Restorative Justice (“RJ”), or what is also sometimes referred to as Transformative Justice, is a contrast to the traditional adversarial justice system. In the adversarial justice system an accused person is represented by a criminal defence lawyer, the public (or the state or the Crown) is represented by a government prosecutor known as Crown Counsel, and those two lawyers are pitted against each other in the court system. The court system is ruled by judges. The system is said to be adversarial because the lawyers on opposing sides have greatly contrasting interests, and generally are required to put the directions of their clients (in the case of the prosecutor the directions of their clients are dictated by policies and political figures) ahead of their own feelings, beliefs and sometimes even common sense, to battle it out against the opposing side.
RJ seeks to remove the adversarial nature of the process, and puts forward a model that aims to repair the harms and restore the balance in the community after a crime has been committed. In RJ even the terms used to describe the parties and events are changed in an effort to modify how the participants view themselves, each other and the process as a whole. Different models of RJ use different terms, but pretty universally the terms victim and offender are excluded from use. The term “person who has been harmed” is often used to replace the moniker of victim. To some people this may seem hokey or airy fairy, and to be honest when I first encountered the term 12 years ago it did to me, but I have come to learn that how people view themselves and the titles that they take on can have psychological consequences that may not seem immediately evident on the surface of things.
The big difference between RJ and adversarial justice is how crime or harm is viewed, and how it is dealt with. In adversarial justice the victim is involved in a quite limited way and the crime is prosecuted on behalf of the government. Strict legal principles apply and ends such as denunciation, deterrence, proportionality and rehabilitation are sought. The needs and desires of the victim are not at the forefront, and are sometimes not even considered, as the crime is seen to be the responsibility and problem of the state. In RJ crime is seen as harming the victim, the community and the offender and thereby also setting off a spider web of effects to others that puts things out of balance. Again, I know this can sound hokey at first, but bear with me. All of the interested parties are included in attempting to resolve the harm and restore balance. The needs of all the parties are seen as important. Lawyers are generally removed from the equation and the parties all work together to find a solution that meets the needs of all.
This will probably all make more sense if I describe what a RJ conference looks like when it is part of a diversion from the adversarial justice system. In some jurisdictions in Canada there is a community-based RJ organization that is authorized to take referrals of criminal cases from that jurisdiction’s police detachment and Crown Counsel prosecution office. If a case is identified by a police officer or prosecutor as being potentially appropriate for RJ they will make contact with the victim, explain RJ to them and ask them if they are willing to be a part of the process. The informed consent and desire to be involved in the Restorative process by all parties is essential. Then, the referring office will contact the offender or his lawyer and explore if the offender is willing to take responsibility for the harm that has been caused (the alleged criminal act). If the offender is willing to take responsibility then the file will be referred to the RJ organization for them to interview the parties and assess their suitability for the process. If the offender is not willing to take responsibility, then the case will proceed through the traditional justice system, as taking responsibility is also essential for RJ to work.
If the case meets the required criteria, facilitators from the RJ group will conduct interviews of all the interested parties and set a mutually agreeable date for a RJ conference. Depending on the RJ group and the type of participation that the victim wants to have, the configuration of the conference can vary but generally it looks like this: In attendance at the conference there will be the investigating officer, the victim with a support person, the offender with a support person, a mentor for the offender, representatives from the community and usually 2 facilitators. When the participants meet they will sit in a circle and the facilitators will lead each party through a series of questions meant to explore how the crime has impacted them, what their role was, what they have thought about during the process and what they want to see come out of the conference. Each party only talks when it is their designated time and usually they are given a couple of chances to speak. After everyone has been taken through the questions, the group sets out to make a mutually acceptable agreement to resolve the matter. All terms of the agreement must be agreed upon by all parties, then it is reduced to writing and signed by all, and a timeframe is set for completion. The offender’s mentor monitors the offender throughout the process to provide assistance, advice and oversight. If the offender complies with and meets all of the terms then the adversarial system charges against her or him are dropped.
This is probably the most common RJ process but there are numerous others as well. A couple of examples include: If the police officer and prosecutor believe that a charge is too serious for an RJ conference referral, but the victim and offender still want to participate in the process there are RJ groups that will facilitate reconciliation conferences after the adversarial process is over. There are also groups that run RJ conferences in schools and train facilitators to run conferences in that setting.
RJ is not for everyone or for every crime, but for the situations where it is the right fit the outcomes can be truly amazing and inspirational. If you would like more information about RJ you can check out the attached links. If you would like more information about RJ in your community, a quick internet search should set you in the right direction.
Simon Fraser University Center for RJ
Communities Embracing Restorative Action
Alternatives to Violence Project
This guest article was provided by Ryan Johnson, a criminal defence lawyer in Vancouver, British Columbia with more than 10 years experience in the Restorative Justice field.
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