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

3. Challenging the Mainstream: Approaches to Increasing Access to Criminal Justice

3. Challenging the Mainstream: Approaches to Increasing Access to Criminal Justice

3.1 Introduction

In this Chapter we concentrate on the substantive responses to the questioning about and criticisms of the mainstream legal system discussed in Chapter 1.0, "The Concepts and Context of Criminal Justice: From Access to Justice to Access to Justice," and to the needs identified in Chapter 2.0, "Re-Assessing 'Needs" in Relation to Access and Justice." In discussing concepts and context, we identified the following issues raised by the current state of criminal justice: the appropriateness of the contemporary or modern distinction between civil and criminal justice; the implications of the public/private dimensions of justice; and the extent to which the criminal legal system is based on, recognizes or is able to respond to equality concerns. This last issue – equality – leads us to Chapter 2.0. There, in reassessing needs, we suggested that the concept of "needs" should encompass more than "legal needs" to include those related to poverty, gender, race, age and similar factors and, in a related way, to the needs of offenders, victims and communities. In this section, we consider how the responses are characterized both by a recognition of shifting boundaries between civil and criminal justice and between the public and private and by the necessity of incorporating an understanding of needs. In Chapter 4.0, we will return to these issues in a more critical way, asking not only whether the responses are able to answer the criticisms leveled at the mainstream system and whether they adequately incorporate equality considerations, but also whether they raise concerns of their own.

Specifically, we consider transformative justice, restorative justice and specific forms of the latter, namely victim-offender mediation, family conferencing and circle sentencing. In addition, however, it is useful to refer to some of the individual responses which have been put in place or have been considered in the literature; we have followed Van Ness in calling these initiatives "piecemeal" (1993: 257). We emphasize that "piecemeal" in this context does not mean "minor" or "insignificant," but rather reflects a lack of challenge to the most fundamental principles of the mainstream system as we identified them in our discussion of "The Concepts and Context of Criminal Justice" (treating crime as an offence against the state for which the offender must be punished following a finding or admission of guilt in an offender-centred adversarial system involving for the most part the offender and the state).

We begin with a discussion of the most "radical" conception of access to criminal justice.

3.2 Transformative Justice

"Transformative justice," an ambitious alternative to the existing civil and criminal legal systems, has as its goal the transforming of the system, the participants and their conflict. With respect to civil disputes, transformative mediation is directed at transformation of the parties' perceptions of each other and of their dispute (Bush and Folger 1994). This kind of mediation is said to provide an opportunity for the parties' moral development, as well as social change more generally. Its goals are to empower the parties and mutual recognition of their situations and "common human qualities" (Bush and Folger 1994: 84-85). In the criminal context, transformative justice poses a challenge to the conception that law's function is to provide "rules, procedures and institutions that facilitate just interactions between people," and to achieve "justice" "by controlling socially inappropriate behaviour that reveals itself in conflict." As one commentary declares, "the power of transformative justice [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" (Law Commission of Canada 1999). Conflict becomes a means by which the specific parties and society in general may change significantly and in that sense is potentially transformative.

Transformative justice envisions a radical new way of characterizing problems which in turn attract new responses. Thus if we define drugs as a criminal problem, we will apply criminal responses to it, with a primary emphasis on convictions for using or selling illegal drugs; if it is defined as a health problem, however, responses would emphasise prevention (Law Commission of Canada 1999). Once problems have been characterized as criminal, they are addressed within the criminal framework which in its retributive form means that wrongdoing is determined through a legal duel between the accused and the state, with particular emphasis on the rules which protect the accused; the victim is treated less as a participant than as a witness; the process is segregated from the community and historical context; and the object is to determine guilt and punishment (Kwochka 1996: 158; Delgado 2000).

It is useful to identify transformative justice as a distinct approach in order to highlight the sea change it would bring to our understanding of the concept of "justice," as well as the comprehensive changes required in both the civil and criminal systems. Nevertheless, there are those who view restorative justice as sufficiently challenging to the mainstream system as to be properly characterized as "transformative." In our view, such a characterization is premature. The concept and practice of restorative justice are broad, some would say too lax to be meaningful, and apply within the current system. We think that it would be a mistake to define restorative justice as necessitating transformation.

