Re-Thinking Access to Criminal Justice in Canada: a Critical Review of Needs, Responses and Restorative Justice Initiatives
Governments in a number of countries have adopted restorative justice as an approach to criminal justice, including England, Scotland, New Zealand, Norway, the United States and European countries (Warner 1992; Wright 1992:531; Marshall 1998; Bonta et al 1998; Omatsu 1999; Bazemore and Umbreit 1999; Kurki 2000). It is perhaps not surprising that restorative justice is a significant model in Japan, since "[a]pology and reciprocal pardon are dominant threads of Japan's cultural fabric" and restitution and mediation are "normal" or regular activities (Haley 1992: 114). In Canberra, the capital of Australia, "more than 10,000 citizens out of a population of 300,000 have attended a conference" (Braithwaite1999: 1745). The United States Department of Justice has embraced victim-offender mediation and there are more than 1000 victim-offender mediation programs (VOMs) dealing with thousands of cases a year, although many are private, community-based programs; there are more than 25 programs in Canada and over 700 programs in Europe (Bazemore and Umbreit 1999; Bonta et al 1998; Umbreit 1999: 213). In the U.K. victim-offender mediation and reparation schemes exist in connection with some probation services; there are also community mediations directed at crime prevention which deal with cases where the offender and the victim are both victim and contributor to the problem (HM Inspectorate of Probation 2000). The Community Law Reform Commission for the Australian Capital Territory recommended that its proposed Process of Attempted Reconciliation program "be accorded statutory recognition and protection," following a pilot project, based on the legislative support given programs in New South Wales and Queensland (Community Law Reform Commission 1993).
Governments may embark on restorative justice processes for many reasons. The Nova Scotia restorative justice project, for example, had as its primary goals, reducing recidivism and increasing victim satisfaction and as secondary goals, strengthening communities and increasing public confidence in the justice system (Nova Scotia Department of Justice 1998). As previously indicated, restorative justice initiatives in Canada need the legitimacy offered by section 717 of the Criminal Code and section 4 of the Young Offenders Act and the Canadian government initiatives in Canada do conform to the legislative requirements.
The most comprehensive schemes permit restorative justice at any point during the criminal legal process; however, they usually remain linked with the process in the event restorative processes fail. For example, the Nova Scotia initiative contemplates entry points at various stages of the criminal legal process, with more serious cases (particularly domestic violence cases) being diverted at later and more public stages (Nova Scotia Department of Justice 1998); this multiple entry "may be unique" and, it is claimed, differentiates the Nova Scotia scheme from "an adjunct to sentencing" or more limited or piece-meal alternative measures (Archibald 1999: 524). The Nova Scotia program builds on existing alternative systems, such as the adult and juvenile diversion systems, which Archibald suggests are not in themselves restorative because they do not include the victim and the community "on a consistent basis."
The minimum requirements of the Nova Scotia project (reflecting those required by section 717 of the Criminal Code and section 4 of the Young Offenders Act) are that the referral is not inconsistent with public safety; it is appropriate in light of the interests of victim, offender and community; the offender accepts responsibility for his or her actions; the offender is given information about the program and consents "freely and fully" to participation and may retain counsel; there is sufficient evidence to proceed and prosecution of the offence is not barred by law. The discretionary factors which, according to Archibald (1999: 528) "are similar to those found in Crown Attorney guidelines concerning the decision to terminate proceedings in the public interest or those found in various alternative measures schemes presently in use across the country, though with a heavy emphasis on victim concerns" are: the degree of the offender's cooperation; the extent of the victim's willingness to participate; whether the community desires a restorative result; the offender's motive for committing the offence; the seriousness of the offence and the planning engaged in by the offender; the relationship between victim and offender and possibility of a continued relationship; the offender's capacity to learn from the process and follow through with any agreement; the potential for a meaningful agreement for the victim; the harm suffered by the victim; previous referrals of the offender to similar programs; conflict with a government or prosecution policy; and other relevant factors about the offence, offender, victim and community. If the offender or community agency believes that the forum should not continue, the offender may be returned to the conventional process, there will be monitoring of the agreement by the community agency and statements by the offender will not be admissible in evidence against the offender.
According to Braithwaite (1999: 1744), "participant (victim, offender, community, police) satisfaction with such restorative justice processes [as conferencing] is extremely high, typically 90%-95%, and in some studies even higher." He suggests (at 1745) that anticipated sources of opposition (the police, victims and in particular women with respect to crimes of violence against women) have either been supportive or have converted after experience with conferencing.
Before considering the main restorative justices responses in greater detail, we identify some "piecemeal" responses to problems with the criminal legal system which (apart from legal aid) have been labeled as "restorative."
"Piecemeal" or individual responses include legal aid, conditional sentences, lay tribunals, initiatives designed to recognize victims and initiatives to provide information to and liaison with accused. In our view, all these initiatives are intended to make the mainstream system "work better," and/or more equitably, but they are not intended to change it fundamentally. As we indicated in Chapter 1.0, these are first and second wave reforms, to use Cappelletti and Garth's nomenclature (1978b, 1979). It should be noted, however, that most of these initiatives may be considered "restorative justice" initiatives by some observers (Bazemore and Walgrave 1999: 48; Young 1999). Thus Marshall (1998) considers support groups for victims and for offenders as examples of restorative justice practices. Although describing discrete approaches such as victim impact statements as "marginal," he maintains that "[r]estorative justice is not simply a matter of new self-contained programmes. It involves principles that can inform every aspect of the work of all criminal justice agencies. One can have restorative prisons, restorative policing, etc." Similarly, the Supreme Court of Canada has acknowledged that Canadian sentencing provisions now incorporate restorative principles (Gladue 1999; Roach and Rudin 2000; Llewellyn and Howse 1998).
