A Report on the Relationship between Restorative Justice and Indigenous Legal Traditions in Canada

Restorative Justice

Principles and Processes

Although there is no universal definition of restorative justice, it can be generally understood as an approach to crime and conflict that brings the victim, the offender, members of the larger community, and oftentimes professional service providers together into a non-hierarchal setting in order to collectively address a harm that was committed and to set a path towards reconciliation between all relevant parties (Cameron 2005; Milward 2008). Drawing on notions of human interrelatedness, restorative justice sees crime and conflict as a breakdown of interpersonal relationships (Archibald and Llewellyn 2006). Therefore, restorative justice processes are supposed to restore, repair, and heal those relationships through meaningful and democratic input from all parties involved (Archibald and Llewellyn 2006; Tomporoski et al. 2011). These processes are meant to produce a sense of responsibility in the offender after they have heard how their actions and behaviour have affected the victim and larger community. This, in turn, is supposed to initiate a desire within the offender, but also within the victim and community, to begin the tough work of healing and restoring relationships, and rebuilding the community’s well-being (Canadian Resource Centre for Victims of Crime 2011). Restorative processes are not meant to restore interpersonal relationships to where they were before the conflict took place. Rather, restorative justice processes should be seen as forward/future looking in the sense they try to bring individuals, understood as relational human beings, into a position where they are capable of entering into equal and healthy interpersonal relationships again without relying on criminal justice sanctions (Archibald and Llewellyn 2006).

In practice, restorative justice programs across Canada are fairly pragmatic. They deal with both youth and adult offenders and address a range of offences. They usually arise within a community or are organized by social groups and organizations due to the belief that the existing justice system is not working well for their community. A common concern is that when the justice system sends offenders to jail it only makes them better criminals when they are reintegrated back into the community. Many restorative justice programs are community based although many receive funds from government agencies on a case-by-case basis. Many Aboriginal communities have initiated restorative justice programs because of the program funding available and the willingness of police and justice personnel to participate. These programs can be broken down into the following categories: victim-offender mediation, family group conferencing, and a number of “circle” programs (Canadian Resource Centre for Victims of Crime 2011). There is no single model or approach and restorative justice initiatives can vary a great deal and be quite flexible which can be a strength.

Since restorative justice programs entered the Canadian and international scene in the 1970s, victim-offender mediation has been one of the most effective and most widely used program models in Canada (Tomporowski et al. 2011). This model tends to bring the victim and offender together with a trained mediator to discuss the crime, and develop an agreement that resolves the incident. However, there are usually no other representatives from the community. The setting is supposed to be a safe and structured environment for the victim so that they are able to articulate how the offender’s actions affected them, while the offender is given the opportunity to make apologies and hear how they can make reparations (Canadian Resource Centre for Victims of Crime 2011). Victim-offender mediation can occur at any stage of the criminal justice process, from pre-charge police diversions, to years into an offender’s prison sentence. Depending on when, or at what stage, mediation takes place, will usually determine what kinds of reparations are acceptable (Canadian Resource Centre for the Victims of Crime 2011). It is important to note that since participation in this process is voluntary for both the victim and offender, and the fact the mediator has no real power to enforce agreements, the success of victim-offender mediations depends on the genuine willingness of the participants to move forward and restore relationships (Archibald and Llewellyn 2006).

Family group conferencing is based upon the Maori and Samoan tradition of involving extended families in resolving conflicts. It has been adopted as the primary means of dealing with young offenders in New Zealand. In Canada, mediators, or facilitators, assist accused persons and their families to meet with victims, police, and others to discuss and resolve the incident. Most initiatives have focused on young offenders, but some communities are using this model with youth and adults in a process that is called community justice conferencing (Tomporowski et al. 2011).

Lastly, the models most frequently used by Indigenous communities are sentencing circles, releasing circles, and healing circles, which are based upon the cultural traditions of certain Indigenous nations, particularly from western Canada, where families, Elders, and disputants meet to discuss and resolve criminal conflict. Participants sit in a circle and pass a “talking stick” or “talking feather” to each speaker so that everyone has a chance to speak and be heard, which reflects the Indigenous principle of including all voices. The different “circle” models mentioned above are all procedurally different, and are applied at different stages of the criminal justice process.

For example, sentencing circles, which arguably have the most impact on the administration of justice since they are able to recommend a sentence to a sentencing judge, also tend to include the most state participants. Judges, prosecutors, and defense lawyers are usually present during discussions, with judges usually having the discretion to decide to follow the community’s recommendation or not (Cameron 2005). Releasing circles also include state actors, but usually come together in prison after an offender has served part of their sentence, and are up for parole (Canadian Resource Centre for Victims of Crime 2011). Healing circles are the most ceremonial of the “circle” models, and come together at the end of the criminal justice process when the offender is about to re-enter the community after having served their sentence/gone through treatment. Part of the cultural traditions of western Plains First Nations cultures, healing circles encourage community participation, and are supposed to signify the closing of the conflict. Participants are allowed to express themselves, and talk about their personal healing journeys in a way that touches on how they dealt with the underlying factors that led to them getting in trouble in the first place, thus bringing their experience “full circle” (Canadian Resource Centre for Victims of Crime 2011; Tomporowski et al. 2011).