Access to Justice: The Restorative Option
Although it is commonly thought of as an alternative type of sentencing, restorative justice is actually a philosophical perspective on justice and how it can be obtained by the people who have been impacted by criminal acts. The current criminal justice system is almost entirely offender focused; once a victim has initiated the process, the focus is on arresting, prosecuting, and punishing the offender, with almost no attention given to the victim’s place in it all.
Advocates of restorative justice see it as a way of providing victims and communities with a greater role in this process. In this way, restorative justice increases access to the justice system for those who traditionally are excluded—namely victims and communities, but also young offenders or those from marginalized groups. The goal of restorative justice is still on holding the offender accountable for the harms that they have caused, but it also focuses on accepting responsibility, making reparations, answering questions, and finding peace.
For more information about restorative justice, click on the links to our guide below, or check out our annotated bibliography of resources below.
What is Restorative Justice?
The History of the Movement
Page Navigation Guide
Restorative Justice is Seen as Too Lenient
Victim Impact Statements are not Restorative
Offenders Must Accept Responsibility
Restorative Justice is Only Used in Limited Situations
Restorative justice is a fairly young theory in its application to the criminal justice system, but as a philosophy it has a long history. The origins of restorative justice are not entirely clear, but many people place the start in the 1980s with faith communities, such as the Mennonites, who believe that justice is about “making things right”, Canadian Resource Centre for Victims of Crime, “Restorative Justice in Canada: what victims should know” (March 2011) [Restorative Justice in Canada]. In Canada, restorative justice has long standing roots in Aboriginal practices and traditions. Some restorative programs are based on the concepts of inclusion and expression found in traditional Aboriginal healing circles.
In other countries as well, restorative justice programs are designed around concepts found in the practices of indigenous populations, such as the Maori in New Zealand or tribes of South Africa. However, restorative justice is not based in faith, nor is it tied to any one particular group of people. Restorative justice is based on the principles of restoration and reconciliation.
Over the years that restorative justice programs have been used in Canada, they have primarily been focused on Aboriginal groups and the youth system. This stems from the fact that restorative justice philosophies align more closely with Aboriginal culture, and that young offenders are seen as being in need of more leniency. While any use of restorative justice programs in a system that primarily focuses on retribution and punishment is to be applauded, it is and should be available for more than just these discrete groups.
Current Examples of Its Use
In 1995 the Canadian Criminal Code was amended to reflect the importance of restorative justice to the criminal justice system, adding section 742.1 which allowed judges to impose a conditional sentence that can be served in the community. In 1997, the Criminal Code was amended again, altering section 718.2 which requires judges to consider restorative justice options during the sentencing process. Section 718.2(e) reads, “…all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders…” (Criminal Code, RSC 1985, c C-46, s. 781.2(e)).
In the relatively short time that restorative justice has been part of the criminal justice landscape in Canada, it has grown to include a variety of programs and opportunities for victims, offenders, and the communities that surround them. Some of the programs are aimed at specific demographics or types of offenders, while others are available for anyone who voluntarily chooses to participate. This list is certainly not exhaustive, but the following are some examples of restorative justice programs currently being used in Canada:
Community Conferencing: Rooted in Maori culture, these programs train the offender’s family members so that they can directly hold the offender accountable for accepting responsibility and making amends. These programs are primarily used within the juvenile system.
Sentencing Circles: The victim, offender, and their support groups meet with members of the justice system to recommend to the judge what type of sentence would be appropriate. The victim is often given the chance to explain how the crime has impacted them, and many restorative advocates consider it to be a better option than victim impact statements.
Support Circles: Groups of volunteers work together to help released offenders pursue treatment and mediate concerns with the surrounding community. This type of program is often used with sex offenders who have served their entire sentence, and victim participation is not required or expected.
Community Justice Forums: Run almost exclusively by the RCMP, trained officers acting as facilitators bring together victims, their supporters, police, the accused and their family, as well as any other concerned party to find an appropriate solution.
Victim Offender Mediation: One of the longest standing and most effective restorative justice programs in Canada, this process allows victims and offenders to meet in a safe environment and engage in discussions structured and facilitated by a trained mediator. Victim participation in these programs is always completely voluntary.
Youth Justice Committees: Trained community members work with the victim and the young offender to negotiate an appropriate and reasonable way for the youth to make amends. The committees work to make sure the young person has access to adequate support. These programs are generally only available to non-violent offenders.