Although it is not a restorative justice initiative, we begin with legal aid since it has been for many years the major way in which offenders have been given "access to justice." Formal legal aid programs have been part of the criminal legal system since the 1950s. The primary objective of criminal legal aid (including state-funded legal representation provided outside the legal aid plan) has been to provide to an indigent accused the legal representation necessary for a fair trial, ideally similar to that which a paying client would receive (for the most part, this means a legal aid client would not receive a higher level of representation than a paying client) (Rowbotham 1988; Winters 1999). The same principle underlies civil legal aid, although it may not as easily available (Mossman 1993; Hughes 2000 ; G.(J.) 1999). Criticisms of the legal aid system relate both to the amount of legal aid allowed and the kinds of cases for which legal aid will be granted (Mossman 1993; McCamus 1997; Zemans et al 1997). While there have been calls for a broader or more holistic approach to legal aid (Ewart 1997), these proposals generally remain within the parameters of the adversarial criminal legal system. Indeed, as we indicated in Chapter 1.0, some commentators maintain that legal aid may even "perpetuat[e] social injustice" (Young and Wall, eds. 1996: 25). Given the differential access to the criminal and civil legal systems in their current form, legal aid is a necessary tool of access, but in itself it is not – and is unlikely to become – a means by which we can redefine the meaning or reality of the phrase "access to justice." This is not to say, however, that the way in which legal aid is allocated could not take into account equitable access to processes or initiatives arising out of new ways of defining justice (Currie 2000); on the contrary, we believe that it could and should do so.
In recent years, the mainstream system has incorporated a greater role for the victim (other than as a witness), but participation is still not extensive (Van Ness 1993; Law Commission of Canada 1999).
In Canada, section 722 of the Criminal Code provides that victims or their families may deliver victim impact statements on sentencing or when discharge or conditional discharge is a possibility, for example. In one sense, the impact on the victim has long been taken into account by a sentencing judge; victim impact statements are a more formal element in sentencing, however, and bring the victim's own words into the process. Relying heavily on the Canadian experience to 1990, the Community Law Reform Commission of the Australian Capital Territory's Report on victim impact statements found that the use of these statements had not led to too great a victim influence in sentencing or to complicating the sentencing process, but had allowed victims to feel involved in the process, even if the statement was not actually used in court (Community Law Reform Commission 1993). On the other hand, victims groups have argued that the use and understanding of victim impact statements is erratic and may be censored to the extent that the victim hardly recognizes them ("Victims' Groups" 1999). The Australian Report pointed out that victim impact statements were for the benefit of the victim and the court and do not "mean that the offender will gain an appreciation of the hurt he or she has caused a person" (Community Law Reform Commission 1993); such an appreciation is a mark of restorative justice.
Another discrete victim-focused process has been criminal injuries compensation which revived the old custom of offenders' paying reparations to victims in Anglo-Saxon society, gradually displaced by payments to the Crown or lord for the loss to them (Community Law Reform Commission 1993). Criminal injuries compensation was introduced in New Zealand in 1963 and now exists in a number of jurisdictions, including Canada where it is the responsibility of the provinces. On the one hand, the justification for criminal injuries compensation has been said to be consideration for the victim's having left the crime to be dealt with by the state; on the other hand, it has been said to be a recognition by the community of the unjust infliction of harm (Community Law Reform Commission 1993; Llewellyn and Howse 1998). But the process can be counterproductive if it is highly technical, formal or adversarial; or if the state is able to claim any monies paid to the victim from the offender, since the offender might then be entitled to cross-examine the victim (Community Law Reform Commission 1993).
In the U.K., a "Victim's Charter" was established in 1990 (and updated in 1996) which required the probation service to contact victims to see whether they had concerns about the conditions of release of offenders who had been sentenced to life and subsequently to the release of other offenders. A subsequent study showed that it had mixed but generally positive results, concluding that the restorative work that was accomplished was impressive and "[n]ew developments with victims of domestic violence added a depth to work with offenders, whilst protecting women from re-victiminization" (HM Inspectorate of Probation 2000).
It should be noted that many victim-centred initiatives have resulted from lobbying by the "victims' rights movement." Thus Kurki (2000: 266, 264) argues that restorative justice, which focuses on victims and offenders, is not "part of" the victims' rights movement, even though it is "typically associated with it and other social movements." Joseph (1996: 218), in contrast, suggests "the growth of the victims' rights movement should have a positive effect on the growth of victim-offender mediation programs."
No measure is actually offender "centred," since at least the community must always be considered. Therefore, we use the term "offender-directed." Lay tribunals and legal aid, which we have already discussed, are both offender-directed initiatives. Other initiatives directed at the offender's ability to interact with the mainstream system include court workers, programs which are sometimes designed specifically to recognize accused's specific characteristics, such as the Native Court Worker Program in Saskatchewan, and which provide information about the system and may act as a liaison as the accused proceeds through the system (Currie, 2000).
