Restorative Justice:
Directions and Principles -Developments in Canada
2002-02
By
Robert B. Cormier
Department of the Solicitor General Canada
This document is available in French. Ce rapport est disponible en français
sous le titre : La justice réparatrice : orientations et principes -
évolution au Canada
Public Works and Government Services Canada, 2002
Cat No.: JS42-107/2002
ISBN: 0-662-66608-9
Author Note
This paper was presented at the Technical Assistance Workshop of the
Programme Network of Institutes at the 11th Session of the
Commission on Crime Prevention and Criminal Justice, held in Vienna from April
16 to 25, 2002, under the sponsorship of the International Centre for Criminal
Law Reform and Criminal Justice Policy.
Table of Contents
Abstract
Introduction
Restorative Justice in Canada
Canadian Research on Restorative Justice *
Emerging Concerns *
United Nations Basic Principles of Restorative Justice *
Future Directions *
References
Abstract
The purpose of this paper is to summarize the directions and developments in
respect of restorative justice (RJ) in Canada as well as Canada's efforts in
support of the adoption of international principles to guide policy and
practice in this emerging field. The summary of RJ in Canada includes a brief
account of its roots in Aboriginal cultures, faith communities and
non-governmental organizations, the milestone events that led to an expansion
of programmes during the 1990s, and an overview of recent activities that have
promoted awareness, discussion and education in RJ across the country. The
paper also provides a synopsis of the results of research on RJ in Canada,
including evaluations of programmes, meta-analyses of the impacts of RJ,
victims' perceptions of RJ and public attitudes towards RJ. The policy debate
and expressed concerns about RJ are highlighted. This summary of developments
and debate, which serves to illustrate the promise and pitfalls of RJ, is
followed by an account of Canada's contribution to the elaboration of U.N.
Basic Principles of Restorative Justice. The paper concludes with a call for
further research to guide future policy and programme development.
Introduction
At the 10th U.N. Congress on the
Prevention of Crime and the Treatment of Offenders in Vienna (April 2000),
during the discussion of Item 6, Offenders and Victims: Accountability and
Fairness in the Justice Process, one of the panelists, Paul Rock, observed that
"offenders and victims" was "code" for restorative justice, and restorative
justice was the current "big idea" in justice. Indeed, there has been an
explosion of interest in restorative justice in recent years in many countries
of the world, including Canada. This explosion has brought with it a great deal
of excitement as well as uncertainty surrounding the application of restorative
justice.
The purpose of this paper is to summarize the directions that restorative
justice has taken in Canada, including developments that favour the adoption of
international principles to guide policy and practice in this emerging
field.
There is no single, universally accepted definition of restorative justice,
although a central feature of any definition would include some notion of
repairing the harm caused by crime and restoring the parties to a state of
wellness or wholeness which was disturbed by the criminal act. A working
definition might be the following:
Restorative justice is an approach to justice that focuses on repairing the
harm caused by crime while holding the offender responsible for his or her
actions, by providing an opportunity for the parties directly affected by a
crime - victim(s), offender and community - to identify and address their needs
in the aftermath of a crime, and seek a resolution that affords healing,
reparation and reintegration, and prevents future harm.
When we say that restorative justice is an "approach" to justice, rather
than a programme or set of programmes, we are speaking of the philosophy and
values that underpin restorative justice. The values, as reflected in the above
definition, include responsibility, inclusiveness, openness, trust, hope and
healing.
Restorative justice is often defined by way of contrast with the mainstream,
adversarial system of justice in Western countries (Zehr, 1990). For example,
whereas crime in the mainstream system is defined as a violation of the state,
restorative justice sees crime as harm done to victims and communities. Whereas
the victim in the mainstream system is largely prevented from speaking about
the real losses and needs resulting from the crime, in restorative justice the
victim plays a central role in defining the harm and how it will be repaired.
Whereas the mainstream system is operated and controlled by professionals,
restorative justice allows the community to play an active role in holding
offenders responsible, supporting victims and providing opportunities for
offenders to make amends.