In practice, few, if any, restorative justice projects have achieved the power to transform either the criminal justice system or society, regardless of its perceived potential to do so. It responds to the mainstream's designation of acts as criminal and while it may affect the outlook of individuals or their relationship with each other, it is rarely directed at systemic transformation. Accordingly, while it may have the potential to transform, we disagree that its recognition of persons rather than laws is sufficient to support a claim that restorative justice is "inherently transformational" (Van Ness and Strong 1997: 175 (emphasis added)).

It is also important to maintain a distinction between "transformative" and "restorative" justice for another reason. As Kwochka points out, the latter assumes a pre-existing positive relationship while in fact the "original state [might have been] disrupted and dysfunctional," while transformative justice "suggests the ability to actually create change in individuals, families, and communities" (1996: 197, citing La Prairie 1994). For purpose of the following discussion, restorative justice will be treated as a distinct approach to the criminal legal system rather than as either a synonym for or sub-category of transformative justice.

3.3 Restorative Justice

3.3.1 Introduction

First referred to in 1977 (Marshall 1998, crediting Barnett 1977; Llewellyn and Howse 1998 and Van Ness and Strong 1997: 24, crediting Albert Eglash 1977), restorative justice is the predominant theme in the current literature and in government initiatives for increasing access to justice for offenders, victims and communities. Its proponents offer restorative justice as a preferable alternative to the current system on both efficacious and ethical grounds (Andrews, Zinger et al 1990; Gendreau and Goggin 1996; Kwochka 1996; Bonta et al 1998; Lewellyn and Howse 1998; Braithwaite 1999; Gay 2000).

As we indicated in Chapter 1.0, restorative justice recalls earlier systems, western and non-western, non-state (or acephalus) and state societies, which were identified with community-based justice and is contrasted with the state-centred, retributive justice system developed between the eleventh and twelfth centuries and the nineteenth century in western regimes (Llewellyn and Howse 1998; Weitekamp 1999); Blakely and Bumphus (1999) also discuss citizen policing in the United States and England as an example of community based justice. Victim offender mediation is generally considered to constitute the beginning of contemporary efforts at restorative justice, but initial victim-offender mediation programs during the late 1970s in Europe and North America, often begun in faith communities, tended to remain distinct experiments serving as an alternative to sentences, however, since the main objective was reparation to the victim. According to Braithwaite (1999:1743), "[r]estorative justice became a global social movement [only] in the 1990s as a result of learning from indigenous practices of restorative justice the ways in which individualistic Western victim-offender mediation was impoverished." The major differences between indigenous and western practices were the role of the community and the significance of remorse and forgiveness (Braithwaite 1999: 1743, 1744). According to Braithwaite (2000: 1), Canada has taken a leadership role in applying restorative justice principles. Canadian commentators have observed that "[t]he rise of restorative justice in Canada both in practice and public rhetoric has been quick" (Roach 2000; also see Griffiths and Corrado 1999: 273).

It has been observed that "it may … be doubted whether any unified 'restorative justice' movement exists," since "there appear to be a number of apparently similar, yet independent, 'alternative justice' movements and philosophies," using different names including transformative justice, peacemaking criminology, relational justice and community justice" (Bazemore and Walgrave 1999: 46). On the other hand, Weitekamp (1999: 75) maintains that the terms "restitution, reparation, compensation, reconciliation, atonement, redress, community service, mediation and indemnification" all "can be united under the umbrella of restorative justice." Kurki (2000: 263) has suggested that since the 1970s, restorative justice "has evolved … to a comprehensive approach toward crime." Other terms used to capture the same approach include "relational justice," "positive justice" and "reintegrative justice" (the last involving Braithwaite's concept of reintegrative shaming to which we refer below). We use the more common label of "restorative justice" (Van Ness and Strong 1997: 25; Marshall 1998) which is widely understood to represent a particular approach, albeit broadly defined and applied, to addressing wrongdoing or "crime."

Restorative justice treats crime as an interference or breach of a relationship, whether that is a relationship between individuals who know each other or a relationship which is implicit in living together in society (Price 1997; Lewellyn and Howse 1998). It replaces retribution, described as "revenge formalized by the state" (although "less emotional, more rational and more socially constructive than [private] revenge") (Law Commission of Canada 1999) with restoration of the relationship. The intent is to restore the moral balance disrupted when one person offends against another person or against property.

