Re-Thinking Access to Criminal Justice in Canada: a Critical Review of Needs, Responses and Restorative Justice Initiatives

1.The Context and Concepts of Criminal Justice: from Access to Justice to Acccess to Justice

1. The Context and Concepts of Criminal Justice: from Access to Justice to Acccess to Justice

1.1 Introduction

… But I know of no way of assessing to what extent "justice" was done in a sample of cases whether civil or criminal. The question is too elusive, too complex to unravel. It would require knowledge of too many unknowable facts. The concept of justice in legal cases I suspect is too deep for any research project (Zander 2000: 2).

Professor Zander's comments at the beginning of the Hamlyn Lectures in 1999 suggest a need for caution in discussions about the meaning and processes of justice. Describing himself as "an academic lawyer who for many years has been a student of the workings of the legal system and in particular of the system's pathology," Zander examined recent changes in civil justice, criminal justice, and the protection of human rights in the United Kingdom. Although his lectures focused on the legal system and the courts rather than on more fundamental ideas of "justice," he offered a trenchant critique of the new Access to Justice Act, 1999 in the UK and its potential to undermine the accomplishments of the Legal Aid Act, 1949, enacted fifty years earlier. In spite of the title of the 1999 legislation, Zander concluded that the Access to Justice Act heralded major restrictions on access to justice. As he stated bluntly:

The truth is that the [1999] reforms spring not from a desire to improve access to justice but from the Treasury's need to control the budget. The entire new system flows from the decision to cap the budget. This will infect the whole enterprise…. (Zander 2000: 24).

Zander's comments reveal the complex social, political and legal contexts within which current discussions about justice occur. Although he confined his comments to the legal system and the courts in the United Kingdom, and the extent of access to existing legal proceedings, Zander's analysis demonstrates how political goals of limited spending may affect the definition of access to justice goals and their achievement in both courts and other legal contexts.[1] As he suggested, definitions of access to justice in the legal context may have important consequences for social justice as well. Beyond the context of courts and legal proceedings, moreover, Zander's insights about how social and political contexts shape ideas about access to justice are important in assessing current efforts in Canada to envisage justice as "transformative" (Law Commission of Canada 1999).

This chapter provides an overview of some aspects of the context and concepts for this re-thinking of access to justice. It focuses on the challenges identified in the literature about how to seek justice in Canada, rather than merely improving access to current legal processes: that is, how to promote justice rather than merely enable better access to the legal system. The chapter focuses on three aspects of this analysis:

  1. the context of access to justice developments, including the relationship between civil and criminal justice, and recent initiatives in criminal justice;
  2. the public/private dimensions of justice, including issues about resources, capacities, and power; and
  3. the concept of equality in promoting social justice.

1.2 The Context of Recent Access to Justice Developments

Ideas about access to justice in Canada have been significantly influenced by the work of the Florence Access-to-Justice Project, a comparative assessment of initiatives worldwide, which has contributed to more broadly-based conceptions of access to justice (Cappelletti and Garth 1978; Cappelletti and Weisner 1978 and 1979; and Cappelletti and Garth 1979). According to Cappelletti and Garth, there were three "waves" of access to justice reforms: the "first wave" of the movement involved provisions for legal aid; the "second wave" was a group of substantive and procedural reforms which enabled legal representation for more "diffuse" interests including environmental and consumer protection. By contrast, the "third wave" was labelled by Cappelletti and Garth as the "access to justice" approach because of its aspirations to attack barriers more articulately and comprehensively; in their 1978 article in the Buffalo Law Review, they described the "third wave" as building upon the achievements of earlier reforms, but expanding both the goals and the means of achieving them:

This "third wave" of reform includes but goes beyond advocacy, whether inside or outside of the courts, and whether through governmental or private advocates. Its focus is on the full panoply of institutions and devices, personnel and procedures, used to process, and even prevent, disputes in modern society (Cappelletti and Garth 1978: 223).