One of the main offender-directed initiatives is conditional sentencing. Criticisms of the heavy-handed resort in Canada to imprisonment as a form of punishment led to the sentencing reforms in Bill C-41 enacted in 1995. Sections 718, 718.1 and 718.2 set out the purpose, objectives and principles governing sentencing. The Supreme Court of Canada has said that section 718, in referring to sentencing objectives providing reparations to victims or the community, promoting in offenders a sense of responsibility and acknowledgement of harm done to victims and community, and in assisting rehabilitation of offenders, has identified "restorative goals" as a "focus" of sentencing; furthermore, "[r]estorative sentencing goals do not usually correlate with the use of prison as a sanction" (Gladue 1999: para. 43). The application of restorative justice principles is intended "to reduce the rate of incarceration and improve the effectiveness of sentencing" (Proulx 2000: para.20). Section 742.1 of the Criminal Code provides for conditional sentences where the judge would have sentenced the offender to a term of imprisonment of less than two years, the public's safety would not be endangered and a conditional sentence would be consistent with the sentencing principles set out in section 718 of the Code. The sentencing judge must impose certain "compulsory" conditions, may also impose other specified conditions and has some discretion to impose others which can be tailored to the offender with the goal of preventing recidivism; this differs from conditions attached to probation under section 732.1 of the Criminal Code, the purposes of which are to protect society and to facilitate the offender's reintegration into society (Roberts and LaPrairie 2000). At least some of these conditions are meant to be "punitive" and conditions "restrictive of the offender's liberty should be the norm, not the exception" (Proulx 2000: para. 36).
Although the requirement that the judge would have sentenced the offender to prison is intended to avoid "net-widening" or actually increasing the number of persons incarcerated, there is still concern that conditional sentences may increase the number of people incarcerated (Roberts and LaPrairie 2000; Roach and Rudin 2000). Conditional sentences may be longer than prison sentences and offenders who breach a condition may be imprisoned for the longer period (Roach 2000; Proulx 2000: para. 39). Conditional sentences must be realistic and relevant to the offence; otherwise there is an increased risk of the offender's committing a minor offence (such as breaking curfew) which will result in imprisonment (Quigley 1999), a not insignificant concern given that aboriginal offenders have been "disproportionately subject to system based offences" which include breach of a condition imposed as part of a conditional sentence (Roach and Rudin 2000, citing LaPrairie 1998 for evidence that this is occurring). At the same time, Roberts and LaPrairie (2000) warn that conditions must be "properly crafted" if conditional sentences are not to appear too lenient to a population which already believes sentences are not severe enough.
One way of involving the community in the criminal legal system is to "decentralize" mainstream institutions, actors or processes. Turner (1999) argues that "the community can deliver a more effective form of justice in many cases than can the centralized criminal justice system. [This approach] also reflects local expertise and recognizes that the public should be involved in developing and delivering justice services."
In Canada piece-meal community-based or partnered initiatives include the provision of public education, measures directed at crime prevention, community policing, support for and supervision of offenders released into the community and victim support services (Turner 1999; Currie 2000). In the United States, for example, there has been a concerted effort "to bring courts, prosecution units and defence teams to local neighborhoods" (Bazemore and Gordon 1999; also see Harris 1998; Young 1999; Kaas 2000). While "restorative justice" and "community justice" may be treated as very similar, if not the same, particularly when contrasted with more traditional approaches (Harris 1999: 83), in fact community justice processes are more likely to be directed at crime prevention and citizen participation often takes the form of assisting agents of the system, such as police, rather than challenging them (Kurki 2000: 244). It must be recognized, furthermore, that "neither developing programs and increasing access will alone change the role of neighborhood residents from service recipients to decision makers with a stake in, or feeling of ownership, in what services are provided and how they are delivered [sic];" rather, it is necessary to identify "distinctive roles for citizens in determining what the obligation and terms of accountability will be, as well as how these reparative requirements may be carried out as part of a dispositional or diversion sanction" (Bazemore and Gordon 1999).
Lay tribunals, operating in the United States and Canada, also involve the community in the criminal system (Kurki 2000: 282-283). For example, reparative boards are composed of local citizens who, after hearing from the young offender (who has been referred by the courts), others (such as parents or friends) and sometimes the victims, determine the appropriate outcome and process of enforcement which they may monitor. Even among those who consider these tribunals to be a form of restorative justice, they are acknowledged to be the most formal and least consensual of the approaches (Bazemore and Umbreit 1999 ). A similar system involving a lay tribunal of community representatives, the offender and the offender's parents, but not the victim, has been in place for thirty years in Scotland (Marshall 1998, citing McAra and Young 1997).
The kinds of initiatives discussed above, if successful, may help the victim overcome some of the destructive effects of the crime she or he suffered. They may give "the community" some sense that the legal system is not always distant or abstract. They may even make the criminal legal system slightly more accessible or equitable for the offender. But they do not require "the paradigm shift" to which this paper is addressed. For that, a change in the conceptual framework is required. It is to responses which purport to offer such a substantive change to which we now turn.
In this section we discuss the most common measures designed to advance restorative justice: victim-offender mediation, (family) group conferencing and aboriginal circles and other aboriginal initiatives. Our discussion is not meant to be exhaustive, but to indicate the way in which these processes are said to respond to criticisms of the mainstream system and to meet the needs of victims, offenders and communities or, in short, to indicate how these approaches are said to reflect principles of restorative justice. Although it is possible to identify "pure" or discrete models, they have begun to influence each other (Bazemore and Umbreit 1999). While some observers believe that a "hybrid" model may be developed, Bazemore and Umbreit (1999) conclude that it is more realistic to envision the use of a variety of models, depending on the specific needs of the case and the need to maximize efficiency in use of resources. Factors which could be taken into account in determining the appropriate model include the seriousness of the crime, the nature of the harm suffered by the victim, the record of the offender and the existence of other "complications" such as dysfunctional relationships (Peachey 1992; Marshall 1998; Bazemore and Umbreit 1999). As Peachey (1992: 553) indicates, "the various approaches to restorative justice have different foci. Restitution and compensation focus on the victim. Retribution focused on the offender. Forgiveness often implies altering the relationship between the victim and the offender." Yet for those involved, the distinctions may not be as clear. An offender may perceive as punishment that which the victim or "authorities" consider restitution.
