Skip to content | Skip to institutional links

Common menu bar links

Institutional links

Policy Centre for Victim Issues

Proactive Disclosure
- Proactive Disclosure

RESTORATIVE JUSTICE IN CANADA
A Consultation Paper

May, 2000

Introduction

Restorative justice, an approach to crime that focuses on healing relationships and repairing the damage crime causes to individuals and communities, is not a new idea. The concept has been accepted for some time by governments, community organizations, Aboriginal organizations, interest groups, and even by courts that are looking for more constructive ways to deal with crime. However, as more programs and initiatives are developed, important questions are being raised as well. How do we balance the needs of victims, communities, and offenders and ensure that everyone's rights are respected? What is the most effective relationship between government and community in developing these programs? How can we ensure that restorative processes do not end up restoring unequal or even dangerous situations?

Recent years have seen a growing interest in the concept of restorative justice. The conventional attitude to crime in Canada has been to see it in terms of abstract offences against the law or the state - an offender is found guilty and punished, usually with fines or incarceration. Over the past two decades, the Canadian public has become increasingly interested in alternative ways of resolving conflict and preventing crime. Many believe that our court-based, adversarial system needs to be supplemented by other approaches that allow for the active involvement of victims, offenders, and communities. Restorative justice tries to meet these needs by addressing the harm that a crime has caused to the victim, the community, and even the offender. The goal is to repair the damage caused by crime as much as possible, to restore harmony and stability, and to prevent further crime from occurring.

Since each jurisdiction in Canada is responsible for developing its own restorative justice programs, programs vary from jurisdiction to jurisdiction. The purpose of this consultation paper is to provide a common set of consultation questions that each jurisdiction may choose to use to gather input from communities and agencies in the development of restorative justice programs^[1].

The first part of this paper discusses the nature of restorative justice, identifies its basic principles, and describes some core models that apply these principles. The second part looks at issues and concerns, and sets out specific questions to be considered. For the purpose of this consultation, restorative justice is meant to be a complement and support to the criminal law and the courts so that the justice system can provide a more effective and satisfactory response to crime. This paper does not propose restorative justice as a replacement for the criminal justice system.

PART I: RESTORATIVE JUSTICE - AN OVERVIEW

The nature and principles of restorative justice

Restorative justice approaches crime as an injury or wrong done to another person rather than solely as a matter of breaking the law or offending against the state. Accordingly, it is concerned not only with determining appropriate responses to criminal behavior, but also with reparation - that is, actions that attempt to repair the damage caused by the crime, either materially or symbolically. Therefore, restorative justice encourages the victim and the offender to play active roles in resolving conflict through discussion and negotiation. Instead of taking over the process, and perhaps losing sight of the people who are directly affected, the state and legal professionals become facilitators in a system that encourages offender accountability, full participation of both victim and offender, and efforts to fix the damage that has been done. Thus, restorative justice is more than just a practice or a program - it is a philosophy, a way of looking at crime and a response to crime based on the following principles:

Crime is first of all a violation of relationships among people, not just an act against the state. Crime results in harm to victims, communities, and offenders, and they must all be actively involved in the justice process.

All those affected by crime have roles and responsibilities and need to deal collectively with its impact and consequences.

Restoration, problem solving, and the prevention of future harm should be emphasized.

The word "restorative" recognizes that the goal is to restore relationships, rather than simply to determine guilt - but this means more than putting things back the way they were if the relationship was damaged in the first place. In Aboriginal communities, for instance, where relationships include not only the offender and victim but the extended family and community as well, the focus is on healing relationships and restoring them to an ideal state of balance and harmony between the victim and offender within the community. Restorative justice requires that wrongdoers make reparation to the victim, themselves, and the community, recognize the harm they have done and be actively involved in making things right.

The idea that crime creates obligations is central to restorative approaches. The offender has an obligation to provide reparation or compensation to the victim and to the community. The community is responsible for defining standards of acceptable conduct and determining what can be done - materially or symbolically - to repair the damage when these standards are violated.