[The "third wave" encourages experimentation with a wide range of reforms,] including changes in forms of procedure, changes in the structure of courts or the creation of new courts, the use of lay persons and paraprofessionals both on the bench and in the bar, modifications in the substantive law designed to avoid disputes or to facilitate their resolution, and the use of private or informal dispute resolution mechanisms (Cappelletti and Garth 1978: 225).

Although the focus of the Florence Access-to-Justice Project was civil justice, it is possible to identify similar "waves" of developments in the criminal justice context. Thus, recent decades have witnessed "first wave" changes to make legal representation of accused persons more effective (such as legal aid for accused persons); as well as "second wave" changes which have provided improvements to criminal trials (such as requirements of prosecutorial disclosure), a broader range of sentencing options (such as formal cautions and conditional sentences), and some recognition of the impact of criminal activity on victims and communities (such as victim impact statements) (Crawford in Young and Wall, eds. 1996; Roberts and Cole, eds. 1999). In such a context, recent developments in restorative justice for criminal law matters appear to be "third wave" reforms: efforts to use the "full panoply of institutions, devices, personnel and procedures" and experimentation with a wide range of reforms.[2] Moreover, beyond criminal justice, it has been suggested that there is "the possibility of using the substance of conflict as a means of exploring options and establishing responses that are not only acceptable to all parties but develop and strengthen relationships among those involved" in other kinds of conflict (Law

Commission of Canada 1999: 40).[3] From this perspective, new developments in restorative justice in the criminal law context appear linked to "transformative justice" - processes which take account of broader concerns, including traditional civil law matters. In this way, the early insights of the Florence Access-to-Justice Project are connected to new developments in both criminal and civil justice.

1.2.1 The context of civil and criminal justice

This analysis of access to justice initiatives in civil law and criminal law contexts suggests a need to reassess the continuing validity of distinctions between these categories. To what extent should we theorize criminal law and civil law as two quite separate categories of justice responses - or is it more appropriate to think of them as points on a continuum? This question is critical to any assessment of new developments in civil law and criminal law for settling disputes. One response is that actions should be characterized as "criminal" (1) when they involve socially proscribed wrongdoing, that is, when the conduct is such that the community should take a shared and public view, and claim normativity over its members; and (2) when there is someone who is a wrongdoer, a criminal agent, who can be held responsible, that is, who can be called by the community to answer for that wrong (Marshall and Duff 1998). Using this approach, there is a crucial distinction in the processes used to respond to criminal, by contrast with civil, wrongs. In the civil process, the victim is in charge; by contrast,

A "criminal" model puts the community (the state) in charge. The case is investigated by the police; the charge is brought by [the state]; whether it is brought, and how far it proceeds, is up to the prosecuting authority; it is not for the victim to decide whether any decision it produces is enforced…. [There] are two aspects to the criminal model. On the one hand, the victim receives more support from the community than she might under the civil model: she is not left to bring the case by herself. But, on the other hand, she loses control of it: it is no longer hers to pursue or not as she sees fit (Marshall and Duff 1998: 15-16).

Using the concrete example of rape, Marshall and Duff argued that the wrong done to the victim should be regarded, at the same time, as a wrong done to "us" That is, all members of the community share the wrong:

The wrong does not cease to be "her" wrong: but it is also "our" wrong insofar as we identify ourselves with her. The point is not just that we realise that other members of the group are also vulnerable to such attacks, or that we want to warn other potential assailants that they cannot attack members of the group with impunity…: it is that the attack on this individual victim is itself also an attack on us - on her as a member of the group and on us as fellow members (Marshall and Duff 1998: 19-20).

For Marshall and Duff, it is not appropriate to assert that the community has "stolen" the victim's case; they disagree with Nils Christie's classic argument that a victim is rendered mute in criminal proceedings, "reduced to the triggerer-off of the whole thing" (Christie in von Hirsch and Ashworth, eds. 1998: 312). Yet, to the extent that ideas of restorative justice create opportunities for greater involvement by victims in criminal justice processes, and more substantial connection between victims and offenders, it is important at the outset to understand how these developments tend to blur existing distinctions between criminal and civil law processes.[4].