Why Should People Care
Restorative justice is a widely misunderstood concept. There is limited information available to the public about what it is or how it works. Unfortunately, the information that people tend to pass amongst themselves is often misinformed. It is important to understand what restorative justice is and how it works in the Canadian justice system, if for no other reason than because it is part of our Criminal Code. Restorative justice is law and ignorance of it is just as detrimental.
Beyond that, though, there is evidence that the use of restorative justice can reduce the chances that the offender will commit another crime (Elizabeth Elliott, Restorative Justice (Burnaby, Simon Fraser University for the School of Criminology, 2013) at 82). Research has indicated that repeat offending can be reduced by encouraging offenders to take responsibility for their actions, make reparations for those acts, and learn from the whole process. These statistics often refer to juvenile offenders or those who are still considered “redeemable”; however, even those who have been impacted by serious crimes have been shown to benefit from participating in restorative programs (ibid). Restorative justice is designed to help victims and offenders who have been impacted by all levels of crime. The aim of these programs is often to take the focus off the offender as an insular entity made up only of the crime they have committed, and put more of an emphasis on healing the harms done to the victim and surrounding community.
Furthermore, restorative justice programs have been shown to increase the satisfaction victims feel with regard to how their case is handled, due at least in part to the involvement of victims and communities in the process. Perhaps more importantly, research indicates that participating in restorative justice programs can help victims with emotional healing and can reduce their fear of being re-victimized (Restorative Justice in Canada, supra at 1).
What are Some of the Current Conflicts?
Restorative Justice is Seen as Too Lenient
There are some who believe that the concept of restorative justice is just a fancy way to let criminals go free, and that offenders will not actually have to “pay for” their actions if they end up in a restorative program. This is a myth. In 1999, the Supreme Court of Canada ruled in R v Gladue that sentences involving restorative justice were not more lenient than incarceration. In fact, the court found that, when combined with appropriate probationary conditions, restorative justice may “impose a greater burden on the offender than a custodial sentence" (R v Gladue,  1 SCR 688 at para 72).
Furthermore, even if an offender successfully participates in a restorative program, they may still be considered a public danger and need to be incarcerated. Other restorative programs, such as Support Circles, are not used until after the offender has served their entire sentence. Just because an offender and victim choose to go through a restorative process, does not mean that the offender “goes free”.
Connected to this misconception is the belief that the restorative justice process is about the victim forgiving the person who committed a crime against them. While forgiveness is an admirable goal, it can also be a burden for some victims and it is not the focus of restorative justice. No victim should be pressured into forgiving an offender if they do not want to. The purpose of restorative justice is to acknowledge the victim as part of the justice system, and to help the offender learn from their actions. There is no failure if a victim does not forgive the offender.
Victim Impact Statements are Not Restorative
Victim impact statements are one of the more controversial manifestations of restorative justice, to the point that many advocates of restorative programs do not consider them restorative at all. Victim impact statements became part of the Canadian criminal justice system in 1988 when the Criminal Code was amended to include section 722, which allows the victim of a crime to describe in writing “…the harm done to, or loss suffered by, [them] arising from the commission of the offence.” (Criminal Code, s. 722(1)). The court is required to take these statements into consideration when they are determining what sentence the offender will receive. On the face of it, victim impact statements seem like a simple way to increase victim participation within the criminal justice process, but the reality of them is often much less satisfactory.
The purpose of victim impact statements is not actually to be a therapeutic source for the victims of crime, and there appears to be an overwhelming consensus that they raise victims’ expectations of sentencing that are often not met, thus making them more discontent and disillusioned with the justice system (John Howard Society of Alberta, “Victim Impact Statements”, John Howard Society). While judges on the whole seem to like them and tend to consider them part of the restorative process, most academic sources do not consider them to be the most appropriate way to integrate victim needs into the criminal justice system.
In addition to the negative effects they can have on victims of crime when their expectations are not met, victim impact statements can also detrimentally impact the offender. In a recent drunk driving case from the Ontario Court of Justice, the judge noted that the accused expressed visible remorse, had already engaged in numerous hours of community service, and was pursuing therapy for substance abuse – all of which were considered significant mitigating factors in his favour. However, the victim had provided an impact statement that vilified the accused and described in great detail the pain that they were still in from the accident. The judge indicated that the victim impact statement would likely have been much less negative if the victim had been provided with the information about the accused’s community service acts, or if they had been able to witness the accused’s remorse themselves. If that had happened the case would have been appropriate for restorative justice, but because of the victim impact statement the judge could not issue a restorative sentence (R v Drozdowski, 2014 ONCJ 264 at para 51).
