2.2.3 The Youth Criminal Justice Act, 2002
The Youth Criminal Justice Act (YCJA) formalizes some of the informal strategies advocated under the previous youth legislation and used by police. These include warnings and cautions, referrals to community programs and other measures taken outside the formal court process. The YCJA confers statutory recognition on these types of informal interventions and provides a detailed set of principles for their application. Extra-judicial measures include warnings and referrals to community programs for less serious offences, as well as formal reparation orders and community service for more serious cases. In the latter case, the offender must first accept responsibility for the offence in order to access extra-judicial measures.
The YCJA contains an important declaration of principles that sets out the objectives behind the implementation of this new regime. These objectives are to ensure a rehabilitative focus in responses to youth crime; to maintain a separation between the adult and youth systems; and to reinforce respect for community and individual values, and for interests that are affected by criminal behaviour. Many of these principles are contained in the earlier Young Offenders Act, but the new legislation “appears to reflect a shift away from considerations such as society’s denunciation of offending behaviour, and the short-term protection of the public from offenders, that tend to favour custodial dispositions for young offenders.” [57]
2.2.4 UN Declaration of “Basic Principles on the Use of Restorative Justice Programmes in Criminal Matters”
The United Nations Commission on Crime Prevention and Criminal Justice developed a draft resolution, “Basic Principles on the Use of Restorative Justice Programmes in Criminal Matters.” [58] Canada has taken a leading role in sponsoring this resolution and hosted a major meeting of international experts in October 2001 to draft a set of basic principles for further consideration by this Commission. The “Basic Principles on the Use of Restorative Justice Programmes in Criminal Matters” lends strong international support to the concept of restorative processes and outcomes at “all stages” of the criminal justice process. The principles of the Declaration emphasize party self-determination and voluntariness and refer to the need for procedural safeguards, including the availability of legal advice and full provision of information to participants in advance of any restorative process. [59]
Most significantly, perhaps, the Declaration calls for national governments to take steps—through consultation between criminal justice authorities and program administrators— to develop guidelines and standards for the operation of restorative justice processes. These standards may require the imprimatur of legislative authority. As one commentator on the Declaration expresses it, “If restorative justice is to become a legitimate legal alternative in the international setting, this Declaration is a promising first step.” [60]
The Declaration provides a clear acknowledgment that states should develop national policy for the development of restorative justice initiatives that assume a proactive role for government. How the Government of Canada may take such steps toward the “mainstreaming” of fair, effective and safe restorative justice processes is taken up in Chapter 7.
2.2.5 Department of Justice Canada’s values and principles of restorative justice in criminal matters
Following the release of the United Nations declaration, the Department of Justice Canada launched a round of consultations to develop a statement of values and principles of restorative justice in criminal matters and guidelines for restorative justice programs that could be used in Canada. The values and principles document establishes eleven basic principles and procedural safeguards for the use of restorative justice, and a set of program guidelines. The values and principles and the program guidelines were the subject of extensive consultation undertaken in conjunction with the Conflict Resolution Network. Results of this consultation are posted on the network’s website. [61]
Basic Principles and Procedural Safeguards for the Use of Restorative Justice
1. Participation of a victim and offender in a restorative justice process should be based on their free, voluntary and informed consent. Each party should receive a clear explanation of what the process might involve and the possible consequences of their decision to participate. Consent to participate may be withdrawn at any stage.
2. The victim and offender must accept as true the essential facts of the offence, and the offender must accept responsibility for the offence.
3. The facts must provide sufficient evidence to proceed with a charge, and the prosecution of the offence must not be barred at law.
4. The offender has the right to seek legal advice before and at all stages of the process.
5. Referrals to a restorative process can occur at all stages of the criminal justice system from pre-charge diversion through to post-sentencing and post-release from custody in appropriate cases, and taking into account relevant prosecution policies.
6. Referrals to and conduct of a restorative process must take account of the safety and security of the parties and any power imbalances between victim and offender with respect to either person’s age, maturity, gender, intellectual capacity, position in the community or other factors. In particular, implied or explicit threats to the safety of either party, and whether there is a continuing relationship between the parties, must be of paramount concern.
7. All discussions within the restorative process, other than those conducted in public, must remain confidential, unless agreed to the contrary by the victim and offender, and may not be used in any subsequent legal process.
8. The admission of responsibility by the offender for the offence is an essential part of the restorative process, and cannot be used as evidence against the offender in any subsequent legal process.
9. All agreements must be made voluntarily and must contain only reasonable, proportionate and clear terms.
10. The failure to reach or to complete a restorative agreement must not be used in any subsequent criminal proceedings to justify a more severe sentence than would otherwise have been imposed on the offender.
11. A restorative justice program should be evaluated regularly to ensure that it continues to operate on sound principles and to meet its stated goals.
2.3 RESTORATIVE JUSTICE PROCESSES
It is within this context that restorative justice processes emerged in Canada. In this section, we review some of the more common forms of restorative justice in use in Canada. Each of these short descriptions will address three critical design issues for restorative justice processes: the convening and format of the intervention, the timing of the intervention, and the relationship between the restorative justice initiative and the formal criminal justice system.
2.3.1 Victim–offender mediation
Victim–offender mediation (VOM) and victim–offender reconciliation programs (VORPs) are among the earliest models of contemporary restorative justice processes. In VOM and VORPs the offender and the victim are voluntarily brought together—either before sentence or sometimes many years after sentence and incarceration—in the presence of a trained mediator. [62] In Kitchener, Mark Yantzi and Dave Worth asked a judge to permit them to try a different approach in dealing with two young offenders arrested for vandalism. The approach was to allow the victims and the offenders to take a key role in deciding the most appropriate method of responding to the harm done by the conflict. A satisfactory resolution—direct reparations—was reached, and the first Canadian VORP was born. Since then, the scope of mediation practices has grown considerably, with VORPs emerging across North America in the 1980s, often initiated by faith communities attempting to facilitate some type of face-to-face engagement between minor offenders and the victims of their crimes. In their earliest days, VORPs were staffed wholly or almost wholly by community volunteers and operated quite independently of the formal justice system. Formal systems for the diversion of cases into VORPs gradually developed during the late 1980s.
VOM and VORPs usually rely heavily on a volunteer base, and they are now generally located within the criminal court. Many VOM programs are formally sponsored by probation or youth justice departments, which make referrals of individual cases. Some programs work closely with Crown prosecutors to select cases appropriate for referral to mediation. [63] Sometimes a local criminal court judge will recommend that a matter be referred to mediation. [64]
In common with other restorative justice initiatives, referral into mediation can take place at any of four points in the processing of a criminal event: police entry point (that is, pre-charge); Crown entry point (that is, post-charge but pre-trial); court entry point (generally at the sentencing stage); and corrections entry point (following incarceration and before release). [65] , [66]
Intervention at any of these four points requires a close working relationship with the formal justice system. These schemes can function as a form of diversion from the formal justice system and they are often built into existing alternative measures programs that are operated by community agencies in cooperation with justice officials. [67] In some programs, when a referral takes place pre-charge, an offender may not receive a criminal record since there is no formal finding of guilt by a criminal court. [68] Where mediation takes place before sentencing and the matter has not been formally diverted to an alternative measures program, the outcome of a VOM usually goes back to the Crown and the trial judge for consideration.
Fraser Region Community Justice Initiatives Association
The Fraser Region Community Justice Initiatives Association has been running conflict resolution programs for more than 20 years. First conceived by the Langley Mennonite Fellowship, the Association has grown into a multi-program organization, operating within settings that include the criminal justice system, educational institutions, businesses and community centres. The Association provides training in mediation through a framework that involves materials development and a practicum-based curriculum. Current programs also include the Victim–Offender Reconciliation Program, the Victim–Offender Mediation Program, and the Educating for Peacebuilding initiative. Both programs involve direct contact between the parties to create understanding and initiate the healing process. Through the Educating for Peacebuilding initiative, the Association has developed a relationship with Langley School District 35 to help foster a climate that promotes restorative justice principles and values.
For more information visit http://www.cjibc/org/.
In another example, the Collaborative Justice Project characterizes its work as facilitating “the human repair work that is not addressed by the legal process. Where this repair work results in a resolution agreement developed by all parties, the agreement is submitted to the court for consideration at the time of sentencing.” [69] In addition, rather than operating as an alternative to punishment, some restorative justice processes operate after sentencing, with the express purpose of providing an opportunity for a victim and offender to meet to exchange information. [70]
Restorative Resolutions
Restorative Resolutions is operated in Winnipeg by the John Howard Society of Manitoba in conjunction with Manitoba Justice and other stakeholders. The program was initiated in 1993 as a restorative justice demonstration project. Organizers included periodic evaluations in the development of the program structure. Restorative Resolutions was undertaken with a firm commitment to finding community-based alternatives to incarceration. Referrals are invited from a wide variety of sources, including Community and Youth Corrections, Crown and defence attorneys, judges, family members and community agencies. A framework for acceptance into the program was created with criteria based on Crown sentencing recommendations, offender motivation, and a requisite guilty plea. Accepted offenders must agree to a jointly developed community action plan that incorporates victim options, recommendations to the court and ongoing supervision. The most recent outcomes report (November 2002) cites 1,039 referrals to the program since its inception.
For more information about Restorative Resolutions, visit the John Howard Society of Manitoba website: http://www.johnhoward.mb.ca/.
2.3.2 Community and family group conferencing
Originating in family group conferencing, which was developed and applied to youth justice processes in New Zealand, [71] conferencing
Calgary Community Conferencing
Calgary Community Conferencing (CCC) began as a part-time initiative of Calgary’s Youth Probation Services in 1998. The following year, a collaborative, community-based approach was developed and extended to include the participation of Calgary Family Services, the Calgary Board of Education, Calgary Police Services, the John Howard Society and the Mennonite Central Committee. CCC brings together youth and their family or supporters, and anyone affected by the young person’s wrongful acts. High-impact incidents are referred to the program from Calgary Youth Court or from schools where a student is in danger of suspension or expulsion. Preparatory meetings are held with every individual affected and together they develop and implement an agreement. CCC stresses community involvement in the justice process, facilitation of youth-initiated agreements, and effective preparation of all participants in the justice process.
The number of youth referred to CCC has steadily increased over the four years of the program. In 2001–02, CCC worked with more than 150 youth and their families and victims. Halfway through 2002–03, CCC had worked with 140 youth.
For more information visit: http://www.calgarycommunityconferencing.com/.
models are now widely used in restorative justice initiatives. A coordinator will invite the family and friends of both the victim and the offender to participate in a discussion to explore appropriate ways to address the offending behaviour and desired outcomes for the family or the community. The focus of conferencing processes may, therefore, be somewhat broader than that of VOM since conferencing processes evaluate the impact of offender’s behaviour not just on the primary victim, but on others as well. Those involved will then develop a plan for monitoring the offender’s future behaviour and set out any reparative elements deemed necessary. Conferences are seen as an effective means of ensuring follow-through on agreed outcomes because of the larger number of individuals who are asked to commit to the rehabilitation plan. [72] This is in marked contrast to traditional criminal procedure in which community input into sentencing is rarely, if ever, available. [73]
2.3.3 Sentencing circles
Sentencing circles operate in many Aboriginal communities in Canada. Sentencing circles allow victims, offenders, community elders, other community members and court officials to discuss the consequences of a conflict and explore ways of resolving it. Restitution for damages and reintegration of the wrongdoer into the community are high priorities. Community members play an active role in assisting the victim and the wrongdoer with the healing process. Some of these circles—for instance, the Circle Sentencing model developed in the Yukon by Judge Barry Stuart [74] —operate within the formal justice system as an alternative to the conventional sentencing process, and include justice professionals (police, probation officers, defence counsel, Crown counsel and judges). The plan developed by the circle may be adopted by the judge either in the circle (if the judge sits in on circles) or in a subsequent court hearing. As with the outcomes of court-connected VOM, in cases not formally diverted, the plan formulated by the circle is not binding on the court, although it is generally taken very seriously. [75]
Circles are also sometimes used if cases are diverted from the justice system into alternative-measures programs (usually reserved for first-time youth offenders). Where diversion programs are hosted by community agencies, the agency itself—and principally the members of the circle or panel—will take primary responsibility for monitoring the alternative measures, with or without oversight by justice officials. Other circles are simply a gathering of those most concerned about the offender and the victim, and any other community members with an interest in the process.