One final introductory comment: while these approaches are all said to reflect restorative justices principles, they differ with respect to who is involved (the community is less likely to be involved in victim offender mediation than in conferencing, for example) and whose interests are most significant (the offender's interests may be emphasized more in conferencing than in victim offender mediation); furthermore, it is important to recognize and respect the different processes which these approaches follow (for example, in the sentencing circles, each person speaks in turn to all the participants and there is to be no interruption of people as they speak, while in victim-offender mediation, the mediator may encourage the offender and victim to speak to each other; either of these might be usefully contrasted with the reparation board (to which we have previously referred) where the offender, victim and others who participate address the board members).
Victim-offender mediation (VOM) may be the most widespread restorative justice practice, although Price (1996) argues that it is "not inherently restorative," since it may have punitive goals and others have argued that "restorative justice is more than mediation" (Walgrave 1999: 132). Other terms for this process include "victim offender dialogue, meeting or conference" in order to distinguish it from civil mediation (Bazemore and Umbreit, 1999; Office for Victims of Crime 2000). The Community Law Reform Commission of the Australian Capital Territory (1993) suggested that an appropriate term is "Process of Attempted Reconciliation," since it more accurately reflects process rather than outcome (also see Van Ness and Strong 1997: 70).
Although VOM may be considered a descendent of victim-offender reconciliation programs (VORPs) developed in the 1970s in Canada, it is now a distinct branch in order to emphasize a heightened attention to the victim (Office for Victims of Crime 2000). The difference in terminology is important. When the American Bar Association was considering whether to endorse these programs, the victim caucus objected to endorsing VORP because "reconciliation" carries a connotation of forgiveness and ignores victims' anger; the ABA subsequently endorsed victim-offender mediation because "it emphasized the process rather than the expected outcome of mediation" (Office for Victims of Crime 2000), a feature generally characteristic of restorative justice (Llewellyn and Howse 1998), although others argue that process and outcome are equally important (Bazemore and Walgrave 1999: 48; Kurki 2000 264). The term actually approved by the ABA was "victim-offender mediation and dialogue" in order to make it clear that neither losses nor guilt was negotiable (Office for Victims of Crime 2000).
The most commonly recognized benefits of VOM include a more comprehensive approach to victims' needs; the opportunity for the victim and offender to see each other as persons; and the possibility that it will have greater impact on the offender than the usual sanctions. Where the community is involved, VOM delivers a message of the community's willingness to re-accept the offender (Marshall 1998). In practice, programs may differ with respect to the particular community of offenders whom they serve, the extent to which they involve the community, the type of crime they address or their affiliation or funding (Joseph 1996), but there are some common elements and goals: the programs are meant to be more concerned with changing the parties than restitution of any actual loss (Community Law Reform Commission 1993). We note that when the American Bar Association endorsed VOM in 1994 as a practice which should be available in all courts in the United States, it set out thirteen requirements with which the programs should comply (American Bar Association Endorsement 1994; Office for Victims of Crime 2000).
The dynamics of victim-offender mediation have been described as different from those characterizing civil mediation. Unlike much of civil mediation, mediation in the criminal context does not involve "disputants" and the mediation is not for the purpose of determining fault, since the offender has admitted wrongdoing. Thus the mediator's participation is based on recognition of one person's wrongdoing at the outset; "[t]he mediator is neutral as to the individuals, respecting both as valuable human beings and favoring neither … But the mediator is not neutral as to the wrong" (Price1997). It is important that the mediation not divert attention from the offender's conduct and obligation to make amends by considering whatever role the victim might have had in the crime; these complexities can be addressed only when "the current offence has been atoned for, when the bargaining table is once again level" (Marshall, 1998; Office for Victims of Crime 2000). Victim-offender mediation also has been described as "dialogue-driven," compared to "most other forms of mediation in civil court settings [which are] settlement-driven with little or no time to talk about the larger context of the conflict or the feelings of the involved parties" (Bazemore and Umbreit 1999; Office for Victims of Crime 2000). Thus Umbreit (1997) advocates "humanistic mediation" as a healing process rather than an emphasis on reaching agreements, contrasting it to classic problem-centred mediation; his comparison between the two treats the latter narrowly and does not recognize that civil mediation generally may have some of the characteristics he ascribes to "humanistic-transformative mediation" or indeed, have some of the same objectives (Bush and Folger 1994).
VOM may occur at various stages of the criminal legal process, including as a diversion from prosecution (deferred prosecution) which is conditional on the agreement's being completed or after an admission of guilt in which case it is a condition of probation (Marshall, 1998; Office for Victims of Crime 2000). Although most often involving juveniles, it may also apply to adult offenders; a Office for Victims of Crime 2000 of about 250 established VOM programs in the United States showed that 45% of the programs worked exclusively with juvenile offenders and 9% exclusively with adult offenders, but that 46% worked with both (Office for Victims of Crime 2000). Referrals may come from judges, probation officers, victim advocates, prosecutors, defense attorneys and police (Office for Victims of Crime 2000).
While victim-offender mediation may be employed for any crimes, they are more often used for "petty" or minor property crimes or minor assaults and less frequently for serious crimes against the person, including assault with a deadly weapon, assault resulting in bodily harm, sexual assault, domestic violence, negligent homicide, attempted murder and murder (Office for Victims of Crime 2000). Marshall (1998) asserts that mediation may be as successful with serious crimes, people with a record of crime and adults as with minor crimes, first time offenders and juveniles and that personal considerations such as motivation and attitudes of victim and offender are more important (also see Community Law Reform Commission 1993). Rudin (1999) argues that restorative justice should not be restricted to minor offences because "this is clearly a waste of a very valuable resource" (also Marshall 1998; Kurki 2000: 290). Price (March/April 1997) reports on his mediation of "severely violent crimes" which may take place only after months or even years of preparation. Peachey (1992: 556) maintains that reconciliation is most necessary where the desire for retribution is greatest (usually when the victim has been assaulted or sexually assault or otherwise personally wronged): "there is little need for reconciliation where the loss is trivial or can be addressed by third-party compensation through insurance or the state, but there is a tremendous opportunity for reconciliation where pain runs deep." Umbreit (1999: 223) indicates that VOM is beginning to take account of the need to adapt "to serve the more intense needs of parties involved in serious and violent criminal conflict."