Because restorative justice is an "approach" to justice, it has a
potentially broad application to the field of justice. It can be applied to
prevent crime in the first instance in various contexts, for example, where
mediation is used to resolve conflicts before they escalate to reach the
threshold of criminal behaviour. Restorative justice has been applied in Canada
at every stage of the criminal justice system from police diversion to the
post-sentence (incarceration and parole) stage (Department of Justice, Canada,
2000; Latimer, Dowden and Muise, 2001). Although it has been applied more in
cases of youth crime, it is also suitable for adults. Similarly, although it
has been used more often to deal with less serious crimes, it can be applied in
cases of serious crimes (Gustafson and Smidstra, 1989; Roberts, 1995), taking
into account the more challenging interpersonal dynamics in these cases.
Restorative Justice in Canada
The starting point for a discussion of restorative justice in Canada is the
roots of restorative justice in the cultures of Aboriginal peoples. Although it
would not be appropriate to characterize models of justice and healing in
Aboriginal communities as restorative justice - clearly, they have a much
broader cultural scope - the principles that underlie traditional healing
approaches are entirely consistent with the concept of restorative justice
(LaPrairie, 1992; Roach, 2000). Accordingly, as these rich traditions have
become more well known, they have influenced the development of restorative
justice in the mainstream system, particularly evident in the innovation of
sentencing circles (Stuart, 1996, 2001).
The beginning of the modern application of restorative justice in Canada is
typically given as 1974 in Kitchener-Waterloo, Ontario where the Mennonite
Central Committee (Church) introduced victim-offender mediation in the courts
(Peachey, 1989). Non-governmental organizations and faith communities have
continued to be at the forefront of innovations in restorative justice since
that time (Pate, 1990; Church Council on Justice and Corrections, 1996). For
example, the Church Council on Justice and Corrections, a national faith-based
coalition of eleven founding Churches, has made restorative justice the focus
of its work since it was established in 1974.
In 1988, the Parliamentary Standing Committee on Justice and Solicitor
General conducted a review of sentencing, conditional release and related
aspects of corrections, and published a report titled Taking
Responsibility, commonly known as the Daubney Report (Canada, House of
Commons, 1988). This far-ranging review included a focus on the needs of
victims and restorative justice. The committee recommended that the government
"support the expansion and evaluation throughout Canada of victim-offender
reconciliation programs at all stages of the criminal justice process which: a)
provide substantial support to victims through effective victim services; and
b) encourage a high degree of participation" (p. 98). The report also
recommended that the purposes of sentencing be enacted in legislation, and that
these include reparation of harm to the victim and the community and promoting
a sense of responsibility in offenders. The purpose and principles of
sentencing were introduced in the Criminal Code of Canada in 1996, and
the stated objectives of sentencing include "to provide reparations for harm
done to victims or to the community" and "to promote a sense of responsibility
in offenders, and acknowledgement of the harm done to victims and to the
community" [Criminal Code, Canada ss. 718 e) and f)].
In the 1990s, restorative justice gained significant momentum in Canada. The
National Associations Active in Criminal Justice, an umbrella organization that
brings together twenty non-governmental national organizations involved in
criminal justice, published a discussion paper that highlighted restorative
justice within a "social responsibility approach" to justice (National
Associations Active in Criminal Justice, 1990). Consistent with the
recommendations of the Daubney Report, there was an expansion of restorative
justice programmes across Canada. The approach could be generally characterized
as one of exploring ways of applying restorative justice processes to improve
the existing criminal justice system. These restorative processes have been
understood to be complementary to the mainstream criminal justice system
(Department of Justice, Canada, 2000).
Restorative justice programmes have been categorized under three core
models: victim-offender mediation, family group conferencing and circles
(Department of Justice, Canada, 2000). Victim offender mediation, where the
victim and the accused person are brought together with a trained mediator to
discuss the crime and develop a resolution agreement, is commonly used as a
post-charge alternative measure (Pate, 1990) but is also used post-sentence in
serious cases (Roberts, 1995). The family group conferencing model, which
originated in New Zealand based on Maori traditions and was later developed in
Australia, engages the family in resolving conflicts involving youth. In 1995,
the Royal Canadian Mounted Police adapted this model in a programme called
Community Justice Forums that are designed to divert cases of less serious
crime where the offender admits responsibility (Chatterjee, 1999). The model
has since been applied by other police forces in Canada including the Edmonton
Police Services and the Ontario Provincial Police (Shaw and Jané, 1998).