Aboriginal Legal Services of Toronto’s Community Council Program
"The Community Council is a project that allows the Aboriginal community of Toronto to take a measure of control over the manner that the criminal justice system deals with Aboriginal offenders.
If the Crown consents to the diversion, the offender is approached and asked if they wish to go before the Council. Since the Council cannot decide guilt or innocence, the accused person must first admit that they are responsible, to some degree, for their charge(s). Before the individual decides whether they wish to go before the Council, they are required to consult with defence/duty counsel. Counsel will also stress to individuals that if they feel they are not guilty of the offence then they should try for an acquittal in court. If the accused person agrees to go before the Council, the charge(s) against him or her are stayed or withdrawn by the Crown Attorney.
The Council will reach its decision by consensus and only the individuals involved with the offence themselves discuss their cases with the Council. Where the offence involves a victim, every effort is made to encourage victim participation in the hearing.
The role of the Community Council is to begin the healing process necessary to reintegrate the individual into the community. In deciding how best to accomplish this healing, the Council will make a decision requiring the individual to do certain things. Any option, except jail, is available to them in making this decision. Some options include counselling, restitution, community service, treatment suggestions or a combination of the above.
The concept of the Community Council is not new. This is the way justice was delivered in Aboriginal communities in Central and Eastern Canada for centuries before the arrival of Europeans to North America. It is also the way that disputes continue to be informally resolved in many reserve communities across the country. The idea behind the Community Council Program is that the Aboriginal community best know how to reach Aboriginal offenders. We know that the dominant justice system does nothing but provide a revolving door from the street to the jail and back again for most Aboriginal accused."
Excerpt from the Aboriginal Legal Services of Toronto’s website: http://www.Aboriginallegal.ca/council.php.
2.3.4 Community boards or panels
Community panels are made up of volunteers drawn from the community who meet formally with offenders and victims to facilitate a discussion of appropriate outcomes. Again, panel hearings can be conceived either as a pre-charge diversion from the formal system or as an alternative means to determine an appropriate sentence after a guilty plea has been entered. The use of community panels is presently more developed in the United States than in Canada, [76] and data on their activities are limited. One of the first panels in Canada was developed in Whitehorse, Yukon Territory.
Following a discussion (or “hearing”), the panel and the offender make a contract stipulating what the offender will do during a probationary period. There is an emphasis on reparation and responsibility-taking by the individual offender. The probation contract is generally supervised by members of the panel, but in the event of breaches [77] the offender will be referred back to the court for sentencing. In the United States, state corrections departments have sponsored a number of the leading programs that take referrals directly from criminal court judges. [78]
The Whitehorse Youth Justice Panel
"The Whitehorse Youth Justice Panel, Yukon, Canada is a post-charge inter-agency screening program for young offenders. The first of its kind in Canada, the Youth Justice Panel was implemented in March 2001. The Youth Justice Panel goals are to increase referrals to extra judicial measures; reduce court-processing time; reduce length of stay in remand; reduce custody committals; build partnerships; and enhance family and community capacity to repair harm. These goals embody restorative principles of the Youth Criminal Justice Act (2003), including victim, family and community participation; diversion and reduced custody; reparation of harm; offender accountability and rehabilitation."
Charles R. Stuart and Jennifer Eakins, "The Whitehorse Youth Justice
Panel: an Evaluation," paper presented at the 6th International Conference
on Restorative Justice, Simon Fraser University,
Vancouver, B.C., June 2003.
2.3.5 Other participatory processes
Besides VOM and community circles and panels, a range of other restorative justice practices has evolved, and innovative processes continue to emerge. For example, restorative justice principles have influenced the development of many school-based programs, including peer mediation training and anger management education. [79] In addition, circle processes have been used to address school-based conflicts. [80] Churches in Canada are also exploring restorative justice applications. The United Church of Canada, for example, has developed a restorative approach to conflict resolution and has trained volunteer conflict resolution facilitators (CRF) nationally who use restorative approaches such as circle processes and mediation to deal with disputes in local church congregations.
Restorative justice processes also take place in prisons with incarcerated offenders, preparing them for reintegration into their communities. [81] For example, the Correctional Service of Canada (CSC) has shown a strong commitment to the principles of restorative justice by establishing a Restorative Justice and Dispute Resolution Branch that works with internal and external partners. Successful restorative opportunities have been created through victim-offender mediation of serious crime, surrogate programs, peacemaking circles and other initiatives. At several penitentiaries, inmates, community members and staff have collaborated to create Restorative Justice Coalitions that have advanced educational initiatives. At Grande Cache Institution, a research-based pilot Restorative Justice Living Unit has been established where restorative justice principles have been integrated into operational routine. Working with local Aboriginal communities, the CSC has incorporated many restorative justice principles in Healing Lodges across the country and in working to develop and implement inclusive measures intended to safely and successfully reintegrate Aboriginal offenders. In addition, many of CSC’s Citizens Advisory Committees have demonstrated an active interest in restorative justice. Working with the Mennonite Church, CSC funded the development of the successfully researched Circles of Support and Accountability, a program in which small groups of volunteers form a support circle with a high-risk sex offender. CSC has also taken steps to enhance interaction with victims as part of its ongoing commitment to inclusive processes. CSC recently completed an international literature review summarizing correctional restorative justice developments. [82]
2.4 OBJECTIVES OF RESTORATIVE JUSTICE
The diverse origins of restorative justice initiatives, as well as the wide range of practice models, makes developing shared objectives and values for restorative justice processes a challenging task. It is, however, possible to distil from these practices a set of objectives and values that animate most restorative justice processes.
The discussion that follows describes five key objectives for restorative justice processes that seem to be shared among programs and proponents of restorative justice. These objectives are:
• Denouncing unacceptable behaviour;
• Supporting victims;
• Reforming individual offenders through active responsibility-taking;
• Restoring community order and peace; and
• Identifying restorative, forward-looking outcomes.
2.4.1 Denouncing unacceptable behaviour
Restorative justice processes do not take a value-free approach to anti-social behaviour. Denunciation of certain behaviours is an objective of restorative justice, just as it is in the formal retributive model. [83] However, the process of arriving at a denunciation is quite different from that used by the adversarial criminal justice system, and the measure of what is unacceptable is examined in a broad context.
Restorative justice attempts to deliver “deliberative justice” that is not circumscribed by legal definitions. [84] Restorative justice processes aim to identify the locus of responsibility and assess the impact of the harm caused by the behaviour in question, rather than meeting pre-existing criteria of harm. Restorative justice is a flexible response to the circumstances of the behaviour. Because each case is considered individually, the parameters of unacceptable behaviour may change from case to case. In this way, the nature of the wrong and that of its consequences are flexible. Nonetheless, the commitment of restorative justice to identifying unacceptable behaviours and to acting to minimize their impact and reduce potential repeat offending means that restorative justice processes go beyond dealing with particular incidents and cases of law-breaking and harm, and offer a general social mechanism for the reinforcement of standards of appropriate behaviours. [85]
Of course, the assessment of behaviours as inappropriate and unacceptable does not take place in a vacuum. Participants in restorative justice processes are undoubtedly affected by their knowledge and experience of the existing criminal law, their degree of proximity to the offender and the behaviour, and the prevailing social climate in relation to crime and recidivism. There are also entrenched assumptions—although these are now being challengedin a few restorative justice processes [86] —about the appropriateness of restorative justice for serious crime. These assumptions reflect wider external values about punishment and imprisonment. What behaviour should be declared off-limits and where the lines on punishable or culpable behaviour should be drawn may vary widely between restorative justice advocates. At the same time, just what denunciation should look like and amount to will also vary widely. [87]
This pluralism gives rise to concerns about delegating the authority to denounce and forgive certain types of conduct to restorative justice processes, which may function inside or outside the formal justice system. The development of standards for acceptable and unacceptable behaviour can be a vehicle for progressive and community development, as well as for the intolerance and even tyranny of homogeneous groups. This is a particular concern if there are already entrenched inequalities of power and privilege within the community. [88]
2.4.2 Support for victims
A central theme in restorative justice initiatives has been to give a voice to the victims of crime in the dispute resolution process. We have already discussed the disenfranchisement and alienation of victims from the criminal justice process. As that discussion recognizes, motivations for placing the needs of victims centre stage in criminal justice processes vary widely. [89] Most victims’ groups challenge the assumption that the state can and should stand in the shoes of victims. Instead, victims’ groups are looking to the state for “a much greater appreciation of the legitimacy of the participation by victims in the disposition of the crimes they have experienced." [90]
The focus on the offender in the state prosecutorial model means that the expertise of justice professionals is oriented toward offenders, not victims. Restorative justice processes reconceptualize the victim as the focal point in the conflict resolution process. As a consequence, the victim’s role is central to restorative justice processes—victims are provided a voice, an opportunity to ask questions and a process in which to confront their fears. [91] Further, by participating in decision-making, victims can exercise some power regarding outcomes.
"In victim–offender mediation, the needs of the victim and the degree to which the victim desires retribution or recompense may be more influential on the outcome of the process than either the category of offence or the culpability of the offender."
John Belgrave, "Restorative Justice: A Discussion Paper," Secretary for Justice, Ministry of Justice, New Zealand, 1996, online: www.justice.govt.nz/pubs/reports/1996/restorative/Default.htm at 2.5.1.
When they participate, victims are generally satisfied with restorative justice processes. Most evaluation studies report a high rate of victim satisfaction with these processes. Mark Umbreit, director of the Center for Restorative Justice and Peacemaking at the University of Minnesota, has conducted a number of thorough program evaluations. In one of these, Professor Umbreit and his colleagues in the Minneapolis and Saint Paul Victim–Offender Reconciliation Program found that 84 percent of victims interviewed indicated that it was helpful to them to meet with the offender, and some reported reduced fears about re-victimization. [92]
A recent study by Justice Canada found that restorative justice programs, when used in appropriate cases, are effective methods of improving satisfaction for both victims and offenders, increasing offender compliance with restitution and decreasing recidivism when compared with more traditional criminal justice measures. [93] Wemmers and Canuto [94] reviewed the literature on victims’ experiences with restorative justice. Their review showed that most victims who participated in a restorative justice program were satisfied with their experiences and that they benefited from the process, particularly through meetings with the offender. Victims participate in restorative justice programs to seek reparation, help the offender, confront the offender with the consequences of the crime, and ask questions, such as why the offence was committed. Victims decline to participate in restorative justice programs for a variety of reasons: they do not think it is worth the effort; they fear the offender; they are too angry with the offender; or they disbelieve the offender’s sincerity.
The Results of a Meta-analysis
"We are currently in a period of substantial change; but, as the results of this meta-analysis indicate, we are moving in a positive direction. The addition of restorative justice programs has enhanced victim satisfaction in a process that was, by its very nature, rather unsatisfactory. Moreover, this response to criminal behaviour has a strong impact by encouraging more offenders to take responsibility for their actions and repair through restitution some of the harm they have caused. And while the gains made in recidivism are not as strong as ’appropriate correctional treatment’, restorative justice does appear to reduce recidivism for those who choose to participate. Finally, offenders in restorative justice programs report moderate increases in satisfaction compared to offenders in the traditional system."
J. Latimer, C. Dowden and D. Muise, The Effectiveness of Restorative Justice Practices: A Meta-analysis (Ottawa: Department of Justice, 2001) at 23.
