Restorative Justice

RETRIBUTION OR RESTORATION?

THE INTERPLAY BETWEEN RESTORATIVE JUSTICE

AND THE CRIMINAL JUSTICE SYSTEM

by Perry Bulwer, B.A., LL.B.

[While attending the University of British Columbia Law School in Vancouver, Canada I participated in the First Nations Legal Clinic for a 4 month term for semester credits and a 4 month summer employment term. This paper was written in 2001 for that program.]

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The concept of restorative justice, though only recently considered by modern justice systems, is in fact an ancient concept and one that is intrinsic to the human experience. As Howard Zehr points out, “Restorative justice is not new. In fact, it is as old as most people’s histories, as old as the Bible. It’s not abstract; it’s common sense. Restorative justice, in other words, is not a grand system imposed by “experts” but has profound roots in ordinary people’s needs and experiences.”1

In this paper I describe some of the principles underlying restorative justice, and their relation to indigenous justice systems. I will also examine the growing international interest in restorative justice and how Canada plays a leading role in that field. As well as looking at specific restorative justice projects I will look at Canadian legislation and review how the judiciary is responding to that legislation. Finally, I will survey some critiques of restorative justice and consider the interplay between restorative justice programs and mainstream justice systems.
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1 Howard Zehr, Changing Lenses: A New Focus For Crime and Justice (Scottdale, Pennsylvania: Herald Press, 1990) 181

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WHAT IS RESTORATIVE JUSTICE?

Restorative justice is a term applied in a general sense to a wide variety of schemes alternative to the mainstream retributive justice system. As a starting point this dichotomy is useful to define. Howard Zehr put it this way: retributive justice views crime as “a violation of the state, defined by lawbreaking and guilt. Justice determines blame and administers pain in a contest between the offender and the state directed by systematic rules.” On the other hand, from a restorative justice perspective, “crime is a violation of people and relationships. It creates obligations to make things right. Justice involves the victim, the offender and the community in a search for solutions which promote repair, reconciliation and reassurance.”2

A broad definition of restorative justice that emphasizes both the process and the outcome was proposed by British criminologist Tony Marshall: “Restorative justice is a process whereby all the parties with a stake in a particular offense come together to resolve collectively how to deal with the aftermath of the offense and its implications for the future.”3 As a broad, working definition it is fine, but it raises many questions that can be answered by outlining some of the agreed upon principles underlying restorative justice. For example, Susan Sharpe proposes the following five key principles:

1) Restorative justice invites full participation and consensus of all interested parties.

2) Restorative justice seeks to heal what is broken.

3) Restorative justice seeks full and direct accountability.

4) Restorative justice seeks to reunite what has been divided.

5) Restorative justice seeks to strengthen the community in order to prevent further harms.4

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2 Ibid.

3 Tony Marshall, as quoted by Daniel Van Ness in “Restorative Justice Around the World”, a paper presented to the Tenth United Nations Congress on the Prevention of Crime and Treatment of Offenders: Ancillary Meetings, Vienna, Austria, April 2000 [hereinafter UN Congress] online: <http://www.restorativejustice.org/ (date accessed: 6 April 2002).

4 Susan Sharpe, Restorative Justice: A Vision For Healing and Change, (Edmonton: Edmonton Victim Offender Mediation Society, 1998) 7-12

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Leena Kurki suggests that an underlying theory of restorative justice is that the state “should surrender its monopoly over responses to crime to those most directly affected —- the victim, the offender and the community.”5 She incorporates that theory into her version of the basic principles of restorative justice:

1) Crime consists of more than violation of the criminal law and defiance of government authority.

2) Crime involves disruptions in a three-dimensional relationship of victim, community and offender.

3) Because crime harms the victim and the community, the primary goals should be to repair the harm and heal the victim and the community.

4) The victim, the community and the offender should all participate in determining the response to crime; government should surrender its monopoly over that process.

5) Case disposition should be based primarily on the victim’s and the community’s needs –- not solely on the offender’s needs or culpability, the dangers he presents or his criminal history.6

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5 Leena Kurki, “Incorporating Restorative and Community Justice into American Sentencing and Corrections” in Sentencing & Corrections: Issues For The 21st Century, U.S. Department of Justice, No. 3, September 1999.

6 Ibid.

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Most advocates of restorative justice agree that the principles set out above are the basic building blocks of any restorative justice scheme. However, John Braithwaite has identified another that is crucial to any restorative process and not to be left out. “Non-domination also merits consideration as a core value of restorative justice, ensuring that all voices in the circle are heard and that none are silenced by domination.”7

Many of the principles underlying restorative justice are reflections of ancient, traditional Aboriginal justice practices. “The purpose of a justice system in an Aboriginal society is to restore peace and equilibrium within the community, and to reconcile the accused with his or her own conscience and with the individual or family that has been wronged.”8 James Zion has canvassed the elders of many indigenous cultures around the world for their views on justice and concludes that “…indigenous justice uses respect, consensus, solidarity, mutuality, interdependence, relationships, reciprocity and even love as the means to heal in traditional justice methods. We do not see those values at play in Canadian or American courts or legislatures.”9

The dichotomy of restorative justice and retributive justice is obvious when comparing traditional Aboriginal justice practices to the mainstream justice system. The values underlying Aboriginal justice clearly indicate that Aboriginal people have a different conceptual understanding of justice. That fact was recognized by the Royal Commission on Aboriginal Peoples when it concluded that one of the main reasons that the Canadian justice system consistently failed Aboriginals was because it had failed to take into consideration the different understanding that Aboriginals have of justice.10
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7 John Braithwaite, “Restorative Justice and Social Justice” (2000) 63 Sask. L. Rev. 185-194 at par.3.