It is important to be clear and consistent on the basic principles and goals of restorative justice. As programs are developed, the number of definitions increase as well, and there are already programs that claim to be restorative but do not seem to embrace this philosophy. Some advocates fear that restorative justice may be seen solely in terms of saving costs and relieving pressure on the court system^[2]. Restorative programs may come to have such positive effects, but it is more important to focus on healing the harm caused by crime.

A range of responses

Practitioners and academic writers often define restorative justice by how it differs from the traditional criminal justice system. However, it is more appropriate to see restorative justice as part of a range of responses to crime and conflict. Restorative justice cannot replace the criminal justice system; there will always be a need to protect society from those who would harm others, to clearly denounce serious crimes, and to provide a way for accused persons to assert their innocence. Less-serious crimes and issues of personal and community conflict are often best resolved without getting the justice system involved, while other crimes may require some formal intervention or diversion to social services agencies.

Even in more serious cases, however, there is room for restorative options at many points in time after a conflict has occurred or a crime has been committed. Restorative processes ideally involve crime prevention and conflict resolution to prevent crime from occurring, but restorative options can play a role in meeting the needs of victims, offenders and communities even after an offender has been convicted and sentenced. Some of the points at which restorative justice can be applied include:

Restorative justice programs may prevent crime through public education, crime prevention, and encouraging community members to use mediation to resolve conflicts before they become serious.
Police officers may refer matters to alternative measures or other diversion programs before they lay charges. Alternative measures are programs that offer offenders a way to take responsibility for their behavior and to address the harm that they have committed. These programs, which are legislated under section 717 of the Criminal Code and section 4 of the Young Offenders Act , are developed within provincial guidelines. Diversion programs typically involve sending an offender to programs that may help with the underlying causes of the offending behavior, such as substance abuse or anger management.
After the accused has been charged, matters may be referred to alternative measures programs or community justice committees. If the matter is successfully resolved at this stage, the charges may be suspended.
At the sentencing stage, sentencing circles may assist a judge in determining a fit sentence. Judges may be able to order more restitution to victims, and circles may involve the community in helping the offender.
After the offender has been sentenced, Victim-Offender Reconciliation Panels, circles of support, and reintegration circles can help to meet the emotional needs of victims and offenders. Restorative measures may also include efforts to create safer prison environments and to rehabilitate offenders.

Core program models

There are a number of core program models for restorative justice programs.

Victim-Offender Mediation was pioneered in Kitchener, Ontario, in 1974. Victim-offender mediation or reconciliation brings victims and accused persons together with a mediator to discuss the crime and to develop an agreement that resolves the incident. This process allows victims to express their feelings to the accused and to have offenders explain their actions and express remorse. The process is intended to help victims gain a sense of closure, while offenders learn to take responsibility for their actions. In many Canadian jurisdictions, this method is commonly used in alternative measures programs. This approach has also been incorporated in hundreds of programs throughout the United States, the United Kingdom, and Western Europe.

Family Group Conferencing , based upon the Maori and Samoan tradition of involving extended families in resolving conflicts, is the primary way of dealing with young offenders in New Zealand. In Canada, mediators or facilitators help accused persons and their families to meet with victims, their supporters, police, and others to discuss and resolve the incident. The RCMP has been training officers and community members in using this method. Most initiatives have focussed on young offenders, but some communities are using this model with adults in a process called community justice forums.

Sentencing circles, healing circles and community-assisted hearings are based upon Aboriginal practices of having communities, families, elders, and people in conflict discuss and resolve an issue flowing from an offence. Participants sit in a circle and may pass a "talking stick" or "talking feather" from one speaker to another. Traditional Aboriginal ceremonies such as burning sweet grass, passing a tobacco pipe, or entering sweat lodges are often part of circles.

In sentencing circles , the victim, offender, family, and community members meet with a judge, lawyers, police, and others to recommend to the judge what type of sentence an offender should receive. The victim and the community have the opportunity to express themselves to the offender, and may also take part in developing and implementing a plan relating to the offender's sentence.

Healing circles are ceremonies intended to bring conflict to a close, allow the participants to express their feelings, and indicate that the offender and victim have undergone personal healing.

Community-assisted hearings , which are sometimes called releasing circles, are a type of National Parole Board hearing that is held in an Aboriginal community rather than in a holding institution. These hearings are an opportunity for the justice system, the community, and the offender to be responsible for the successful reintegration of an offender back into the community.