Umbreit and colleagues have published the results of evaluation studies of four American VOM programs, [95] four Canadian programs [96] and two VOMs located in the United Kingdom. [97] Each study included a control group. In each case participation in mediation was voluntary (about 40 percent of those referred to mediation took up the opportunity), and in all but a small number of the cases in the United Kingdom, dialogue between victim and offender was face-to-face in the presence of a third party. The group recording the lowest victim satisfaction with the outcome of the mediation (74 percent) was the one that participated in shuttle mediation rather than in face-to-face discussions. In the United States, 90 percent of the victims declared themselves satisfied with the mediation outcome, and 89 percent did so in Canada. [98] In the four Canadian programs, 79 percent of the victims did not fear being re-victimized.
"In terms of victims specifically, there appears to be overall satisfaction (89 percent) [with the Collaborative Justice Project] due mainly to the fact that someone in the system attended to their needs, they had an active role in the criminal justice process, and there was an attempt to repair the harm that they experienced. However, it is important to note that only 58 percent of cases resulted in a victim– offender meeting, suggesting that a face-to-face meeting is not necessarily needed to meet the victims’ needs."
T. A. Rugge and R. B. Cormier (Department of the Solicitor General of Canada), "Restorative Justice in Cases of Serious Crimes: An Evaluation," paper presented at the 6th International Conference on Restorative Justice, Simon Fraser University, Vancouver, B.C., June 2003.
While generally promising, victim satisfaction data have some limitations. First, it is important to distinguish between victims of minor crimes and those of serious crimes. Are satisfaction rates as high for victims of serious crimes as they are for those of minor crimes? Second, high satisfaction scores may be a result of self-selection. For example, it is possible that victims who participated in a restorative justice process had a positive attitude toward mediation prior to participating in the process. Third, it is necessary to examine the relationship between victim satisfaction and demographic variables such as age, gender, race and ethnic origin. Finally, evaluations must examine why some victims refuse to participate in restorative justice processes. [99]
Preliminary evaluation data on victim satisfaction are promising, but this is only part of the story. Victims’ personal accounts are perhaps more revealing of the ways in which restorative justice processes can meet the needs of victims in the aftermath of crime. Many personal accounts testify to the power of the processes to facilitate healing and closure for victims. [100]
Another practical dimension of victims’ needs that appears to be met by restorative justice initiatives is follow-through with agreed reparations and restitution. Like civil mediation, restorative processes claim a higher rate of individual compliance with outcomes that are consensually agreed to than orders imposed by a court. Umbreit reports that victims who participate in court-administered VOM programs receive reparation in 81 percent of cases, compared with 54 percent who did not participate in mediation. [101] Marshall and Merry also report on a number of American studies that show higher rates of compliance as a result, they suggest, of the positive attitudes developed between the parties in the process of face-to-face dialogue. [102] Further, and perhaps more importantly, victims may receive an apology as a result of a participatory process—apologies are not generally available to them in the adversarial process. [103]
"If cases are mediated, there is no question about short-term success: most victims and offenders are satisfied with the process and outcomes, an agreement is reached in practically all cases, and the vast majority of restorative plans are completed by offenders. This is true for earlier as well as more recent studies, both juvenile and adult programmes, and in U.S. and international evaluations. Satisfaction, agreement, and completion rates typically vary between 75 and 100 per cent."
L. Kurki, "Evaluating Restorative Justice Practices," in A. Von Hirsch,
J.V. Roberts, A. Bottoms, K. Roach and M. Schiff (eds.), Restorative Justice and Criminal Justice: Competing or Reconcilable Paradigms
(Oxford: Hart Publishing, 2003) at 295.
Nonetheless, significant concerns persist about the capacity of restorative justice to place victims at the centre of the process of resolution, especially initiatives operating within the formal criminal justice system and including justice officials. Can restorative justice really be victim oriented? It is not clear that given the opportunity, victims would jump at the chance to engage in face-to-face dialogue with an offender. A number of programs report low rates of take-up by victims invited to participate in either mediation or group conferencing. [104] Some victims reject the idea of meeting and talking with the offender altogether; others agree to communicate by proxy (such as through written statements or shuttle mediation). A further concern is that some victims may be pressured-by their families, communities or perhaps program advocates-to participate in restorative processes in which they feel uncomfortable or even intimidated.
Aboriginal women in particular have voiced fears that women who have experienced sexual or physical abuse may feel pressured to participate in community circles, despite feeling unsafe. A 1996 evaluation of the Hollow Water First Nations Holistic Circle Healing (CHCH) process reported that victims were generally supportive of the program but less so than offenders; many victims felt pressure from the community to process their complaint (at that time the Hollow Water program was dealing primarily with sexual abuse cases) in the circle, rather than in criminal court; and generally felt unsupported by the community. [105] A report prepared for the Law Commission by AWAN highlighted a paradox that some Aboriginal women are confronted with. While many Aboriginal women recognize the debilitating effects that the adversarial justice system has on Aboriginal communities and want to support alternative ways of resolving conflict, they question whether their concerns and their interests can be met in their communities as they currently exist.
More broadly, restorative justice processes must include specific protection for vulnerable populations. For example, a significant number of individuals who get caught up in the criminal justice system have mental health problems, which may impair their ability to make an informed decision to enter into a restorative justice program. Where the mental health of a victim or an offender is an issue, mental health professionals should participate in intake procedures to ensure that the victim is fully aware of the implications of any decision they make. Special care should be taken to ensure that they have the cognitive capacity to meaningfully participate in the process. Once the restorative justice process commences, a mental health professional should be available to provide services when required.
"It was evident in many of the accounts that women felt they had less power in their communities than men and that the system was designed to privilege and benefit males. The power imbalances within these communities are usually complex and bureaucratic. Band councils were often cited as reflecting the ways of the colonizer, with men holding power in the communities. Focus group participants expressed tremendous concern with the diversion of cases of violence against women and children because they felt that the majority of support goes to offenders along with a prevalence of victim-blaming mentalities. A lack of concern for the safety needs of women and children, particularly in isolated communities was also cited as a major concern in processes such as ’Victim–Offender Mediation'. In such situations, women must confront her abuser. This could have grave implications, in terms of psychological and physical safety, if the offender were to remain in the community."
W. Stewart, A. Huntley and F. Blaney, "The Implications of Restorative
Justice for Aboriginal Women and Children Survivors of Violence:
A Comparative Overview of Five Communities in British Columbia,"
research report prepared for the Law Commission of Canada, July 2001.
Seniors are another potentially vulnerable segment of the population. A study conducted for the Commission examined how the justice system responds to the financial exploitation of the elderly. [106] The authors analyzed the adequacy of the various components of Canadian law in this regard (provisions of the Criminal Code, common law, Quebec civil law, and special legislation applicable to the elderly). They concluded that Canadian law is currently adequate to combat the various forms of elder abuse, including financial exploitation. The difficulty, however, is the application of the law. Many individuals who are exploited are reluctant to ask the police to intervene in what is perceived as a family matter. For example, some elderly victims do not want to take legal action against their children, while others who have been abused
and financially exploited tend to feel guilt and shame about what has happened to them, particularly if the abuser is a relative. [107]
Case Example: A Healing Approach to Elder Abuse and Mistreatment
“Mrs. Smith (pseudonym) is an 89-year-old widow who lived alone. The assistance of private and public funded services, plus her family, made it possible for her to live in her own home. One day, she disclosed [to her personal support worker] that her son had taken $40,000.00 from her bank account. Mrs. Smith was given information about various community resources including calling the police and reporting the theft. She refused these options. She said that her son was a good man [and] probably needed the money more than [she]. Furthermore, she needed him to buy her groceries, to run errands, to take her to church each Sunday. The relationship with her son and his family was more important to her than the $40,000.00.”
A. Groh, “Restorative Justice: A Healing Approach to Elder Abuse.” Kitchener: Community Care Access Centre of Waterloo Region, at 2. Online: http://www.sfu.ca/cfrj/fulltext/groh.pdf.
2.4.3 The reform of individual offenders through active responsibility-taking
Retribution as a sentencing philosophy has evolved into a moral choice for its advocates, regardless of its instrumental value in reducing recidivism. The retributive model understands responsibility-taking as essentially passive. [108] The offender receives a punishment for engaging in prohibited conduct. It is an acknowledgment of responsibility for past actions, with no sense of taking responsibility for the consequences of the behaviour. [109] Moreover, it is imposed on the offender by the state, instead of being assumed or actively embraced by the offender.
Restitution succeeds where retributive theories fail in relating the punishment to the circumstances of the actual offender and victim and focusing on forward-looking behaviour—both making amends and dealing with other consequences of the offence. Restorative justice processes have a component of restitution attached to them. In their focus on the individual offender and victim, restitution and restorative justice share many objectives and values. What distinguishes restorative justice from restitution is its enlarged lens, which includes the wider community surrounding the individual offender and victim. Whether using VOM or larger group processes—such as circles, community panels or group conferencing—restorative justice has the central objective of encouraging offenders to take responsibility for their actions. Confronted with victims in a mediation setting, offenders are asked to recognize and take responsibility for the impact of their actions. Offenders are asked to take responsibility for their behaviour, not so much in relation to the state as in relation to the individual victims and the communities in which they live. [110] Circles and group conferences enable other community members to be included in responsibility-taking indirectly (for example, by encouraging offenders to take authentic responsibility for the impact of their actions) and perhaps also directly (by sharing in the sense of vulnerability that crime creates for a community).
A circle setting also facilitates the development of group norms and group identity, challenging offenders to take responsibility for the impact of their behaviour, rather than allowing them to hide behind the technical language and rules of the courtroom. The circle includes offenders, making them a part of the group rather than outsiders. Restorative justice processes appear to reduce the likelihood that offenders can simply avoid the human consequences of their actions by pleading guilty or by not testifying. Instead, restorative justice “uses passive responsibility to create a forum in which active responsibility can be fostered.” [111]
Certain restorative justice advocates go further in searching for a means of encouraging personal cognitive and emotional change in the offender. Some writers distinguish making amends or feeling sorry from feeling ashamed and taking responsibility. [112] , [113] The key is that shaming must be “re-integrative”—that is, accepting an offender’s acknowledgment of wrong and ensuring that he or she has supporters present during discussion of the impact of his or her behaviour.
"Shame will become complicated, chronic, more likely to descend into rage if it is not fully confronted. If there is nagging shame under the surface, it is no permanent solution to lash out at others with anger that blames them."
J. Braithwaite, "Restorative Justice: Assessing Optimistic and Pessimistic Accounts" 25 Crime and Justice (1999) 1 at 43.
Restorative justice moves beyond assessing legal guilt to determining responsibility for a conflict. Determining responsibility means addressing the immediate context of the event—Did the individual commit the act? But it also means placing the act within a broader context—What were the relationships between the victim, the offender and the community? What are some of the underlying factors that may have been associated with the conflict?
The adversarial criminal justice system equates the attribution of responsibility to a conviction, and conviction is a win–lose proposition: the accused is either guilty or not guilty. Most restorative justice processes allow for a much more nuanced approach to responsibility. In many conflicts, including those that result in criminal charges, the accused may be guilty of the criminal charge and may be fully or partially responsible for the conflict. This is a key difference between restorative justice processes and the adversarial system. In many situations, the accused is both legally guilty and fully responsible for the crime—for example, a typical case of robbery, break and enter, or drunk driving resulting in death. In other situations, the accused may be legally guilty of the crime, but the question of responsibility is less clear-cut.
