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October 20, 2018

Looking at Restorative Justice

Reuel S. Amdur

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On September 26, there was an Open Caucus meeting of the Canadian Senate on the topic of restorative justice. This was a joint effort of the Independent Senators, Independent Liberals, and the Government representative's office of the Senate. The subject was presented as follows:

"Research suggests that the use of restorative justice can result in higher satisfaction for all parties involved, increased efficiency, lower legal costs, effective rehabilitative programming, and lower rates of recidivism as compared to the traditional justice system.”   One might add that it is a process of admitting guilt and of shaming.

Unfortunately, there is limited familiarity with the idea in the general population, not to speak of what those operating in the system know about its principles and practices.

Dalhousie law professor Jennifer Llewellyn spoke of some of the benefits of such an approach: dealing with the substantial delays in the current processes and serving as a way of gaining greater access to justice.  She sees restorative justice as a superior form of justice, having the advantage of better addressing root causes and systemic issues.  For her, it is not just a tool but a different way of looking at justice.  It provides a potential for transformation of the system, providing an alternative one.  It would not be just a question of one system by default but rather a choice as to which is the more appropriate in the particular case.

Part of this approach is found in the special courts for mental health and addiction.  (These courts do not necessarily involve the elements of admitting guilt and shaming.)  The goal of the general approach is to respond to the individuals—perpetrators and victims—in meeting their needs and those of the community.  It provides, she maintains, a better experience for both victims and offenders.  She noted that restorative justice in Nova Scotia has recently been expanded from the treatment of juveniles to adults as well.  It is not simply a system for diversion but what else it is is not quite clear.

Senator Serge Joyal wondered how we can introduce restorative justice into the system.  Do judges know and understand it?  Where is the leadership?  Johanne Vallée, ambassador for the Centre de services de justice réparatrice, responded on a pessimistic note.  There have been cuts to programs.  Llewellyn noted that offender compliance rates are much greater using such approaches.  The cuts, then, make no sense.  A member of the audience posed the same problem: a lack of momentum in implementation.  In this same sense, Ryan Beardy, an indigenous person currently in university who has had significant experience in Canadian prisons, commented that in prison punishment outweighs any rehabilitative measures.  And Vallée remarked that the government is not clear about where it stands.

University of Montreal criminology professor Jo-Anne Wemmers focused on the needs of victims.  She observed that their participation in the restorative system frequently results in greater satisfaction.  She pointed out that restorative justice can occur even after the usual criminal procedures take their course.

There was an interesting difference in approach between Llewellyn and Wemmers.  Wemmers focused on the results for victims, while Llewellyn looked at the need for wide change to alter social and economic conditions.

Senator Murray Sinclair asked how Norway’s experience might inform the discussion.  “They treat people like humans,” replied Beardy.  Llewellyn responded that Norway treats crime through a social services lens and invests in a more human orientation.  Restating her position, she added, “It can’t be just criminal justice.”

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