Restorative justice in Canada

Many Canadian jurisdictions are developing restorative justice programs and initiatives -some already have comprehensive strategies, training material, and evaluation plans. A 1998 survey found almost 200 initiatives under way across the country, including conferences, seminars, publications, and a wide range of programs^[3].

The approaches to restorative justice in these programs vary a great deal. Some encourage or even require the use of mediation or other restorative processes in labour relations or in civil and family cases, while others focus on criminal matters. In some jurisdictions, programs are delivered through community agencies, while in others programs are administered by government departments. Finally, some programs are closely tied to Aboriginal or community justice, while others emphasize crime prevention or alternative measures.

An important step came in 1996 when the sentencing principles in the Criminal Code were amended. The 1996 principles encourage the use of community-based sentencing and draw on key restorative elements such as the need to promote a sense of responsibility in offenders and for them to acknowledge and make reparation for the harm they have done to their victims and to the community. One important passage, paragraph 718.2(e), states that "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." This statement, recently endorsed by the Supreme Court of Canada in the Gladue decision, acknowledges that many Aboriginal justice projects use a restorative approach that builds on values of healing and restoring harmony in the community.

The growing use of restorative justice in Canada was also highlighted in the October 1998 report of the Standing Committee on Justice and Human Rights concerning victims of crime. The Standing Committee's report, Victim's Rights, a Voice Not a Veto , reviewed the role of the victim in the criminal justice system. The report discussed victims' concerns relating to restorative justice and recommended that the proposed "Office for Victims" assess restorative justice initiatives in Canada and develop principles or guidelines to ensure respect for victim's interests. The government's Response, tabled on December 16, 1998, agreed that restorative justice principles should ensure respect for victims and protection of their interests.

Aboriginal justice and restorative justice

There is a strong relationship between restorative justice and Aboriginal justice. Both philosophies emphasize healing, forgiveness, and active community involvement, and restorative models have drawn heavily upon Aboriginal methods of resolving disputes. Furthermore, the rise of restorative justice has been influenced by the activities of Aboriginal groups in Canada, Australia, and New Zealand, as they have called for self-determination and control over the justice systems that affect them.

Aboriginal concepts of restorative justice tend to be strongly focussed on the community, with an emphasis on collective well-being rather than individual rights. They stress the need to heal relationships between clans or family groupings as well as between the offender and the victim, so that balance may be restored to the community as a whole. Aboriginal communities attempt to look at all of the factors leading to an incident, in order to understand the offender as a person and to uncover the causes of their behavior.

While these practices overlap with restorative justice in general, there are also important differences, especially because of the link between Aboriginal justice and the desire for self-determination. Aboriginal programs may at times draw upon practices from other cultures, but their main concern is to address the unique needs of Aboriginal people using methods that are grounded in their own values and customs. General restorative justice programs, on the other hand, need to be sensitive to a range of different communities within Canadian society as a whole.

In its recent decision in Gladue v. the Queen, the Supreme Court of Canada endorsed the concept of restorative justice and the use of community-based alternatives to imprisonment. The Court was asked to consider the meaning of paragraph 718.2(e) of the Criminal Code , which stated that judges are to consider all reasonable alternatives to incarceration for all offenders, but "with particular attention to the circumstances of Aboriginal offenders." The Court ruled that this passage imposes a duty upon judges to recognize factors that particularly affect Aboriginal people, such as poverty, substance abuse, and lack of education or employment opportunities, and to consider the role these factors may play in bringing the Aboriginal offender before the courts. In determining a sentence, judges must consider the types of sanctions that might be appropriate for an offender given his or her Aboriginal heritage. This decision should take into account whether there is community support for the offender and community programs that provide alternatives to incarceration. The Court recognized that restorative justice approaches may differ from one Aboriginal community to another, but that they tend to be community-based.

The Gladue decision highlights the importance of using restorative processes in sentencing Aboriginal offenders. At the same time, Aboriginal people - particularly women - have raised concerns about the use of restorative approaches in their communities, especially in cases of sexual assault or family violence. Although a detailed discussion of these issues is beyond the scope of this paper, it should not be assumed that all Aboriginal people agree on the use of restorative justice in all cases.