This conclusion does not mean that there will no longer be distinctions between "private" and "public" harms, but it does reveal the necessity for careful attention to the details of the processes[5] designed to promote greater access to justice. Moreover, as will be explored more fully later in this paper, the choice of different examples may affect our conclusions about whether justice goals are achieved. For example, it may be relevant that the rape example used by Marshall and Duff in their analysis of criminal justice processes involves a victim who is female. By contrast, in Christie's analysis of societal conflicts, the pronoun used for the victim is generally male: Christie described the victim in terms of how "he [has] suffered, lost materially, or become hurt," and how "above all he has lost participation in his own case" (Christie in von Hirsch and Ashworth, eds. 1998: 314). Whether, and to what extent, gender may be relevant in assessments of traditional criminal justice or restorative justice practices[6] are questions addressed later in this paper.

1.2.2 The context of goals for criminal justice, punishment, and sentencing

The literature on criminal justice reflects differing perspectives on the goals of criminal justice, perspectives which are important for understanding the context in which current claims for restorative justice are presented. One significant (now classic) analysis of criminal procedure in the trial context was enunciated by Herbert Packer in 1964: the competing models of "crime control" and "due process" (Packer 1964). Packer's model sought to identify the spectrum of policy choices in the criminal process: according to Packer, the crime control model favoured efficient, unhindered decision-making to achieve the dominant goal of repressing crime, while the due process model provided greater protection for an individual accused by limiting and constraining official power (see also Packer 1968). As early as 1970, however, John Griffiths suggested that both of Packer's models represented different forms of the same model, a "battle model" of criminal justice, and Griffiths then went on to formulate a "family model" of criminal justice. According to Griffiths, the "family model" recognized explicitly that criminal activity means that an individual has violated a community-defined norm, but that the violation should not therefore result in demonizing the individual as a "criminal;" rather, a family model of criminal justice focuses on "what the nature of the process accomplishes as well as with the process' fitness to achieve its object" (Griffiths 1970: 391).

As Kent Roach has argued, Packer's efforts to promote a model of due process was significantly limited when later empirical research demonstrated that "in most cases, the criminal process operates as a crime-control assembly line culminating in the guilty plea" (Roach 1999: 21, quoting McBarnet.)[7] As well, Roach argued that due process may actually operate at the level of ideology to provide support for a model of crime control. Moreover, Packer's models presupposed that interests of individuals were always opposed to those of the state; by contrast, Roach suggested that Griffiths' family model "assumed that the state and the accused, like a parent and child, had common interests if only because they continued to live together after punishment (Roach 1999: 25). Significantly, Roach went on to state that the family model, used most often in juvenile justice, was later discounted because of concerns about both due process and crime control; however, he suggested that it is now "being reconceived through family conferencing, restorative justice, and reintegrative shaming (Roach 1999: 25, quoting Braithwaite 1989). As well, Roach noted that both Packer and Griffiths were writing before the rise in concerns about victims' rights, a development which has had a significant impact on processes now being used in the context of both traditional and restorative justice initiatives. In this way, some current practices of restorative justice appear to be linked to earlier debates about appropriate models for criminal justice.[8]

In addition to differences in theoretical approaches to criminal justice procedures, there are also differing theories of punishment and sentencing. Von Hirsch and Ashworth have suggested that during the first six decades of the twentieth century, "rehabilitation was supposed to be an important aim of sentencing. Sometimes, it was said to be the primary aim" (von Hirsch in von Hirsch and Ashworth, eds. 1998: 1). In addition to rehabilitation, however, deterrence goals were also emphasized in relation to sentencing, with the objectives of both deterring individual offenders from reoffending (specific deterrence), and also deterring other citizens who might be tempted to commit crime out of fear of the penalty (general deterrence). Goals of rehabilitation and deterrence share the idea that "punishment is warranted by reference to its crime-preventive consequences" (von Hirsch in von Hirsch and Ashworth, eds. 1998: 44); in this way, they are "forward-looking" theories of punishment. By contrast, since the 1970's, some sentencing theorists have embraced the idea of "just deserts" as the basis for punishment: the idea that "the seriousness of crimes should, on grounds of justice, be the chief determinant of the quantum of punishment" (Ashworth in von Hirsch and Ashworth, eds. 1998: 141). This approach assumes that it is possible to order the seriousness of crimes, and that it is the crime committed, not the offender's need for rehabilitation or deterrence, which should determine the nature of punishment; that is, there should be proportionality so that "the amount of punishment must reflect the degree of harm committed" (Roberts and Cole in Roberts and Cole, eds. 1999: 10). In addition, unlike goals of rehabilitation and deterrence, which take account of the future actions or motives of the offender (and others), the "just deserts" theory of sentencing focuses on the offender's criminal action in the past. Proponents of the "just deserts" theory of sentencing have argued that it conforms to "everyday conceptions of crime and punishment" and that it is closely linked to liberal political theory with its insistence on limiting state power and its conception of autonomous individuals who exercise choices (Ashworth in von Hirsch and Ashworth, eds. 1998: 148).[9]