8 Ross Green, “Aboriginal People and the Canadian Justice System”, Justice As Healing, Vol.3 No.4 (Winter 1998) online: <http://www.usask.ca/nativelaw/jah_green.html> (last modified: 8 August 2001).

9 James Zion, “Punishment Versus Healing: How Does Traditional Indian Law Work?”, Justice As Healing, Vol.2 No.3 (Fall 1997) online: <http://www.usask.ca/nativelaw/jah_zion.html> (last modified: 8 August 2001).

10 Canada, Royal Commission on Aboriginal Peoples, Bridging the Cultural Divide: A Report of Aboriginal People and Criminal Justice in Canada (Ottawa: Supply and Services Canada, 1996) at 12.
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I should clarify here that just as Aboriginal peoples are not a homogenous group, there is no single Aboriginal definition of justice. However, the similarities between the perspectives of Aboriginal nations or cultural groups outweigh the differences to the extent that it is safe to speak of a common understanding of what constitutes justice. Simply put, Aboriginal justice is based on healing whereas mainstream justice is based on punishment. Aboriginal legal theory is organic and flexible, arising from and adapting to the everyday experiences of the community. It “utilizes respect and teaching as its fundamental tenets, unlike the existing criminal justice system where raw coercive force and the threat of incarceration are used to induce the citizenry to abide by an external code.”11

Anyone who has experienced the mainstream justice system, in whatever capacity, knows that it can be an intimidating, heartless, uncaring and rigid process. Aboriginal justice, on the other hand, with its emphasis on healing, reparation and reconciliation often incorporates an element of spirituality into the process that goes beyond merely swearing on a bible. It uses “ceremony and prayer to bond people to the process and to involve the spirits in both the path to a solution and a binding decision.”12 Expressing emotions and feelings is not only allowed, but encouraged as a part of the healing process and a way to get at the heart of the matter. Unlike the mainstream system where offenders are usually labeled as bad persons, the Aboriginal perspective is that the offender has misbehaved as a result of disharmony with others in the community. The flexibility of a restorative approach in being able to investigate the underlying causes of that disharmony and misbehaviour “facilitate[s] the person’s healing process and help[s] them feel connected to the community once again rather than seeking blind justice through punishment under the guise of general and specific deterence.”13
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11 James Guest, “Aboriginal Legal Theory and Restorative Justice”, Justice As Healing Vol.4 No.1 (Spring 1999) online: <http://www.usask.ca/nativelaw/jah_guest2.html> (last modified: 8 August 2001).

12 Zion, supra note 9.

13 Guest, supra note 11.
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Another important difference in the Aboriginal approach to justice is that it is holistic in nature. In the mainstream adversarial system the focus is on a specific offence and many important factors may be excluded from the process according to the rules of evidence. The holistic focus of a restorative approach, on the other hand, allows every aspect of the offender’s life to be examined: physical, psychological, emotional and spiritual. This examination takes place within the context of the offender’s past, present and future relationships with family, community and victim. Other considerations in a holistic approach include moral, social, economic, political and religious factors.14 This broadens the scope of the process far beyond what an adversarial system is able to achieve.

This widened scope allows for the inclusion of victims’ voices, a central aspect that distinguishes restorative justice. Victim’s essentially have no role within the criminal justice system with the exception, perhaps, of direct testimony with it’s limitations, and victim impact statements. They remain in an undefined position at the edge of a system that considers the only actors in the process to be the decision-maker, the state and the accused. Victims remain isolated from the process whereas in most restorative programs victims are an essential component. Space is provided for their voices to be heard and victim input is considered crucial for achieving the goals of healing, reparation and reconciliation. In Donald Evans’ opinion, “A program that purports to be restorative and does not take victims seriously or give them a voice is flawed and doomed to failure as a restorative activity.”15 Furthermore, James Guest posits that “[c]onnecting a person to their community by helping a person see and empathize with the victim may be the greatest tool in crime prevention.”16

Community involvement is the most essential component of any restorative program. “The main procedural element of Aboriginal legal theory is the involvement of community members in the justice system rather than state intervention."17 Definitions of community vary but for the purposes of this paper it refers to a group of people with common interests and experiences that are outside of the mainstream justice system. Barry Warhaft, Program Director of Vancouver Aboriginal Transformative Justice Services (VATJS) uses the term “community of interest” to describe the extensive volunteer network that the program draws upon to form its Community Council Forums.18 “For Minnesota Department of Corrections Restorative Justice Planner, Kay Pranis, community self-defines around the issue that surfaces, so everybody who sees themselves as a stakeholder in a particular issue [makes up the community]”.19

Regardless of what definition is used advocates agree that community involvement is a pillar of restorative justice. Most criminal justice systems seldom, if ever, consult with the affected community and yet it is the community that directly suffers the consequences of crime. Restorative justice programs can be seen as grass roots attempts to empower communities to participate as stakeholders in any policymaking and decision making that affects their health and safety. Pranis contends that the relationship between the criminal justice system and the community needs to be re-evaluated. Her work on restorative justice planning suggests there needs to be a reversal of roles so that the “…community is the primary responder to crime and the system operates in support of the community.”20 Of course, before that can be achieved there must be a broad base of community support for restorative justice principles and practices as well as a high degree of participation. The rapid growth of restorative justice programs throughout the world suggests that the necessary support and participation exists.
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14 Green, supra note 8.