To be successful, victim-offender mediation requires considerable effort. Both the offender and victim must give their consent to the process and must understand the nature of the process if it is to be effective. It often involves a session or sessions prior to the actual mediation in order to prepare both of the major players; these preparatory sessions, which occur prior to the obtaining of consent from the offender and victim to the mediation process, may be more important than the actual mediation in the effectiveness of the process (Bazemore and Umbreit 1999). Similarly, enforcement of reparation agreements is an important aspect of victim-offender mediation, although it may be done in a number of different ways, through the mediator or through paid staff, for example (Bazemore and Umbreit 1999, citing Belgrave 1995). Yet VOM does not always include follow-up after the mediation or monitoring of the offender's compliance with the agreement; this is often done by another agency, although more is apparently being done in this regard to link enforcement with the actors involved in the mediation (Office for Victims of Crime 2000).
Victim-offender mediation (as compared to victim offender reconciliation programs which focused on the offender) began in large measure in response to victims' needs. As a result of early studies in the United Kingdom which showed that victims sometimes felt pressure to participate in victim-offender mediation or were "rehearsed" in their expression of their emotions to have a greater impact on the offender, guidelines and victim support services were implemented (Marshall 1998). The National Survey carried out in the United States in 1996 under the sponsorship of the Office for Victims of Crime also resulted in guidelines for victim-sensitive victim-offender mediation which address separate pre-mediation preparation sessions with and preparation of the victim and the offender, a humanistic dialogue-driven model of mediation, follow-up and make recommendations for program development and mediator training (Office for Victims of Crime 2000).
The engagement between the victim and the offender is often touted as the most important aspect of victim-offender mediation. Victims report that the opportunity to speak directly with the offender is often more important to them than any actual restitution which results from the mediation (Bazemore and Umbreit 1999). Victims may feel that they have regained some of the control which they had lost and which the traditional system does not offer them (Joseph 1996); they may be able to obtain answers to questions which have haunted them, such as "why me?" "How did you get into my house" or "were you watching me?" and set aside some fears about whether the offender will return (Price, "Benefits"). Yet an acknowledged alternative to face-to-face mediation is indirect mediation where the victim and offender do not meet, perhaps because the victim is not willing to speak directly to the offender; although the benefits may not be as great, it is practiced in the United Kingdom (Marshall 1998). The ABA requirements (1994) suggest only that a face-to-face meeting is "encouraged." A more abstract approach available when a victim or offender does not want to participate or the offender has not been identified is the victim-offender panel which brings victims who have been subject to a particular type of crime together with offenders who have committed that crime (Law Commission of Canada 1999; Lerman 1999). It is also worth noting that although victim-offender mediation is theoretically premised on the offender's being willing to acknowledge the harm he or she has done to the victim, a 1996 National Survey of VOMs in the United States indicated that offenders were required to admit their guilt in only 65% of the programs (Office for Victims of Crime 2000).
Attention to victim participation requires flexibility in scheduling mediation until the victim is ready (Marshall 1998), although it must be acknowledged that the impact of delay on the offender must also be considered, both from the perspective of the offender's "rights" and the offender's capability of connecting the process with the offence. Similarly, the attention to the victim is relevant to the determination of "who goes first:" some observers argue that the victim deserves to express her or his feelings towards the offender without having to take into account any apology, for example, but some programs believe it is easier on the victim if the offender speaks first and victims are often "moved" when the offender offers an apology or shows remorse without having heard the victim (Office for Victims of Crime 2000). Llewellyn and Howse (1998) suggest that relying on the perpetrator to speak first makes the wrongdoer accept responsibility and places the victim at the centre of the process.
In the U.S. national study of VOMs, the mediator's role was defined most often as "facilitating dialogue between the victim and the offender," slightly less often as "making the parties feel comfortable and safe," and about equally "assisting the parties in negotiating a mutually acceptable plan for restitution of the victim" and "actively listening to both parties," although these last elicited more responses than a number of other typical mediator activities (Office for Victims of Crime 2000). Most programs provide training for community volunteer mediators, particularly for mediating cases involving severe violence (Office for Victims of Crime 2000). Co-mediation, used at least occasionally by 93% of the programs, was considered beneficial because it permitted greater opportunity for volunteers from the community, quality control, responding to diversity issues, more thorough case processing and debriefing, increased safety and teamwork (Office for Victims of Crime 2000). Mediators must be aware of their own culturally-affected behaviours and their implications, even if these behaviours are in themselves otherwise neutral, as well as his or her biases and predispositions. It is also important to understand whether an offender's motivation for committing a crime was in some way related to race (for example) and whether a victim is demanding more from an offender for a similar reason (Umbreit and Coates 2000). But mediators must also find a balance between awareness of "cultural" differences and responding on the basis of stereotypes or generalized presumptions about how people will act (Delgado 2000: fn.96 which indicates a number of ways in which discussions of "cultural difference" may be based on stereotypes, although note that these examples rely heavily on a 1986 article by Umbreit). Victim offender mediation must also take into account and negotiate different views about mediation and restoration held by different ethnic communities (Currie and Kiefl 1994; Llewellyn and Howse 1998).