Restorative justice also challenges the adversarial model on which the criminal justice system is based and offers as a replacement "a consensus approach to justice" (Law Commission of Canada 1999). This is similar to the "alternative dispute resolution" or problem-solving consensus approaches in the civil context (British Columbia Ministry of the Attorney General 1998). In the criminal context, the current system focuses on a snapshot of the victim-offender relationship, that is on one particular act, while in reality the particular offence may be only the most immediate result of an on-going conflict which requires redressing (Law Commission of Canada 1999).

Although we have suggested it would not be appropriate to treat restorative justice in its current state as "transformative justice," it has been argued that there is "a strong connection between restorative justice and social justice;" although it can have harmful effects on social justice, it also may address some of the needs of the poor by, for example, at least reducing harms such as joblessness pursuant on imprisonment (Braithwaite 2000: 186, 191). Restorative justice may be best seen as part of a broader restorative project, as some commentators are beginning to question whether restorative justice can by itself transform justice, since justice cannot be viewed separately from society as a whole. Thus Mills and Schacter (2000: 1) propose using the term "restorative governance" to indicate that criminal justice cannot transform society or "restore the balance in society," but can at best play a "small role" in a process of governance of society in the larger sense (also see Van Ness and Strong 1997: 23). Braithwaite and Parker (1999: 105) argue that a "republican" restorative justice based on non-domination and equality principles must go beyond the individual offender and victim to deal with underlying causes of conflict in the community (such as racism as a cause of bullying in a school).

Thus restorative justice has been described as "'a revolution in criminal justice,'" (Umbreit and Coates 2000, citing Zehr 1997) and "a paradigm shift" (Umbreit and Coates 2000, citing Van Ness 1997), one which goes beyond how we think about crime and conflict to how we think about ourselves collectively as a society (Archibald 1999: 522). It is a "framework for thinking about and responding to conflict and crime, rather than a unified theory or philosophy of justice" (Law Commission of Canada 1999), relating to both process and outcome (Umbreit and Coates 2000), although it has also been described as "a philosophical approach to responding to crime" (British Columbia Ministry of the Attorney General 1998: 4) and "a comprehensive and coherent theory of justice" which must nevertheless be viewed as a "partial theory" in conjunction with other theories (Roach 2000). Van Ness and Strong (1997: 5) suggest that restorative justice is a pattern of thinking which permits us to incorporate otherwise troublesome "data" about crime which the older pattern (which "channels us to see crime as law breaking, to focus our energies on the offender and to value punishment when it deters, rehabilitates, incapacitates or denounces") does not. Nevertheless, the term is also used loosely to apply to "alternative" approaches to the conventional criminal legal system and it is important to ensure that the particular – and peculiar – characteristics of restorative justice are identified (Llewellyn and Howse 1998). Distinguishing between the revolutionary and more limited objectives of or expectations about restorative justice requires an understanding of its principles and characteristics.

3.3.2 Principles and characteristics of restorative justice

The term "restorative justice" does not refer to a particular process, but a set of principles and may be defined as "a process whereby parties with a stake in a specific offence resolve collectively how to deal with the aftermath of the offence and its implications for the future" (Braithwaite 1999: 1743; also Joseph 1996; Marshall 1998; Nova Scotia Department of Justice 1998).

Lewellyn and Howse (1998)'s comparison of the "three main theories of justice [which] comprise most of the contemporary terrain: justice as restitution, corrective justice and retributive justice" is a good place to begin. While restitution may be an element of restorative justice, the two should not be seen as synonymous. Restitution may also be incorporated into the conventional system when the offender is required to return what he or she has taken or otherwise pay back the victim (Van Ness and Strong 1997: 92). Restitution and restorative justice both involve the victim, but the latter does so within the context of the relationship between the victim and the offender and the community. Furthermore, restitution generally fails to take account of the non-material harms suffered by the victim; yet these psychological or "spiritual" harms may actually be more important than the quantitative losses under restorative justice processes. In other words, restorative justice is not about paying reparations in the sense of compensation, but about "'righting wrongs'" in the broad sense or "healing wounds" (Law Commission of Canada 1999). Corrective justice does take account of the non-material harms, but does so by making a transfer from the wrongdoer to the victim; yet, as Llewellyn and Howse (1998) point out, making the offender worse off does not necessarily make the victim better off or remedy the injustice she or he has suffered.