15 Donald G. Evans, “Keeping the Community Involvement in Restorative Justice”, UN Crime Congress, supra note 3.

16 Guest, supra note 11.

17 Ibid.

18 Barry Warhaft, interview, 5 April 2001, Vancouver, Canada.

19 As quoted by Kurki, supra note 5, at 6.

20 Kay Pranis, “Communities and the Justice System: Turning the Relationship Upside Down”, online: Restorative Justice On-line Notebook <http://www.ojp.usdoj.gov/nij/rest-just/ch4/upsidedown.html> (date accessed: 6 April 2002).__________________


INTERNATIONAL DEVELOPMENTS IN RESTORATIVE JUSTICE

Canada has played a leading role in the contemporary development of restorative justice. The first Victim Offender Mediation programs were developed in Canada in the mid-1970s. There are now over 500 such programs in Europe, over 300 in the U.S. and over 100 restorative justice projects in Canada.21 Aboriginal Peace Circles, adapted from Canadian and U.S. traditional aboriginal justice methods but common also in indigenous cultures around the world, are used at various stages of the justice process throughout North America in both rural and urban communities. The circle model is inclusive, adaptive and has generally developed along two lines: healing circles to dispose of situations outside of the mainstream system and sentencing circles that presently are limited primarily to making recommendations to judges for case disposition. A third restorative justice model that has spread world-wide is Community Conferencing which developed in New Zealand as adapted from the traditional justice practices of the Maori people. Conferencing is also used at various stages of the justice process though it may not be as inclusive as circles, where any interested member of the community may participate. Conferencing, however, is often engaged much earlier in the process than other models and in some jurisdictions “…is often used by police as an alternative to arrest and referral to the formal justice system.”22

An indication of the growing international popularity of restorative justice is the increasingly innovative adaptations of restorative justice principles beyond the three basic models discussed above. In a presentation at the Tenth United Nations Congress on the Prevention of Crime and Treatment of Offenders held in Vienna, Austria in April 2000 Daniel Ness of Prison Fellowship International highlighted the following illustrative developments:23

1. Victim-offender encounters are taking place in prisons in the U.S., Canada, England, Belgium, the Netherlands and other countries.

2. Circles of support in some Canadian communities work with serious sexual offenders (often guilty of pedophilia) who are being released into fearful communities. The circles are formed by members of faith communities who enter into a “covenant” with the released offender relating to accountability and support.

3. Mediation and Conferencing are now being done within the justice process. In Australia, England and Belgium police use these alternatives prior to a charge being laid. In Austria, the Czech Republic and Canada probation and parole officers use them.

4. Restorative processes are being used to resolve conflict between citizens and their governments in California, England, South Africa and New Zealand.

5. Legislative action is being taken in a number of countries to expand use of restorative programs. Again, Canada is a leader in this area.

6. Funding and staff for restorative programs is expanding. Most programs begin as pilot projects so increased resources by governments is an indication of success and long-term commitment to the principles of restorative justice.

7. Intergovernmental bodies are taking note of restorative justice. It is increasingly appearing in debate and discussion at the international level. The Committee of Ministers of the Council of Europe adopted a recommendation on the use of mediation in penal matters. The European Union has funded creation of the European Forum on Victim Offender Mediation and Restorative Justice. The Rome Statute for an International Criminal Court contains a number of arguably restorative provisions. The UN’s International Handbook on Justice for Victims notes the importance of restorative justice for addressing victims’ concerns.

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21 “Tutorial: Introduction to Restorative Justice”, online: Restorative Justice Online <http://www.restorativejustice.org/> (date accessed: 6 April 2002).

22 Ness, UN Crime Congress, supra note 3, at 4.

23 Ibid, at 5-6.
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Although this is not an exhaustive list it points to the rapid, worldwide spread of restorative justice initiatives. One definitive sign that the adoption of restorative justice principles is an international movement is the attention paid to it at the Tenth UN Crime Congress.

One of the four agenda topics of the Crime Congress was, “Offenders and Victims: Fairness and Accountability in the Criminal Justice System”. As one observer noted, that appeared to become a code word for restorative justice, given the high interest in the topic expressed by governmental representatives. During the course of the Congress, a number of NGOs sponsored ancillary meetings on various topics related to restorative justice. … At the conclusion of the Congress the delegates approved a summary resolution, known as the Vienna Declaration. This resolution included recognition of the growth of restorative justice programs, and called on governments to increase their use of restorative justice interventions.24

Canada continued its leadership in this area by co-sponsoring a resolution entitled Basic Principles on the Use of Restorative Justice Programs in Criminal Matters. This resolution “…calls on the UN to distribute a draft set of Basic Principles, prepared by the Working Party on Restorative Justice, to solicit comments from governments and others, and to convene a meeting of experts to review those comments and suggestions and propose modifications or alternatives to the Commission [on Crime Prevention and Criminal Justice]”.25 The resolution was adopted by the Commission and the UN Economic and Social Council.
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24 “UN Acts to Advance Restorative Justice”, online: http://www.restorativejustice.org/ (date accessed: 6 April 2002).

25 Ibid.

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CANADA’S USE OF RESTORATIVE JUSTICE

In this section I will examine Canadian legislation that seeks to incorporate principles of restorative justice within the criminal justice system. I will also consider examples of how that is being implemented through the use of sentencing and healing circles.

In September 1996 Canadian Parliamentary Bill C-41 came into effect, substantially reforming the sentencing provisions, Part XXIII, of the Criminal Code. 26 In doing so Parliament sent a clear message to all Canadian judges that too many people were being sent to jail. Two major amendments that altered the sentencing landscape in Canada are found in sections 718 and 742.1 of the Criminal Code. Section 718 sets out the purpose of sentencing in the following terms:

s.718 The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives:

(a) to denounce unlawful conduct;

(b) to deter the offender and other persons from committing offences;

(c) to separate offenders from society, where necessary;

(d) to assist in rehabilitating offenders;

(e) to provide reparations for harm done to victims or to the community; and

(f) to promote a sense of responsibility in offenders, and acknowledgement of the harm done to victims and to the community.

s.718.2 A court that imposes a sentence shall also take into consideration the following principles:

... 