2.4.4 Community order and peace
Restorative justice aims to increase the effectiveness of our response to crime in terms of community order and peace. Functionally, this means both reducing levels of individual recidivism and, more widely, preventing crime. But an effective response to crime also has a broader and deeper meaning for restorative justice advocates and for actively engaging the community in the dispute resolution process. [114] Restorative justice advocates argue that peace and order can be achieved by expanding community control and narrowing state control over the justice system. While there are fears that restorative justice may expand the state’s social control—”net widening” [115] —many argue that the devolution of dispute resolution processes is a way of building stronger, healthier communities. [116]
Traditionally, the jury has been the primary method of involving the community in the justice system. [117] Restorative justice processes suggest a departure from this traditional way of incorporating the community. Juries and community members in a restorative justice process perform many of the same functions. Both examine the facts of the case, both add a layer of accountability, both act as the conscience of the community, and both are a buffer against oppressive and unjust law. The two differ, however, in at least two significant ways. First, juries are supposed to be impartial. Impartiality is a cornerstone of the Canadian justice system. The justice system values decision-making by independent individuals. Juries operate under the assumption that individuals with nothing to lose and nothing to gain from the outcome of the case will make a reasoned decision. Indeed, citizens can be disqualified from participating on a jury if they have any personal connection to the case or if they possess knowledge that may prejudice the decision-making process. Detachment fosters impartiality, and impartiality encourages rational decision-making. Unlike juries, community representatives in restorative justice processes are not impartial.
Second, whereas juries represent communities in the abstract, community representation in restorative justice processes is concrete. The families of the victim and offender, the people who live in the area, those who know the conflicting parties, and those who have a vested interest in the outcome of the case participate directly in the proceedings. Unlike the value of juries, the value of community participants in a restorative justice process resides in the possibility of leveraging their relationship with the offender to bring about a meaningful resolution to the incident. Restorative justice advocates suggest that this expanded role for communities is empowering. It allows communities to actively participate in decisions that have a direct bearing on their lives. The expanded role of communities does, however, suggest a shift away from a formal, detached and rational style of decision-making to one that is much more informal, involved and emotional.
Restorative justice offers the possibility of harnessing the power of individuals to create the social capital required to build strong communities. Social capital refers to the elements of social organization, such as networks, norms and social trust, that foster coordination and cooperation for mutual benefit. [118] Social capital helps create interconnections between community members and networks of civic engagement. The interconnectedness of community members often encourages trust, discourages political and economic opportunism, and facilitates collaboration for a common goal.
Participating in a restorative justice program helps build relationships between members of a community. Restorative justice processes bring these individuals into a safe place where differences can be discussed and conflicts can be resolved. Sentencing circles, community justice forums, VOM sessions and other forms of restorative justice offer the possibility of bringing together individuals from a variety of backgrounds who may not normally enter into meaningful relationships with one another. In the context of a sentencing circle or a community forum, these individuals are asked to interact with one another, speak openly and listen to the contribution of others. This increases the density of the web of relationships among community members.
Communities, however, are complex. Communities can be highly stratified by race, gender, class or age. Communities can be inclusive, but they can also impose membership conditions that are highly exclusionary and unjust. Many women’s groups, including Aboriginal women’s groups, have cautioned about the danger of accepting “the community” as an unqualified social good. There are real concerns that
"To rebuild a democracy ... we need to do more than motivate people to participate in circles that address problems of living that directly affect their personal relationships. The extra step to democratic citizenship is taken when the citizen moves from participating in a restorative justice conference to being active in some way in the social movement for restorative justice."
J. Braithwaite, "Democracy, Community and Problem Solving," paper presented at the Building Strong Partnerships for Restorative Practices Conference, 5–7 August, 1999, Burlington, Vermont.
"Restorative Justice envisions the community taking significant responsibility for conducting programs. The creation of new positions of authority creates concern about the participation of diverse community members and how their views are included. The dynamics of communities involve relationships of power—the existence of dominant groups based on age, religion, colour, ability/disability, gender, race, socio-economic status, ethnicity, and sexual orientation; those that lead and those that are led. We cannot assume communities are healthy or safe, or are concerned with creating an equitable status for all their residents. Safeguards must be developed to prevent possible misuse of power created by the alternative programs."
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, July 2000) at 12 restorative justice will reproduce many of the inequalities of the current adversarial process.
AWAN conducted focus groups with women in rural Aboriginal communities in British Columbia. [119] It reported that violence in some rural Aboriginal communities in British Columbia was so pervasive that it had become normalized. Moreover, when women spoke out against violence their voices were silenced. The normalization of violence was accompanied by a lack of social supports and antiviolence programs for the community. AWAN reported that even where social services were available, Aboriginal women often faced discrimination—the police and other social service agencies did not always respond to their calls for help. Finally, the interconnectedness of the lives of community members, particularly those who deliver programs and services, made it especially difficult to maintain confidentiality.
"In Wha Ti, for example, the community sought to establish a justice committee with members who were 'reliable'. This meant that no person who is abusing alcohol, drugs or persons [is] eligible. These criteria proved virtually impossible to meet and so community discussions centred on who had 'recovered' and were now good models and on an acceptance that negative experiences in the past could inform people about appropriate behaviour for the future. This has implications for the restorative justice system as now practiced in many areas, since community members on restorative justice committees are vetted for any criminal record and presumed unable to contribute if they have served time. The flip side of that is that people who have had trouble with the law may have developed the wisdom learned from their experience and may indeed be in a position to counsel people on how to avoid similar problems."
J. Ryan and B. Calliou, "Aboriginal Restorative
Justice Alternatives: Two Case Studies",
(Ottawa: Law Commission of Canada, 2002), at 5-6.
There is always a danger that restorative justice processes may produce “counterfeit communities.” Restorative justice is part of a larger movement, in which governments are entering into partnerships with communities. These new partnerships raise a number of issues regarding the relationship between governments and communities. Partnerships are voluntary arrangements between two or more individuals or organizations that agree to work cooperatively toward a common goal. Successful partnerships extend further than consultation. Successful partnerships are those in which there is a recognition that all parties may not come to the table with equal power and in which steps are taken to ensure that even the least powerful members of the partnership are given equal standing. Partnerships must involve a willingness on the part of government to share power and decision-making with the community. But community members must also be encouraged to assume control of the decision-making process.
A restorative justice program in which experts act on victims and offenders or otherwise exert control over the process is not a partnership, regardless of how much information these experts share with their “clients.”
"The shift from meaningless consultation and sometimes vacuous engagement—usually a snapshot of public opinion captured at a particular moment in time—to genuinely deliberative and interactive citizen engagement will require a fundamental change ... True citizen engagement involves dialogue and listening, the expression and exchange of views, group and individual deliberation, reflection and learning."
S. Torjman, "Strategies for a Caring Society," paper presented at the Conference on Investing in the Whole Community: Strategies for a Caring Society, Toronto, On., 15–16 October 1998, at 10.
Restorative justice principles see conflict within communities as an opportunity for dialogue and change—as a means to better understand the dimensions of peaceful order in a truly inclusive way. [120] The community must take responsibility for high levels of both control and support if peace and order are to be established and maintained, resisting the slide to taking a punitive approach (characterized by high control and low support) or to becoming overly permissive (characterized by low control and high support). [121]
It is implicit that the shape that “peace and order” takes when a community conceptualizes and designs it for itself reflects the community’s unique needs and fears. It will be a reflection of what troubles that community, its diversity, and to some extent, its strongest and most persuasive voices. Assessments of what will bring peace and order to the community are made by community members themselves, rather than by justice professionals, who may otherwise “steal” conflicts away from the community and apply the system’s definition of peace and order. [122]
The achievement of community peace and order in the restorative vision thus shifts power away from professionals and toward citizens. In this way, restorative justice enriches democracy. Kay Pranis—one of the leading program developers in the United States—describes restorative justice processes as a classic embodiment of "grassroots democracy." In the face of concerns that community empowerment could result in communities as tyrannical and intolerant as the state itself, the aspiration is that the form of peace and order that emerges will be less about solidarity and more about hospitability and more about inclusivity than exclusivity.
K. Pranis, “Restorative Justice, Social Justice and the Empowerment of Marginalised Populations,” in G. Bazemore and M. Schiff (eds.), Restorative Community Justice: Repairing Harm and Restoring Communities (Cincinnati, OH: Anderson Publishing, 2001) 287 at 299.
2.4.5 Identifying restorative, forward-looking outcomes
A broadly shared objective for restorative justice processes is the use of constructive, contextually appropriate, and forward-looking outcomes or restorative resolutions. Instead of basing sentencing on predetermined rules with a strong retributive flavour, restorative justice processes strive for outcomes that satisfy a wide group of stakeholders (of whom the Crown is just one). Fair punishment should also have a forward-looking component, for example, apology and reparation by the offender, community service of some sort and, when warranted, a term of incarceration.
When determining an appropriate outcome, those involved in a restorative justice process reflect on the needs of victims, offenders and members of the community. Restorative justice processes do not rule out a term of incarceration as one component of a restorative resolution to a conflict, but they generally are resistant to using incarceration as a reflex reaction to a crime. For example, incarceration may not be the most appropriate punishment if it deprives a family of the principal breadwinner or deprives a community of a person who can contribute positively.
There is also a preventive aspect to forward-looking outcomes. [123] “Prevention” includes the prevention of further interpersonal harm and, if possible, the neutralization of the social harms caused by continuing power imbalances. The objectives of restorative processes are met if the processes are responsive to these types of practical, forward-looking criteria, rather than being overwhelmed by conventional assumptions about the intrinsic moral value of punishment.
The notion of looking forward is key to understanding restorative justice as it affects not only society, but also what transpires between victim and offender. The possibility of a face-to-face discussion between a victim and an offender presupposes that there is a relatedness (not relationship) that will continue to exist between them and that dialogue may help to calm fears and may bring closure. The theme of forgiveness runs through much restorative justice writing, and some programs—although not all—see this as their highest goal. For some faith communities, the willingness to forgive is an important spiritual value. However, it would be inaccurate to characterize forgiveness as an essential objective of restorative justice processes. [124]
While religious values can inspire and motivate forgiveness, these are not a prerequisite. [125] Forgiveness as a coping strategy has many emotional and rational benefits for those who are not motivated by faith but simply want to better survive life’s storms. Some values associated with coping with harm in this way include emotional venting, the humanization of the offender and a re-appraisal of the costs of not forgiving and the benefits of doing so. [126]
The Objectives of Restorative Justice
The Commission believes there are five objectives that restorative justice processes ought to strive for:
• Delineating and denunciating unacceptable behaviour;
• Supporting victims;
• Reforming individual offenders through active responsibility-taking;
• Restoring community order and peace; and
• Identifying restorative, forward-looking outcomes.
2.5 CORE PROCESS VALUES FOR RESTORATIVE JUSTICE
Section 2.5 develops the five objectives just described into key process values for restorative justice undertakings. What types of processes and practices best result in achieving the objectives of restorative justice?
2.5.1 Participation
A key process value of restorative justice is to engage victims and offenders in resolving a conflict. Restorative justice objectives can only be met if victims and offenders are permitted to participate in the conflict resolution process. Participation offers several advantages: having a voice in the conflict resolution process, being listened to, and having control over how a conflict is resolved. Participation in the conflict resolution process increases one’s sense of fair treatment. Each of these elements is discussed below.
Experience suggests that the expression of an individual voice in a determinative process has value in itself regardless of the impact on eventual outcomes. [127] Writing about mediation processes, some authors [128] argue that the self-expression that empowers the speaker by giving voice to his or her concerns and goals is itself a legitimate objective for the process of dialogue, regardless of whether an agreed, or a “good” outcome results.
The Commission’s consultations and research has shown that victims and offenders experience a strong need to articulate thoughts and express feelings about the crime in question. [129] A meeting format that enables a face-to-face exchange of information and perspectives is often key to the premise of restorative justice that “truth” is established through personal experience and interaction. Among other things, discussion can challenge assumptions about the other side’s motivations and rationale, fill in gaps or explode theories about the meaning of one another’s acts, and challenge stereotyping of motives and behaviours. [130]
Face-to-face dialogue encourages a number of positive outcomes that are important to restorative justice while mitigating the potential for some anticipated negative consequences. [131] Positive outcomes include achieving individual empowerment (through giving voice to fears and hopes); being listened to; developing a process in which, perhaps regardless of outcome, each party feels fairly treated; and gaining some control over a process, rather than being swept along by an unfamiliar procedure. [132]
"There is nothing in traditional criminal justice procedure that offers to match a successful personal meeting of this kind in destroying delinquent self-images or the assumption that everyone is 'against them' and will be rejecting (the experience most offenders had always anticipated)."
