RESOURCES, READING LINKS & RELATED ARTICLES
For those wishing to learn more about the history, theory and practice of restorative justice, the following publications provide a variety of perspectives. Howard Zehr, Rupert Ross and Kay Pranis were pioneers in the development of restorative justice, peacemaking circles and efforts to incorporate traditional indigenous practices:
Kay Pranis: The Art of Holding Circle
Kay learned about peacemaking circles from the First Nations people of Yukon. Peacemaking circles have become the center of all of Kay's work:
"The circle became a way for me to see how humans can live more successfully with each other and the natural world, balancing group and individual needs and gifts,"
rupert Ross: return to the teachings
This inspiring book, shortlisted for the Gordon Montour Award for best Canadian non-fiction book on social issues explores the topic of Indigenous justice—and much more. It speaks not only to our minds but also to our hearts and spirits. It explores the search for the values and visions that give life its significance and that any justice system, Indigenous or otherwise, must serve and respect.
Howard zehr: changing lenses: a new focus for crime and justice
Zehr’s book is a must-read for anyone with even a passing interest in matters related to criminal justice. This book is accessible, logical, and challenges the reader to reject the concepts the western justice system is based upon.
In 2004, the BC Ministry of Public Safety and Solicitor General establish a process for developing community based restorative justice programs.
YOUTUBE CHANNEL: heartspeak productions
Producers of award-winning educational videos about restorative justice and other, related topics, Heartspeak Productions provide full access to a wide range of videos through their YouTube and Vimeo Channels
There are two excellent websites for RJ information in the UK:
One is the Restorative Justice Council which provides information about programs, training and many case studies.
The other is RJ4all.
Restorative Justice is recognized and affirmed in a number of UN conventions:
An article that explains the importance of people knowing their right to seek alternate peacemaking processes:
Tarnoff, Richard, Human Rights and Restorative Justice: Obligations and Opportunities, 2018; article available on request.
Restorative Justice has been used successfully for cases of sexual assault and domestice violence in many countries. It is now being explored and developed further in Canada. See:
Burgar, Taryn, Restorative Justice and Sexual Assault: Canadian Practitioner Experiences, University of Victoria, 2015 - Download PDF
Haskell, Lori, and Randall, Melanie, The Impact of Trauma on Adult Sexual Assault Victims, Justice Canada, 2019 - Download PDF
Haskell, Lori and Randall, Melanie, Trauma-Informed Approaches to Law: Why Restorative Justice Must Understand Trauma and Psychological Coping, Dalhousie Law Journal, 2013
Boutilier, S., & Wells, L., The Case for Reparative and Transformative Justice Approaches to Sexual Violence in Canada: A Proposal to Pilot and Test New Approaches. University of Calgary, 2018
In its 2018 Discussion Paper on enhancing RJ in BC, the Community Safety and Crime Prevention Branch reviewed the state of RJ in BC as a step towards increasing the use of RJ across the province.
They also invited comments from stakeholders. Richard Tarnoff submitted these comments.
Response to the Discussion Paper for Stakeholder Engagement
for Enhancing Restorative Justice in BC
Introduction
The discussion paper provides a useful survey of the RJ landscape and a good framework for further discussion and analysis. While all the topics covered in the paper are important, I would like to address the issue of accessibility. In particular, how a focus on rights and relationships could improve accessibility and thereby enhance the use of RJ. In this regard, it is important to remember that traditionally, RJ was never limited to referrals from justice agencies, or indeed any organizations. Peacemaking processes have existed in communities for thousands of years, with “referrals” being made by families, neighbours, or the parties to disputes themselves. Circles were often facilitated by respected elders of the community. It is only now, as we seek to develop alternatives within the criminal justice system, that we seem to have put all the responsibility on justice professionals to decide which cases are appropriate. And then we become frustrated when the “gatekeepers” fail to support the use of RJ. The way out of this dilemma may be to re-frame the conversation around relationships and rights.
Relationships
Building, restoring and maintaining healthy relationships is a fundamental principle of RJ. When offenders are able to accept responsibility for their actions and victims are heard and have their needs acknowledged, damaged relationships between offenders and victims can be repaired. Relationships in the community that have been affected may also be healed.
But the importance of relationships doesn’t end with those directly involved in a crime. Building trusting relationships between clients and RJ service providers is a difficult, but crucial part of the process, particularly with people who have experienced trauma. The relationships between referring agencies with victims and offenders also have implications for healthy outcomes. Obviously there are important relationships that exist between agencies, such as RCMP, VS, CC and judges. And finally,the relationship between referring agencies and service providers is key to enhancing access and having good outcomes. The discussion paper notes that relationships with service providers need to be in place in order for the referral process to work smoothly. A question to consider is whether the Ministry should play a greater role in encouraging and supporting these relationships.
In any event, all relationships require time and trust to develop. And certainly a key to developing that trust is by adhering to the same values that we try to bring to our work; safety, respect, confidentiality, empathy, equality and listening. In the end, we need to remember that it is the relationship that brings about the healing, not the program or the diploma on the wall.
Rights
In the introduction to the Discussion Paper, reference is made to the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP). While UNDRIP doesn't specifically mention restorative justice, it does affirm the “right to promote, develop and maintain their institutional structures and their distinctive customs, spirituality, traditions, procedures, practices and, in the cases where they exist, juridicial systems or customs.” I believe this passage was quoted in the paper because the right to practice traditional legal systems would likely include some form of RJ, such as peacemaking circles. Committing to UNDRIP clearly obligates the province to improve its RJ referral policies. (As it happens, the Province of BC today announced that they were introducing legislation that would ensure that the laws of BC are consistent with UNDRIP.)