 (d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and

(e) all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders.

Section 742.1 creates an entirely new sentence, the conditional sentence:

s.742.1 Where a person is convicted of an offence, except an offence that is punishable by a minimum term of imprisonment, and the court

(a) imposes a sentence of imprisonment of less than two years, and

(b) is satisfied that serving the sentence in the community would not endanger the safety of the community and would be consistent with the fundamental purpose and principles of sentencing set out in sections 718 to 718.2 the court may, for the purposes of supervising the offender’s behaviour in the community, order that the offender serve the sentence in the community, subject to the offender’s complying with the conditions of a conditional sentence order made under section 742.3.

With the changes introduced by Bill C-41 the Canadian Parliament clearly placed new emphasis on the principles of restorative justice. Minister of Justice Alan Rock made the following comments during the second reading of Bill C-41 on September 20, 1994:

A general principle that runs throughout Bill C-41 is that jails should be reserved for those who should be there. Alternatives should be put in place for those who commit offences but who do not need or merit incarceration.

[T]his bill creates an environment which encourages community sanctions and the rehabilitation of offenders together with reparation to victims and promoting in criminals a sense of accountability for what they have done. It is not simply by being more harsh that we will achieve more effective justice. 27

Those comments reflect two of Parliament’s principle objectives in enacting Bill C-41: reducing the use of prison as a sanction and expanding the use of restorative justice principles.
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26 Criminal Code, R.S.C. 1985, c. C-46

27 Allan Rock, House of Commons Debates, Vol.IV, 1st Sess., 35th Parl., at p. 5873.____________

In R. v. Gladue 28 Cory and Iacobucci JJ. made the following comment on the creation of conditional sentences in section 241.2:

It is true that there is ample jurisprudence supporting the principle that prison should be used as a sanction of last resort. … The availability of the conditional sentence of imprisonment, particularly, alters the sentencing landscape in a manner which gives an entirely new meaning to the principle that imprisonment should be resorted only where no other sentencing option is reasonable in the circumstances. The creation of the additional sentence suggests, on its face, a desire to lessen the use of incarceration.

In R. v. Proulx 29 Lamer C.J. stated:

The conditional sentence facilitates the achievement of both of Parliament’s objectives [to decrease the use of incarceration and increase the use of restorative justice]. It affords the sentencing judge the opportunity to craft a sentence with appropriate conditions that can lead to the rehabilitation of the offender, reparations to the community and the promotion of a sense of responsibility in ways that jail cannot.

Commenting on section 718 in Gladue 30 Cory and Iacobucci JJ. stated:

Clearly, s.718 is, in part, a restatement of the basic sentencing aims, which are listed in parts (a) through (d). What are new, though are paras. (e) and (f), which along with (d) focus upon the restorative goals of repairing the harms suffered by individual victims and by the community as a whole, promoting a sense of responsibility and an acknowledgment of the harm caused on the part of the offender, and attempting to rehabilitate or heal the offender. The concept of restorative justice which underpins paras. (d), (e) and (f) is briefly discussed below, but as a general matter restorative justice involves some form of restitution and reintegration into the community. The need for offenders to take responsibility for their actions is central to the sentencing process. Restorative sentencing goals do not usually correlate with the use of prison as a sanction. In our view, Parliament’s choice to include (e) and (f) alongside the traditional sentencing goals must be understood as evidencing an intention to expand the parameters of the sentencing analysis for all offenders.

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28 R. v. Gladue, [1999] 1 S.C.R. 688, at para. 40.

29 R. v. Proulx, [2000] 1 S.C.R. 61, at para. 99.

30 Gladue, supra note 28, at para. 43.

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SENTENCING AND HEALING CIRCLES

In Gladue and Proulx the Supreme Court of Canada clearly acknowledges the importance of incorporating principles of restorative justice within the criminal justice system as mandated by Parliament, at least with respect to sentencing. I turn now to a consideration of the use of sentencing circles in some Canadian jurisdictions.

In keeping with the organic, flexible nature of Aboriginal justice, there is no single sentencing circle model, but each circle is adapted to fit the circumstances. The basic process, however, is essentially the same. All concerned parties take their place in a circle. These include the three parties involved in a conventional sentencing hearing: the judge, the crown and the accused with defense counsel. Added to the circle, depending on the circumstances, are elders and other respected community members, the victim and their family and supporters, the accused’s family and supporters, police and probation officers, and other interested members of the community. Usually the judge will facilitate the process, however, the egalitarian nature of “[t]he circle significantly breaks down the dominance that traditional courtrooms accord the lawyers and judges. In a circle, the ability to contribute, the importance and credibility of any input is not defined by seating arrangements. The audience is changed. All persons within the circle must be addressed. Equally, anyone in the circle may ask a direct question to anyone.” 31 Everyone who wishes to may speak to any aspect of the issues before them and make sentencing recommendations to the judge who retains ultimate sentencing discretion. Despite that final authority, there is evidence to suggest that in the majority of cases judges do accept the circle’s often consensual recommendation. 32
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31 Stuart J., R. v. Moses (1992), 71 C.C.C. (3d) 347 (Y. Terr. Ct.) at 357.