The U.S. 1996 National Survey included interviews with persons involved with VOM which indicated that effective programs require support from the community, the willingness of victim support groups to consider restorative justice and availability of volunteer mediators; some of the concerns with the programs were lack of understanding about the program among court personnel, a tendency to shorten or eliminate the preparation phase by volunteers or as a result of lack of funding and transient volunteer populations, requests to mediate more serious and complex cases for which mediators may not be trained; and disagreements about the importance of the preparation phase. The programs often operate in isolation with the result that mediators often do not have the opportunity to discuss or brainstorm approaches. Furthermore, confusion about the "appropriate" objectives of the program with the result that obtaining the appropriate balance of benefits to offender and victim may not always be easy and may depend on who is responsible for running the program (Community Law Reform Commission 1993). The 1996 National Survey of victim-offender mediation programs in the United States showed, however, that most program directors were enthusiastic about the benefits of the program for the victim and offender and the community (Office for Victims of Crime 2000).
Studies of victim-offender mediation indicate that over 85% of the sessions resulted in an agreement and that was significantly higher than was the case with court-ordered restitution (Umbreit 1994; Office for Victims of Crime 2000; Marshall 1998). Far more offenders who met the victim completed their restitution obligations compared to those who had not participated in mediation (Umbreit 1994).
In one study of VOM, 18% of offenders recidivated compared to 27% in the regular system and their crimes were less serious (Bazemore and Umbreit 1999), while Marshall (1998) indicates that lower rates of recidivism may be connected with direct contact with the victim (rather than indirect mediation) and first time offenders.
It has been reported that "victim satisfaction with VOM has been uniformly high" (Bazemore and Umbreit 1999, citing Umbreit and Coates 1993 and Belgrave 1995; Office for Victims of Crime 2000), although Bonta et al (1998) indicate that sample selection and other factors may influence the results and report Umbreit (1994) as showing 64% attrition rate in his study of four victim-offender mediation sites, yet concluding a high degree of satisfaction among victims. Seventy-nine per cent of the victims in the Umbreit's 1994 multi-site study were satisfied with the process compared to 57% who had gone through the normal court process; victims were "significantly less fearful of being revictimized" after they had met the offender (Umbreit 1994), although Marshall (1998) points out that we do not know whether less fearful victims are more likely to participate in the mediation process.
Although most victim offender mediations take place with juveniles, Umbreit and Bradshaw (1997) compared victim satisfaction with a program for juveniles in Minneapolis and satisfaction with a program for adults in Winnipeg. Although victims were generally satisfied with the process, those mediating with adult offenders had a greater fear that the offender would commit another crime against them and were less likely to "improve" their attitude towards the offender; they also had lower levels of satisfaction with their participation in the larger justice process (explained by Umbreit and Bradshaw (1997: 38) as reflecting the fact that victims of adult offenders were already more likely to have participated in the system than were victims of juvenile offenders).
Some victim offender mediation programs do not involve anyone (including juvenile offenders' parents) other than the offender and the victim because they believe other attendees might dilute the benefits of the face-to-face contact between victim and offender, while others believe support helps the session and the follow-up phase (Office for Victims of Crime 2000). Marshall (1998) has referred to the "excessive individualism of victim/offender mediation practice" which gave the impetus to the development of a restorative justice approach involving the community called group conferencing.
Conferencing is a meeting among offender, victim and members of the community and perhaps even the arresting police officer (Van Ness and Strong 1997: 73; Braithwaite 1999). In some cases, the emphasis is on including the family of juvenile offenders, while in others, the conference would include members of the larger community. Although conferencing is widely considered to be a restorative justice initiative, Umbreit and Zehr (1996: 25) state that the original conferences were not based on restorative justice principles; rather, restorative justice has modified them or increased the models which are grouped as "conferencing."
Family group conferencing originated in New Zealand where it arose from Maori tradition and was subsequently legislated as the standard way to deal with juvenile crime (Bazemore and Umbreit 1999). It was then adapted in Australia by the police and, more recently in Canada and the United States (Umbreit and Zehr 1996). FCG is a major feature of the Nova Scotia Comprehensive Restorative Justice Program, having been in place prior to the establishment of the comprehensive program (Archibald 1999: 526). Conferencing is also a major aspect of the proposed federal youth offender legislation (Bourrie 2001).
A Community Justice Forum (CJF) is a form of conferencing instituted about four years ago by the Royal Canadian Mounted Police as an outgrowth of community policing, is "a meeting of all those affected by an offending incident gathered by a neutral facilitator to solve the problem fairly and meaningfully" (Cooper and Chatterjee 1999). CJF involves facilitation by member of the RCMP or by members of the community and can be instituted for a wide variety of offences ranging from theft under $5,000 and common assault to (far fewer cases) sexual assault. The vast majority involves persons 19 or younger.
The goals of FGC include involvement of the victim in decisions about appropriate sanctions; increasing the offender's understanding of the harm caused by his or her behaviour and providing an opportunity for the offender to take responsibility for his or her behaviour; involving the offender's support system in a collective fashion in the offender's future behaviour; and allowing both the victim and the offender "to reconnect to key community support systems." Used primarily in juvenile cases, the term "family" is used broadly, since participants other than the victim's and offender's immediate families might be involved, such as teachers, special friends, the arresting officer or other persons playing a significant role in the offender's life (Umbreit 2000). Because of the inclusion of community members, Marshall (1998) emphasises that group conferencing may be a more effective tool for social reintegration of the offender than is victim offender mediation.