The Discussion Paper also refers to rights in the section dealing with Program and Policy Considerations. In section 2. Use of Restorative Justice, the paper addresses the question of accessibility and refers to the Canadian Victim Bill of Rights. In Canada, the Victim’s Bill of Rights (VBR), 2015, amends the Corrections and Conditional Release Act. The Federal Ombudsman for Victims of Crime had this to say about the changes, “Under the VBR, CSC (Correctional Service of Canada) will now be required to inform victims about restorative justice opportunities. Impact: Victims cannot access the services or programs afforded them if they are not aware they exist. Requiring victims to be informed of these opportunities will benefit victims by providing them with information about the choices available to them.”
In other words, it’s not enough to answer questions about RJ. Asking RCMP and/or Victim Service workers to inform victims about the existence of RJ could fulfill the spirit of the VBR and likely enhance the use of RJ. It is crucial, however, that for this to happen, referring parties need to be knowledgeable about RJ and there would need to be RJ programs in place with sufficient expertise and depth to respond to any increase in requests that come forward.
In regard to enhancing the use of RJ for young offenders, the discussion paper refers to the section of the Youth Criminal Justice Act (YCJA) that says alternative measures such as RJ should be used if certain conditions are met. So why is RJ being under utilized? Possible reasons; lack of understanding of the requirements of the YCJA, lack of awareness of offenders of RJ as an option, lack of experienced volunteers in some community programs.
While the YCJA provides the legal basis for police referrals, the UN Convention on the Rights of the Child (CRC), to which Canada is a signatory, provides a more detailed description. Article 40 of the Convention requires States to develop and use effective alternative mechanisms to formal criminal proceedings that respect human rights and procedural safeguards and are child- and gender-sensitive. These alternatives include diversion, restorative justice processes, mediation and community-based programs, including treatment programs for children with substance abuse problems.
Fundamental to the implementation of these alternatives is that people should be allowed to participate in decisions that affect their lives. Article 12 of the UNCRC says, “1. States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child.”
Since criminal procedures are certainly a matter affecting children, children would seem to have the right to request dealing with the matter in a restorative way. The Committee on the Rights of the Child provides its interpretation of the content of human rights provisions through its General Comments. These help legislators, lawyers and advocates understand the underlying meaning of the provisions. In 2007, the Committee stated, “The child should be given the opportunity to express his/her views concerning the (alternative) measures that may be imposed, and the specific wishes or preferences he/she may have in this regard should be given due weight.”
This suggests that the Convention entitles children to be informed about restorative alternatives that exist to legal proceedings. The Committee was more explicit in its General Comment in 2009, stating, “The realization of the right of the child to express her or his views requires that the child be informed about the matters, options and possible decisions to be taken and their consequences by those who are responsible for hearing the child.”
In other words, as with victims, informing offenders about the existence of RJ would create a process that is based on rights. If agencies were to agree that they have a responsibility to inform victims and persons accused of crimes that restorative approaches exist, they would have to be educated in the principles and concepts. Once trained and committed, they would be conforming to the principles underlying the above mentioned rights. Indeed, Paragraph 97 of the 2007 General Comments states, “It is essential for the quality of the administration of juvenile justice that all the professionals involved, inter alia, in law enforcement and the judiciary receive appropriate training on the content and meaning of the provisions of the CRC in general... It should include information on... the available measures dealing with children in conflict with the penal law, in particular measures without resorting to judicial proceedings.”
The discussion paper also recommends educating those responsible for referrals: “Sufficiently trained and aware referral sources are needed to effectively ensure and encourage RJ access.”
Recommendations
The discussion paper asks, “What are the key components necessary to ensure there is accessibility to safe effective RJ options in BC?” If we approach this question from the point of view of rights that are incorporated in Canadian law and international treaties, and the importance of healthy relationships, then key components should include:
Informing victims and offenders of their rights, including information about RJ. This doesn't mean that agencies have to refer any particular case, but it does give victims and offenders information about alternatives they may wish to pursue now or in the future.
Increasing understanding of RJ among justice professionals. Many justice professionals have received minimal training around RJ. Policies differ in different provinces and detachments, and misunderstanding are common.
Example: Some RCMP officers believe it is better to forward charges to Crown, so that in the event the offender doesn't complete their agreement, charges can still go forward. This idea is understandable, but it is based on the belief that this is a common occurrence. It is actually quite rare. It is also based on the assumption that Crown can refer cases to RJ programs. In reality, most programs don’t have MOUs with Crown.
Educating justice professionals about RJ could be an opportunity for RJ service providers to strengthen relationships with referring agencies, but the government must make the commitment to adhere to the spirit of CRC and provide sufficient resources to support in depth training.
The provincial government should provide adequate resources to build and maintain respectful, collaborative relationships between referring agencies, justice professionals and service providers. The discussion paper suggests that MOUs between RCMP and service providers could be an option for improving access. The process of developing the MOUs would likely provide opportunities for working together and establishing a certain level of trust. These personal relationships would likely do more to improve access than the actual MOU. Engaging in a similar process with victim services would likely have similar results. But again, the capacity of service providers to handle increased referrals would need to be addressed.
Thank you,
Richard Tarnoff
Community Circles Restorative Justice Society
Ladysmith, BC
November 8, 2019
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