T. Marshall and S. Merry, Crime and Accountability: Victim/Offender Mediation in Practice (London: Home Office HMSO, 1990).
Face-to-face dialogue between a victim and an offender may be the purest expression of restorative justice principles in action. Face-to-face dialogue is not, however, the only way in which victims and offenderscan participate in the resolution of a conflict. Some victims and offenders may not want to participate in a dialogue. Others may prefer to engage in a video exchange. For example, in the Collaborative Justice Project in Ottawa, only about 40 percent of cases that go through their restorative justice process result in a face-to-face meeting between a victim and an offender. It is vitally important to provide individuals with a range of options. In the end, face-to-face dialogues are one tool that can be used in a restorative process intended to help victims and offenders come to terms with a conflict.
"We contacted the victim and, although somewhat sceptical, he agreed to meet. The victim is a young immigrant who was deeply impacted by the robbery. At this point in the process, he wanted nothing from the accused. He did, however, want to convey to the accused how this had affected him, i.e., his increased fear, his growing bias against teenagers and what the loss of his immigration card would have meant to him.
We relayed this information to [the offender] who seemed to gain a fuller comprehension of the issues the victim was dealing with. He offered to write a letter of apology to the victim.
The victim was open to receiving a letter. He seemed to be somewhat surprised at the level of sincerity expressed in the letter. The victim began to share more of what this experience had meant to him and admitted that he had missed work the week following the robbery due to his fear. As a result he lost wages amounting to $800.00."
Case story from the Collaborative Justice Project, Ottawa, available on the Church Council on Justice and Corrections website: http://www.ccjc.ca/news/casestories.cfm.
A parallel element to having a voice is being listened to. [133] Being listened to is strongly associated with validation and the acknowledgment of one’s losses or suffering. Acknowledgment and validation are strongly advocated by a growing number of mediation practitioners and scholars who propose what is sometimes described as a communication frame for negotiation and dialogue (as contrasted with the settlement frame, which focuses on the delineation of the technical and factual issues to resolve the presenting dispute). [134] “The need to be heard is often as important as the need to resolve the problem.” [135]
For some disputants, control over process is exemplified by being able to tell their own story in their own words. Control over process may also extend to developing suitable process norms; for example, participants can be invited to propose their own basic rules of courtesy and civility for a circle setting or a VOM. Restorative justice processes characteristically impose on participants a set of threshold ground rules that recognize the importance of respect and civility (other particular ground rules may be added by the participants themselves). Perhaps most important of all for restorative practices, however, is the idea that in meeting in this way the participants are taking back control over their conflict from a state model that de-personalized their experience. [136] One strategy used by many practitioners working in the restorative justice area is to conduct preparatory sessions with both offenders and victims, either separately or together. This can assist the parties by clarifying how the process will work, what their role in it will be, what expectations they will face, what will make the process constructive, and so on. [137]
The importance of face-to-face dialogue in giving voice to both offender and victim, as well as others affected by the behaviours, highlights the need for a skilful third party, whether acting as a circle moderator, mediator, panel chair or in some other position. It is important that the third party ensure that these values are maintained throughout the dialogue, for example by requiring respectful listening and shared talking time. However, the third party must not “take” the opportunity for conciliation, or at least better understanding, from the parties by over-structuring and controlling the dialogue. [138]
2.5.2 Respect for all participants
Respectful behaviour toward all participants in a circle, a mediation or other restorative justice forum is a necessary corollary of the principle of face-to-face dialogue. However, it is not an inevitable consequence and, in the often emotionally charged environment of victim–offender interaction, it is worth stating explicitly as a key process value for restorative justice. Respectful treatment is a procedural value and need not be identical to structural equality of the parties, something which might be difficult to achieve in a criminal justice context. The offender will usually have already accepted responsibility for the wrongful conduct, and the victim will already have been seen as the wronged person, thereby establishing a structural inequality from the outset. While circles and other restorative processes cannot provide structural or psychological equality, they must be explicit and proactive in their commitment to respectful treatment of all participants, including offenders. Significant in achieving this goal is the effort of restorative justice practices to place the problem, and not the person, at the centre of the process. The offender often cares deeply what the victim thinks about them. [139] The opportunity for face-to-face dialogue can reduce or alleviate the tendency to demonize the offender and enables the beginnings of mutual respect.
2.5.3 Community empowerment
Another key process value for restorative justice is the participation of the community, whether delineated by family ties, membership in a geographically defined group (for example, neighbourhood or residents of an Aboriginal community, etc.), or some other connection to the victim or offender or affected community. The concept of community involvement has provoked some scepticism, especially outside more closely knit communities such as Aboriginal groups or smaller rural communities. Questions that are raised include: Who decides who should participate in a circle or other restorative justice process? Is participation by invitation only—the practice with family group conferencing [140] —or can anyone sit in the circle to discuss fair outcomes when an offender has admitted a charge? The victim may feel that the circle is stacked with friends and supporters of the offender. [141] Who speaks for the wider community in the circle, and with what legitimacy and what mandate? Are there key persons of influence (and sometimes expertise) in communities whose participation is critical, such as elders, respected older students within a school community, youth workers or probation officers, or even the local magistrate?
If decisions about participation in the circle or other restorative justice process are made unwisely, other key process values risk being compromised: for example, the value of ensuring that the offender and the victim find their voice in face-to-face dialogue and the values of respecting all participants and any agreed outcomes. To better understand the significance of participation as a process value in restorative justice, it is important to link it to the notion of empowerment. This means that the participants in the process see the problem not just as something that affects their lives now, but as something that may continue to affect their community and see that the problem requires the attention of more than just the two formal parties-the Crown and the offender-or even these two parties and the victim. Community empowerment assumes that antisocial behaviours and criminal events are not entirely private affairs. [142] It also assumes that even though the state has made a decision to prosecute the accused, the community still has a role in the conflict resolution process.
If this ideal notion of community empowerment is not to descend into community tyranny and vigilantism, it is critical that when community members discuss accountability for antisocial or criminal behaviour, they do more than look for an individual to blame. Instead, participation must be based on a genuine recognition that the wider group-the neighbourhood, the school or the extended family circle-has a role to play in the restorative process. This includes working with the offender to enable them to take personal responsibility by “harnessing sources of social control within families, schools and neighbours as well as among public institutions.” [143]
2.5.4 Commitment to agreed outcomes
Restorative justice practices vary widely in the degree to which they rely on formal enforcement and compliance monitoring. In some programs, any breach of the terms of a restorative resolution may result in referral back to a trial judge for formal sentencing. In other situations, including some types of community service and some Aboriginal circles, there is less formal monitoring and greater reliance on the integrity and honour of the offender. Just as respect for participants in restorative justice processes is not the same as equality of the participants, a commitment to agreed outcomes is not the same as an entirely voluntary acceptance of outcomes: for the offender, there may be significant incentive to avoid a custodial term, and for the victim, there may be an incentive to avoid the trauma of testifying at a trial. However, data collected from restorative justice processes suggest that voluntary compliance rates are high. [144]
2.5.5 Flexibility and responsiveness of process and outcomes
This fifth and final process represents an important tenet of the restorative justice movement. A tension arises between, on the one hand, the goal of providing respectful and respected processes for a dialogue that reflects individual and community needs and, on the other hand, the need for structure and control. The very nature of restorative justice processes and their emphasis on informality rejects the one-size-fits-all approach of the traditional adjudicative model. Moreover, some of the concerns about the potential for the tyranny of community are only properly addressed if communities are self-conscious about their assumptions of good or fair process and ensure that they can be responsive to both cultural diversity and individual needs. An author writes of the need to provide “openings” and “hospitality,” rather than imposing an orthodoxy of structure on restorative justice processes. [145] But there is also pressure for protocols and the emergence of claimed orthodoxies in restorative justice, just as in other areas of innovation. To resist this temptation to recreate a rigid and unresponsive process or set of processes, the restorative justice movement must continuously reaffirm the importance of process flexibility and creativity.
The same issues arise in relation to outcomes. The commitment of restorative justice to consensual and context-sensitive outcomes as the end result of facilitated dialogue processes does not mean that there is no recognition of relevant rules and principles, experience in past cases, and so on; it means simply that this is also a part of, and not all of, the context in which an outcome is fashioned by these participants. Again, there is pressure to produce outcomes that can be matched to identifiable standards and do not go soft on offenders, pressure that needs to be resisted if restorative justice is to remain committed to its core goals and values.
"Placing victims' needs first requires that programs be flexible. Different victims will have different needs. Rather than trying to impose a single ideology of what victim-offender mediation should be like, programs should strive for flexibility in response to victims' wishes. Programs should offer a variety of services, such as indirect mediation, the exchange of videos or letters, and the offer of a meeting with the offender."
J. Wemmers and M. Canuto, "Victims' Experiences with, Expectations and
Perceptions of Restorative Justice: A Critical Review of the Literature."
(Ottawa: Policy Centre for Victims Issues,
Department of Justice, Canada, 2001) at iii.
Core Process Values for Restorative Justice
• Participation
• Fair treatment
• Respect for all participants
• Community empowerment
• Commitment to agreed outcomes
• Flexibility of process and outcomes
2.6 SUMMARY: RESTORATIVE JUSTICE — A FOCUS ON PROCESS
Restorative justice has been described as way of thinking about conflict resolution. Restorative justice processes embody a set of values that set them apart from the traditional justice system. Restorative justice is a process for resolving disputes that places victims, offenders and members of the community at the centre of the conflict resolution process.
Some writers have pointed out that the sheer variety and diversity of definitions of restorative justice—from principles to process, to outcomes and back again—means that in a sense there is something for everyone in the promises held out by restorative justice. Those who are dissatisfied with the ability of the existing criminal justice system to change behaviours and protect both individuals (especially individual victims) and communities see restorative justice as a means of confronting and dealing with the harm caused by criminal acts. Those who reject the “just deserts” model of punishment— which sees punishment as an inherently moral response, justifiable in the face of harm—regard restorative justice as a more human and humane approach to managing antisocial behaviours. Yet others see restorative justice as a means for the community to take back from the state the control of justice systems and outcomes.
It may be inherent in the enterprise of restorative justice that any single innovation or initiative must be sufficiently fluid and dynamic to respond to highly varied needs. [146] In general, the need for the protective intervention of the state in conflicts seems much less obvious than it might once have been. Indeed, some communities are questioning whether they might accomplish as much or more than the current criminal system by introducing processes that include community members, as well as justice officials, and consensus agreement on appropriate outcomes.
1. See, for example, J. Thibaut, L. Walker, S. LaTour and S. Houlden, “Procedural Justice as Fairness” (1974) 26 Stanford Law Review 1271; and J. Thibaut and L. Walker, Procedural Justice: A Psychological Analysis (New York: Erlbaum, 1975).
2. For example, the United Nations, in articulating and adopting its “Basic Principles for the Use of Restorative Justice Programs in Criminal Matters”, describes “restorative outcomes,” as agreements reached “as a result of restorative process”; further, “Restorative outcomes include responses and programs such as reparation, restitution and community service.” See “Basic Principles for the Use of Restorative Justice Programmes in Criminal Matters,” at III(3) and see the further discussion of the United Nations principles of restorative justice available online: 3. For a review of the debate see R.B. Cormier, “Restorative Justice: Directions and Principles—Developments in Canada” (prepared for delivery at the Technical Assistance Workshop of the Programme Network of Institutes, 11th Session of the Commission on Crime Prevention and Criminal Justice, Vienna, 16–25 April 2002.
