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20/11/2001

Restorative Justice: Its Promise, Its Challenges, and Its Place in a Democratic Society

Nathalie Des RosiersPresident, Law Commission of Canada

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Restorative Justice Week 2001

Ottawa, Ontario

November 19, 2001

The French version of this speech is available from the offices of the Law Commission of Canada, 473 Albert Street, 11^th floor, Ottawa, K1A 0H8, and is available on the web site www.cdc.gc.ca.

I would like to thank you for inviting me to give this address we begin this week of celebration and reflections on the promise of restorative justice and the hope that we have for a justice that leads to reconciliation and peace.

It is indeed a very important time for such a reflection to occur since dramatic demands for change urged by catastrophic events such we have witnessed at the beginning of September are only one of the many societal facts that Canadians will have to face in the years to come.

What I want to discuss with you is the role of restorative justice in a democratic society. I have entitled my remarks Restorative Justice: Its Promise, Its Challenges and Its Place in a Democratic Society, because I want to stress several aspects: the promise of restorative justice, why we are so intrigued - fascinated - drawn to it; the challenges it faces, symbolic and practical challenges, and its place in a democratic tradition, in a pluralistic and equality-seeking society.

Prior to engaging in these remarks, I will put them in the context of the role of the Law Commission in this debate.

The Law Commission of Canada's Approach

The Law Commission of Canada is an independent federal agency whose mandate is to provide advice on improvements to, and modernization and reform, of the law of Canada. In the Preamble to its legislation, there are important principles which guide the work of the Commission:

ˇ          It must view the law and the legal system in a broad social and economic context;

ˇ          It must be innovative in its research methods; and

ˇ          It must take account of the impact of the law on different groups and individuals when making its recommendations.

Research Topics

In formulating issues for research, the Commission believes it must look first at social problems as they present themselves to Canadians, beyond traditional legal and jurisdictional boundaries. From an understanding of these "real world" problems, the Commission can then go on to examine how the law is hindering or could facilitate their resolution. Consequently, the Commission has developed a research agenda based on four complementary themes: personal, social, economic and governance relationships instead of criminal law, administrative law. These themes are not intended to categorize discrete issues. Most issues could be examined from any one of these four relational perspectives. Rather, the themes represent a different emphasis in approaching issues.

It is under the theme of Social Relationships that the Commission has explored the notion of restorative justice. It first published a discussion paper "From Restorative Justice to Transformative Justice", which aimed at exploring the potential of restorative justice outside of the criminal law context - which I see is also a focus of this conference. One of the key messages of the discussion paper, which explains its title, was that we ought to see the process of justice as a transformative one. A process through which parties are not only restored to their pre-conflict situation - which may have led to the conflict in the first place - but a process that seeks to change the power relationship between the parties: to transform them and transform their relationship for the better.

How to reach this ideal is what remains to be done. The Law Commission's vision was that such a transformative exercise had to be done as well at the community level - individuals could not transform the relationship without contextualizing it in their lives as community members.

How to involve the community? What does it mean to involve the community? How is community defined for different purposes and in different settings? How can community involvement be encouraged and sustained? How much responsibility can a community assume for conflict resolution? How can community capacity be expanded and strengthened?

The Commission produced a video entitled "Communities and the Challenge of Conflict: Perspectives on Restorative Justice". The Commission has continued its work on how law sustains or does not sustain the development of healthy communities.

The Commission has also initiated a project to better understand the challenges of restorative justice. Allow me to stress what we continue to see as the "Promise" of Restorative Justice.

The Promise of Restorative Justice

It was made abundantly clear to the Commission during its consultations that there are great anxieties and distrust of some of the features of the current traditional system. This distrust is not surprising. It stems from three poles.

A)   The increased respect for the lived experience

In academia, in the media, in T.V., in society generally, one can sense a desire to bring abstraction to reality. Abstract notions of justice, the imaginary fight between equal sides to obtain the truth, seems disembodied from reality and the concrete way in which it is lived. Neither side feels better at the end. Victims claimed that their pain was downplayed and ignored. Accused said little except to deny their involvement and community members were only spectators. The lived experience of conflict was reframed in abstract notions of presumptions of innocence, relevance of evidence and harsh cross-examinations. The abstract notions of justice did not seem to capture the complexity of human experiences.

There was a time when gap between theory and practice may have been tolerated - when logic and abstract thinking superseded emotions and real life experience. But we grew weary of that. The gap grew too wide and the legitimacy of institutions is questioned when people no longer see themselves in the abstract model.

We also live in a world that increasingly values narratives and that increasingly recognizes the role of healing through telling. We are looking for places for the telling to occur.

It would be fair to say that many of the criticisms of the traditional justice system are grounded in a rejection of abstract and detached notions of justice to a more experiential way of living justice. It is also a response to what I would call the distrust of the power of the elites.

B)   The criticism of power of the elite and of professionals and experts

The non-professional can also see restorative justice as a claim for involvement of a world from which he or she is largely excluded. Victims want to be heard - not through a Crown attorney but for themselves, a community wants to hear acknowledgement for the crime from the mouth of the offender rather than from a slick and clever representation of a lawyer. Communities want a say in what goes on, in the solutions to the systemic issues that crime often represent.