32 Ross Green, “Aboriginal Community Sentencing and Mediation: Within and Without the Circle”, (1997) 25 Man. L. J. 77-125, at para. 14.
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Although sentencing circles were not specifically considered in the Gladue and Proulx decisions, the Supreme Court ruled in Gladue that the sentencing provisions in Part XXIII of the Criminal Code, and section 718.2(e) in particular, imposes an obligation on sentencing judges to consider

i) the unique systemic or background factors that may have played a part in bringing the particular Aboriginal offender before the courts, and
ii) the types of sentencing procedures and sanctions that may be appropriate in the circumstances for the offender because of his or her particular Aboriginal heritage or connection. 33

Further comments by Cory and Iacobucci JJ. suggest an implicit approval of the use of sentencing circles:

…one of the unique circumstances of aboriginal offenders is that community-based sanctions coincide with the Aboriginal concept of sentencing and the needs of Aboriginal people and communities. It is often the case that neither Aboriginal offenders nor their communities are well served by incarcerating offenders, particularly for less serious or non-violent offences. Where these sanctions are reasonable in the circumstances, they should be implemented. In all instances, it is appropriate to attempt to craft the sentencing process and the sanctions imposed in accordance with the Aboriginal perspective. 34

Incorporating the Aboriginal perspective into the mainstream justice system was encouraged by several inquiries into the Canadian justice system’s treatment of Aboriginal people including the Royal Commission on Aboriginal Peoples, the Aboriginal Justice Inquiry of Manitoba and the Saskatchewan Indian Justice Review Committee. For example, the Manitoba Inquiry concluded: “If non-Aboriginal judges and courts are going to be able to formulate sentences which are appropriate to the needs of Aboriginal offenders, victims and communities, they will need input from those communities. In particular, communities need to be involved in the sentencing process, since sentences should, in part, reflect the needs and desires of the community.”35
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33 Gladue, supra note 28, at para. 66.

34 Ibid, at para. 74.

35 Manitoba, Public Inquiry Into The Aministration of Justice and Aboriginal Peoples, Report of the Aboriginal Justice Inquiry of Manitoba: The Justice System and Aboriginal People, Vol. 1 (Winnipeg: The Queen’s Printer, 1991) at 409.
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Support for community involvement in the sentencing process also comes from the judiciary. Stuart J. of the Yukon Territorial Court, where sentencing circles are common, commented that “[t]he formal, professional justice system must acquire greater confidence and trust in community knowledge, judgement and instincts.” 36  Bastarache J. of the Supreme Court had this to say in support of sentencing circles:

This approach pursues “restorative justice”, whereby healing the community as a whole and reintegration of the offender are of paramount importance. Such a model responds better to traditional aboriginal conceptions of restoring harmony in the community, and gives control to those communities which have felt deeply disenfranchised and alienated by Canada’s criminal justice system. Sentencing circles often place a greater emphasis on community service or involvement, or non-custodial forms of penance. Although there is sometimes a reaction against such methods of sentencing as “soft”, this idea is hard to sustain where the victim, the victim’s family, and the arresting police officers form part of the circle, as they often do. More is required of the offender in terms of true repentance and seeking forgiveness, although less institutional incarceration is imposed. The sense of community, and encouraging by unconventional forms of social control and involvement the integration of the individual in that community, is the essence of this sentencing process. 37

Sentencing circles have been primarily employed in northern and isolated Aboriginal communities in Canada. They are used extensively in the Yukon and less so in Quebec, Manitoba and Saskatchewan. The use of sentencing circles continues to evolve and there is no doubt that the level of community involvement, the cooperation of the Crown and Appellate review will shape that evolution. However, it is not my intention in this paper to analyze in depth the use, merits and success of sentencing circles in the Canadian justice system. 38 Instead, it is simply to point out ways in which the principles of restorative justice are being integrated into the mainstream system as mandated by Parliament and supported by the judiciary.
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36 R. v. D.N., [1993] Y.J. No. 195 (QL) (Y. Terr. Ct.)

37 The Honourable Michel Bastarache, “The Challenge of the Law in the New Millenium”, (1997-1998) 25 Man. L.J. 411-419, at para. 19.

38 For a good analysis of sentencing circles in the Canadian justice system see Ross Green’s article, supra note 32.________________

Another example of that integration is the use of Aboriginal Healing Circles under the Alternative Measures provisions found in section 717 of the Canadian Criminal Code. 39  Section 716 sets out the following definition:

“alternative measures” means measures other than judicial proceedings under this Act used to deal with a person who is eighteen years of age or over and alleged to have committed an offence.

Section 717 sets out the conditions and rules governing alternative measures but does not specify any specific model. Vancouver Aboriginal Transformative 40 Justice Services (hereinafter VATJS) is one example of an alternative model of justice that appears to have achieved some success operating within the criminal justice system.

I say within the criminal justice system because although VATJS operates with a fair degree of autonomy and flexibility, and participants are indeed diverted from the court system, the Crown retains a degree of control. For example, Crown Counsel must approve referrals to the program. Furthermore, Crown Counsel are required by Section 717 of the Criminal Code to be satisfied the recommended conditions of any Alternative Measures plan are appropriate. In the case of VATJS a Schedule of culturally appropriate measures was attached to the Protocol Agreement. “Conditions of healing plans that are taken from the Schedule do not require additional approval of Crown Counsel. If the Community Council recommends other reasonable, creative measures tailored to the individual and the circumstances that do not appear on the Schedule, approval of Crown Counsel is required before the measures are implemented.”41

In spite of this controlling influence of the Crown, the Protocol Agreement recognizes that “[o]ne of the key underpinnings of [the] Program is the transfer of responsibility from the courts to the Aboriginal community in holding Aboriginal offenders accountable for their actions. The Community Council model is specifically designed and implemented to allow the Aboriginal community in Vancouver to assume this measure of control over the way the criminal justice system deals with native offenders.”42
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39 Supra note 26.

