Archive for October, 2009

The following is an excerpt that I wrote on a paper dealing with Restorative Justice

In the criminal sphere, the modern restorative justice movement flowed out of the prison abolition movement and the application of aboriginal and Christian teachings to informal dispute resolution methods. In the civil law context, restorative justice is beginning to be recognized as an important aspect of alternative dispute resolution in situations where wrongs have been committed.

Although restorative justice also has origins in other cultures, the major influences on the North American movement are aboriginal teachings, faith communities, prison abolition advocates, and the alternative dispute resolution movement.

John Braithwaite has described restorative justice as encompassing the following specific objectives:

• • Restore property loss

  • Restore injury

  • Restore sense of security

  • Restore sense of empowerment

  • Restore deliberative democracy

  • Restore harmony based on a feeling that justice has been done

  • Restore social support

To be clear, restorative justice is not considered a “lighter punishment” by the courts. As a general matter restorative justice involves some form of restitution, reintegration into the community and empowerment to victims of crime.

In 1996, the Canadian Parliament enacted Bill C-41, reforming Canada’s sentencing regime and explicitly incorporating restorative principles into Part XXIII of the Criminal Code. Restorative justice principles now permeate the sentencing process in several ways.

Two of the six objectives of sentencing that the Criminal Code requires a judge consider in all sentencing decisions explicitly incorporate principles of restorative justice: the reparation of harm done to victims or the community, and the promotion of a sense of responsibility and acknowledgment of the harm done by offenders. Rehabilitation has been understood as restorative in nature by the Supreme Court of Canada.

Section 718.2(e) of the Criminal Code sets out further principles of sentencing and stipulates that judges consider “all sanctions other than imprisonment that are reasonable in the circumstances, with particular attention to the circumstances of aboriginal offenders.” This provision has been held to mandate that incarceration be the sanction of last resort for all offenders at sentencing.

Finally, Parliament created the conditional sentence of imprisonment, whereby a court may order an offender to serve a sentence of imprisonment in the community. The conditional sentence of imprisonment has been interpreted as a sentence that can fulfill both restorative and punitive objectives.

During a conditional sentence order, the offender is obliged to comply with a number of compulsory conditions, and optional conditions crafted for the specific offender may also be imposed. If any of the conditions are violated, the offender may be ordered to serve the balance of the term in custody. The purpose underlying the conditional sentence was to reduce, in a safe and principled way, the number of offenders committed to custody.

In R. v. Gladue the Supreme Court of Canada was asked to rule on the effect of specific sentencing provisions in the Criminal Code directed at Aboriginals and First Nation Peoples. While the case dealt with a true crime, the concept of restorative justice as a sentencing tool was affirmed by the court. Restorative justice was described by the Supreme Court of Canada as:

an approach to remedying crime in which it is understood that all things are interrelated and that crime disrupts the harmony which existed prior to its occurrence, or at least which it is felt should exist. The appropriateness of a particular sanction is largely determined by the needs of the victims, and the community, as well as the offender. The focus is on the human beings closely affected by the crime.

Restorative Justice has existed in Canada prior to these legislative changes as part of a patchwork of laws. Under section 717 of the Criminal Code and section 4 of the Young Offenders Act 1984, the police may refer the case to alternative measures or other diversion programs before they lay charges. 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.