Restorative justice is also a challenge to the limitations of the discourse that occurs in a criminal proceeding - an enlargement of what is relevant to discuss when a conflict occurs. Too often, social issues are silenced in the courtroom; the reasons why there is drinking or vandalism, the racism, the lack of funding for children's programs, or the absence of real choices for poor people are not enough fully acknowledged.

Finally, I believe restorative justice stems from a sense of despair about the direction the criminal justice system is taking.

C)   A sense of despair which can be expressed this way - "If success is longer jail sentences - how come achieving success does not feel so great..."

In a very thought provoking article, a sociologist from UCLA predicted that by the year 2025, there would be three types of people in United States, namely the jailors, the jailed and the people who decide who is a jailor and who is jailed. This pessimistic view of our social progress is not demonstrated in our Canadian statistics, but many fear that it could become a feature of Canadian life, particularly in some communities where justice is seen to be "done to them as opposed to be done for them", an expression I borrow from Susan Eng.

If the trend is going nowhere, how can we reverse it? Restorative justice must be seen as a response to this feeling.

However, achieving optimum results remains to be done. I now move to my second point, the challenges of restorative justice.

II - The Challenges of Restorative Justice

There are two main challenges to restorative justice - the first is one that is shared among all justice systems. It is a very practical one - any system will have failures.

It is important to recognize the risk of failures of restorative justice. One must accept that they are inherent to the experience of doing justice. There will be failures as a result of human involvement - community members coercing the victims into participating, processes manipulated by clever offenders, communities not honouring the task and operating for ulterior interest or motives, acting in biased way or unable to carry this function honourably.

These very practical risks must be reflected upon and must be guarded against. We must engage seriously in understanding more fully the nature of these risks - do we know the subtle forms coercion can take? How can we understand better and create the right incentives in the system so that victims have a real choice?

There is also a symbolic challenge that restorative justice programs face. We live in a world where everything has to be brought back to opposition between polarized sides: it is often portrayed as though victims and offenders cannot both be winners in the same policy initiative. It is therefore important to understand well the nature of the fear directed at restorative justice. At the Law Commission of Canada, we have recognized that such fears are legitimate and need to be expressed and taken into account. Our next restorative justice project is the organization of an exercise in consultation and discussion between supporters and critics of restorative justice. Hopefully, we will seek to identify the issues that critics fear. There is a need to build in best practices that respect these fears and do not dismiss them without hearing them fully. We can guard against the risks; we can monitor to ensure that they are not realized. We can create links between critics of traditional models of justice and equality seeking groups who aim at putting more equality in the justice system.

What are you afraid of in restorative justice? is a question worth asking. It allows everyone to understand the other in his or her vulnerability. This project will be in progress from the fall into the spring and should allow us to gain further insights in developing the adequate criteria for evaluating restorative justice and developing best practices in restorative justice programs.

III - The place of restorative justice in a democratic society

It is sometimes useful to refer to the three icons of democratic thinking that were the motto of the French Revolution: "Liberté, Égalité, Fraternité". Many thinkers, Yves-Marie Morrissette from McGill University and the Honourable Justice Charles Gonthier of the Supreme Court of Canada, among others, have referred to these principles in analysing the state of our current democratic thinking.

I often find it helpful to refer to three principles of the democratic ideal of the French revolution - Liberty, Equality and Fraternity - to reflect on some of the developments in our society. Yves-Marie Morrissette ironically suggests that we know quite a bit about liberty, are just beginning to understand equality and know nothing at all about fraternity.

Liberty was about curtailing powers of governments and certainly the traditional criminal law justice system does that: presumption of innocence, limits on search and seizure powers, necessity of warnings prior to infringing on suspects' privacy are all about protecting "liberty". The development of our criminal justice system is grounded in the XIX^th century liberty ideals.

We can see that the recent challenges to the criminal law process are grounded in equality: new voices are being heard, the voices of women - victims who were not often listened to, the voices of aboriginal communities that were silenced. The sexism and the racism of the system are being challenged and efforts are being made to respond to the claims. Equality is slowly being addressed by the system.

Perhaps restorative justice is about respecting the value of fraternity. It is a process directed at healing and not solely punishing, at the future coexistence instead of isolation and disengagement. There is there a great promise. Fraternity, brotherhood or sisterhood, could be a perspective that corresponds to the main values of restorative justice: its respect for consensus building, for a sharing of power, for a greater listening and acknowledging.

However, no one wants a fraternity that does not take into account the values of liberty and equality. Hence, we should be concerned about restorative justice as increasing social control and as operating in a context of inequality. This is the challenge of restorative justice: to add to liberty and equality and not replace them in the name of a new value.

In our view, fraternity has a place in democracy. And restorative justice must find its place within the justice system. It cannot be just a sidebar; it must become a true alternative.

Conclusion

Restorative justice raises complex issues because it holds so much promise that we cannot bear to be disappointed again by justice efforts. It faces the challenges which confront all ideas that are implemented in an imperfect and unequal world.

There may be hope for a justice system rooted in liberty, equality and fraternity. That is what we should strive for.

Thank you.