Re-Thinking Access to Criminal Justice in Canada: a Critical Review of Needs, Responses and Restorative Justice Initiatives
Restorative justice principles and processes are the most widely advocated way to increase access to criminal justice. Currently, however, restorative approaches are for the most part too intertwined with the mainstream criminal legal system on the one hand, and pose serious challenges themselves, on the other, to treat them as either a paradigm shift or a panacea. In many cases, "restorative justice" is used as a "catchall" for a wide variety of disparate initiatives, a number of them having been introduced within the traditional system in a manner consistent with the premises on which the mainstream system operates. Most studies fail to address the most significant questions about the effectiveness of these processes for recidivism (or, in restorative justice language) reintegrating the offender into the community) and equally significantly, do not adequately measure whether victims are "better off" participating in a process with the offender than in having their harm vindicated through the traditional processes. It is not irrelevant whether restorative justice is "better" than traditional approaches; costly though criminal justice may be, proper implementation of restorative justice programs requires considerable resources. While the rhetoric may be appealing, the practice is less so. Rather, as Delgado (2000) and others conclude, neither the traditional system nor restorative justice may be always fair; both may be characterized by race, class and gender bias, in one case hidden by the rules, in the other hidden by "an overlay of humanitarian concern." And as Bussmann (1992: 324) argues, in a modern society it is necessary to have both the symbolic value of criminal law, albeit perhaps only to the extent necessary to maintain the symbolism, and the discursive value of restorative justice. For victims and offenders, Delgado's (2000) advice to choose, where possible, the approach most suitable for their own objectives seems apposite. For governments, the rush to "restorative justice" needs to be tempered by a better understanding of its effectiveness and its effects.
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