4. One of the first references to “restorative justice” is linked to Albert Eglash who used the term in his 1977 article “Beyond Restitution: Creative Restitution”. See A. Eglash, “Beyond Restitution: Creative Restitution” in J. Hudson and B. Galaway, eds., Restitution in Criminal Justice (Lexington: Lexington Books, 1975) at 91.
5. For a review of Canadian crime statistics, see Canadian Centre for Justice Statistics, Canadian Crime Statistics (Ottawa: Statistics Canada, 2001); D. Garland, The Culture of Control: Crime and Social Order in Contemporary Society (Chicago: University of Chicago Press, 2001).
6. For a review of Aboriginal over-representation in the criminal justice system, see Canadian Welfare Council, Indians and the Law: A Survey Prepared for The Honourable A. Laing (Ottawa: Canadian Welfare Council, August 1967) 42; Albert Task Force, Justice On Trial: The Report of the Task Force on the Criminal Justice System and Its Impact on the Indian and Métis People of Alberta (Edmonton: Government of Alberta, 1990); Manitoba, Report of the Aboriginal Justice Inquiry of Manitoba, Volume 1: The Justice System and Aboriginal People (Winnipeg: Queen’s Printer, 1991); Indian Justice Review Committee (Canada), Report of the Saskatchewan Indian Justice Review Committee (Regina: The Committee, 1992); C. LaPrairie, Examining Aboriginal Corrections in Canada (Ottawa: Ministry of the Solicitor General, 1996); Canada, Royal Commission on Aboriginal Peoples, Bridging the Cultural Divide: A Report on Aboriginal People and Criminal Justice in Canada (Ottawa: Supply and Services Canada, 1996); and M. Jackson, “Locking Up Natives in Canada” (1988–89) 23:1 University of British Columbia Law Review 216.
7. Canadian Centre for Justice Statistics, Adult Correctional Services in Canada, 2000/01 (Ottawa: Statistics Canada, 2002).
8. D. Garland, The Culture of Control: Crime and Social Order in Contemporary Society (Chicago: University of Chicago Press, 2001); D. Cayley, Expanding Prison, The Crisis in Crime and Punishment and the Search for Alternatives (Toronto: Pilgrim Press, 1999); and N. Christie, “Conflicts as Property” (1977) 17:1 British Journal of Criminology 1.
9. A. Von Hirsch, Doing Justice: The Choice of Punishments: Report of The Committee for the Study of Incarceration (New York: Hill and Wang, 1976); and A. Von Hirsh, Past or Future Crimes: Deservedness and Dangerousness in the Sentencing of Criminals (New Brunswick: Rutgers University Press, 1985).
10. Canadian Sentencing Commission, Sentencing Reform – A Canadian Approach: Report Of The Canadian Sentencing Commission (Ottawa: Canadian Sentencing Commission, 1987) at 143–144.
11. A. Von Hirsch, “Penal Theories” in M. Tonry, ed., The Handbook of Crime and Punishment (Oxford: Oxford University Press, 1998) at 666. In the 1980s, the Canadian Sentencing Commission studied the criminal sentencing process in Canada. The Sentencing Commission recommended that Parliament adopt “just deserts” as the paramount consideration governing the determination of a sentence; it proposed a two-pronged reform strategy. First, a legislative statement of sentencing principles was to be made. Then a rigid system of guidelines would be imposed—offences would be ranked according to severity, and each offence would have a presumptive sentence. The proposals represented an attempt to create a system of sentencing based on proportionality, where the most important factor in sentencing would be the gravity of the offence, rather than the offender’s past convictions. Past convictions would be only one factor among many to be taken into account in determining the sentence within the presumptive range or in deciding whether to depart from the presumptive sentence. Canadian Sentencing Commission, Sentencing Reform – A Canadian Approach: Report Of The Canadian Sentencing Commission (Ottawa: Canadian Sentencing Commission, 1987).
12. D. Martin and J. Mosher, “Unkept Promises: Experiences of Immigrant Women with the Neo-criminalisation of Wife Abuse” (1995) 8 Canadian Journal of Women and the Law 3. Martin and Mosher argue that alternatives should focus on talking with victim and offender to ensure safety and to clearly reinforce the wrongfulness of abusive behaviour.
13. Other victims’ organizations have instead chosen to lobby for harsher punishments, longer sentences and reductions in parole. H. Strang, “The Crime Victim Movement” in H. Strang and J. Braithwaite, eds., Restorative Justice and Civil Society (New York: Cambridge University Press, 2001) at 72.
14. See the discussion in T.F. Marshall, Restorative Justice: An Overview (London: Home Office, 1998) at 24–25.
15. See the discussion of victim-blaming in J. Braithwaite and D. Roche, “Responsibility and Restorative Justice” in G. Bazemore and M. Schiff, eds., Restorative Community Justice: Repairing Harm and Transforming Communities (Cincinnati: Anderson Publishing Co., 2001) at 74. Braithwaite and Roche also point out that since victim-blaming is a reflection of existing social beliefs, this tendency is equally likely to occur in restorative justice processes.
16. See, generally, D. Van Ness and H. Strong, Restoring Justice (Cincinnati: Anderson Publishing, 1997).
17. H. Zehr, Changing Lenses: A New Focus for Crime and Justice (Waterloo: Harold Press, 1990) at 28.
18. M. Achilles and H. Zehr, “Restorative Justice for Crime Victims: The Promise and the Challenge” in G. Bazemore and M. Schiff, eds., Restorative Community Justice: Repairing Harm and Transforming Communities (Cincinnati: Anderson Publishing Co., 2001) at 89; and generally, H. Zehr, supra note 17, chapter 1.
19. For an exhaustive review of the rise of the victims’ movement in Canada and policy responses to this movement, see K. Roach, Due Process and Victims’ Rights: The New Law and Politics of Criminal Justice (Toronto: University of Toronto Press, 1999).
20. Section 722 of the Canadian Criminal Code. Provincial legislation also establishes procedures for the submission of such statements (see below). Parole boards are also empowered to ask for victim impact statements when considering a request for the reduction of a term of ineligibility for parole; see Criminal Code
s. 645.63(1)(d). See generally, The Honourable Justice C. Hill, “Expanding Victims’ Rights” in A.D. Gold, ed., Alan D. Gold’s Collection of Criminal Law Articles online: (Quicklaw: GOLA [database], 1999).
21. Justice for Victims of Crime Act, S.M. 1986–7 c. 28.
22. Victims’ Bill of Rights, C.C.S.M. 1998 c. V-55.
23. Victims of Crime Act, R.S.B.C. 1996, c. 478.
24. Victims’ Bill of Rights, S.O. 1995 c. 6 at s. 2(vi) and (xiii).
25. For more information, see online: (date accessed: 17 September 2003).
26. For more information about the New Brunswick program, see online: (date accessed: 17 September 2003).
27. For a classic exposition of the arguments for a rejection of the state system and the development of community-based justice, see R. Shonholtz, “Neighborhood Justice Systems” (1984) 5 Mediation Quarterly 3.
28. L. Nader, “Controlling Processes in the Practice of Law: Hierarchy and Pacification in the Movement to Reform Dispute Ideology” (1993) 9:1 Ohio State Journal on Dispute Resolution 1.
29. For example, N. Christie has written about this tendency of the formal criminal justice system to attempt to “explain conflicts away” and, in particular, to ignore their relationship to socio-economic and class structures. Christie, supra note 8 at 5.
30. K. Pranis recognizes this tension when she writes that “[c]ommunity justice seeks equal consideration for the well-being and wholeness of all community members … [W]ell-being requires being able to meet one’s own needs without harm to others and being able to exercise control in one’s life” (italics added). K. Pranis, “Restorative Justice, Social Justice and the Empowerment of Marginalised Communities” in G. Bazemore and M. Schiff, eds., Restorative Community Justice: Repairing Harm and Transforming Communities (Cincinnati: Anderson Publishing Co., 2001) 287 at 288.
31. G. Husk, “Making Community Mediation Work” in J. Macfarlane, ed., Rethinking Disputes: The Mediation Alternative (Toronto: Emond Montgomery, 1997) at 282.
32. M.L. Hadley, ed., The Spiritual Roots of Restorative Justice. SUNY Series in Religious Studies (Albany: State University of New York Press, 2001).
33. Robert Redfield devised the folk–urban continuum, which describes the evolution of a rural community to an urban society and the changes that result. These include the loss of both the original homogeneity and the cohesion of established social practices. Redfield’s work is described in I. Schulte-Tenckhoff, The Concept of Community in the Social Sciences and Its Juridical Relevance (Ottawa: Law Commission of Canada, September 2001) at 14–15.
34. N. Postman, Amusing Ourselves to Death: Public Discourse in the Age of Show Business (New York: Viking, 1985).
35. Marshall, supra note 14 at 3.
36. For example, a workshop on program evaluation presented by Dr. Avery Calhoun of the University of Calgary drew a very large crowd at the Canadian Criminal Justice Association’s 2002 conference in Gatineau, Quebec.
37. Solicitor General of Canada and the Aboriginal Healing Foundation, Mapping the Healing Journey: The Final Report of a First Nation Research Project on Healing in Canadian Aboriginal Communities (Ottawa: Solicitor General of Canada, 2002) at 21.
38. Aboriginal Peoples Collection of Canada, The Four Circles of Hollow Water (Ottawa: Public Works and Government Services Canada, 1997) at 10.
39. J. Ryan and B. Calliou, Aboriginal Restorative Justice Alternatives: Two Case Studies (Ottawa: Law Commission of Canada, 2002).
40. Premier P. Okalik, Speaking notes, National Aboriginal Policing Conference, 13 October 2000, online: (date accessed: 17 September 2003).
41. Supra note 38, at 7.
42. Aboriginal Peoples Collection of Canada, The Four Circles of Hollow Water (Ottawa: Public Works and Government Services Canada, 1997) at 11.
43. E. LaRocque, “Re-examining Culturally Appropriate Models in Criminal Justice Applications” in M. Asch, ed., Aboriginal and Treaty Rights in Canada: Essays on Law, Equity and Respect for Difference (Vancouver: University of British Columbia Press, 1997) at 75–76, suggests that there is a “growing complex of reinvented ‘traditions’ which have become popular even while lacking historical or anthropological contextualization.”
44. W. Stewart, A. Huntley and F. Blaney, The Implications of Restorative Justice for Aboriginal Women and Children Survivors of Violence: A Comparative Overview of Five Communities in British Columbia (Ottawa: Law Commission of Canada, July 2001) at 28.
45. Criminal Code, R.S.C. 1985, c. C-46, s. 718.
46. Ibid. at 718.2(e).
47. A conditional sentence is a term of imprisonment that is served in the community. A number of criteria have to be met before an offender can be sentenced to serve his or her term of custody in the community under supervision. First, the sentence cannot exceed two years less one day. Second, if
the offence carries a minimum penalty, the offender cannot receive a conditional sentence. Third, the judge must be convinced that the presence of the offender in the community (rather than prison) does not pose a danger to the public. Finally, the judge must be convinced that a conditional sentence is consistent with the purpose and principles of sentencing that are contained in the Criminal Code. For more information see: “What Is a Conditional Sentence?” Conditional Sentencing Series Fact Sheet 1 (Research and Statistics Division, Department of Justice Canada), online: (date accessed: 17 September 2003).
48. R. v. Proulx [2000] S.C.R. 6, 2000 SCC 5, online: QL.
49. Ibid. at para. 22.
50. Ibid. at para. 19.
51. Chief Justice Lamer stated that “there may be certain circumstances in which the need for denunciation is so pressing that incarceration will be the only suitable way in which to express society’s condemnation of the offender’s conduct.” But, he continued, “Judges should be wary of placing too much weight on deterrence when choosing between a conditional sentence and incarceration. The empirical evidence suggests that the deterrent effect of incarceration is uncertain.” Chief Justice Lamer, in Proulx at paras. 106–107.
