Explore how restorative justice is transforming conflict resolution in Canada. Learn about its benefits, applications in workplaces, and impact on communities
When a wrong is committed, we always rely on the impartiality of a judge and the expertise of legal counsels. This includes the trust we have in the system for justice to be served. On top of this, there’s a widely used, alternative system called restorative justice that victims and offenders may turn to.
In this article, we’ll discuss how this works, what its advantages are, and when it may be (or may not be) used. This can be used by lawyers who want to know more about this justice system, or even their clients who are seeking alternatives.
Restorative justice is an alternative system to the current civil and criminal justice system that our courts operate on. It is another way of resolving conflicts and offences. It can also be another layer of judicial or extrajudicial process that complements the traditional justice systems.
Rather than on emphasizing on punishing the offender, it focuses on:
repairing the harm caused by the crime, including helping the victims of the offence recover from such acts and address their specific needs
helping the offender communicate about their needs, so that these can be addressed after the crime has been committed
The process involves voluntary, open communication between the offender, the victim/s, and their own community. Through it, parties acknowledge the effects of the crime and bring about solutions that can help them move forward.
Watch this video from the Correctional Service of Canada (CSC) about what restorative justice is all about:
If you’re looking for another lawyer to tell you more about restorative justice, head over to this Special Report from Canadian Lawyer, one of our sister publications, on the Top Law Firms in Ontario.
Restorative justice can be used either during the trial or sentencing of the offender, or while they’re serving their penalty. In some cases, it’s a method of reaching an appropriate penalty for the offender, other than imprisonment, especially for members of Aboriginal and Indigenous communities.
It’s a highly structured and facilitated system, that is still bound to certain rules and procedures. Participants are advised to know these processes first when weighing if it’s proper for them.
Due to the sensitivities of the issues involved, the facilitators, mediators, and organizers are also well-trained in handling such conversations. In restorative circles, respected Indigenous leaders of certain stature are also involved in the whole process.
It’s also purely voluntary; victims and offenders may not be forced to participate in a process that they personally think is not the best for them.
There are many ways to use restorative justice to resolve conflicts within the community. According to the CSC, these are its three prevailing models that are used by communities, organizations, and even by the traditional legal system:
Victim-Offender Mediation (VOM): through a trained and impartial mediator, victim-offender mediation facilitates communication between the victim/s and offender/s; this can either be or a combination of letters, video exchanges, online dialogue, and/or face-to-face meetings
Restorative Conferencing: similar with mediations, there is a trained and impartial facilitator who guide participants; this involves not just the victim/s and offender/s, but also the wider community, through discussions to address community safety and reintegration of the victim/s and offender/s
Restorative Circles: based on the traditional Aboriginal and Indigenous peacemaking practices, it’s a form of community dialogue that focuses on restoring peace in the community by looking at the harm done to the community; the process also involves taking responsibility in supporting and holding its members accountable
Each model aims at the different aspects of restorative justice with different goals in mind. This is why participants must first consult with their lawyer and the people using the program to see which model is best for them.
We’ll discuss each of these models below. Know that these are not the only models. Some organizations may use sub-models.
Usually done after the sentencing of the offender (but not exclusively), VOM facilitates the conversation between the victims and the offenders through a trained mediator. In contrast to that of a trial judge, the mediator does not adjudicate the merits of the case, nor imposes a sentence on the offender. Rather, the conversation is focused on addressing the issue (e.g., why the wrong was done) and its consequences for the victims.
Aside from organizations doing VOMs, part of CSC’s restorative justice system is done through its VOM programs. When parties apply to undergo a VOM, it’s then screened to check if VOM is appropriate for them. Factors such as the intent of the parties, their willingness, and even the results, are all considered.
Far from what seems to be mediation through face-to-face meetings, there are a lot of other methods that VOM programs use depending on the situation. If face-to-face meetings are impossible or even more damaging to the parties, other forms of correspondence between the victims and the offenders may be used by the mediator.
Also called family group conferences, restorative conferencing brings together not just the victims and the offenders, but the whole community. This may include the:
These group meetings or conferences may occur before or after sentencing, usually as part of the offender’s restitution and integration into the community.
Ontario’s Ministry of Children, Community and Social Services (MCCSS) partners with other service providers for restorative justice processes for youth offenders. These are organizations that typically use restorative conferencing. Here, it’s implemented either as part of:
pre-charge preventive measure
post-charge sanction
case management for the sentenced youth
In Ontario, there are several programs done by different bodies that use restorative circles among Aboriginal and Indigenous victims and offenders.