40 There is debate over the use of the word restorative. Some argue that it presumes there was harmony in the first place and ask, “Restore to what? Pre-existing inequaties?” Barry Warhaft, director of VATJS, says that the notion of transformation is a part of many Aboriginal cultures and is truer to the spirit and intent of the program.

41 Vancouver Aboriginal Restorative Justice Program Provincial Crown Protocol Agreement, Legal Services Society, Native Programs, 1999.

42 Ibid.
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A Community Council consists of a recognized elder and three volunteers who represent a cross-section of Vancouver’s Aboriginal community. The Council comes together in a circle with the offender, the victim (if they agree), and their support people. Within the circle, participants discuss the circumstances of the offence and the underlying problems which led to the wrongful behaviour. The teachings of the sacred four directions of the Medicine Wheel guide the proceedings of the circle: East = setting the climate; South = telling the story; West = discovering what is important; North = creating solutions. The Council, with input from both the victim and offender, reaches a consensus on what is necessary for the offender to do to begin to restore his/her lost balance and make amends for the harm caused to the victim and the community. A plan is developed that consists of any number of options which include, but are not limited to community service, restitution or compensation to victims, apology to victims, direct services to victims, victim/offender reconciliation processes, education/employment/life-skills training, counseling, traditional teaching and cultural awareness, elder’s teachings, sweat lodges, cedar cleansing, family group conferencing and other reasonable, creative measures tailored to the individual circumstances, subject to Crown approval. 43

In April 2002, VATJS celebrated its second anniversary. As of 31 March 2002 there have been 82 cases referred to VATJS, which is considerably fewer than what it is capable of dealing with. There are a couple reasons for this. One is that if, upon receiving a referral, the client cannot be located, the file must be sent back to the Crown. This often occurs when the case is referred only after a period of time has passed, and subsequently the client’s address and/or phone number has changed. If VATJS personnel cannot track down the client his file must be returned. When this happens the client usually only becomes aware he has been referred to VATJS shortly before, or on, the day of his court appearance. The file may or may not be referred back to VATJS, depending on the Crown’s recommendation. This points to the main reason for the low number of referrals. Defense counsel, First Nations Law Clinics, Native Court Workers and the Law Courts Education Society can all request that the Crown refer a file to VATJS, but the ultimate decision rests with the Crown. It appears that the number of Aboriginal accused eligible for the program is greater than the number that are actually referred by the Crown. The reasons for this may be varied, but it highlights a major difficulty in the interaction between a restorative program such as VATJS and the criminal justice system.

This does not mean that the program is not successful, however. What might clearly indicate success or failure would be recidivism rates, however, it is too early in the existence of VATJS to determine that. Program Director, Barry Warhaft, also points out that success should not only be measured by recidivism rates as they do not tell the whole story. Other factors pointing to success include connecting a client to resources, community and spirituality, the healing of all parties, and personal growth in terms of self-esteem, anger management, respect for others and over coming addictions. 44 Furthermore, the Protocol Agreement recognizes “…the arduous and long-term nature of rehabilitation…[and] acknowledges the desire of the program to deal with repeat offenders….” 45

Presently VATJS handles cases concerning less serious offences. Some examples include theft, mischief, prostitution, break and enter, assault (but not spousal assault), and minor drug offences. There have been concerns expressed by women’s groups that serious offences related to violence against women and children should not be included in a program such as VATJS, at least not without proper consultation with women’s groups and serious consideration of their perspective on this issue. The Protocol Agreement demands such consultation. “The [VATJS} will consider more serious offences only when certain key considerations have been met. Those considerations will include but are not restricted to the Program receiving the mandate from the Aboriginal community to proceed with more serious offences as well as having adequate support services in place to deal with those offenders and victims’ concerns. … The degree and pace to which referrals of a more serious nature are accepted by the Program will be determined through the level of support indicated by the Aboriginal community to the [VATJS].” 46 It is the essence of restorative justice to be inclusive of all voices. However, in spite of the rapid growth and tremendous potential of restorative justice programs, that approach to justice is not without its criticisms.
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43 VATJS brochure.

44 Warhaft, supra note 18; VATJS, “Community Drumbeats”, vol. 21, iss. 21, April 2002.

45 Supra note 41.

46 Ibid
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CRITIQUES AND CONCERNS ABOUT RESTORATIVE JUSTICE

It is paradoxical that the growth and expansion of restorative justice programs is occurring at the same time there appears to be, in the U.S. and Canada at least, a public clamouring for the justice system to impose harsher punitive measures. The highest incarcerations rates in the world, the vast industrial prison complex, privatization of prisons and construction of so-called super prisons all belie the fact that restorative justice values are indeed making inroads into the entrenched system. The concern is that “[i]nnovations in entrenched systems such as criminal justice systems are often co-opted and diverted from their original visions. Terms are watered down; old approaches are justified with new concepts; programs are instituted without the necessary value base, with the result that they do not work or have unintended, negative consequences.”47

A common argument against restorative justice relates to the fact that it involves an individualized response to crime. The sentencing principle found in Section 718.2(b) of the Canadian Criminal Code 48 states:

a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances.

This principle of parity is often construed narrowly to mean that fairness requires “…the same sentence for people who have committed similar crimes. However, [the principle] could just as well be interpreted as requiring comparable sentences for comparable offences. This would mean punishment or responses may vary as long as they are meaningfully related to the nature and effects of the crime. Thus, in principle, there is no reason restorative justice cannot respect the tenets of proportionality and equality.”49
________________
47 Zehr, supra note 1.