Circles are based on North American Aboriginal traditional practices and
ceremonies where people sit in a circle and speak in turn to discuss and
resolve an issue affecting the community. This model has been used in various
forms including sentencing circles (Stuart, 1996), healing circles in the
context of community corrections (Solicitor General Canada, 1997a), and
community-assisted hearings by the National Parole Board for decisions
regarding the conditional release of an offender from prison into the community
(Vandoremalen, 1998).
The Federal/Provincial/Territorial Ministers Responsible for Justice
endorsed a report titled Corrections Population Growth (Solicitor
General Canada, 1996) which aimed to address the growth in the prison
population in Canada at that time. One of the recommendations of the report was
to increase the use of restorative justice and mediation approaches, and share
information on the results of demonstration projects based on restorative
principles. Jurisdictions reported on activities in response to this and the
other recommendations in subsequent progress reports (Solicitor General Canada,
1997b, 1998, 2000). Most Canadian jurisdictions reported having introduced
restorative justice policies and programmes.
A national conference on restorative justice, sponsored by the Canadian
Criminal Justice Association and the International Centre for Criminal Law
Reform and Criminal Justice Policy, was held in March 1997 in Vancouver,
British Columbia (Scott, 1997). This conference brought together
representatives of government departments and non-governmental organizations,
criminal justice practitioners and researchers to explore the implementation of
restorative justice initiatives and plan the further expansion of the field.
The Vancouver conference was a watershed for restorative justice in Canada. It
raised awareness of restorative justice and served as a catalyst for subsequent
action in many locations across the country. For example, a major programme of
restorative justice with youth in the Province of Nova Scotia was launched in
the following year (Department of Justice, Nova Scotia, 1998).
A working group composed of senior officials from Federal, Provincial and
Territorial governments was established following the Vancouver conference with
a mandate to collaborate in the elaboration of policies for restorative
justice, promote and disseminate research, and share information on
developments in the various Canadian jurisdictions. In May 2000, the working
group prepared a consultation paper titled Restorative Justice in Canada
(Department of Justice, Canada, 2000). This paper provides an overview of the
nature and philosophy of restorative justice and its applications, a brief
synopsis of key developments in legislation, policy and programmes in Canada,
and a list of consultation questions under five main headings. The consultation
questions address the roles of government and community in restorative justice,
the effects on victims, appropriate offences for restorative processes,
accountability issues, and training and standards of practice.
Restorative justice has been a topic of discussion in Canada in many fora in
recent years. The Church Council on Justice and Corrections published a
compendium of restorative justice programs in 1996 (Church Council on Justice
and Corrections, 1996). This document was instrumental in informing a broad
audience about restorative justice initiatives in Canada and elsewhere. The Law
Commission of Canada has published a discussion paper titled From
Restorative Justice to Transformative Justice (Law Commission of Canada,
1999) in order to stimulate a broad debate about how conflicts in society are
framed, assumptions concerning the parties to a conflict, and how remedial
outcomes are achieved. A video titled Communities and the Challenge of
Conflict: Perspectives on Restorative Justice (Law Commission of Canada,
2000) has also been produced and disseminated by the Law Commission of Canada.
The video describes restorative justice initiatives in Canada and captures the
views of various practitioners and informed commentators on key issues
surrounding restorative justice. A recent issue of the Canadian Journal of
Criminology (July 2000) was devoted to restorative justice.
The Royal Canadian Mounted Police held a symposium, Achieving Justice
with the Community in Canada: Restorative Justice - the Role of Police, in
March 2000 (Chatterjee, 2000). The symposium brought together a wide range of
practitioners from across Canada and invited speakers from abroad to discuss
issues in restorative justice with a particular focus on the contribution of
the police. Conflict Network Resolution Canada, a non-governmental organization
that focuses on the resolution of conflict in all spheres of life, is
undertaking a consultation on restorative justice among a wide range of
governmental and non-governmental stakeholders, using the draft basic
principles produced by the U.N. Experts' Meeting on Restorative Justice held in
Ottawa, October 29 to November 1, 2001, as the focal point for the
consultation.