Not all family group conferencing is based on the same principles, even though many of the same processes are in place. For example, FGC in New Zealand is based on restorative justice principles with reference to early VOM and VORP experience, while the Wagga Wagga model in Australia is based on Braithwaite's "reintegrative shaming" theory (Umbreit 2000; Braithwaite 1999a). This concept or process is based on the premise that committing certain acts can be shameful for the offender. Shame can be used to stigmatize the offender, as is usually the case in western systems, or to reintegrate the offender into the community, as is the case in some African or Asian systems (Braithwaite, "Crime, Shame and Reintegration"). Stigmatizing shame leads the offender to reject the culture which has rejected him or her and find support and acceptance elsewhere, such as in a criminal subculture. Reintegrative shaming, on the other hand, is based on respect for the person, emphasizing that the offender is a good person who has done a bad act. Reintegrative shaming is most successful in strong communities (Braithwaite 1999a). The role of the community or of persons who are close to the offender means that "denunciation" comes from someone who is loved and respected rather than from a distant authority figure. More recently, there has been a move away from the "shaming" aspect of family group conferences and it may be considered a precondition of access to a conference that there is a sense of interdependency between the offender and those disapproving of the offence and "countering the inevitable stigma attached to offending by equally strong efforts at reintegrating (restoring) the offender and enhancing self-esteem (Bazemore and Umbreit 1999, citing a FGC from Victoria, Australia).
Umbreit and Zehr (1996) (also see Umbreit 2000) maintain that there are at least five potential dangers with FGC, especially the Wagga Wagga model: the New Zealand model involves prior meetings with the offender and family, but not with the victim and family and the Australian approach usually involves phone contact and only occasionally in-person contact; there is a greater emphasis on the offender during the mediation who (with his or her family) is seated first and speaks first; the presence of adults ( including police) may inhibit the juvenile offender; since authority figures facilitate, instead of volunteer (or at least neutral) mediators, there may be at least an apprehension of bias or authoritarian practices in communication; and the Australian model follows a script which specifically tells conference coordinators not to be concerned about cultural needs and community preferences and assumes that the process will work as long as all participants trust the coordinator.
As with victim offender mediation, (family) group conferencing can be employed at different stages in the criminal process (Marshall 1998). Compared to VOM, there is some dispute about whether significant preparation is dysfunctional in reducing the impact of the offender's and victim's stories (Bazemore and Umbreit 1999, citing Umbreit and Stacy 1995). There is also less emphasis in this model on enforcement than in some of the other models; it may be informal and may lie with the offender or it may be the responsibility of the police who convened the conference (Bazemore and Umbreit 1999). Also in contrast to victim-offender mediation, however, there is greater emphasis on the offender and in educating the offender about the harm caused by his or her behaviour. The offender speaks first because this is said to facilitate the offender's "owning of his or her behaviour, as well as to "put the victim at ease following the offender's formal apology" (Bazemore and Umbreit 1999, citing McDonald et al 1995). The emphasis on forgiveness for the offender has been criticized because it may place pressure on the victim; for some commentators, there is insufficient attention paid to victim empowerment (Bazemore and Umbreit 1999, citing Umbreit and Stacy 1995; Umbreit and Zehr 1996; Marshall 1998). Indeed, the family group conference has been described as "the strongest of all the models in their potential for educating offenders about the harm their behavior causes to others," but may be weak in addressing victim concerns (Bazemore and Umbreit, 1999, citing Alder and Wundersitz, 1994; Belgrave, 1995; Umbreit and Zehr, 1996). Bazemore and Umbreit (1999) suggest, however, that the concerns arising out of the early experiment with family group conferencing in New Zealand should not lead to the conclusion that there is insufficient attention paid to victim concerns in this model and point to studies indicating greater victim satisfaction with this model in the United States (citing Umbreit and Fercello 1997; Fercello and Umbreit 1998; McCord and Wachtel 1998) and South Australia (also see Marshall, 1998).
Umbreit and Zehr (1996: 25) report that with the integration of greater attention to the victim, a New Zealand judge "terms the approach as the first truly restorative system institutionalized within a Western legal system." Marshall (1998) describes conferencing as "a restorative justice process par excellence," given "its combination of victim restoration, offender reintegration, individual participation and community involvement," but suggests that it may not be necessary where all these goals do not need to be met.
Despite the differences between VOM and (F)GC, Umbreit and Zehr (1996)'s recommendations for appropriate FGC practices reflect the practices of VOM in many respects. For example, they suggest that preparation should include in-person meetings with the primary participants and that if a public agency initiates an FGC, a trained community facilitator should also be involved in the sessions. Furthermore, victims should be able to choose when and where to meet and to present their story first, both recommendations which change the focus of conferencing. The impact of these recommendations would be to lessen the differences between victim offender mediation and conferencing.
There have been fewer studies of family group conferencing than of victim offender mediation, although those that have been completed indicate participant satisfaction (Van Ness and Strong 1997: 74). The RCMP's review of the CJF process indicated that the process was successful with both offenders and victims and their supporters; furthermore, "the restorative justice initiative, although initially implemented as an extension of the Aboriginal Justice Strategy [of the Department of Justice Canada in 1991], has expanded far beyond the Aboriginal communities into the mainstream and that communities which are aware and well-informed about this approach, are usually receptive" (Cooper and Chatterjee 1999). It has been acknowledged, however, that the study of CJF processes was not systematic and could not be considered to meet adequate study standards. In particular, it appears that some victims felt some pressure to participate (Cooper and Chatterjee 1999).
As we indicated in Chapter 2.0, aboriginal communities and issues focus heavily in any consideration of access to criminal justice for two main reasons: the first is that members of aboriginal communities have been ill-served by the predominant legal system, whether there are offenders or victims; the second is that current theories of enhanced access to criminal justice rely heavily on approaches which were traditional in and have already been reestablished in aboriginal communities. In Canada, section 718.2(e) of the Criminal Code constitutes legislatives recognition of "innovative sentencing practices, such as healing and sentencing circles, and aboriginal community council projects" which "share a common underlying principle: that is, the importance of community-based societies" (Gladue 1999: para.74).