48 Supra note 26.

49 Kurki, supra note 5, at 9.

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One of the strongest critiques of restorative justice comes from the feminist perspective. Of great concern is the power imbalance inherent in cases of family violence. What is feared is “…the scenario of a dominating group of family violence offenders and their patriarchal defenders intimidating women and children who are victims into frightened silence.” 50

A report for the Aboriginal Women’s Action Network (AWAN) 51 indicates distrust of and lack of confidence in restorative justice projects for precisely that reason. Community involvement is the backbone of restorative justice but if a community is rife with inequities and power imbalances then that approach to justice only perpetuates the silence around family violence. It may be, however, that a restorative model can initiate the healing that such a community requires by following the example of VATJS and only progressing to serious crimes such as family violence once the community can demonstrate its ability to respond judiciously to such offences. In Australia restorative justice has successfully empowered women’s voices in the justice system. “Kathy Daly reports that this has been the experience so far in her extensive observations, from a feminist theoretical framework, of conferences in South Australia. Mothers are often the most eloquent communicators at restorative justice conferences. Sometimes they even speak of the violence they suffer at the hands of their sons, a matter on which they never want to testify in court." 52

Another concern for feminists is that the advances made by the women’s movement in the 1970s to have family violence treated seriously by the criminal justice system might be diminished by diverting such cases out of the court system. “Restorative justice advocates reply that court processing of family violence cases actually tends to foster a culture of denial, while restorative justice fosters a culture of apology. Apology, when communicated with ritual seriousness, is actually the most powerful cultural device for taking a problem seriously, while denial is a cultural device for dismissing it.”53
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50 John Braithwaite, “Standards for Restorative Justice”, UN Crime Congress, supra note 3.

51 Wendy Stuart & Audrey Huntley, “The Implications of Restorative Justice for Aboriginal Women and Children Survivors of Violence: A Comparative Overview of Five Communities”, April 2001. Aboriginal Women’s Action Network, c/o VSW 309 – 877 East Hastings St., Vancouver B.C. V6A 3Y1.

52 Braithwaite, supra note 7, at para. 19.

53 Ibid at para. 14._______________

Another strong critique of restorative justice cautions against the institutionalization of restorative justice within existing criminal justice systems. James Guest points to several potentially problematic areas:

…the use of a restorative justice process within the linear criminal justice system raises issues regarding the level of coercion or the size of the stick being placed above the head of the victimizer. This sword of Damocles defeats the open, honest and respectful discourse sought by invoking the use of the restorative justice holistic processes within the criminal justice system. Victimizers, victims and communities cannot hope for resolution of their problems when the constant threat of incarceration chills the air. … The use of Family Group Conferencing is probably inappropriate after a charge has been laid. The use of a sentencing circle is inappropriate where exists the chance that the recommendations of elders and community members will not be respected by the judiciary. The use of restorative justice principles is inappropriate where the actors within the criminal justice system are not knowledgeable in the process or lack confidence in the use of the process. … There remains the real danger that reforms in the area of restorative justice will be a simple repackaging and relabeling of the existing criminal justice system. That these attempts will be used to deflect criticisms levied against the criminal justice system by the many reports and commissions. And that these attempts at reform will come to be embodied within statistical data used to “prove” that restorative justice doesn’t work. 54

James Zion puts it this way:

The problem with many contemporary justice initiatives directed at Indians is that they are integrationist and ultimately assimilationist. … Indian justice works because it heals. It should not be taken captive by a legal system based on force, as with circle sentencing dominated by a judge or family group conferencing directed by a non-Indian police officer. Indian justice should stand on its own and if the western systems of power, force, and authority wish to utilize Indian methods in their own way, they should do so. 55

Rather than allowing for an autonomous, Aboriginal legal system within the context of self-government the Canadian government has for some time now been on the path of indigenisation of the existing justice system. This includes many of the restorative justice initiatives discussed in this paper as well as the recruitment of indigenous peoples and organizations to deliver existing socio-legal services and programs. This has a ring of tokenism to it. “[I]ndigenisation serves as a cheap substitute for a measure of autonomy, self-government or, indeed, sovereignty. It assimilates indigenous people into the imposed social control apparatus rather than autonomising the social control apparatus for the benefits of indigenous people.”56 For many commentators “[t]he most appropriate place for Restorative Justice processes remains to be within separate aboriginal justice systems existing within separate aboriginal communities.”57
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54 James Guest, “Aboriginal Legal Theory and Restorative Justice: Part Two”, supra note 11.

55 Zion, supra note 9.

56 P. Havemann, “The Indigenisation of Social Control in Canada”, in B. Morse & G. Woodman, eds., Indigenous Law and the State (Dordrecht: Foris Publ., 1988) 74.

57 Guest, supra note 53.
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CONCLUSION

It is clear that the theories, principles and practices of restorative justice are making inroads into criminal justice systems around the world. What is less clear is the impact that is having on those systems. In Canada some view the incorporation of restorative justice values into the criminal justice system as a positive step in the right direction. It provides a role for victims and communities, it provides flexibility to an otherwise rigid system and it seeks to rectify centuries of injustice towards Aboriginal peoples by providing them with special consideration within the existing system. This optimistic view considers that restorative justice principles, while perhaps not being able to restructure the entire existing system, will at least influence policies and values for the better. Others feel, however, that for restorative justice to have any significant or lasting effect it should be implemented system wide and become the governing principle of the whole criminal justice system. They argue that it is unlikely that restorative programs can be truly restorative while operating within a system based on retributive values.

A third view sees the mainstream system’s incorporation of restorative justice as another example of cultural appropriation, assimilation and an attempted re-colonization of First Nations communities by neo-colonial states with a history of disempowerment of their indigenous populations. 58 For those that hold this view nothing short of a separate, self-governing Aboriginal justice system will ever provide true justice for Aboriginal peoples.

