1.1 RESTORATIVE JUSTICE, CONSENSUS-BASED JUSTICE AND PARTICIPATION

Restorative justice refers to a process for resolving crime and conflict that focuses on redressing the harm to the victims, on holding offenders accountable for their actions and on engaging the community in the conflict resolution process. For victims, restorative justice may be an opportunity to restore a sense of control over their lives by expressing their anger, getting answers to questions they may have about the incident and re-establishing order and predictability in their lives. For offenders, restorative justice involves accepting responsibility for their actions by repairing the harm they have caused. It also means addressing the issues that contribute to their propensity to engage in harmful behaviour. This may require dealing with anger or drug and alcohol dependency. For the community, restoration involves denouncing wrongful behaviour and reaffirming community standards. Restoration also includes ways of reintegrating offenders into the community. While there are many different visions of restorative justice in Canada and abroad, a common element of restorative justice processes is that the victim, the offender and the community have some control over the process.

Consensus-based justice refers to innovative methods of resolving mostly non-criminal conflicts. Much as with restorative justice in the criminal justice system, there have emerged new ways of thinking about civil conflicts such as breaches of contract, marital disputes and environmental disagreements. These new ways of responding to conflict place the parties to it at the centre of the resolution process. The goal of processes such as collaborative lawyering, mediation and conciliation is to provide non-adversarial ways for parties to resolve disputes. Much as in the case of restorative justice processes, the thrust of consensus-based justice programs is to allow parties to a dispute to control how their dispute is resolved.

Restorative justice processes, both community based and court based, emphasize relationship-building, reconciliation and the development of agreement driven outcomes between victim and offender. These transformative processes are responses to frustrations with an adversarial justice system. Broadly similar goals are reflected

"My need is to dialogue with him—hold him to account.": A Victim’s Story

"I’ll need to meet with him face to face. I have dozens of questions that were never touched on in the justice process. I need to ask him ‘Why?’ and ‘Why me?’ And I need to be open to his humanity, his pain, to see if we can find some new freedom for us both … I’d like to ask him ‘What was all your pain about, and why was it that your rage was turned out on others?’ ‘Just relax,’ he said, ‘and you’ll survive.’ Well someone didn’t survive—my twins lost their lives. I want to see how he responds to the news of the loss of my babies. I want him to have to deal with my pain and his responsibility for the consequences. It may sound funny, but I don’t hate him. Maintaining anger for the rest of my life will just eat away at me. My need is to dialogue with him—hold him to account."

As reported in David Gustafson, "Victim–Offender Mediation and Reconciliation: Towards a Justice Which Heals," address to the 3^rd International Prison Chaplains’ Association Conference, Aylmer, Quebec, 18–23 August 1995, at 13–14.

in the development of innovative non-criminal programs. Program goals cover a spectrum from negotiation (emphasizing therapeutic and systemic benefits from the development of peaceful consensus-building paradigms) to pure efficiency models (quicker disposition of civil disputes). Among others, examples of these civil programs include a judge-led conciliation in the Quebec Court of Appeal; [1] Ontario’s Mandatory Mediation Program; [2] Saskatchewan’s Mediation Orientation Program; [3] Alberta’s Queen’s Bench Mediation Program; [4] judge-led settlement conferences; [5] workplace conflict resolution systems and other in-house dispute management programs in the private, not-for-profit and government sectors; [6] peer mediation programs in schools; [7] and a network of community mediation centres (in Ontario, British Columbia and Quebec) that

offer mediation for disputants in landlord–tenant conflicts, consumer disputes, and so on. [8] These and similar innovations will be described throughout this Report as consensus-based justice models.

Restorative justice in the criminal justice system and consensus-based justice in the civil and administrative justice system are ways of thinking about conflict that place those who are touched by conflict (victims and offenders, plaintiffs and defendants, claimants and respondents, and members of the community) at the centre of the process. Restorative justice in the criminal law and consensus-based justice in the civil and administrative law are connected. They are attempts to rethink how conflicts are named and framed, rethink our assumptions about who is properly a party to a dispute, and rethink how we ought to respond to conflicts. These processes represent a departure from our adversarial criminal and civil justice systems. Just as the principles of restorative justice challenge our entrenched assumptions about how to respond to criminal behaviour, [9] consensus-based justice rejects a conventional right/wrong analysis of conflict, preferring a more creative approach to accommodating differing needs and interests and the development of integrative solutions.