At the same time, however, others have suggested that a theory of "just deserts" sentencing in an otherwise "unjust society" increases punishment for those who are least able to conform to the ideal of autonomous individuals exercising free choices:

These very robust notions of free will and choice seem far from the mark when one considers the people who fill our courts. Women shoplifting groceries or not declaring to the social service authorities their earnings from early morning cleaning jobs; young burglars who have never had the chance of a job; young mothers who turn a blind eye to the provenance of the money these young men give them to provide for their children; even the joyriders for whom performing in a car may be the only free source of excitement and esteem - the offences may be dangerous, over-prevalent and may destroy the quality of life for their victims, but it is difficult to imagine the perpetrators as making positive, unconstrained choices to be criminal. If given a choice between a "real job" and crime, the majority would undoubtedly take the job (Hudson in von Hirsch and Ashworth, eds. 1998: 206-207).

Such a view raises questions about the extent to which the "just deserts" theory of punishment fails to acknowledge sufficiently the extent to which crime and punishment - and the process of defining and processing those who commit crimes - have political and social dimensions, not just legal definitions. As Cappelletti and Garth concluded in their earlier study of access to justice, "a real understanding of access to justice … cannot avoid some political perspective" (Cappelletti and Garth 1981: xvi). Thus, in attempting to shape appropriate ways of responding to the challenge of ensuring access to justice now, it is arguable that we need to take account of current trends to increase criminalization (Young in McCamus, Ontario Legal Aid Review 1997: 666), especially for the poor: panhandlers, squeegee kids, homeless persons (Sossin 1996: 623), welfare mothers (Cahn 2000: 817), and poor families (Vreeland 2000: 1053). To what extent do principles and processes of restorative justice respond to these kinds of "criminal" activities? How will new sentencing options such as conditional sentencing affect actual rates of incarceration or public perceptions of rates of criminal activity? As Doob argued in a related context, if only aboriginal offenders with ties to a community can access sentencing circles: "what does this mean for the offender who is simply a visitor in the community? Do visitors automatically deserve harsher sentences than those offenders who have ties to the community?" (Doob in Roberts and Cole, eds. 1999: 353). Although the concept of community has been recognized as broader than geography, [10] its scope nonetheless remains somewhat discretionary. Overall, therefore it is hard to disagree with the assertion that ideas about crime and punishment are complex, requiring difficult decisions of public policy (Doob in Roberts and Cole, eds., 1999: 350).

According to Cooper and Chatterjee, the current criminal justice system in Canada is still premised on the idea of punishment for wrongdoing, and a variety of justifications have been suggested: deterrence, maintenance of the social order, reinforcement of state or societal values, denunciation, the promotion of public safety, the need to remove the individual from society for a period of time, rehabilitation, social control, retribution, and ensuring that the offender knows that he or she has done wrong (Cooper and Chatterjee in Canadian Institute for the Administration of Justice 1999: 2). This traditional approach to criminal justice is significantly different from the concept of restorative justice, which assumes that wrongdoing reflects disassociation with the community, and that the appropriate response is to try to reintegrate the offender into the community by re-establishing a positive relationship. According to Braithwaite, imprisonment has a negative impact on offenders: prisoners not already immersed in a criminal sub-culture or versed in criminal skills are introduced to both during terms of imprisonment, and they may become embittered or angry, give in to feelings of despair, and find themselves distinctly disadvantaged in finding employment after they are released. As a result, imprisonment does not result in the internalization of appropriate community-centred norms (Braithwaite 1999: 1739). In this context, Cooper and Chatterjee identified a need for a new kind of justice, one that offers:

… fair, insightful and respectful participation of and treatment to all stakeholders that maximally benefits and satisfies the people in communities. Justice in this paradigm is no longer synonymous with loss or pain inflicted by the state. [Restorative justice] measures success [of the justice system] differently; rather than how much punishment has been inflicted, it measures how much harm has been repaired and prevented (Cooper and Chatterjee 1999: 4; citing Van Ness and Strong 1997: 42).

A restorative justice approach thus recognizes a relationship between offenders and the societal context in which they offend; as John Braithwaite argued, the traditional emphasis on punishment in response to wrongdoing represents "a failure of imagination" (Braithwaite 1999). He supports a return to the period prior to the 1970's when the crime debate focused more on prevention strategies than punishment, and a search for solutions which reduce "hurt" to individuals and their communities; these approaches are more likely to aid in crime prevention. Braithwaite asserts that strategies of restorative justice (circle sentencing, family conferencing, and victim/offender mediation) are designed to provide "reassurance" to communities in relation to the commission of criminal acts. This emphasis on justice that "restores" offenders, their victims, and communities (Llewellyn and Howse 1998) thus offers a solution to those who believe that the greatest failure of Canada's criminal justice system has been its persistent and fruitless use of imprisonment as an instrument to deal with criminal behaviour (Quigley in Canadian Institute for the Administration of Justice 1999).

1.2.3 The context of restorative justice in Canada

Restorative justice featured prominently in proposals to reform the criminal justice system in the last decades of the twentieth century, both in Canada and elsewhere. At the same time, proponents of restorative justice practices have claimed that they represent a return to much earlier conceptions of crime and criminal processes, particularly processes for more significantly involving the victim. Thus, Martin Wright explained how victims may have fared better in the Middle Ages, when they were more directly involved in the process with the offender; as well, victims were entitled to receive specific compensation (the "bót") from the offender, while the King or other lords might claim the "wer" or "wite" (Wright 1996: 11-19). In later centuries, with the centralization of criminal law processes, the state's increasingly central role in prosecuting offenders for their criminal activity substantially limited the victim's role in relation to both conviction and sentencing of the offender (Christie in von Hirsch and Ashworth eds. 1998: 312). As a result, many of those who support restorative justice as a means of achieving the goal of greater victim involvement in the process and victim entitlement to restitution characterize restorative justice as a more recent manifestation of earlier forms of English justice (Llewelyn and Howse 1998). Proponents also point to comparative law; for example, the French Civil Code has long permitted victims to join their tort action against an offender to the state's criminal action. Although this approach limits the victim's participation in theory to issues of restitution, it has been suggested that the procedure allows victims to participate in all critical stages (Waller 1988: 11, citing Vouin 1973).[11]

Another strand of restorative justice characterizes the commission of crime in terms of interpersonal or community conflict, so that the goal of restorative justice is the resolution of the conflict. In such a context, the consent of victims, offenders and community members to engage in discussion to find a solution to the conflict clearly operates to bind all of the participants to the outcome; restorative justice proponents often link goals of non-recidivism to the use of these procedures which operate by consent rather than (as in the traditional criminal law context) by coercion. In using mediation and negotiation to resolve disputes, rather than traditional criminal law processes, restorative justice provides opportunities for participation and empowerment for those involved in criminal law, just as alternatives to traditional civil law disputes may similarly provide opportunities for parties to engage in more consensual problem-solving.[12] Clearly, the use of methods of dispute resolution outside the court system illustrate additional connections between civil law and criminal law processes, although they may also raise questions in these differing contexts.[13] As well, restorative justice procedures also frequently involve arrangements for providing ongoing support to both offenders and victims, using measures that might have been adopted in earlier decades of the twentieth century to achieve rehabilitative sentencing goals.