52. A brief review of recent case law reveals that the courts continue to have difficulty determining when conditional sentences are appropriate. Despite the principle established in R. v. Proulx, that no particular offence or set of offences need be excluded from the ambit of conditional sentencing and that offence and offender should each be assessed on their particular circumstances, some judges still see restorative principles as having no relevance to very serious crimes. In some cases, the appeal courts have overruled the decision of the trial judge and substituted incarceration. In other cases, appeal courts have allowed the substitution of a conditional sentence. See, for example, R. v. Marchment, [2000] O.J. No. 3559, (Meehan J., aggravated assault case); R. v. Longaphy, [2000] N.S.J. No. 376,2000 NSCA 136, (Oland J.,). “[The trial judge] failed to give proper weight to certain objectives of sentencing, particularly denunciation, deterrence, and promoting a sense of responsibility in the offender. Her decision does not mention denunciation. There is only one specific reference to deterrence and that is in her summary of the Crown’s submission; she stated that the Crown had urged incarceration in the interest of general deterrence. She herself did not address deterrence as an objective of sentencing in her decision. There is no indication how the sentence she ordered would promote a sense of responsibility in the respondent.” (para. 38); R. v. J.F. [2001] N.B.J. No. 286. (Larlee J., aggravated assault). “The goals of denunciation and deterrence cannot be sacrificed to the
principle of Restorative Justice. This offender must be separated from society for a long period of time.” (para. 16). In R. v. Wells, [2000] 1 S.C.R. 207, the Supreme Court refused a conditional sentence to an Aboriginal offender because of “aggravating factors, the nature of the offence, the community context, and the availability of conditions which have the capacity to properly reflect society’s condemnation” and that “[i]t was accordingly open to the sentencing judge to give primacy to the principles of denunciation and deterrence in this case on the basis that the crime involved was a serious one.” at 287.
53. Supra, note 46.
54. For example, the much-recognized efforts of Judge Barry Stuart in the Yukon and the work of a local Justice with the Hollow Water project in Manitoba. See B. Stuart, “Sentencing Circles: Making Real Differences” in J. Macfarlane, ed., Rethinking Disputes: The Mediation Alternative (Toronto: Emond Montgomery, 1997); T. Lajeunesse, Evaluation of Community Holistic Circle Healing: Hollow Water First Nation. Volume 1: Final Report (Ottawa: Solicitor General of Canada, 1996)
55. The Honourable Justice M.E. Turpel, “Sentencing within a Restorative Paradigm: Procedural Implications of R. v. Gladue” (1999) 4:3 Justice as Healing 2. See also J. Savarase, “‘Gladue’ Was a Woman: Should Sentencing from a Restorative Perspective Also Be Feminist?” (prepared for delivery at the 6th International Conference on Restorative Justice, Simon Fraser University, Vancouver, B.C., June 2003).
56. R. v. Gladue, [1999] 1 S.C.R. 688, [1999] S.C.J. No. 19 (para. 61).
57. K. Douglas and D. Goetz, “Bill C-7: The Youth Criminal Justice Act” Legislative Summary 356E, (Ottawa: Library of Parliament, Legislative Research Division, 2000).
58. United Nations Economic and Social Council, “Basic Principles on the Use of Restorative Justice Programmes in Criminal Matters” (Vienna: Commission on Crime Prevention and Criminal Justice, 2002), online: (date accessed: 17 September 2003).
59. Note that the United Nations Principles were the focus of an online discussion facilitated by the Network for Conflict Resolution in 2002–2003.
60. J. Nadeau, Critical Analysis of the UN Declaration of Basic Principles on the Use of Restorative Justice Programmes in Criminal Matters (Leuven, Belgium: University of Leuven, Centre for Advanced Legal Studies, 2001) at 36, online: .
61. Several consultations were undertaken over an 18-month period. The reports from these consultations are available online: .
62. For a classic description of this VOM process, see M. Umbreit, “Mediation of Victim–Offender Conflict” (1988) 31 Journal of Dispute Resolution 84.
63. For example, the now defunct Dispute Resolution Centre of Ottawa–Carleton.
64. For example, the Ottawa Collaborative Justice Project has received the majority of its referrals from pre-trial judges. For more information see online: .
65. B. Archibald, “A Comprehensive Canadian Approach to Restorative Justice: The Prospects for Structuring Fair Alternative Measures in Response to Crime” (prepared for delivery at the 1998 Conference on Making Criminal Law Clear and Just, Queen’s University, Kingston, Ontario, November 1998).
66. In theory, intervention can also occur before the engagement of the formal justice system, for example, if the community becomes alerted to schoolyard bullying issues at a local school. Intervention at this early stage is an important restorative justice principle, but in VOM and VORP, as in other restorative justice processes, this type of early intervention is relatively less common than the four system entry points described above. Intervention can also occur before the engagement of the justice system, but it is more complex to identify, document and evaluate for the purposes of policy development.
67. For example, in Nova Scotia, an extensive new program of restorative justice initiatives builds on the work of alternative-measures programs. See A. Thomson, Formal Restorative Justice in Nova Scotia: A Pre-implementation Overview (prepared for delivery at the Annual Conference of the Atlantic Association of Sociologists and Anthropologists, Fredericton: October 1999) at 7, online: (date accessed: 17 September 2003).
68. M. Peterson, “Developing a Restorative Justice Program: Part One” (2000) 5:3 Justice as Healing 1, online: .
69. The Ottawa Collaborative Justice Project has issued the clear message that it is “[not a diversion project]—the Collaborative Justice Project works within the criminal justice system. Pleas are entered, convictions registered and sentences imposed. Cases are not diverted out of the system; rather, the Project encourages the involvement of all the parties in a process that assists them to identify their needs and have a voice in designing a satisfying resolution.”
Collaborative Justice Project, Final Report on the Collaborative Justice Project for Fiscal Year 1999/2000 (Ottawa: Collaborative Justice Project, 2001), online: (date accessed: 14 October, 2003).
70. Marshall and Merry, reporting on U.K. programs, found that 76 percent of U.K. VOM programs operate post-sentence. See T. Marshall and S. Merry, Crime and Accountability: Victim/Offender Mediation in Practice (London: Home Office HMSO, 1990) at 8.
71. See, for example, J. Hudson, A. Morris, G. Maxwell and B. Galaway, eds., Family Group Conferences: Perspectives on Policy and Practice (Australia: Federation Press, 1996).
72. See Marshall, supra note 35, at 20.
73. Gerry Ferguson points out that in recent history the best-known example of a criminal jury attempting to have input into sentencing was in the trial of Robert Latimer (R. v. Latimer, [2001] 1 S.C.R. 3); the jury’s request was brushed off by the trial judge. See G. Ferguson, Community Participation in Criminal Jury Trials and Restorative Justice Programs (Ottawa: Law Commission of Canada, 2001) at 140.
74. See Stuart, supra note 54.
75. M. Peterson notes that Judge Fafard of Saskatchewan has participated in 60 to 70 sentencing circles and has never rejected a circle recommendation. See M. Peterson, supra note 68 at 81. For a comprehensive description of the philosophy, rationale and practices of circle sentencing, see the judgment of Justice Stuart, in R. v. Moses, [1992] Y.J. No. 50, [1992] 3 C.N.L.R. 116 (QL).
76. Although community panels are part of a more encompassing project called the Restorative Resolutions Project in Manitoba. See G. Richardson, B. Galaway and M. Joubert, “Restorative Resolutions Project: An Alternative to Incarceration” (1996) 20:2 International Journal of Comparative and Applied Criminal Justice 209.
77. One study estimates that 17 percent of offenders fail to complete their agreements. See L. Kurki, “Restorative and Community Justice in the United States” (2000) 27 Crime and Justice 235.
78. See, for example, the Vermont program described in D.R. Karp and L. Walther, “Community Reparative Boards in Vermont: Theory and Practice” in G. Bazemore and M. Schiff, eds., Restorative Community Justice: Repairing Harm and Transforming Communities (Cincinnati: Anderson Publishing Co., 2001)
199; and in Norway, T.B. Nergard, “Solving Conflicts Outside the Court System: Experience with Conflict Resolution Boards in Norway” (1993) 33:1 British Journal of Criminology 81.
79. A number of individual schools have implemented restorative justice processes for resolving conflict. In British Columbia, the Fraser Region Community Justice Initiatives agreed to work with a school district to explore how restorative justice principles might be applied throughout the local school system. This project is one of the first of its kind to implement restorative justice as a collaborative effort and in a comprehensive manner throughout an entire school district. See C. Bargen, Safe Schools: Strategies for a Changing Culture (prepared for delivery at the 6th International Conference on Restorative Justice, Simon Fraser University, Vancouver, B.C., June 2003).
80. The Youth Canada Association works to understand conflict and promote peace-building through restorative processes among Canadian youth. See online: .
81. Many examples in the introduction to the recent book by Bazemore and Schiff fall into this fourth category. G. Bazemore and M. Schiff, eds., Restorative Community Justice: Repairing Harm and Restoring Communities (Cincinnati: Anderson Publishing, 2001) at 1-4.
82. These programs include Aboriginal treatment and healing programs, Aboriginal healing lodges (currently, eight across Canada), agreements with Aboriginal communities to offer services to Aboriginal offenders, and elders working in institutions and in the community.
83. Kathleen Daly, for example, argues that proponents of restorative justice often overstate the philosophical divide that exists between restorative justice and retributive justice. K. Daly, “Revisiting the Relationship Between Retributive and Restorative Justice” in H. Strang, and J. Braithwaite, eds., Restorative Justice: Philosophy to Practice (Aldershot: Ashgate, 2000) 33. See also A. Von Hirsch, J.V. Roberts, A. Bottoms, K. Roach and M. Chiff, eds., Restorative Justice and Criminal Justice: Competing or Reconcilable Paradigms (Oxford: Hart Publishing, 2003).
84. J. Braithwaite, “Restorative Justice” in M.H. Tonry, ed., The Handbook of Crime and Punishment (Oxford: Oxford University Press, 1998) at 239.
85. T. Wachtel,and G. Gold, “Restorative Justice in Everyday Life” in H. Strang and J. Braithwaite, eds., Restorative Justice and Civil Society (New York: Cambridge University Press, 2001) 114.
86. For example, the work of Dave Gustafson with serious crimes at the Fraser Region Community Justice Initiatives. See D. Gustafson and S. Bergin,
Promising Models in Restorative Justice: A Report for the Ministry of the Attorney-General of British Columbia (Victoria: Ministry of the Attorney-General, 1998); and the work of the Ottawa Collaborative Justice Project, which targets serious crimes, including cases of robbery, robbery with a weapon, weapons offences, break and enter, theft over $5,000, fraud, assault, assault causing bodily harm, impaired driving causing bodily harm or death, and careless driving or dangerous driving causing bodily harm or death. As well, the John Howard Society of Manitoba is in the early stages of developing a restorative justice program for domestic assault. L. Maloney and G. Reddoch, Restorative Justice and Family Violence: A Community-based Effort to Move from Theory to Practice
(prepared for delivery at the 6th International Conference on Restorative Justice, Simon Fraser University, Vancouver, B.C., June 2003).
87. K. Roach, “Changing Punishment at the Turn of the Century: Restorative Justice on the Rise” (2000) 42:3 Canadian Journal of Criminology 249 at 258.
88. For example, the systemic sexism and tolerance of violence against women in some Aboriginal communities is described in W. Stewart, A. Huntley and F. Blaney, The Implications of Restorative Justice for Aboriginal Women and Children Survivors of Violence: A Comparative Overview of Five Communities in British Columbia, supra 44, at 26–31.
89. Heather Strang notes that the development of a victims’ movement in the 1970s resulted by the end of that decade with a coalition that “encompassed a spectrum of activists from radical feminists to hard line law-and-order conservatives.” H. Strang, “The Crime Victim Movement” in H. Strang and J. Braithwaite, eds., Restorative Justice and Civil Society (New York: Cambridge University Press, 2001) at 72.