Retributive justice, like restorative justice, aims to establish or reestablish what Llewellyn and Howse (1998) call "social equality between the wrongdoer and the sufferer of wrong," but it does so through punishment. Restorative justice, on the other hand, "problematizes the issue of what set of practices can or should, in a given context, achieve the goal of restoring social equality" and determines the answer through dialogue among the wrongdoer, the victim and the community. The participants are encouraged to recognize "the Other in her/his individuality," not merely in generic category of wrongdoer and victim (Hudson in Ashworth and Wasik, eds. 1998: 249). This recognition of "Other," we note, is at the core of transformative mediation in the civil context. Mediation provides an opportunity for the parties' moral growth and mutual recognition of each other's condition (Bush and Folger 1994: 81) Such recognition must include acknowledgement that the wrongdoer also experiences harm, argue Llewellyn and Howse (1998), requiring a commitment by the community not to stigmatize the wrongdoer.

According to Bazemore and Umbreit (1999: i), restorative justice "emphasizes one fundamental fact: crime damages people, communities, and relationships. If crime is about harm, a justice process should therefore emphasize repairing the harm." Furthermore, it involves "seeing crime problems in their social context" (Marshall 1998, emphasis in original). Restorative justice is relational rather than individual and contextual rather than abstract (Llewellyn and Howse 1998). The phrase "balanced and restorative justice," captures the idea that restorative justice constitutes a return to or development of harmony or equilibrium within the mainstream setting of parole: balance means "the restoring of victims and their respective communities at large, while at the same time maintaining a focus on the risks and needs of the offender" (Lewis and Howard 2000: 40). Llewellyn and Howse (1998) point out that "[w]hile the beginning point of restorative justice is a state of wrong that has disturbed the relationship between the wrongdoer and the sufferer of wrongdoing, its endpoint may be quite different than the status quo ante" (also see Kwochka 1996: 157).

Because restorative justice begins with the premise that crimes are not merely or even most importantly "transgressions against the state," but rather "the rupture of a relationship between two or more people," in contrast to the mainstream system, it places the offender and the victim, along with the community or communities of which they are a part, front and centre in the resolution of the problem represented by the criminal activity (Law Commission of Canada 1999). It takes a "holistic" approach to crime, one which recognizes the interrelationship between offender, victim and community and that the goals of each may attract at least some shared solutions. It involves the offender as an active participant in addressing the problem represented by his or her offence rather than as a passive recipient of sanctions imposed by the law. It sees the victim less as a witness on behalf of the state than as someone who may be witness to the restoration of her or his own situation and that of the offender in the community. The community becomes both actor and place of reintegration of both offender and victims (Van Ness and Strong 1997: 111-112). Indeed, "building community" has been described as "the true test" of restorative and community justice (Bazemore and Umbreit 1999). According to Braithwaite (1999a)

Restorative justice means restorating victims, restoring offenders and restoring communities. These objectives take priority over punishment. Key values of restorative justice are healing rather than hurting, respectful dialogue, making amends, caring and participatory community, taking responsibility, remorse, apology and forgiveness. Restorative justice is also a process that involves bringing together all the stakeholders – victims, offenders and their friends and loved ones, representatives of the state and the community – to decide what should be done about a criminal offence. (Emphasis in original)

The language used in each system is revealing: rather than "proportionality, certainty and severity," the words of the mainstream criminal legal system, restorative justice employs terms such as "[h]ealing, contrition, forgiveness, growth and development" (Llewellyn and Howse 1998), as well as "reconciliation, negotiation, vindication and transformation" (Van Ness and Strong 1997: 181).