This analysis suggests that ideas about restorative justice are not wholly new to debates about crime, punishment and access to justice. In considering its current manifestations, therefore, it may be important to understand restorative justice within its historical context. Moreover, the term "restorative justice" may be used to encompass a variety of practices, including arrangements which provide for victim participation, community involvement in dispute resolution, rehabilitative goals, restitution, etc. - but not necessarily all of these features in any one process. In this way, there is a need to consider the social and legal context within which particular restorative justice programmes operate, and the precise consequences of the blurring of boundaries between processes of criminal and civil justice in individual cases. In addition, the cultural context of restorative justice is critical. That is, it is important to recognize that the strongest impetus for restorative justice processes in Canada derived from concerns about the application of Eurocentric ideas of crime and punishment to First Nations offenders and communities (McNamara 2000: 61), and the extreme over-representation of aboriginal men and women in prisons (Rudin in McCamus, Ontario Legal Aid Review 1997: 441). Significantly, processes of restorative justice are often identified as "aboriginal justice" processes: they involve circles which bring together the offender, the victim, their families and their communities with the objective of "healing" all of the participants.[14] The process is not dominated by professionals but by community elders, and there is no premium on efficiency and finality; as well, "because there is no binary verdict, the offender's past victimization and present disharmony can be recognized as the reason for an offence without denying the needs of the immediate victim or the responsibility of the offender" (Roach 1999: 251). The aboriginal justice approach thus recognizes the need to address both past abuses and future prevention measures.

In concluding this overview of literature on access to justice, crime and punishment, there are two further cautionary comments. One is the need to examine how well reform goals are actually implemented in practice, particularly in a context where there are pressing needs for immediate evidence of change; the possibility of "gaps" between reform goals and their implementation in practice (Nelken 1981) may also be exacerbated by pressures of instrumentalism (Macdonald 1992: 39). Especially in the context of high volumes of offenders and minor offences, processes of restorative justice may be vulnerable to the same pressures to demonstrate efficiency and effectiveness (in terms of numbers and outcomes) which now apply to criminal courts. As the Law Commission's Discussion paper concluded, the use of restorative justice programmes may reduce court congestion and decrease the numbers of offenders who are incarcerated, thereby reducing costs. Yet, while these features are consequences of restorative justice for its proponents, "for governments these consequences become goals" (Law Commission of Canada 1999: 35). As a result, there is a need to assess the impact of restorative justice programmes, not only in terms of their own objectives but also in relation to their impact on broader goals of access to justice for Canadians.

Second, there is a need to be somewhat wary of the goal of community harmony in the context of restorative justice. As Nader has argued in the American context:

For those spearheading control policies harmony is an ideology of pacification and a way to civilize populations…. [It] is by means of harmony, a harmony based on the belief that everyone should share the same goals, [that] goals that are central to the contemporary large-scale institutions [are achieved]. Harmony and efficiency ideologies are tools, used to create different cultural forms (Nader 1988: 285).

In the same way, Crawford expressed concern about "alternatives" to traditional criminal proceedings in the United Kingdom, both because of their abandonment or dilution of procedural protections, but also because of the limited extent to which they can realistically guarantee voluntariness, agency and voice to the parties, features which are central to their normative appeal and to the goal of achieving harmony and reconciliation among participants. According to Crawford, the increasing "managerialism" of criminal justice, which stresses efficiency, effectiveness, economy and the smooth management of increasing case-loads, means that these fundamental goals of restorative justice models may be undermined or substantially distorted (Crawford in Young and Wall, eds. 1996: 313-314).[15] In this context, issues about models of criminal law as "crime control" reappear, at the same time as traditional protections of "due process" may be more difficult to assert or enforce. Thus, concerns about the underlying values of community harmony must be addressed in any analysis of emerging trends in access to justice; they also signal important issues about public and private conceptions of justice, and about equality in relation to social justice. These issues are addressed in the next sections.


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