What all these views have in common is the knowledge that restorative justice works. It works because it is intrinsic to the human experience. It is not a grand system imposed by experts but has profound roots in ordinary people’s needs and experiences. It is common sense. 59

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58 Juan Marcellus Tauri, “Family Group Conferencing: The Myth of Indigenous Empowerment in New Zealand”, online: Justice as Healing <http://www.usask.ca/nativelaw/jah_tauri.html> (last modified: 8 November 2001).

59 Zehr, supra note 1.

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BIBLIOGRAPHY


LEGISLATION

Criminal Code, R.S.C. 1985, C-46.


JURISPRUDENCE

R. v. D.N., [1993] Y.J. No. 195 (QL) (Y. Terr. Ct.).

R. v. Gladue, [1999] 1 S.C.R. 688.

R. v. Moses (1992), 71 C.C.C. (3d) 347 (Y. Terr. Ct.).

R. v. Proulx, [2000] 1 S.C.R. 61.

SECONDARY MATERIAL: MONOGRAPHS

Sharpe, Susan, Restorative Justice: A Vision For Healing And Change (Edmonton: Edmonton Victim Offender Mediation Society, 1998).

Zehr, Howard, Changing Lenses: A New Focus For Crime and Justice (Scottdale, Pennsylvania: Herald Press, 1990) 181.


SECONDARY MATERIAL: ARTICLES

Bastarache, Michel, “The Challenge of the Law in the New Millenium”, (1997-1998) 25 Man. L.J. 411-419.

Braithwaite, John, “Restorative Justice and Social Justice” (2000) 63 Sask. L. Rev. 185-194.

Braithwaite, John “Standards for Restorative Justice”, Tenth United Nations Congress on the Prevention of Crime and Treatment of Offenders: Ancillary Meetings, Vienna,Austria, April 2000.
Online:<http://www.restorativejustice.org/conference/UN/RJ_UN_AncillaryM.htm> (date accessed: 8 April 2001).

Evans, Donald G., “Keeping the Community Involvement in Restorative Justice”, Tenth United Nations Congress on the Prevention of Crime and Treatment of Offenders: Ancillary Meetings, Vienna, Austria, April 2000. Online:<http://www.restorativejustice.org/conference/UN/RJ_UN_AncillaryM.htm> (date accessed: 8 April 2001).

Green, Ross, “Aboriginal Community Sentencing and Mediation: Within and Without the Circle”, (1997) 25 Man. L. J. 77-125.

Green, Ross, “Aboriginal People and the Canadian Justice System”, Justice As Healing, Vol.3 No.4 (Winter 1998) online:<http://www.usask.ca/nativelaw/jah_green.html> (last modified: 30 November 2000).

Guest, James “Aboriginal Legal Theory and Restorative Justice”, Justice As Healing Vol.4 No.1 (Spring 1999) online:<http://www.usask.ca/nativelaw/jah_guest2.html> (last modified: 25 August 1999).

Havemann, P., “The Indigenisation of Social Control in Canada”, in B. Morse & G. Woodman, eds., Indigenous Law and the State (Dordrecht: Foris Publ., 1988.

Kurki, Leena, “Incorporating Restorative and Community Justice into American Sentencing and Corrections”, Sentencing & Corrections: Issues For The 21st Century, U.S. Department of Justice, No.3, September 1999.

Pranis,Kay, “Communities and the Justice System: Turning the Relationship Upside Down”, online: <http://www.ojp.usdoj.gov/nij/rest-just/ch4/upsidedown.html> (date accessed: 16 April 2001).

Tauri, Juan Marcellus, “Family Group Conferencing: The Myth of Indigenous Empowerment in New Zealand”, online: Justice As Healing
<http://www.usask.ca/nativelaw/jah_tauri.html> (date accessed: 23 April 2001).

Van Ness, Daniel, “Restorative Justice Around the World”, Tenth United Nations Congress on the Prevention of Crime and Treatment of Offenders: Ancillary Meetings, Vienna, Austria, April 2000. Online: <http://www.restorativejustice.org/conference/UN/RJ_UN_AncillaryM.htm> (date accessed: 8 April 2001).

Zehr, Howard, “Restorative Justice Hits the Big Time”, online:<http://www.restorativejustice.org/conference/Rjhitsbigtime.html> (date accessed: 8 April 2001).

Zion, James, “Punishment Versus Healing: How Does Traditional Indian Law Work?”, Justice As Healing, Vol.2 No.3 (Fall 1997) online:
<http://www.usask.ca/nativelaw/jah_zion.html> (last modified: 25 August 1999).


SECONDARY MATERIAL: REPORTS, COMMISSIONS, INQUIRIES
Canada, Royal Commission on Aboriginal Peoples, Bridging the Cultural Divide: A Report of Aboriginal People and Criminal Justice in Canada (Ottawa: Supply and Services Canada, 1996) at 12.

House of Commons Debates, Vol.IV, 1st Sess., 35th Parl.

Manitoba, Public Inquiry Into The Administration of Justice and Aboriginal Peoples, Report of the Aboriginal Justice Inquiry of Manitoba: The Justice System and Aboriginal People, Vol. 1 (Winnipeg: The Queen’s Printer, 1991.

Stuart, Wendy & Huntley, Audrey, “The Implications of Restorative Justice for Aboriginal Women and Children Survivors of Violence: A Comparative Overview of Five Communities”, Draft version, unpublished, April 2001. Aboriginal Women’s Action Network, c/o VSW 309 – 877 East Hastings St., Vancouver B.C. V6A 3Y1.

Vancouver Aboriginal Restorative Justice Program Provincial Crown Protocol Agreement, Legal Services Society, Native Programs, 1999.