“There has been a lot of application to many situations,” said Celina Reitberger, former executive director of the Nishnawbe-Aski Legal Services in Thunder Bay. She described the restorative justice circle as an indigenous way of dealing with disharmony in the community.
“The idea is for the person who has done wrong to hear how his or her action has affected others. And to hopefully offer an apology but also to come up with a healing plan, a collaborative healing plan that will make sure that this type of behaviour is not repeated.”
Nishnawbe-Aski Legal Services employs the community accountability conferencing model in 24 First Nations communities in northern Ontario. It incorporates the beliefs, values, customs, and practices of the community in a non-adversarial process.
In Toronto’s urban setting, Aboriginal Legal Services (ALS) is another organization that uses restorative justice. ALS quickly developed the busiest program in the country after it started hearing cases in 1992, said Jonathan Rudin, now its Special Projects Director.
“We take Aboriginal people out of the criminal justice system and have them dealt with by members of the Aboriginal community,” Rudin said. “For many of them, if they were not diverted, they would be getting some custodial time.”
Its guiding principle is to treat everyone who comes into the program with kindness and respect, which helps to encourage individuals to open up, Rudin added.
That is supported by the members of the council, all Aboriginal people, who Rudin said often understand what individuals have gone through such as alcohol and drug abuse, traumas, and abuse among family members.
It is largely driven by a crew of more than 40 volunteers who meet with clients at community council hearings with the support of staff workers. It concludes with a decision tailored to the needs and abilities of the individual, and the charges are ultimately stayed or withdrawn.
Restorative justice is not a catch-all solution to the problems that plague the current justice system, nor is it an absolute replacement to any existing systems. More so, it’s an alternative, which is appropriate for some contexts, but not for all.
Here are some of the instances where restorative justice may not be appropriate for the parties involved in an offence:
when there’s a high risk of danger: in situations where conversations (whether in-person or not) between the parties will bring more harm, or put the victim in more danger, then methods of restorative justice may not be used, such as in the case of violent offences
when opportunities for healing are not ripe: bodies that use restorative justice will evaluate the situation, including the willingness of the offender to acknowledge their wrongdoing and the openness of the victim to listen to the offender, before proceeding with the whole process
when the parties decide against it: there are victims and/or offenders who want their criminal or civil cases to be heard by the court, rather than have it resolved through restorative justice, or those who do not consent to undergo the process
when the offender does not admit guilt: related to the consent required before going through restorative justice, it’s only effective if the offenders admit their guilt, accept responsibility for their actions, and agree to participate in the program
These are in addition to what the bodies and organizations that use restorative justice limit themselves to. Some may not cater to cases that involve specific crimes, or when in their own opinion the case may not be best handled by any of their models.
Regardless of the restorative justice model used, or the organization that uses this system, it comes with the following benefits:
to bring peace in the community, especially when the victim/s and the offender/s belong to a similar community
for victims to get an explanation from the offenders as to why the crime has occurred, and to cope with their anger
to mutually agree on the different ways for the reparation of the wrong done, both to the victim and the community
to help both the victim and the offender reintegrate into society, while still acknowledging their own traumas and personal difficulties
to improve safety in the community, and address ways on how the government and society can prevent similar offences in the future
Aside from giving psychological benefits to the victims and offenders, restitution or monetary compensation may be addressed in a restorative justice process. Again, this will all depend on who facilitates the conversations and the parties reaching a certain solution.
There’s also this flexibility in responding both to the victims’ and offenders’ needs and wishes that makes restorative justice appealing. Rather than a single solution for all cases, as in a traditional criminal system, each solution reached by the parties is customized according to their circumstances.
Aside from being widely used among Aboriginal and Indigenous communities, restorative justice is also advantageous when used in the case of youth offenders. Taken from the perspective of youth offenders, here’s a video that shows how it works for them:
Check out this directory of the best Aboriginal lawyers in Ontario as ranked by Lexpert, one of our sister publications, if you need help from another lawyer to discuss how restorative justice applies to youth offenders and Aboriginal communities.
In a system where adversity is prevalent and focuses on punishment, restorative justice provides an alternative for justice and healing of everyone involved in an offence. However, with all of its promises, it still is not an ideal solution to our imperfect justice system.
Still, Reitberger said that it is here to stay. “It’s all about community wellness and healing,” she said when cases are diverted from the criminal process. “It just generally has a positive effect on everybody.”
For regular resources on alternative justice systems, such as restorative justice, bookmark our Practice Management page.