Llewellyn and Howse (1998) identify the main elements of restorative justice as voluntariness and truth-telling (reflected in an "imperative of personal narrative"), a process which requires the perpetrator to admit wrongdoing and through which all the participants seek an "intersubjective truth." The notion of "encounter" has been called "one of the pillars of a restorative justice approach to crime" (Van Ness and Strong 1997: 68, 77-78). In the mainstream system, rules of evidence and the involvement of lawyers, the absence of primary and secondary victims and the accused's lack of understanding about how the system works, militate against an encounter between the offender and the victim (Van Ness and Strong 1997: 68). Although Llewellyn and Howse (1998) emphasize that the encounter must be face-to-face "confrontation and challenge," the importance of this requirement is somewhat diminished by their acknowledgement that if one party does not want to participate or both parties do not want to meet face to face, a communicator may be used as a go-between. Another alternative is "victim-offender panels" which bring together groups of unrelated victims and offenders with the intent of informing the offenders about the impact of their wrongdoing (Van Ness and Strong 1997: 74). In Minneapolis, panels of neighbourhood residents meet with offenders charged with soliciting prostitutes and develop a sentence (Lerman 1999: 20).

Messmer and Otto (1992: 2) explain that under restorative justice, "[r]eparation should encourage the integration of victims into legal proceedings as individuals with justified claims;" the victim's right to reparation supercedes punishment of the offender by the state. The emphasis for offenders is accountability. The procedures by which the offender and victim reach agreement about reparations must be fair, characterized by "voluntariness, equality of treatment, as well as the chance to disagree". The community is to be involved in helping to integrate the offender into society. (emphasis in original)

Restorative justice contemplates the reintegration not only of the offender, but also the victim, into society, since often the victim feels stigmatised by the crime. For reintegration to be successful, the victim or offender and the community must respect each other, must commit to each other and must have "intolerance for – but understanding of – deviant behavior" (Van Ness and Strong 1997: 120).

Some commentators maintain that restorative justice processes provide an opportunity for forgiveness of the offender by the victim. Enright and Kittle (2000: 1630) view forgiveness as "a merciful act of giving a gift to someone who does not necessarily deserve it;" it is not a substitute for justice, since regardless of whether the victim has forgiven the offender, "the offender still has a debt to pay, whether to the victim, to the state, or both." Worthington (2000: 1731) suggests that although forgiveness occurs within the victim and cannot be achieved by the justice system, "[f]orgiveness is more likely with restorative justice than traditional justice." Even so, this is a "grudging forgiveness, which satisfies the grudge by helping the victim feel free of hate and righteously magnanimous for granting mercy" (Worthington: 1730). On the other hand, Lerman (2000: 1674) maintains that restorative justice principles "provide a theoretical and programmatic background for forgiveness to become a part of the lexicon of the United States criminal justice system. Proponents of forgiveness affirm that it does not necessarily mean either condonation (Enright and Kittle 2000: 1623) or forgetting, but rather viewing the offender as part of the human community and "committing to deal with him [sic] again" (Meyer 2000: 1523, 1524).

More prosaically, the British Columbia Restorative Justice Framework identified seven principles which could equally characterize less purportedly "new" initiatives: awareness and involvement of the public; accessibility at every stage of the justice process; inclusiveness; public safety; procedural fairness and equitable settlements and agreements; redressing of significant power imbalances; and cost effectiveness (British Columbia Ministry of the Attorney General 1998: 7).

3.3.3 Relationship with the mainstream system

There is some debate about the extent to which restorative justice should – or can – co-exist with the mainstream system. Llewellyn and Howse (1998) go so far as to argue that restorative justice should replace the current system. Most such proponents of a single system concede the necessity, albeit not the desirability, of a dual system during a transition to a full restorative justice model, even while acknowledging that in a restorative system it may be necessary to deprive some offenders of their liberty for the protection of the public in narrowly defined cases (Wright 1992: 52).

Most commentators recognize or concede that restorative justice will not always be appropriate or effective and that it must be "backed up" by more traditional approaches, such as punishment, including imprisonment or, more generally, "incapacitation" (Wright 1992: 530; Kwochka 1996: 167; Braithwaite 1999: 1742). Braithwaite's examples of incapacitation other than imprisonment include removal of licenses for medical frauds and the removal of children from child abusers. The approach to wrong-doing, he suggests, should not be either/or but one in which "the weaknesses revealed in the failure of one strategy [will be countered] with the strengths of another" (Braithwaite 1999b: 1742). Others have agued that the government should be "responsible for maintaining a basic framework of order, and the other parties [should be] responsible for restoring community peace and harmony" (Van Ness and Strong 1997:31). Realistically, restorative justice "as a partial theory of justice must be reconciled with retributive theories of justice;" for example, what constitutes harm will be determined not only by the victim, but also by the Criminal Code and "the charging decisions of police and prosecutors" (Roach 2000).

