.png)
Jan 13 2025
The Importance of restorative justice
Welcome to the 7th installment of societal betterment. In this issue I want to talk about the importance of restorative justice and why it should be used. Earlier this year I gave a presentation to The Rotary Club of Ancaster. https://www.ancasterrotaryam.org and I am hoping to spread the message far and wide. Restorative justice provides a powerful alternative to the punitive criminal justice system. We need to consider it as a viable tool in our tool kit, as capable of resolving conflict as the adversarial trial system, and capable of bringing greater levels of satisfaction for survivors of criminal behavior.
Unfortunately, in our commonwealth legal system the crown assumes the rule of the victim, and you know what they say about assumptions. This is particularly devastating when the crown takes positions antithetical to the interests of the survivor. By assuming the role of the victim, the crown usurps the decision-making capacity of the survivor and imposes the method of resolution the attorney assigned to the file adopts. This frequently means going to trial against the wishes of survivors who in some cases are related to the family members they don’t want to be charged. In other cases, survivors report being unable to receive restorative justice, despite their pleas.
Many survivors are not informed of restorative justice options and if they are informed and request these solutions the crown rejects their proposal, even though section 6 of the Victim Bill of Rights expressly provides for the use of restorative justice.
Restorative justice remains possible for survivors despite the obstacles they face.
There are now at least 2 cases in Ontario where this approach has been fully adopted and the hope s to have more cases soon. The trial process itself can be traumatizing and frequently survivors come off from the experience much the worst for wear. Conviction rates for sex assault remains below 20% and an acquittal can have devastating consequences for survivors living in fear of their assailant. In a trial setting the offender does not have to take any accountability. They need never say a word in court, aside from the two words “not guilty”. The survivors, who in many instances want to hear from their assailant, may never get that chance in a trial setting. Instead, it is the survivor who must testify and therefore be subjected to a cross examination where they are grilled over intimate details of a traumatizing experience. Being forced to re live the experience in detail can result in more emotional trauma thus leaving the survivor in a worse position than before.
The 32nd call to action from the Truth and Reconciliation Counsel calls on the Federal Government to amend the criminal code to allow judges to depart from minimum sentences and use conditional sentences instead.
Yest despite this, many members of the judiciary are still bound to impose minimum periods of incarceration when a conditional sentence would otherwise be available. The bottom line is that we need to get more education and awareness about these alternatives, and we need to start implementing them.
We also need a more upstream approach. Before the matter goes before a judge, we need to be turning the notion of prosecutorial discretion towards the topic of restorative justice and inquiring as to what tool in our toolkit is best equipped to serve the public interest given the situation. As each case in unique a unique and specific approach is needed for every instance. Many cases are not suitable for restorative justice and an adversarial trial will be the only reasonable alternative left. However, in many circumstances the best option will be a healing circle where the survivors are restored by the actions of the offenders.
Transformative justice represents a discipline from South America where the experiences of racialized women led to a cry for an alternative that would mitigate the exploitation experienced by a population experiencing an extraordinarily high incarceration rate. Women wanted a solution for resolving conflict that did not result in their intimate partners being imprisoned. The belief is that this justice transforms the perpetrator to a better position where they learn better coping mechanisms and break the cycle of violence.
There are many models of justice available to us and it does a disservice to the public interest and the administration of law to fail to consider them fully.
Comments