The Correctional Service of Canada initiated a restorative justice week that
has been held annually in November since 1996. During the week a number of
activities are held in various communities across the country to showcase and
celebrate work in the field of restorative justice. A wide range of partners
from governments, the non-governmental sector and faith communities participate
in restorative justice week. Each year, a theme is chosen in order to highlight
a perspective on restorative justice and is supported by the publication of
resource kits. For example, in 2001, the theme was "Giving Voice to Hope."
There has also been a substantial growth in interest in restorative justice
in universities, colleges and institutes across Canada. A compendium of
restorative justice and conflict resolution education programmes offered by
universities, colleges and other post-secondary or community-based institutions
has been published (Correctional Service Canada, 2001). While not purporting to
be an exhaustive list of such programmes, it contains thirty-nine entries.
In the absence of an agreed-upon definition of restorative justice it is
difficult to produce a definitive inventory of restorative justice programmes
in Canada. In addition, since some of these programmes are initiated informally
at the community level they are not easily identified when doing a compilation.
Notwithstanding these challenges, an inventory of events and initiatives
related to restorative justice was produced (Correctional Service of Canada,
1998), and a Canadian Directory of Restorative Justice Programs
is posted at the Web site of Conflict Resolution Network Canada (www.crnetwork.ca).
Canadian Research on Restorative Justice
Various goals have been articulated for different restorative justice
programmes. These have included: to better meet the needs of victims; engage
communities in the justice process; rehabilitate/reintegrate the offender;
reduce recidivism; serve as an alternative to incarceration while providing
meaningful consequences and obligations; increase public confidence in the
justice system; reduce pressure on the criminal justice system and lower costs
by diverting cases. Of course, whether these goals are met in particular
programmes is an empirical question, and there is a broad recognition among
policy makers and practitioners of the need for ongoing evaluation of
programmes.
Notwithstanding the recognition of the importance of research and
evaluation, there have been relatively few formal evaluations of restorative
justice programmes in Canada. An evaluation was done of the court-based victim
offender mediation programmes (VOMP) in four Canadian cities (Umbreit, Coates,
Kalanj, Lipkin, and Petros, 1995). These researchers found that victims and
offenders who participated in mediation were more likely to be satisfied with
the manner in which the justice system responded to their case than offenders
and victims who were referred to but never participated in mediation.
Satisfaction with the outcome of the mediation was very high among victims
(89%) and offenders (91%).
An evaluation of a court-based VOMP in another Canadian city examined the
process and outcomes for completed mediation cases but did not include
interviews with the victims and the offenders (Nuffield, 1997). Nuffield found
that many of the offences which led to a referral to mediation were minor,
involving little or no injury and small material losses, and were described by
prosecutors as "petty crimes" that should not take up court time. About half of
the mediated agreements reviewed in the study called for restitution to the
victim. Victims who had suffered material losses were more than four times as
likely to receive restitution through the mediation process than those victims
whose cases proceeded to the court. Comparisons of the outcomes for the
offenders who participated in mediation with a group of offenders who were
referred but did not go through mediation showed no difference in recidivism
rates, although the author noted that the mediation group consisted of higher
risk offenders (i.e., a larger proportion had a prior record).
The application of a VOMP post-sentence in cases of serious crime, such as
aggravated sexual assault, murder and armed robbery has been the subject of a
preliminary evaluation (Roberts, 1995). This programme involved extensive
screening and therapeutic preparation before a face-to-face meeting was
arranged. Interviews were conducted with victims and offenders who participated
in the VOMP as well as practitioners who were involved in the programme. The
major finding of the study was that there was strong support for the programme
from all the victim and offender respondents. Specifically, participants
appreciated the "reality of the experience", the flexibility and absence of
pressure, and the caring, supportive staff. The results also showed that the
motivation for victims' participation was twofold: to know about the offence
and why it took place and to communicate about the impacts, whereas the
motivation for offenders was most often that it was the right thing to do, both
for themselves and for the victim. A very high percentage (91%) of the criminal
justice practitioner respondents indicated strong support for the programme
(Roberts, 1995).
The Community Justice Forums that are operated by the Royal Canadian Mounted
Police have been the subject of a preliminary evaluation (Chatterjee, 1999).
The results of this evaluation showed high levels of satisfaction with
Community Justice Forums among offenders, victims and facilitators. The
participants in this study indicated high levels of satisfaction overall as
well as with the procedures of the forum and the fairness of the outcome
(Chatterjee, 1999).