Even where there is agreement on a dual system, there remain contentious issues. Marshall (1998) contends that victims should always have a chance to engage in victim-offender mediation and the offender the opportunity to make reparations, although now the main factors determining whether this option is presented are those of greatest significance to the legal system by diverting the offender from prosecution (or trial) or imprisonment and reducing costs. Rudin (1999) argues that restorative justice should not always involve representatives from the formal legal system, since that transfers the coercive nature of the legal system to the restorative justice system; others argue, however, that "state officials should be involved if restorative justice is to reach those affected by state processing" (Roach 2000; also see Braithwaite and Parker 1999: 109). Nevertheless, the timing of events in restorative justice – or of the introduction of restorative justice practices into the situation – should not be dependent on timing in the formal legal system; for example, a victim might not be ready to meet an offender prior to sentencing when often that is when the restorative initiative is to take place.

Young (1999: 266) argues that "restorative community justice" brings offenders in a local community "to account" so that they are both punished and required to settle accounts with the victims and community" with both punitive and rehabilitative "judicial interventions" implemented quickly. Thus in this light, restorative justice is an aid to the mainstream system and both work together to respond to the challenges posed by the "law-and-order" and "holistic" critics of the mainstream system.

In Canada formal restorative justice initiatives fall within the "alternative measures" permitted by section 717 of the Criminal Code and section 4 of the Young Offenders Act: they require the sanction of the mainstream system. Thus the British Columbia "restorative justice framework" was intended to "enhance" the existing system, not replace it (British Columbia Ministry of the Attorney General 1998: 2) and the same is true of the Nova Scotia comprehensive restorative justice program which was actually an extension of the alternate measures process in place for juvenile offenders (Nova Scotia Department of Justice 1998; Archibald 1999: 523). Perhaps more significantly, there may be a temptation to bring even more flexible restorative justice processes which began outside the mainstream system within the control of the dominant system. For example, some observers, including appellate courts, believe that guidelines should be established for circle sentencing (Manson 1999: 489 ), perhaps the ultimate irony since traditional aboriginal practices are considered by many to be the foreparent of "modern" restorative justice practices.

3.3.4 Relationship between criminal and civil justice

One signal of a "paradigm shift" is the eliminating of the boundaries between the civil and criminal legal systems. Llewellyn and Howse (1998) contend that while the emphasis on restorative justice has been in the criminal area, this development is the result of "the arbitrary historical distinction between public and private law" which "was grounded on morally arbitrary choices about which actions could threaten the rulers' social position or control." The issue is not, therefore, whether the legal regime is criminal or private, but whether a wrong has been committed, although it may be a matter of debate about whether particular conduct should be framed as a "wrong." They refer to labour law, family law (where there are power imbalances and emotions), international law and corporate regulation (white collar crime) as civil areas where restorative justice has a part to play. The British Columbia justice reforms were directed at both the civil and criminal systems, although typically employing different language ("collaborative, consensus-building approaches" and "restorative approaches," respectively) (British Columbia Ministry of the Attorney General 1998: 1). The perception of crime as a breach of the relationship between the victim and the offender, rather than as an offence against the state, reflects the basis of civil harm as arising from wrongdoing by one individual against another. The increased involvement of the victim in criminal cases diminishes the control by the Crown. Yet while the boundaries between civil and criminal disputes may be blurring, they are far from dissolved and even proponents of criminal restitution acknowledge the different purposes satisfied by the civil and criminal systems (Thorvaldson 1990: 35).

3.3.5 Responding to needs

One of the major claims and appeals of restorative justice relate to the way in which it takes the needs of all participants into account and how an emphasis on their needs determines process and outcome. Most, although not all, programs acknowledge the needs of the generic offender, victim and community (for example, all victims "need to regain control over their own lives, and [have] need for vindication of their rights" [Van Ness and Strong 1997: 32]); the major exception is aboriginal programs which are directed at the particular circumstances of aboriginal offenders and communities.