Restorative justice and the offender

Although the Gladue case specifically dealt with Aboriginal offenders, the Court clearly indicated that the aims of restorative justice should apply to all offenders. The Court also rejected the view that a restorative approach is a more lenient approach to crime, or that a sentence focussing on restorative justice is necessarily a lighter sentence. Restoring harmony involves determining sentences that respond to the needs of the victim, the community, and the offender.

Clearly, it is in the best interests of society to support offenders in turning away from crime and learning to behave in socially acceptable ways when they return to the community. Groups concerned with the rehabilitation of offenders have tended to promote restorative justice approaches, arguing that they encourage offenders to feel and express remorse, to recognize the harm they have done to their victims, and to accept responsibility for their actions. Moreover, restorative processes can provide an opportunity to address underlying causes, although this can only occur if the community has programs to address issues such as alcohol and substance abuse, anger management, and mental illness.

An evaluation of the RCMP community justice conferencing approach supports the belief that restorative justice can have positive effects on offenders. Virtually all the offenders who participated in the study indicated that the process helped them to understand the consequences of their actions and to take responsibility for their behavior; more than three-quarters felt that the agreement they reached with the victim about how to resolve the crime was fair. (Nearly 85% were reported to be fulfilling the conditions of the agreement, while other cases were in the process of being completed)^[4].

However, restorative processes may have disadvantages for offenders as well. Although the law states that their participation must be voluntary, offenders may feel pressured to take part in a program. As a result, they may choose not to seek legal advice or feel they have to admit guilt even if they believe they are innocent. In some cases, restorative processes might even result in tougher consequences than a court would impose. To be effective, restorative justice processes must not only respond to concerns about public safety but also respect the rights of the accused to state their innocence and to have a fair trial.

Restorative justice and victims of crime

Restorative justice processes provide victims with the opportunity to express their feelings about the harm that has been done to them, and to contribute their views about what is required to put things right. Studies have indicated that victims who are involved in these processes are often more satisfied with the justice system and that they are more likely to receive restitution from the offender. However, restorative processes may also present some challenges to victims; for example, they may feel that they have been pressured into participating. These issues are discussed in more detail in Part II of this document, which includes consultation questions and provides victims and victims' organizations with an opportunity to express their views.

Part II: Consultation Issues

As jurisdictions develop programs based upon restorative processes, several issues and challenges have emerged. Even the words that are used can raise questions, such as what exactly is meant by "restorative" or "community". For restorative justice programs to be effective, all of the parties involved must have a clear understanding about goals, definitions, and principles. Appendix A includes a detailed discussion about guiding principles for restorative justice.

1. The roles of government and community in restorative justice

Both government and community have roles to play in restorative justice, but achieving a balance between the two may be one of the most challenging tasks in developing restorative justice programs. Restorative justice requires community members to be involved as active participants, as early as possible in the resolution of the conflict. Victims are involved so that their needs for answers, healing, acknowledgement, safety, and emotional reparation are met. Offenders are involved in accepting responsibility for the harms they have caused, making compensation to their victims and communities, and making positive changes in their own lives. The community is involved in providing programs for these processes to occur, opportunities for offenders to make restitution, and safe environments where rights are respected.

For all this activity to occur, criminal justice officials must be willing to accept communities as partners in making decisions. Governments can play an important role in developing legislation, policies, and guidelines; forming partnerships between groups; and providing information, research, and technical support to communities. Governments will also have to consider the amount of funding that is necessary to develop and sustain these programs. Although many advocates believe that restorative justice programs will eventually reduce the long-term costs of incarceration and re-offending, many other factors can influence program costs (such as unemployment rates, crime rates, and court backlog). Therefore, it is difficult to predict whether these programs will reduce re-offending or result in savings.

Community involvement depends on having individual members who are willing and able to volunteer in restorative justice programs. Communities also differ in their willingness to accept restorative processes and in their ability to administer programs. Therefore, communities may need time and assistance to develop restorative processes.

How can the criminal justice system balance the accused person's right to a fair and open trial against public safety and the need for community participation?