Bonta, Boyle, Motiuk and Sonnichsen (1983) conducted a study of a programme
that involved offenders being released from prison to community resource
centres (CRCs) or halfway houses in order to make restitution to their victims.
The study found generally positive attitudes towards restitution among victims,
with the level of satisfaction related to the amount of money repaid to the
victim. Comparison of the recidivism of the group of offenders who had
restitution agreements with those who were sent to CRCs without the requirement
to pay restitution was complicated by the fact that the restitution offenders
constituted a higher risk group at the outset (i.e., younger with more
extensive criminal histories). Despite the expectation that the restitution
group would have a higher recidivism based on their risk level, the restitution
offenders were no more likely to be reincarcerated than the comparison group.
Another interesting finding of this study was that the more that the offender
repaid the more likely he was to successfully complete his CRC placement.
A programme called Restorative Resolutions was introduced by the John Howard
Society of Manitoba to provide a community-based alternative sentencing plan to
the court, with input from victims, for offenders who were otherwise likely to
be incarcerated. The evaluation showed that victim-offender meetings occurred
in a relatively small percentage (i.e., 10%) of cases but there were higher
percentages of written apologies (24%), restitution (56%), victim impact
statements (79%), and community service (96%) (Bonta, Wallace-Capretta and
Rooney, 1998). The results of the evaluation also indicated that the offenders
who participated in the programme, which included treatment to address the
identified needs of the offenders as well the restorative component, had a
lower recidivism rate than matched groups of probationers and inmates.
The Community Holistic Circle Healing (CHCH) Process in Hollow Water First
Nation has been evaluated (Couture, Parker, Couture and Laboucane, 2001). The
CHCH process, which is founded on Aboriginal teachings and traditions,
addresses sexual abuse in an holistic manner involving victims, victimizers
(offenders) and their respective families and community. The process, which
continues to evolve, involves 13 steps that begin with disclosure by the
victimizer or the victim and ensuring safety and support for the victim,
followed by circles with the victim and the victimizer and preparatory meetings
with their families, leading to a special gathering/healing circle and ending
with a cleansing ceremony. The underlying concept for the process is "healing
as a return to balance" (Solicitor General Canada, 1997a, p. 128). Offenders in
the community who have been charged (in most cases with a sexual offence),
plead guilty and choose to enter the programme, are sentenced to probation with
a condition that they participate in the CHCH process. The evaluation included
interviews with community members and practitioners involved in the CHCH
process, cost comparisons between CHCH and processing through the mainstream
justice system, and an analysis of re-offending. The results of the interviews
revealed that the respondents attributed significant improvements in the health
and wellness of their community to the CHCH process, including an increased
sense of safety, improved parenting, children staying in school longer, young
people returning to the community to teach, and a reduction in the requirement
for substance abuse treatment. A comparison of the resources spent on the CHCH
process with the avoided costs of processing these cases through the mainstream
justice system and housing these offenders in penitentiaries showed significant
savings. The evaluation also found that only 2 of the 107 offenders who had
participated in the programme over a period of ten years subsequently
re-offended, which is a lower rate of recidivism than generally reported for
sex offenders (Hanson, 2001).
Bonta, Wallace-Capretta and Rooney (1998) conducted a meta-analysis, i.e., a
quantitative synthesis, of the impact of restorative justice programmes on
recidivism. They found 14 evaluations reported in the literature that met their
two basic criteria, i.e., the presence of a comparison group and sufficient
information to calculate a common statistic or effect size to measure the
strength of the relationship between the restorative justice intervention and
recidivism. These studies provided 20 effect sizes for the meta-analysis. The
overall finding was a reduction of 8% in recidivism attributable to the
restorative justice intervention, although the authors noted that some studies
reported large decrease while others found increases in recidivism. In
addition, the authors commented on the methodological weaknesses in the
studies, notably the absence of random assignment and the limited use of
matched comparison groups.