There are conceptual and practical differences between restorative justice used to respond to the aftermath of criminal offences and consensus-based justice used to resolve non-criminal disputes. In later chapters of this Report, we explore some of these differences. There is, however, a fundamental feature that is common to both approaches. Both restorative justice and consensus-based justice seek transformation through the participation of the parties involved in the conflict. Conflict causes pain and suffering, but it also provides an opportunity for change and growth. Both restorative justice and consensus-based justice attempt to capitalize on the transformative potential of conflict, to use conflict as a springboard for moving toward a more just society. Participation is the key to the transformation process. Parties to a conflict ought to be actively involved in finding resolutions to it. In this report, therefore, we refer generically to restorative justice and consensus-based justice as participatory processes.

A Note on Nomenclature

For the purposes of this Report, the expressions restorative justice and consensus-based justice will be used to describe dispute resolution processes that explicitly or implicitly [10] focus on encouraging the parties to actively participate in the resolution of the dispute. We will use the expression participatory processes to refer generically to both restorative justice and consensus-based justice.

Not all alternative dispute resolution programs ought to be described as consensus-based justice, [11] nor should all non-custodial sentences be described as restorative. In fact, there is a lively debate about what both of these terms mean for conflict resolution processes. For the purposes of this Report, adopting a particular nomenclature to identify a definition or orthodoxy seems less helpful than looking for those underlying principles that may enhance our existing dispute resolution systems.

"A restorative justice way of thinking can influence the way any alternative conflict resolution program operates— whether the program is dealing with a dispute over money or property, the misbehaviour of a young person which falls short of being reported to police, a parent/child relationship which draws the attention of Child Welfare, or adult criminal behaviour."

Provincial Association Against Family Violence, Making It Safe: Women, Restorative Justice and Alternative Dispute Resolution (St John's, Nfld. and Lab.: Provincial Association Against Family Violence, 2000) at 7.

1.2 OBJECTIVES AND THE CHALLENGES OF THIS REPORT

This Report evaluates the extent to which participatory justice values and practical initiatives have taken root in Canadian justice systems. The growing interest in participatory justice offers an excellent opportunity to assess the impact of pressure for change within both the criminal justice system and the civil justice system. How influential has the restorative justice movement been, not only in the criminal context, but also in the growth of civil justice initiatives such as court-connected mediation and judge-led settlement conferences? How do restorative justice and consensus-based justice relate to conflict resolution outside a formal legal arena such as peer mediation in schools and community mediation programs?

By emphasizing the reconstruction of relationships through dialogue and the consensual outcomes developed by the disputants themselves, the Commission believes that both restorative justice models and consensus-based justice models offer a valuable alternative to the conventional adversarial paradigm of dispute resolution. [12]

The first objective of this Report is to clarify the underlying values and principles of both restorative justice and consensus-based justice by drawing from the literature, research and experiences that these innovations have generated. The purpose here is not to create an orthodoxy of doctrine in either case. Rather, the objective is to explore the origins of each of these social movements in order to better understand their meaning in action and how this is driven by core beliefs about the nature of conflict and by our desire to change the way conflict is handled in our communities. Chapter 2 describes the conditions that appear to have stimulated the development of participatory alternatives to traditional dispute management. Chapter 3 explores the core objectives and values of each participatory alternative. The goal in these first chapters is to identify the origins, the distinctiveness and the potential of each approach.

Our present thinking is constrained by equating of restorative justice practices with criminal matters and equating consensus-based justice approaches with civil non-criminal matters. A second objective of this Report is to challenge thinking about this classification and division of disputes for the purposes of fair process and just resolution, in particular

the distinction made between criminal and civil disputes. This is more than simply a procedural question. Integrating best principles and practices from restorative justice and consensus-based justice models challenges us to think deeply about the character of conflicts themselves as they are manifested and presently understood in the criminal and civil contexts. In the first half of Chapter 4, we offer some common themes and elements that link restorative and consensus-based justice processes.

A third objective of this Report is to identify the concerns and the critiques that have been expressed, often in similar form, about restorative and consensus-based justice approaches. The second half of Chapter 4 addresses these concerns and critiques, alerting us to the risks and exploring ways in which these risks might be managed. This is a reoccurring theme throughout the Report. One of the risks associated with the increased use of restorative and consensus-based justice processes is the potential for vulnerable groups that might otherwise seek the protection of formal rights-based justice processes to be disempowered in an informal process. It is critical to the development of any alternative that it be fully responsive to the power relationship between disputants and between disputants and the wider community or the state.

The fourth objective of this Report is to identify best practices across Canada. Chapter 6 offers some principles for the design of participatory justice systems, drawing on the most promising outcomes seen in current restorative and consensus-based justice initiatives.