How can governments and communities work together to develop restorative justice programs?

2. Effects on victims

Involvement in restorative justice processes can give victims the opportunity to express their feelings about the offence and the harm done to them, and to contribute their views about what is required to put things right. Studies have indicated that victims who take part in these processes are often more satisfied with the justice system and more likely to receive restitution. Involvement can also help victims with emotional healing and lessen their fears about being re-victimized. Many victims even find themselves willing to give the offender another chance (more than 90% according to Chatterjee's survey of the RCMP community justice conferencing approach).

Nonetheless, some victims remain concerned about restorative processes. Victims groups have expressed concern that programs tend to focus on the offender and do not recognize the needs of victims. There is a danger that victims may feel pressured into taking part, even if they feel threatened by the thought of meeting the offender. They may also find meetings inconvenient and time-consuming.

It is important to involve victims right from the beginning in developing restorative policies or programs. The importance of victim participation in restorative justice processes was stressed by the report of the Standing Committee on Justice and Human Rights as well as the Government's Response to it. Many jurisdictions have also developed victims services programs that provide victims with support, referrals to other programs, information about the criminal justice process, and other services.

How can restorative justice programs enable victims to have a voice in the criminal justice process without pressuring them to attend or causing them any further distress?

How can restorative programs ensure that there is a role for victims in developing and delivering restorative processes?

3. Appropriate offences for restorative processes

Can restorative processes be applied to any type of criminal offence? Not surprisingly, the public tends to be more receptive when the situation involves non-violent, non-repeat offenders and less-serious crime. However, programs such as Community Justice Initiatives in Langley, British Columbia, have had some success in working with sentenced offenders in cases of serious personal and sexual violence. In a 1995 study of this program, victims said they felt they had finally been heard, that they were less fearful and that they weren't preoccupied with the offender any more, and that they felt at peace^[5]. This is not to suggest that restorative justice is a cure-all for violent crimes, or that it can be applied to all types of offences or to all offenders; but the emphasis on healing could make an important contribution in dealing with the harm and damage that has been done.

Two types of initiatives that deal specifically with criminal matters are alternative measures programs and policies, programs, and legislation that attempt to increase the use of alternatives to incarceration. Community-based alternatives to incarceration include options such as conditional sentences where offenders serve their sentence in the community, or diverting offenders to specialized programs for addictions, anger management, and other issues. As has already been discussed, alternative measures programs offer offenders a way to take responsibility for their behavior and to address the harm that they have committed. Although one goal of many alternative measures programs is to reduce incarceration rates, they have not yet had a measurable impact because they tend to focus on less serious offences. Alternative measures policies tend to exclude persons who are accused of more serious assaults, administration-of-justice offences, impaired driving, robbery, and theft over $5000 - but these offences are also the most likely to result in imprisonment^[6]. Therefore, if one of the goals of these programs is to reduce the rate of incarceration, then they may have to accept more serious and challenging cases.

However, if there is a role for restorative justice in more serious cases, it needs to be defined carefully. The idea of restoration may be suspect in situations where the offender holds power or influence over the victim because the victim is specially vulnerable through age, economic dependency, mental or emotional capacity, or because of the nature of the offence (such as spousal assault or sexual offences). Similarly, the public expects the justice system to clearly denounce serious and violent crimes, and the use of restorative processes might be seen as compromising that message.

What role can restorative justice play in resolving different types of crimes and conflicts?

What offences are appropriate for alternative measures programs? Are there categories of offences that should never be considered?

Should reducing incarceration rates be one of the goals of alternative measures programs? If so, what types of offences should be eligible?

4. Accountability issues

The federal government is responsible for enacting criminal law in Canada, while provincial governments are responsible for the administration of justice. Each provincial and territorial jurisdiction will need to develop partnerships with communities that uphold the philosophy and the intent of restorative justice. The views of all stakeholders - non-profit organizations, citizens' advisory groups, community organizations, justice system officials, and advocacy groups for victims and offenders - should be taken into consideration. Ensuring that restorative justice programs are accountable and open to the public is one of the key challenges facing government, especially since these programs do not operate in a conventional courtroom setting.