There are still too many unanswered questions about whether victim impact statements improve the way victims participate in the criminal justice system, and whether they actually help them through the healing process. There is unfortunately limited information in this area, and going forward it should be a priority to determine what victims think of victim impact statements once they have participated in the process.
Offenders Must Accept Responsibility
It is not necessary for offenders to exhibit feelings of remorse, per say, but admitting guilt and accepting responsibility are requirements to be eligible for most restorative programs and judgements. Despite what some scholars believe, it is unlikely that we will ever be able to have a fully restorative justice system, as some cases simply do not fit the restorative model. Some restorative programs require the offender to plead guilty, while others occur after they have been found guilty by the court.
The requirement that offenders admit guilt and accept responsibility for their actions and the harm those actions caused is a logical one, as neither victims nor offenders are likely to get anything out of a restorative process without first taking this step. However, this raises an important question as to whether this inherently limits the offenders who can be eligible for restorative justice programs because our current system encourages offenders to deny guilt at all costs.
Restorative Justice is only Used in Limited Situations
For a number of reasons, restorative justice programs are limited in their use. This is partly due to the fact that, as mentioned above, not every offender is eligible or appropriate for restorative programs. As well, many restorative programs involve victim participation and that participation must be voluntary, so even if the offender would qualify for a restorative program they might not have the opportunity.
One of the other reasons that restorative justice has a limited scope is because of the cost. Some advocates believe that implementing widespread restorative programs will reduce government spending, which may be true in the long run if repeat offences are reduced, but it is not a guarantee. One of the most important components of restorative programs is the trained facilitators who act as object mediators and who guide the process toward a reasonable and acceptable solution for all parties involved. Without these facilitators, the usefulness of restorative programs would be questionable.
As research has found, “resources flow toward problems, more than prevention, perpetuating reactive rather than proactive strategies” (Gail Ryan, “Preventing violence and trauma in the next generation” (2005) 20:1 Journal of Interpersonal Violence 134). There are some concerns that widespread use of restorative justice programs will dilute their efficacy, but without proper funding it will be very difficult for the principles of restorative justice—namely responsibility and restitution—to have as great an impact as is possible.
Where to Go From Here?
As a leader in the restorative justice movement, Canada is in a unique position. The importance of restorative programs is part of our Criminal Cod, and judges are required to consider their use during the sentencing process for many cases. The need for accurate and accessible information will only increase as more people start to advocate for increased access to the justice system for victims and communities. It is important going forward that educators place the focus on the Canadian justice system and the programs that are currently being run in Canada. Many times, the common information that people have access to is focused on the situation in the United States, New Zealand, or other countries where restorative principles are not part of their Criminal Code. This is fundamentally different than Canada, and it is paramount that the information provided to the public about restorative justice in the Canadian criminal justice system is accurate. At the moment, there are upwards of 70 different programs available for youth and adult offenders in Canada, four of which are National programs.
We are lucky, as Canadians, to have these options available to us and it is important that educators and people in the justice system be aware of their existence so that they can pass along accurate information to those in need of it. It is also important for members of the justice system to push the boundaries of common thinking about restorative justice and continue to advocate for its use outside the spheres of Aboriginal and Youth justice, where it continues to be relegated. In recent years there has been a wealth of research indicating the restorative programs can be effective against all types of criminal behaviour, including repeat and violent offenders (Katherine van Warner, “Restorative Justice as Social Justice for Victims of Gendered Violence: A Standpoint Feminist Perspective” (2009) 54:2 Social Work 107; “Publications” (2014) Simon Fraser University, School of Criminology).
Access to justice will certainly benefit from a greater emphasis on and understanding of restorative justice and the principles that guide it. This access may be different than the traditional ways of talking about Access to Justice, because it will not provide people with any greater access to lawyers. However, restorative justice is more inclusive of victims and communities—groups that have traditionally been excluded from the justice process—and there is a greater possibility with restorative justice for both the victim and the offender to achieve a personal sense of understanding, satisfaction, and justice.
If restorative justice continues to grow in the way that is has over the past thirty years, if the government continues to provide funding for that growth, and if the public is provided with adequate accurate information about the options that are available to them then it is certainly possible that we can overcome the obstacles that still exist and increase access to justice for a great portion of our population.
Are interested in expanding on this research? Please download our Annotated Bibliography and check our sources to help get you started!