The fifth objective of this Report is to address policy questions and explore the changes necessary to make restorative and consensus-based justice processes part of the mainstream of dispute resolution practice in Canada without undermining their creative elements. The opening section of Chapter 7 reviews some examples of best practices in a range of applications, including criminal, civil, administrative, family and extralegal conflicts. Chapter 7 also considers the role of the state in community-based justice initiatives. Community participation is key to both restorative justice and consensus-based justice initiatives, and many proponents regard government as threatening their work. At the same time, as long as the traditional justice system operates as the hub

of formal dispute processing, community justice initiatives must develop structural and political relationships with the criminal and civil justice systems.

The final objective of this Report is to make recommendations that enhance the capacity of the justice system to provide meaningful results for Canadians and to develop a culture of participatory justice in Canada. Chapter 8 gives a number of recommendations for governments, justice officials, lawyers, social service agencies and members of the community who have an interest in participatory justice. Our recommendations are about how governments, justice offi­cials, community groups, and other agencies and individuals working in conflict resolution can develop a culture of participatory justice.

Report Objectives

• To clarify the underlying values and principles of both the restorative justice and the consensus-based justice perspectives

• To challenge the conventional wisdom about how we think about and categorize disputes

• To alert us to the risks of restorative and consensus-based justice practices and how these risks might be managed

• To highlight best practices and their implications for the design of fair, safe and effective alternatives to adjudication

• To explore the changes necessary to advance restorative and consensus-based justice processes and practices, in particular the role of government in promoting alternatives to traditional dispute processing

• To make recommendations to develop a culture of partici­patory justice in Canada that would promote the develop­ment of restorative and consensus-based justice processes

The task set for this Report involves many inherent tensions. The promise held out by new approaches to dispute resolution is that they are participatory. Both restorative justice and consensus-based justice

focus on relationships. It is important to evaluate alternative programs to ensure that our expanding experience enables us to enhance both the process and the outcomes of conflict resolution. This means identifying best practices and articulating the underlying values and principles of conflict resolution in order to anchor restorative and consensus-based dispute resolution. We must also begin to clarify the role of government in enabling and legitimizing such programs. However, the institutionalization of change carries many risks. There is a danger that “packaging” the potential of an interactive and dynamic process might diminish its radical and transformative power and lead to new orthodoxies as inflexible and unresponsive to context as those of the existing system. There is pressure to create neat definitions and models of practice. This pressure denies the spirit of alternatives that seek to respect diversity and to challenge assumptions of homogeneity in both the processes and the outcomes of disputes.

1.3 ORGANIZATION OF THE REPORT

The rest of this Report consists of Part 2 and Part 3. Part 2 synthesizes what we know from existing research about the meaning and significance of participatory justice principles for our existing dispute resolution processes. This part of the Report also explores innovative conflict management methods developed to respond to criminal and non-criminal matters. It examines the following questions:

• To what types of needs—needs that are not met by the existing legal system—are initiatives in restorative justice and consensus-based justice appropriate responses?

• How do restorative justice and consensus-based justice challenge us to reconceptualize conventional dispute resolution processes and concepts, including concepts of justice, causation, harm and culpability, participation, equality and accountability?

• What critiques and opposition have been encountered by current initiatives in restorative justice and consensus-based justice, and how might these be addressed?

• Are there themes and principles common to both restorative and consensus-based justice approaches? How might these themes help us understand the conflict resolution process in general?

Part 3 addresses the policy implications of participatory justice for existing dispute resolution processes in both criminal and non-criminal disputes. These questions will help guide policy development.

• How does the experience of participatory justice processes contribute to our understanding of best practices in dispute resolution?

• What results have been achieved by current initiatives, both inside and outside the formal justice system?

• What distinctions between conflict types (criminal acts and civil wrongs) and conflict circumstances (conflict within Aboriginal and non-Aboriginal communities, or between more or less powerful parties) are significant in considering the suitability of a relationship-focused approach to conflict resolution?

• What have we learned about best practices in designing restorative and consensus-based justice processes and, in particular, how can these processes become more responsive to various needs in the community?

• What is the appropriate relationship between communities and government in developing and operating restorative and consensus-based justice programs? How should policymakers support community programs to achieve good outcomes within an accountable and democratic social structure?

Part 3 concludes by suggesting a roadmap for how we can move toward a culture of participatory justice. It provides a number of specific recommendations to governments and other actors and agencies. These recommendations are based on extensive consultations with Canadians and on research conducted by the Commission over the past few years.