A more recent meta-analysis examined the impact of restorative justice
programmes on four outcome measures of interest: victim satisfaction, offender
satisfaction, restitution compliance, and recidivism (Latimer, Dowden and
Muise, 2001). The authors reported on the results of 22 studies that examined
the impact of 35 restorative justice programmes, yielding a total of 66 effect
sizes for the four outcomes. The results showed a significant positive impact
of restorative justice programmes on victim satisfaction. Analysis of the
impact of restorative justice programmes on offender satisfaction showed no
effect; however, as the authors noted, the results were skewed by the findings
of one study. Participation in restorative justice programmes had a significant
impact on the likelihood of completing a restitution agreement. With regards to
recidivism, the results of the meta-analysis showed a reduction of 7% due to
restorative justice intervention - similar to the results of the earlier
analysis reported by Bonta, Wallace-Capretta and Rooney (1998).
Wemmers and Canuto (2001) have provided a critical review of the literature
on victims' experience with and perceptions of restorative justice. They
concluded that the research shows that most victims who participate in
restorative justice programmes are satisfied with the experience but there is
no clear evidence that participation in such programmes enhances satisfaction
relative to the traditional justice system. Further, they found that most
victims who participate in restorative justice programmes feel that they
benefit from them and meeting with the offender can assist in addressing some
of the victim's emotional needs. They also noted that there has been little
research on the experiences of victims who choose not to participate in
restorative justice programmes.
Research has also been conducted in Canada on public attitudes towards
restorative justice, and survey results have shown favourable attitudes
(Galaway 1994, reported in Shaw and Jané, 1998; Doob, 2000). For example, Doob
(2000) found that when respondents were given a scenario describing a family
group conference in the case of an offender who stole from a store, 65%
indicated that it would be appropriate to handle it that way rather than in
court if the offender were an adult, and 75% in the case of a young offender.
In his survey research, Doob also found that 55% of adults in Ontario were
"very interested" or "somewhat interested" in becoming involved in structures
outside the formal justice system that are reparative in nature.
Emerging Concerns
While the search for empirical support continues, the debate on restorative
justice is unfolding on various fronts. Although restorative justice holds
promise to deliver a more healing and satisfying justice, there have been
concerns expressed about restorative justice, particularly from victims and
victims' advocates (Canada, House of Commons, 1998). There are concerns that
restorative justice programmes will be used inappropriately, and will fail to
denounce and deter serious crime. Another concern is that restorative justice
programmes are dominated by non-governmental organizations with a primary
mandate to assist offenders in their rehabilitation and reintegration, and that
the perspective of victims has not been adequately taken into account in the
design and implementation of these programmes. In particular, there are
concerns about the ad hoc approach to restorative justice programmes and
the absence of guidelines, especially in relation to victim participation,
power imbalances, serious crimes and the training of facilitators. Victims are
concerned that there is a lack of services to victims currently within the
mainstream system and that basic services to victims will be sacrificed in
order to fund restorative justice programmes. Victims advocates have expressed
an interest in participating in the process of setting the criteria and
parameters for restorative justice programmes (Simmonds, 2000). Quite apart
from the concerns of victims, there are also concerns that in the zeal to
encourage offenders to participate in restorative justice programs their rights
may be compromised (Brown, 1994).
Other concerns have emerged from academics, particularly those focusing on
sentencing. Roberts (2002) has argued that restorative justice may undermine
the other principles of sentencing. He noted that the criminal law is an
instrument of last resort, and using the criminal law to "do good" runs the
risk of widening the reach of the criminal law beyond its intended use.
Restorative justice, with its focus on repairing harm in an individualized
manner, may also undermine the proportionality principle, i.e., that the
severity of punishments should reflect the seriousness of the crime, as well as
the principle of equity in treatment. Roberts cautioned that the public will
reject sentences with restorative aims that are not sufficiently punitive in
cases of serious crimes.
United Nations Basic Principles of
Restorative Justice
Against this backdrop of development and debate, Canada has been active in
international efforts at the U.N. aimed at establishing U.N. basic principles
of restorative justice that would serve to guide policy and practice in this
emerging field. In introducing the resolution on basic principles for the use
of restorative justice programmes in criminal matters at the ninth session of
the Commission on Crime Prevention and Criminal Justice in April 2000, Canada
outlined the rationale underlying this initiative. First, it was noted that the
resolution continued the work begun by the Commission the previous year with
the adoption of a resolution recommending that the Commission consider the
desirability of formulating standards in the field of mediation and restorative
justice. It also built on the results of the discussion on Item 6 (Offenders
and Victims: Accountability and Fairness in the Justice Process) at the
10th U.N. Congress on the Prevention of Crime and the Treatment of
Offenders, which concluded that there was consensus on the promise of
restorative justice as well as caution regarding the need to safeguard
the rights and interests of victims in the implementation of restorative
justice programmes. These two conclusions from the Congress discussion on Item
6, i.e., that restorative justice offers promise in our collective efforts to
reduce levels of conflict and promote healing, and the concerns about the
possible improper implementation of restorative justice programmes, point
clearly to the need to develop basic principles to ensure that the rights and
interests of all parties are respected.
