Tansi Nîtôtemtik,
Numerous attempts to reform Canada’s criminal justice system have been made over the last 25 years in response to issues such as systemic racism and overrepresentation. Of these reforms, one of the most prevalent is the incorporation of restorative justice (RJ) practices into existing enforcement, judicial, and correctional systems. RJ has gained widespread popularity and yielded positive results in certain settings. However, when RJ is embraced without caution and a critical eye, there are troubling implications.
Correctional Service Canada defines RJ as “a non-adversarial, non-retributive approach to justice that emphasizes healing in victims, meaningful accountability of offenders, and the involvement of citizens in creating healthier, safer communities.”[1] These principles are in contrast to those of punishment and deterrence (upon which decisions and sentences are traditionally built in the realm of Canadian criminal law).
Perhaps because of its semi-relational elements, RJ is often considered as equivalent to, or at least deriving from, Indigenous legal traditions. Importantly, Indigenous laws and RJ must not be conflated.[2] The tendency of RJ advocates to do so is evidenced by language like ‘traditional’ and ‘holistic,’ but these terms are over-simplistic and pan-Indigenous. They erase the dynamism and nation-specific nature of Indigenous laws. It is possible for models of Indigenous justice to include restorative elements, but RJ is merely a drop in the bucket when it comes to the options for response housed in a given Indigenous legal system.
Although not as varied as Indigenous laws, RJ practices also come in more than one form. RJ exists in restitution programs, mediation, conferencing, elder or community reparation boards, and sentencing circles. With a focus on creating “a process that allows for open dialogue between the victim, offender, and the community,”[3] key elements of RJ mechanisms include:
- providing victims with an opportunity to tell their story in a potentially less antagonistic space;
- providing offenders with an opportunity to take responsibility for their actions; and
- empowering communities to better understand the root causes of crime and in so doing arrive at possible preventative measures.[4]
In the realms of minor property damage, or criminal acts related to possession, trafficking, or use of prohibited substances, RJ practices are a seemingly low-risk/high-reward alternative to incarceration. When it comes to crimes of physical and sexual assault, however, RJ is a far riskier undertaking. And yet, RJ is frequently used to deal with cases of violence in Canada – including cases of intimate violence, or the “physical, sexual, emotional, financial, psychological or spiritual abuse by adult males of adult female partners in intimate relationships.”[5]
Arguments against the use of RJ in these cases focus on the shortfalls of non-punitive legal action. RJ can lend to the normalization of violence if offenders are left within the community. Restorative models of justice often “fail to physically protect victims from abusers”[6] and can make victims “feel primarily responsible for the violence they experience.”[7] In smaller and more isolated communities, victims may also be more susceptible to coercion and more likely to be forced into forgiving or forgetting before they are ready. All of this is to say that RJ is neither a safe nor effective means of addressing violence – especially violence that is gendered. A better alternative is to consider Indigenous laws, an option that we consider in full in an upcoming section.
For the rest of this week, we continue to explore other areas of struggle and of hope in the context of criminal justice. Don’t miss out!
Until next time,
Team ReconciliAction YEG
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[1] Correctional Service Canada, “About Restorative Justice” (2014), online: http://www.csc-scc.gc.ca/restorative-justice/003005-0007-eng.shtml [CSC].
[2] Emily Snyder, Val Napoleon and John Borrows, “Gender and Violence: Drawing on Indigenous Legal Resources” (2015) 48:2 UBC L Rev 593 at 599 [Snyder et al].
[3] CSC, supra note 1.
[4] Ibid.
[5] Angela Cameron, “Stopping the Violence: Canadian Feminist Debates on Restorative Justice and Intimate Violence” (2006) Theoretical Criminology 10:1 49 at 60 [Cameron].
[6] Ibid, at 54.
[7] Snyder et al, supra note 2 at 616.
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Great article on an often misunderstood concept by the mainstream.
Posted by: Lorraine Arcand | November 07, 2017 at 12:11 PM
Thanks, Lorraine! Indigenous laws are so much more than they're given credit for.
Posted by: ReconciliAction YEG | November 07, 2017 at 02:05 PM