One way of dealing with this issue might be to develop standards for accountability. The following is a list of possible guidelines:

Programs are available and fair to all citizens, regardless of age, race, class, or gender.

Programs are accountable to victims by providing victims with a voice in resolving the conflict and advising them of the offender's progress in meeting the terms of any agreements, while protecting their safety and meeting their needs. Victims also receive restitution and an acknowledgement that the offender has harmed them.

Programs are accountable to communities by protecting public safety and providing them with an opportunity to participate in the criminal justice process.

Programs are accountable to taxpayers for the use of public money.

Programs are accountable to offenders by protecting their legal rights and dignity while encouraging them to take responsibility for their actions and make positive changes in their lives.

Programs are open to the public; citizens have opportunities to view the proceedings and learn about restorative processes and the results of restorative programs.

What guidelines and standards are necessary to ensure that government-supported restorative justice programs will be accountable to victims, offenders, communities, and the public?

5. Training and standards of practice

Successful restorative justice programs depend on well-trained participants. Volunteers, justice workers, probation workers, police, government officials, and mediators may need training in the following areas:

A working knowledge of the criminal justice system;
Professional practice with clients;
Sensitivity to victims;
Conflict resolution skills; and
Administrative skills.

However, training should also reflect the uniqueness of local communities. For example, staff in a multicultural city may require different training than those in an isolated northern village. This challenge is most critical in Aboriginal communities, where training must take into account the culture of First Nations, Métis and Inuit peoples.

Another challenge is determining what standards should be applied to those who are working in the restorative justice field, since there is no consensus about qualifications. Without such standards it is difficult to be confident about the quality of services being delivered. On the other hand, some organizations fear that setting up standards will lead to "professionalization" and governmental control of a field that is supposed to be based on the participation of citizens and communities. In addition, workers and agencies in the restorative justice field have expressed concerns about possibly being held legally liable if problems arise with a program. To resolve these issues, governments will have to consult carefully with stakeholders in each jurisdiction.

What standards for training and practice should apply to those who are working in the field of restorative justice?

Conclusion

Given the widespread adoption of restorative justice principles by governments, community organizations, and Aboriginal organizations, it seems likely that the trend will continue and that the philosophy of restorative justice will have a major impact upon the practice of criminal justice in the future. Canada has already incorporated restorative processes and principles within the criminal justice system.

The subject remains both promising and complicated. Different communities and jurisdictions have different needs, and the same options and solutions are not appropriate to all. At the same time, these solutions need to be based on the common principles of restorative justice. The questions raised in this paper need to be given thoughtful consideration by all those who are concerned about the future of the justice system in Canada.

Appendix A: Principles of Restorative Justice

Submit your comments

Footnotes

[1]. This paper has been prepared by the Federal-Provincial-Territorial Working Group on Restorative Justice.
[2]. Approximately two billion dollars is spent annually maintaining Canadian penitentiaries and prisons. The annual costs for incarceration range from about $44,000 per provincial inmate to $55,000 per federal inmate, and prison populations continue to grow. More troubling still, about 37% of federal inmates and 84% of provincial inmates are imprisoned for non-violent offences. For more information, please see the Canadian Centre for Justice Statistics report, Adult Correctional Services in Canada 1997-98, and the Solicitor General of Canada report titled Corrections Population Growth: Second Progress Report, which are listed in the suggested readings section of this paper.
[3]. Corrections Services Canada. (September, 1998). Inventory of Canadian Events and Initiatives Related to Restorative Justice. Ottawa: Corrections Services Canada.
[4]. Chatterjee, Jharma. (1999). A Report on the Evaluation of RCMP Restorative Justice Initiatives: Community Justice Forum as Seen by Participants. Ottawa: RCMP Community, Contract and Aboriginal Policing Services.
[5]. Roberts, Tim. (March, 1995). Evaluation of the Victim Offender Mediation Project, Langley, B.C. Final Report for Solicitor General of Canada, page 104. Victoria, B.C.: Focus Consultants.
[6]. According to Carol La Prairie in a 1999 paper, "Some reflections on New Criminal Justice Policies in Canada: Restorative Justice, Alternative Measures and Conditional Sentences".