The purpose of the resolution was to initiate a process that could lead to
the adoption of basic principles at a future session of the Commission. These
basic principles would not be prescriptive or normative but rather would
provide a framework to guide the development and implementation of restorative
justice in Member States. The resolution, which was subsequently passed by the
Economic and Social Council as Resolution 2000/14, requested the Secretary
General to seek comments from Member States and relevant intergovernmental and
non-governmental organizations, as well as institutes of the United Nations
Crime Prevention and Criminal Justice Network. Interested parties were to be
asked for their views on the desirability and the means of establishing common
principles on the use of restorative justice programmes in criminal matters and
the advisability of developing a new instrument for this purpose. The
resolution also requested that a meeting of experts be convened to review the
comments received and to examine proposals for further action in relation to
restorative justice.
Canada hosted the meeting of experts on restorative justice in Ottawa, from
October 29 to November 1, 2001. There was general agreement among the group of
experts that it was desirable to establish an instrument on basic principles of
restorative justice. Building from a set of preliminary draft elements of basic
principles on the use of restorative justice programmes in criminal matters
that was annexed to the resolution (ECOSOC 2000/14), the group of experts
produced on consensus a set of "revised draft elements of a declaration of
basic principles on the use of restorative justice programmes in criminal
matters." This revised draft includes a preamble that encapsulates the roots,
philosophy, goals and flexible application of restorative justice. In the
report on the meeting, the group of experts recommended that the revised draft
elements be considered and approved by the Commission on Crime Prevention and
Criminal Justice and other United Nations policy-making bodies. The group of
experts also made other recommendations pertaining to further research,
information sharing among Member States, technical assistance and the
dissemination of the basic principles. A resolution, titled Basic principles
on restorative justice, has been drafted and will be tabled at the
11th Session of the Commission. The intention of the resolution is
to bring forward the recommendations of the group of experts, including the
approval and adoption of basic principles for the use of restorative justice
programmes in criminal matters to guide the development and implementation of
restorative justice programmes in Member States.
Future Directions
With the adoption of U.N. basic principles, the issues facing restorative
justice will not evaporate. Finding a place for healing in a system that is
fundamentally punitive will continue to challenge policy makers and
practitioners. There will continue to be concerns regarding the application of
restorative justice. Nevertheless, internationally accepted principles will
assist by providing guidance that, if followed, will help to prevent the
misinformed and inappropriate activities that may be undertaken under the
rubric of restorative justice but do not conform to its philosophy and
values.
The first task will be to promulgate the basic principles, and seek an
understanding and broad-based commitment to them. As with any set of
principles, their application in specific circumstances is the crucial piece.
No doubt, there will be debates regarding their interpretation. Ideally, the
principles will serve as a focal point for discussion and examination of issues
that will contribute to the growth of restorative justice.
The second task, and perhaps the key to the future of restorative justice,
is further research and evaluation of programmes. Restorative justice has a
very compelling philosophical basis. It is rooted in fundamental values of
respect for human dignity, honesty, openness, responsibility, caring and
healing of relationships. Yet, questions regarding whether it works, and how it
works, abound. We have barely scratched the surface in the research to date on
restorative justice and have just begun to conceptualize the research questions
in this field (Nuffield, 1997; Presser and Van Voorhis, 2002). Clearly,
restorative justice needs a stronger theoretical and empirical basis if it is
to be sustained. Part V of the proposed basic principles addresses the
continuing development of restorative justice programmes and concludes with the
sentence: "The results of research and evaluation should guide further policy
and programme development." To those who subscribe to evidence-based policy
this is a call to action. The future of restorative justice depends on it.
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