Restorative justice redefines the offenders' "needs" from a fair trial and just punishment to the need to take responsibility and to replace punishment, specifically imprisonment, with consequences which can lead to growth and change in a positive direction. The Balanced and Restorative Justice Project (BARJ) in the United States, a national program directed at juveniles, begun in 1993 and funded by the United States Department of Justice illustrates the response to offenders' needs (Bazemore and Umbreit 1999; Lewis and Howard 2000). Offenders' accountability is viewed as taking responsibility for their offences and the harm they caused victims rather than "taking [their] punishment," with victims and community taking 'active roles in the sanctioning process;" competency is achieved when offenders develop their strengths and relationships with law-abiding adults in order to become more productive members of their communities; without eliminating "locked facilities," public safety is achieved through the development of new relationships and structuring time around work, education and service. The approach reflected in BARJ may be applied through a variety of specific measures, including victim-offender mediation or reconciliation, sentencing circles, community reparative boards and conferencing.

For victims, the most significant impact of restorative justice is the larger role it envisions for the victim, sometimes one that is central to the process or one which contemplates a different "structural position" for the victim in the criminal legal system (Law Commission of Canada 1999). One probation service in the U.K. contends that "work with victims can no longer be seen as an adjunct to work with offenders; it assumes a standing in its own right in relation to the development of a broader contribution by the Probation Service to the criminal justice process" (quoted in HM Inspectorate of Probation 2000[48]). Llewellyn and Howse (1998) distinguish between processes which are "victim-controlled" and those which are "victim-centred;" the latter reflect restorative justice, while the former do not since the victim cannot ask for something antithetical to the restoration of the relationship.

The goal of including victims as a major player in the process is to "empower" the victim (Bonta et al 1998; Llewellyn and Howse 1998). The minimum requirement is to be sure that the victim "is not more abused or overwhelmed by the process" (Bazemore and Umbreit 1999) and that practices are instituted to inform and safeguard the victim (Marshall 1998). Therefore, the victim must consent to involvement in a particular process, although there is a concern with the pressure a victim might feel faced with claims about the value of restorative justice and its importance to the community (Law Commission of Canada 1999; Llewellyn and Howse 1998). Once involved in a process, a victim may feel pressured to reach agreement with the offender since the offender may otherwise go to jail (Law Commission of Canada 1999).

The most extensive role for victims occurs in victim-offender mediation, one form of which goes back to the introduction in Ontario of a Mennonite Church sponsored victim reconciliation program in the 1970s (Bonta et al 1998) where often the victim speaks directly with the offender and has a say in the determination of the "reparative plan" and in circle sentencing where the victim not only participate equally in the circle process but may be involved in a healing conference (Bazemore and Umbreit 1999). These models encourage the victim to express her or his feelings about the crime, although some emphasise restitution and others reconciliation (Bonta et al 1998).

According to Bazemore and Umbreit (1999), family group conferencing may be least responsive to the victim's needs, although more recent experiences indicate greater attention to the victim, and circle sentencing, because it is an open process, risks greater attention being given to the offender and his or her rehabilitative and support needs than to the victim and her or his reparative needs; one way in which the balance may be redressed is through a victim support group organized by the convenors of the circle.

Restorative justice envisions that the community will also become "empowered" to deliver relevant programs; this means that it will not be government's responsibility to do so, as it is now (Nova Scotia Department of Justice 1998). The Youth Circles program in Saskatchewan, begun in the fall of 1997, is an example of a community-based program developed between the government and the Saskatoon Tribal Council (Boyer 1999). Aboriginal youth had tended to be excluded from the established young offender mediation programs because they were not considered suitable for diversion in light of the high number of contacts they had had with the police by the time they had turned twelve. The program uses a medicine wheel approach, completing in each case a "home study" in order to discover "which aspect of the medicine wheel was out of balance." As Kwochka (1996: 159) explains, the medicine wheel "teaches that everything is interrelated and evolves in a circular pattern;" the physical, mental, emotional and spiritual elements in an individual must be equally developed to be balanced. Where there is an imbalance in the individual or the community, it needs to be restored through healing, taking into account a broader time period and circle of people than does the retributive system.


[48]This study treats these victim services as an example of restorative justice.

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