Re-Thinking Access to Criminal Justice in Canada: a Critical Review of Needs, Responses and Restorative Justice Initiatives

Preamble

In March 2000, the Deputy Minister and Attorney General of Canada hosted a one-day symposium on access to justice, titled Expanding Horizons: Rethinking Access to Justice in Canada. Based on the vision of Andrée Delagrave, Director General, Policy, Integration and Coordination Section, Department of Justice Canada and organized by the Access to Justice Team, Research and Statistics Division, the purpose of the Symposium was to explore new directions and identify emerging challenges for assuring access to justice for Canadians in an increasingly complex and demanding environment. As the Deputy Minister notes in the preface of the Symposium report, "we need to explore how the traditional justice system can adapt to change, develop effective partnerships, and find real solutions that respond to the needs of victims, offenders, communities and all affected by the justice system."

Approximately 100 people from across the country attended the Symposium, including members of the judiciary, representatives from the Law Commission, officials from the highest ranks of the police, justice service practitioners, and leading thinkers from outside the justice domain. The symposium left all participants with one resounding message, quite remarkably, from a large group of leading thinkers from within the justice system and from other areas of human endeavor. The key message was not so much that the justice system – both civil and criminal justice, but especially the criminal justice system – does not work. On that issue there was overwhelming agreement. The truly surprising message that emanated forcefully from this extraordinary conversation was that there is a tremendous appetite for change among leaders from both inside and outside the justice system.

The Symposium did not produce a recipe for change, however it produced a strong endorsement for experimentation – and to get on with the job of exploring options for change forthwith – and a set of themes that can act as guideposts toward innovative and more accessible forms of justice. The following list provides a glimpse of these guideposts.

  1. Meeting needs in equally important as protecting rights;
  2. Justice is achieved when a solution is reached that satisfies all affected parties;
  3. Access to the courts is not the same as access to justice;
  4. Restorative justice ("the symbolic term that became the focus [of] dissatisfaction with the present justice system") should be considered;
  5. "One size does not fit all"; and [There is a need for] sharing power and resources.

As other observers have noted, the current criminal justice system is criticized by both victims and offenders, as well as by the police and communities in general; there is skepticism about the fairness and effectiveness of Canada's justice system, and for particular groups (especially aboriginal peoples) criminal justice processes signify a manifest failure of the Canadian state (Cooper and Chatterjee in Canadian Institute for the Administration of Justice 1999: 3-4). For those who attended the Symposium, there was a sense that access to justice has focused too much on access to justice and too little on the quality of justice itself. Thus, participants at the Symposium suggested that holistic approaches to access to justice offered methods for problem-solving that replace "both the traditional concepts of justice and the formal mechanisms to attain access to justice" (Currie 2000: 17).

This report is part of the Research and Statistics Division's commitment to further explore the results of the Deputy Minister's symposium on access to justice and identify key issues that relate to this important policy area. The goal of this paper is to situate the results of the Symposium within the broader access to justice literature. In particular, it provides a critical review of current literature about criminal justice and the challenges of "new justice" initiatives in Canada, with some comparisons to other jurisdictions including Great Britain, the United States, Australia and New Zealand. The paper includes four parts. Chapter 1 describes the conceptual framework for a review of issues about access to criminal justice in Canadian society (including theme #3 above). Chapter 2 focuses on "needs" in the criminal justice context: needs of aboriginal peoples, offenders, victims and communities in Canada (including themes #sec1 and #sec5 above). Chapter 3 discusses the literature about restorative justice and a number of projects based on restorative justice principles (including themes #2, #sec4 and #6 above). In Chapter 4, the paper steps back to provide a critique of some of the issues, identifying gaps in the literature and future directions for research.

In addition to this report and the Symposium proceedings (Expanding Horizons: Rethinking Access to Justice in Canada) the Research and Statistics Division has produced several other documents that highlight emerging issues within the access to justice realm. The Division has published the results of its one-day symposium on conditional sentencing (The Changing Face of Conditional Sentencing), co-hosted with the Faculty of Law and Faculty of Social Sciences, University of Ottawa, as well as a report on the effects of restorative justice programming (Latimer, 2000). Ab Currie's report (2000) examines the evolution of access to criminal justice and how adopting restorative justice approaches might make the delivery of criminal legal aid an integral part of a more modern concept of access to justice. It is the Division's hope that these documents, as well as some of our other publications will make a solid contribution to emerging policy discussions within the access to justice field.

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