitators; they
therefore require significant resources if they are to be effective, particularly as an alternative
approach to justice. The allocation of resources raises another issue: to what extent are the resources
merely being transferred from social programs, without which it is believed youth and marginalized
adults are more likely to engage in crime and thus enter the criminal legal system.
Commentators also suggest a related problem: that the emphasis on individual participants privatizes
crime, ignoring the systemic impact of crime and the systemic reasons for crime. These approaches
ignore or treat as subsidiary the importance of the state's condemnation of certain activities by
labeling them criminal and treats them more as a dispute between the victim and the offender; restorative justice, in its purported sensitivity to the individual offender and victim, often fails to
acknowledge broader social concerns underlying the status and experience of victims and offenders,
the offence itself or the sanctions or reparations ordered. Restorative justice, therefore, has been
described as apolitical, failing to take into account or respond to structural inequality. Other
commentators argue, however, that restorative justice initiatives which are informed by "social
movement politics" may address some of these problems or indeed, that restorative notions can be
taken beyond the justice system and incorporated into governance models. To the extent that
restorative justice answers problems identified with the mainstream criminal legal system, there are
concerns about whether restorative justice initiatives will be distorted by incorporation into the
mainstream system and the appropriate relationship between the mainstream system and restorative
justice initiatives remains to be delineated. While the mainstream system is subject to criticism
because of ill treatment of offenders, for example, restorative justice approaches, based on informal
procedures, seem to lack even what some would consider the doubtful protection offered by the
formal rules marking the mainstream system. Indeed, offenders who fail to conform to agreements
and conditions may be imprisoned when they otherwise would not have been, the phenomenon
known as "widening the net." Finally, with the spread of purportedly restorative justice programs,
some advocates have expressed a fear that adherence to the principles underlying restorative justice
will become perfunctory or offenders will learn to "abuse" these processes to their own ends.
Chapter 4 also speaks to "future directions," identifying the need for more adequate studies to
determine the effectiveness of restorative justice initiatives in responding to crime, using measures
consistent with the principles underlying these approaches. It is necessary to establish, for example,
the long term impact on offenders (is recidivism only delayed, as some studies have shown?) and
victims (have their attitudes towards crime and themselves changed?), to establish more definitively
whether these programs result in net-widening and whether they adequately respond to equality
postulates, an issue not usually addressed in the studies of restorative justice programs. The Chapter
suggests three specific studies relating to equality concerns: an ethnographic study of the application
of restorative justice practices in Aboriginal communities, a project to assess the gender implications
of restorative justice and a study assessing the impact of privatization of justice on offenders.
Chapter 5 briefly concludes that currently, "restorative approaches are for the most part too
intertwined with the mainstream legal system on the one hand, and pose [sufficiently] serious
challenges themselves, on the other, to treat them as either a paradigm shift or a panacea." It
recommends that there be greater understanding of both the benefits and problems associated with
restorative justice before governments invest heavily in these approaches at the expense of other
ways of enhancing access to criminal justice.
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