One example of a specific restorative justice project is found in agreements entered into in 1997 by the Saskatoon Tribal Council (comprising seven First Nations located in the central portion of Saskatchewan) and government funders with respect to both on-reserve and urban Aboriginal people. Elders were involved in these initiatives; the process of seeking their participation followed Aboriginal practices (Boyer 1999). Restorative justice initiatives include healing centres for federal offenders, either conditionally released or with inmate status, under the guidance of Elders, under section 718.2(e) of the Criminal Code (Programs). There are also programs specifically developed for reserves. As Boyer points out, on the one hand, "[m]any of the problems and issues are the same on reserve or in the urban environment;" on the other hand, the reserve community is more close knit and thus community-based initiatives are easier to maintain. The initiatives include sentencing circles, healing circles, individual and community-based mediations, family group and community conferencing, cautioning, re-integrations (Boyer 1999).
In Ontario, aboriginal community councils have been established by native leaders in co-operation with local Crowns and the police (Report of the Criminal Justice Review Committee 1999: 60). The Crown decides whether offenders (who have admitted liability) will have the opportunity to participate in a sentencing circle; if the offender does participate, criminal charges are stayed or withdrawn, but may be reinstated if the offender does not appear or does not complete the program determined by the Council. Victim involvement is encouraged and the program may involve paying a fine, making restitution or participating in a treatment program.
Types of circles include "talking, healing, community and court sentencing circles, family and community conferences" with specific processes differing among aboriginal communities (Stuart 1997:202). Bazemore and Umbreit (1999) describe sentencing circles, which they say have been used most often in Saskatchewan, Manitoba and the Yukon, as involving several steps: the offender must apply for a sentencing circle process; the victim has the opportunity to be involved in a healing circle, as does the offender; the actual circle involving Elders, the offender, the victim and their families and supporters, other members of the offender's and victim's community and members of the mainstream legal system; and follow-up circles monitoring the offender's compliance with the plan developed by the circle. They identify the goals of circle sentencing as follows: promoting healing for all parties; providing an opportunity to the offender to make amends; empower victims, offenders, community members and families by involving them in a process for finding a resolution to the problem; addressing the underlying causes of criminal behaviour; building "a sense of community and its capacity for resolving conflict;" and "promot[ing] and shar[ing] community values." (See Stuart 1997 for a detailed description of preparation for circles in Kwanlin Dun, an Aboriginal community in the Yukon.) They do not include reintegration into the community which in some ways is at the heart of circle sentencing in the Aboriginal community. The extent to which the official actors in the criminal justice system are involved will depend on the type of circle (Stuart 1997: 202).
Under the Saskatchewan Youth Circle Program, for example, a circle is composed of the victim, the victim's family/support, the offender and the offender's family/support, community representatives and a professional facilitator from the program, with the guidance of Elders (Boyer 1999). Re-balancing requires the youth to perform tasks and to engage with other members of the community; in some cases, they will be involved in activities (such as canoeing) with the Saskatoon City Police. They meet with Aboriginal federal and provincial inmates to hear about the latters' experiences and "bad choices." When the conditions imposed by the circle have been met, the charges are withdrawn. Success is measured by changes in the youths' lives. Some of the youth who had taken part in the Saskatchewan Youth Circle program become involved again to assist other youth.
Boyer (1999) reports that in 1998-1999, of 108 cases in the Saskatchewan Youth Circle Program, twelve youth re-offended and one committed a more serious offence than the one he had originally committed. Boyer attributes the success of the program to the individual care given the youth (for example, urban youth must be picked up at home for appointments and transported to all activities) and points out that this requires extensive funding.
Preparation is particularly important in circle sentencing, as is the pre-circle involvement of the offender who may be required to meet with Elders and begin a reparative plan; this process is a way of indicating the commitment of the offender to the process (Stuart 1997). Similarly, the community and victim and her or his support group play an integral role in the follow-up and monitoring process (Bazemore and Umbreit 1999). It is important that all participants are trained in the circle sentencing process and that there is a healthy and strong relationship between the formal justice system and justice professionals and the community (Bazemore and Umbreit 1999). Without proper preparation and understanding of the purpose and traditions underlying the sentencing circle, they can be unsatisfactory and in Boyer's word "debased." Boyer (1999) concludes that "there is no role for either the judges, prosecutors and the police in community based justice." She suggest that the community should be able to hold its own circle at which it determines the offender's sentence which is then taken before the court. Similarly, although the federal Corrections and Conditional Release Act has provisions for the early release of Aboriginal offenders into their communities, and aboriginal offenders may develop a release plan in conjunction with the community's justice committee to be implemented by the community, Boyer (1999) reports that it was difficult to obtain information about the meaning of the provisions. It may be that Aboriginal practices challenge the relationship between the mainstream system and official agencies, on the one hand, and restorative principles and the community, on the other more directly than any other implementation of restorative justice practices. They are also more likely to raise tensions between reliance on government for funding and the desire for autonomous community practices.
Jonathan Rudin (1999) uses the Community Council Program at Aboriginal Legal Services of Toronto as an example of restorative justice in practice. Established in 1992, it is directed at Aboriginal adult offenders. The Program is not merely a step in the "regular" legal system, it is an alternative. Once offenders (who would otherwise be sentenced to a term of imprisonment) are involved in the Program, the charges against them are dropped and they never re-enter the mainstream system. The Community Council system is based on "kindness and respect" towards the offender; the offender is a participant in the full sense of the word, something that Rudin (1999) contends the structure of the court system cannot accommodate.
In Chapter 4.0, we consider the extent to which restorative justice seems to meet its own goals and whether it raises its own concerns which must be addressed before assuming that it is an acceptable way of increasing access to criminal justice.
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