90. Strang, ibid. at 81.
91. Tony Marshall and Susan Merry have suggested that the process of face-to-face dialogue between victim and offender can enable victims to explore and sometimes dismantle stereotyping views they held of offenders, in general, and the offender who harmed them, in particular. See Marshall, supra note 70.
92. Umbreit, supra note 60, at 97.
93. J. Latimer, C. Dowden and D. Muise, The Effectiveness of Restorative Justice Practices: A Meta-analysis (Ottawa: Department of Justice, 2001).
94. J. Wemmers and M. Canuto, Victims’ Experiences with, Expectations and Perceptions of Restorative Justice: A Critical Review of the Literature. (Ottawa: Policy Centre for Victims Issues, Department of Justice Canada, 2001).
95. The results of the program evaluations at the four American sites—Oakland (California), Travis County (Texas), Albuquerque (New Mexico) and Saint Paul (Minnesota)—are published in M.S. Umbreit, R.B. Coates and A.W. Roberts, “The Impact of Victim–Offender Mediation: A Cross-National Perspective” (2000) 17:3 Mediation Quarterly 215.
96. M.S. Umbreit, Mediation of Criminal Conflict: An Assessment of Programs in Four Canadian Provinces (St. Paul: Center for Restorative Justice and Mediation, School of Social Work, University of Minnesota, 1995.)
97. This study, along with the American and Canadian program evaluations, is reported and consolidated in M.S. Umbreit, Victim Meets Offender: The Impact of Restorative Justice and Mediation (Monsey: Criminal Justice Press, 1994).
98. M.S. Umbreit, supra note 95, at 221.
99. For a review of the literature on restorative justice evaluations, L. Kurki, “Evaluating Restorative Justice Practices” in A. Von Hirsch, J. Roberts, A. E Bottoms, K. Roach and M. Schiff, eds., Restorative Justice and Criminal Justice: Competing or Reconcilable Paradigms (Oxford: Hart Publishing, 2003).
100. See, for example, M. Ruth, Stories of Negotiated Justice (Toronto: Canadian Scholar’s Press Inc., 2000); and W. Derksen, Confronting the Horror: The Aftermath of Violence (Winnipeg: Amity Publishers, 2002).
101. Umbreit, supra note 97.
102. Marshall, supra note 70. See also the data reported in J. Braithwaite, “Restorative Justice: Assessing Optimistic and Pessimistic Accounts” (1999) 25 Crime and Justice 1 at 23–24.
103. In Restoring Dignity, the Law Commission of Canada provides an overview of the qualities of a meaningful apology and the role of meaningful apologies in the justice process. See Law Commission of Canada, Restoring Dignity: Responding to Institutional Child Abuse in Canadian Institutions, (Ottawa: Law Commission of Canada, March 2000). See also S. Alter, Apologising for Serious Wrongdoing: Social, Psychological and Legal Considerations (Ottawa: Law Commission of Canada, May 1999) at the sections entitled “Acknowledgement of the Wrong Done” and “Accepting Responsibility for the Wrong Done.”
104. For example, victim participation in the long-standing Winnipeg project is reported as just 10 percent. J. Bonta, S. Wallace-Capretta and J. Rooney, Restorative Justice: An Evaluation of the Restorative Resolutions Project (Ottawa: Solicitor General of Canada, 1998). See also the data presented by David Karp and Lynne Walther on victim participation in the Vermont Community Reparative Boards. Karp, supra note 78, at 210–211.
105. T. Lajeunesse, Evaluation of Community Holistic Circle Healing: Hollow Water First Nation. Volume 1: Final Report (Ottawa: Solicitor General of Canada, 1996). On the experience of victims in Canadian restorative justice processes, generally, see C.T. Griffiths, “The Victims of Crime and Restorative Justice: The Canadian Experience” (1999) 6:4 International Review of Victimology 279.
106. D. Poirier and N. Poirier, Why Is It So Difficult to Combat Elder Abuse and, in Particular, Financial Exploitation of the Elderly? (Ottawa: Law Commission of Canada, July 1999).
107. H.B. Eisenberg, “Combating Elder Abuse Through the Legal Process” (1991) 3:1 Journal of Elder Abuse and Neglect 65; and C. Spencer, Diminishing Returns: An Examination of Financial Responsibility, Decision Making and Financial Abuse Among Older Adults in British Columbia (Vancouver: Gerontology Research Centre, Simon Fraser University, 1996).
108. For a description of “passive” contrasted with “active” responsibility-taking, see M. Bovens, The Quest for Responsibility (New York: Cambridge University Press, 1998) at 26–38.
109. Braithwaite, supra note 15, at 63–65.
110. Achilles, supra note 18, at 91.
111. Braithwaite, supra note 15, at 64.
112. A. Morris and G. Maxwell, “Restorative Conferencing” in G. Bazemore and M. Schiff, eds., Restorative Community Justice: Repairing Harm and Transforming Communities (Cincinnati: Anderson Publishing Co., 2001) at 182–183.
113. Notable here is the work of John Braithwaite, who developed the notion of reintegrative shaming to explain and justify the effect of restorative processes on the individual offender. Braithwaite argues that we have overlooked the importance of personal shame as a deterrent to crime. He proposes that the two most potent deterrents, accordingly, are social disapproval and individual pangs of conscience. J. Braithwaite, Crime, Shame and Reintegration (New York: Cambridge University Press, 1989) at 19.
114. See, for example, the discussion in D. Cayley, “Security and Justice for All” in H. Strang and J. Braithwaite, eds., Restorative Justice and Civil Society (New York: Cambridge University Press, 2001) at 211–213.
115. S. Cohen, Visions of Social Control (Oxford: Polity, 1985). See also Roach, supra note 87, at 255; Braithwaite, supra note 102, at 89.
116. D. Moore, “Shame Forgiveness and Juvenile Justice” (1993) 12:1 Criminal Justice Ethics 3.
117. Ferguson, supra note 73.
118. R. Putnam, The Decline of Civil Society: How Come? So What? (prepared for delivery at the John L. Manion Lecture, Canadian Centre for Management Development, Ottawa, 22 February 1996), at 4.
119. Stewart, supra note 44.
120. Some sociologists advance the theory that there is a relationship between various communities and the levels of types of crime committed therein. Work under this paradigm explores community influences on individual development. See, for example, P. Wikstrom, “Communities and Crime” in M. Tonry, ed., The Handbook of Crime and Punishment (New York: Oxford University Press, 1998) at 269.
121. Wachtel, supra note 85 at 116–117.
122. Christie, supra note 8 at 3–7.
123. Marshall, supra note 14 at 3.
124. If restorative justice is to have a broader societal appeal, it is important that forgiveness is not seen as incumbent upon victims, for religious or other reasons. Another way of conceptualizing forgiveness outside a religious framework is to understand it as a means of “coping” with the stresses of life, “a search for significance in troubled times,” an expression coined by Pargament. See K. Pargament, The Psychology of Religion and Coping: Theory, Research, Practice (New York: Guilford Publications, 1997). See also: Alter, supra note 103.
125. K. Pargament and M. Rye, “Forgiveness as a Method of Religious Coping” in E. Worthington, ed., Dimensions of Forgiveness: Psychological Research and Theological Perspectives (Philadelphia: Templeton Foundation Press, 1998) 59 at 60–64.
126. R. Enright, and the Human Development Study Group, “The Moral Development of Forgiveness” in W. Kurtines and J. Gewirtz, eds., Handbook of Moral Behaviour and Development, (Hillsdale: Erlbaum, 1991) at 123.
127. T. Tyler, K. Rasinki and N. Spodick, “The Influence of Voice on Satisfaction with Leaders: Exploring the Meaning of Process Control” (1985) 48 Journal of Personality and Social Psychology 72.
128. R.A. Bush and J.P. Folger., The Promise of Mediation: Responding to Conflict Through Empowerment and Recognition (San Francisco: Jossey-Bass, 1994) especially 84–89.
129. Umbreit, supra note 97 at 101.
130. See also the discussion in J. Macfarlane, “Why Do People Settle?” (2001) 45 McGill Law Journal 663 at 709–710.
131. John Braithwaite identifies respectful person-to-person dialogue as a core procedural justice value for restorative justice; this is what Llewellyn and Howse describe as “encounter” or “the context in which everything happens.” Braithwaite, supra note 102 at 41; and Restorative Justice: A Conceptual Framework by J.J. Llewellyn and R. Howse, (Ottawa: Law Commission of Canada, 1999) at 57.
132. See, for example, Thibaut, supra note 1; T. Tyler, K. Rasinski and K. McGraw, “The Influence of Perceived Injustice Upon Support for the President, Political Authorities and Government Institutions” (1985) 48 Journal of Applied Psychology 72; T. Tyler, “The Role of Perceived Injustice in Defendants’ Evaluations of Their Courtroom Experience” (1984) 18 Law and Society Review 51; and N. Welsh, “Making Deals in Court-connected Mediation: What’s Justice Got to Do with It?” (2001) 79:3 Washington University Law Quarterly 787.
133. Testing four possible limitations on the satisfaction associated with a high degree of process control, Tyler found that the only factor that significantly reduced or eliminated this satisfaction was when the final decision-maker (where outcomes were imposed) did not appear to give due consideration to the disputants’ view. See T. Tyler, “Conditions Leading to Value Expressive Effects in Judgments of Procedural Justice: A Test of Four Models” (1987) 52 Journal of Personality and Social Psychology 333.
134. See D.M. Kolb and Associates, When Talk Works: Profiles of Mediators (San Francisco: Jossey-Bass, 1994) at chapter 1. This is also sometimes described as a “therapeutic” style of mediation. See S. Silbey and S. Merry, “Mediator Settlement Strategies” (1986) 8 Law and Society Policy Review 7; and see also L. Riskin, “Mediator Orientations, Strategies and Techniques” (1994) 12 Alternatives 111.
135. R. Albert and D. Howard, “Informal Dispute Resolution Through Mediation” (1985) 10 Mediation Quarterly 99.
136. Christie, supra note 8 at 14.
137. See, for example, Stuart, supra note 54 at 201, 205–229.
138. G. Davis, “The Theft of Conciliation” (1985) 32 Probation Journal 7.
139. This was explicitly stated as important to more than half the sample in Umbreit’s study of four American VOM programs. Umbreit, supra note 97 at 103.
140. Family group conferencing generally uses a community-of-care model to determine who should be present at the circle.
141. S. Retzinger and T. Scheff, “Strategy for Community Conferences: Emotions and Social Bonds” in B. Galaway and J. Hudson, eds., Restorative Justice: International Perspectives (New York: Criminal Justice Press, 1996) 315.
142. Despite the fact that some crimes may might relate to domestic relationships, for example, as in the case of spousal abuse.
143. C. LaPrairie, “The ‘New’ Justice: Some Implications for Aboriginal Communities” (1998) 40:1 Canadian Journal of Criminology 61 at 67.
144. See, for example, data on compliance and completion of agreements in Marshall, supra note 14 at 18; and in the context of civil mediation, see C. McEwen, and R. Mainman, “Small Claims Mediation in Maine: An Empirical Assessment” (1984) 33 Maine Law Review 244.
145. G. Pavlich, Deconstructing Restoration: The Promise of Restorative Justice (prepared for delivery at the International Conference on Restorative Justice, Tubingen, Germany, October 2000).
146. For this reason, Dean Peachey, one of the earliest Canadian innovators in restorative justice, argues that restorative justice initiatives should be described as “projects” (connoting ongoing change and responsiveness), rather than “programs” (implying established practices and principles). Professor George Pavlich notes somewhat cynically that “[t]he success of restorative justice is, no doubt, related to its ambiguity and equivocation.” D. Peachey, “The Kitchener Experiment” in M. Wright and B. Galaway, B., eds., Mediation and Criminal Justice (Newbury Park, CA: Sage, 1989) 15; Pavlich, supra note 145 at 4.
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