(This article has been translated into French.)

There is a wide consensus on the need for criminal justice system reform – a recognition that the system is slow, inaccessible, re-traumatizing, expensive, stigmatizing and ineffective in securing public safety. Worse still, the over-representation of people from marginalized communities in the system reinforces and amplifies their social inequality and vulnerability. There is also support for restorative justice as a way to address these issues (for examples, see the Prime Minister’s mandate letter to the Justice Minister, the recent Senate report on delays in the criminal justice system, and the recent report from the Federal Ombudsman for Victims of Crime.)

Despite this interest and the investment in restorative justice, its full potential remains to be tapped. So far, it has largely been viewed as an option to divert cases from the criminal justice system and into other processes. Nova Scotia implemented one of the earliest and most comprehensive restorative justice programs for youth in Canada. Accessible at all points in the criminal justice process and across the province, the program diverts young people to justice processes offered by community-based restorative justice agencies. In 2016, this program was expanded to adults across the province.

The Youth Criminal Justice Act has been a catalyst in jurisdictions throughout Canada for the development and implementation of restorative justice alternatives for youth. In fact, the recent Department of Justice survey on restorative justice programs lists 407 operational restorative justice programs in Canada, of which only 27 do not serve youth.

The application of restorative justice has resulted in positive outcomes for individuals and the criminal justice system, including greater accountability and compliance by offenders, higher satisfaction for all parties concerned, greater efficiency, and cost effectiveness as compared with the mainstream criminal justice system.

However, this limited use of restorative justice as diversion fails to realize its greatest potential. It leaves intact the current criminal justice system, with its hardboiled logic, as the standard-bearer for justice against which restorative justice appears to be a soft-option.

But appearances are mistaken. To see clearly the potential of restorative justice for the transformation of the criminal justice system, we must pay attention to the idea of justice it offers, as well as the challenge it represents to the logic of the current system. Restorative justice is more than just another path to the goals of the current criminal justice system – it is a different way of thinking that offers a new roadmap for justice.

Understood like this, restorative justice has much more to offer the reform of criminal justice than does merely diverting people away from the current system. It supports a proactive and preventative approach to justice within communities and across systems, so that matters do not reach the criminal justice system at all. It is also a powerful framework with which to reshape the current pathways within the criminal justice system.

Restorative justice and building just relations

Those who are at all familiar with restorative justice point to the importance of relationships to it’s practice. Indeed, the current restorative archetype is a face-to-face encounter between victim and offender with their communities. Success too is often cast in relational terms as restorative stories tell of relational repair, reconciliation and transformation.

Restorative justice is a relational approach to justice, but this does not mean it is only focused on mediating interpersonal relationships. Justice viewed restoratively is fundamentally about just relations. In simple terms, as an approach to justice it says relationship matters to the way we understand justice and the issues at stake, as well as how we respond. This relational view extends beyond interpersonal relationships to relations at the level of groups, of institutions, of systems, and of society.

In many situations, relations between those involved have never been just. In all situations, restorative justice is focused on figuring out what would be required to arrive at just relations in the future and how to move away from the current injustice(s) to justice.

This way of thinking about justice is different from the current criminal justice system’s focus on individuals and on breaches of law. Instead, restorative justice is concerned with individuals in relation to one another and all that surrounds them.

Nova Scotia is taking this approach within communities and with various human services. For example, it has invested significantly in a restorative approach in schools that now extends to over 100 institutions across the province. The province’s schools now consider the impact of policies and practices on relationships in classrooms, on the playground, among staff, with parents, and with the community at large. This attention to building and maintaining just relations in schools has resulted in greater school attachment, less conflict, better behaviour, fewer exclusions and better learning outcomes. All of these outcomes are significant factors in the reduction of young people’s risk of coming into conflict with the law.

A restorative approach is also being implemented at the post-secondary level to address issues of conflict on campus, or to reverse a negative climate. Dalhousie University, for example, employed a restorative justice process to address issues around sexism and standards for professionalism at the Faculty of Dentistry, building on the broader restorative approach that was already being used on campus to build a safe and inclusive community.

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Restorative approach within the criminal justice system

When cases must or should remain within the system, a restorative approach supports processes that are less harmful, traumatizing or damaging, particularly to people who are vulnerable or marginalized. But the current criminal justice system is rigid and fixed in its processes. To get justice, people have to fit their issues and needs into the system and accept what it has on offer. The system’s failure to appreciate or respond to peoples’ needs underlies the many current demands for reform of the way the system deals with sexual and gendered violence.

Restorative justice offers a common and predictable set of principles to guide practices and processes; it is not one fixed model or practice. Through a principle-based approach, restorative justice is able to respond to the nature of the situation and needs of the parties. This factor could be the one that could make the greatest difference for criminal justice reform.

A restorative approach to justice would reshape criminal justice to become

  • Relationship-centred: focused on understanding and promoting just interconnections between individuals, groups and communities
  • Comprehensive and holistic: taking into account the contexts and causes of harm and its impacts
  • Inclusive and participatory: culturally appropriate, and trauma-informed; attentive to the safety and well-being of participants
  • Responsive: contextual, flexible in practice
  • Focused on individual and collective responsibility
  • Collaborative and nonadversarial
  • Forward-focused: educative, not punitive; problem-solving, preventative and proactive

Nova Scotia has begun to integrate a restorative approach within its criminal justice system based on these principles.

Nova Scotia’s Mental Health Court, now 10 years in operation, is guided explicitly by restorative principles. It is supported by a collaborative, multisector, interdisciplinary team that works together to support the individuals who come before the court, by recognizing and addressing their needs in order to support them to take responsibility and change their behaviour.

A similar approach is now being taken by its newly established Domestic Violence Court, which will support assessment and treatment for those charged, while working with the individuals and families impacted.

Nova Scotia is also taking a restorative approach in other parts of its criminal justice system, including the youth correctional facility, and more recently in response to a death in custody.

The criminal justice system is facing complex situations related to systemic issues that need to be addressed through a relational approach. Solutions to these issues must be imagined and implemented in collaboration with other systems and sectors. The success of Nova Scotia’s restorative approach to criminal justice transformation lies in the partnerships and collaborations it facilitates within and beyond the criminal justice system.

The collaborative and inclusive nature of restorative justice is key to securing the knowledge, understanding, commitment and skills needed to address the root causes of the issues that are plaguing the current criminal justice system. In this way, the restorative approach has the capacity to generate and support the collaborative involvement of all systems ─ health, social service, labour, education ─ on the road to a meaningful and lasting transformation of justice.

This article is part of the Widening the Lens on Criminal Justice Reform special feature.

Photo: Pamela Williams, left, Chief Judge of the Provincial and Family Courts of Nova Scotia, and Judge Amy Sakalauskas are seen at provincial court in Halifax on February 23, 2018. Nova Scotia is expanding its domestic violence court program after a successful pilot project was established in Cape Breton in 2012. Judge Sakalauskas will be presiding over the court. THE CANADIAN PRESS/Andrew Vaughan

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Jennifer Llewellyn
Jennifer Llewellyn is the Yogis & Keddy Chair in Human Rights Law and the Donald R. Sobey Foundation Chair in Restorative Justice at the Schulich School of Law, Dalhousie University.  She is the director of the Restorative Research, Innovation and Education Lab.

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