17. Restorative, Transformative Justice
17.2 Justice as Healing
Dr. Alana Marie Abramson and Melissa Leanne Roberts, M.A.
Restorative justice is often thought of as the opposite of retributive or punitive justice; however, this distinction is an oversimplification. Restorative justice and the current legal system are not mutually exclusive, and can work together. Although the legal system focuses on punishment and deterrence, other goals include offender treatment and rehabilitation. These aims are evident in the principles of sentencing within section 718 of the Canadian Criminal Code. In addition to the outcomes of previous cases and aggravating and mitigating factors, judges must consider the following purposes when determining sentencing: denunciation, deterrence, protection of the public, rehabilitation, reparation and responsibility. See Criminal Code (R.S.C., 1985, c. C-46) for a more detailed description of these purposes of sentencing.
Regardless of the specific purpose of sentencing, the current legal system equates these goals with “justice.” However, research tells us that many victims, offenders, and Canadians as a whole are dissatisfied with the process and outcomes of the legal system, as shown in Figure 17.1 below. Visit Statistics Canada to review data on the confidence Canadians have in the legal system, victim reporting, and the support Canadians have shown in research for restorative justice.
Restorative justice aims to put victims’ needs at the centre of the justice process and to encourage greater community engagement through inclusive and collaborative processes. Rather than focusing on rules, restorative justice focuses on the emotional and relational dimensions of crime. Pranis et al. (2003) characterise this as a shift in thinking from justice as getting even, to justice as getting well.
When comparing the main goals of contemporary criminal justice and restorative justice, there are marked differences, as shown in Table 17.1 (Zehr, 2015, p. 30) below.
| Criminal Justice | Restorative Justice |
|---|---|
| Crime is a violation of the law and the state | Crime is a violation of people and relationships |
| Violations create guilt | Violations create obligations |
| Justice requires the state to determine blame (guilt) and impose pain (punishment) or expect they get better (rehabilitation) | Justice involves victims, offenders, and community members in an effort to repair the harm, to “put things right” |
| Central focus: offenders getting what they deserve | Central focus: victim needs and offender and community responsibility for repairing harm and promoting accountability |
As Zehr (2015) suggests in Table 17.2, the key differences between criminal justice and restorative justice can be boiled down to a few central questions for each approach. The following table compares the primary questions the contemporary legal system is based on with the core questions of a restorative, transformative approach to justice.
| Criminal Justice asks… | Restorative, transformative justice asks… |
|---|---|
| What law was broken? | Who has been harmed? |
| Who did it? | What are their needs? |
| What do they deserve? | Who and/or what structures are obligated to address the harm caused?
What needs to happen to address the harm and begin to promote healing of people and relationships? |
Restorative processes can occur at various stages of criminal justice/legal processes. In circumstances where the criminal justice system is involved, restorative justice can be used:
- Pre-charge (process initiated by the community or police)
- Post-charge/pre-conviction (process initiated by the Crown)
- Post-conviction/pre-sentence (process initiated by the courts)
- Post-sentence/pre-integration/re-integration (process initiated by the victim, corrections or community) (Griffiths, 2015, pp. 309-310)
Outside of the criminal justice system, the individuals affected by harm can initiate a restorative process at any point. For example, a victim may approach a community-based restorative justice program and request a justice process without reporting to the police. The reasons for not wanting police intervention vary, including lack of trust in police, fear of nothing being done, fear of judgement, and a lack of trust in the legal system. Once this self-referral is made, someone from the community-based restorative justice program reaches out to the offender and the community to explore whether they would be interested in participating in restorative justice. This empowers the community to resolve many issues themselves and creates a sense of shared accountability and support amongst the participants. This may also mean that individuals who have experienced interpersonal harm in the community, workplaces or schools may opt to explore a restorative justice process. On a larger scale, restorative justice has been used to address harm in the aftermath of genocide, governmental issues, and/or apartheid.
In some Indigenous communities, people involved in a harm or conflict would prefer to have a more culturally responsive justice process and avoid the colonially-based, legal system altogether. In some cases, Indigenous peoples will refer matters to their Nation’s justice program and engage in a restorative process that embodies cultural practices such as prayer and ceremony unique to that Nation. Indigenous nations reclaiming responsibility for justice practices is an important component of self-determination and self-governance.
Media Attributions
- Confidence in Canadian Institutions, 2013 © Statistics Canada is licensed under a All Rights Reserved license
An approach to law and criminal justice based on the punishment of offenders with the intention of making the offender “pay” for what they have done (an “eye for an eye”).
An approach to law and criminal justice that involves the intentional infliction of punishment.
the idea or theory that the threat of punishment will deter people from committing crime and that the punishment of someone else will deter them as well (general deterrence). It also can mean punishing an individual to teach them not to offend again (specific deterrence).
In the context of the criminal justice system, this is the process of helping inmates grow and change, allowing them to separate themselves from the factors that made them offend in the first place. In addition, preparing someone for a productive/crime free life once out of incarceration.
These are factors that are considered by the sentencing judge that would increase the crime’s severity and would result in a more severe punishment. Examples of aggravating factors include previous criminal record for the same crime; use of a weapon; offence motivated by bias, prejudice or hate (based on race, sex, religion, age, sexual orientation or gender identity, or any similar factor); offence was committed against the offender’s intimate partner or family; the offence was committed against a person under the age of eighteen; offence was committed for the benefit of, at the direction of, or in association with a criminal organization; the offence was a terrorism offence; or the offence had significant impact on the victim’s health and financial situation.
These are factors that are considered by the sentencing judge that would lessen the crime’s severity and support leniency in sentencing resulting a lighter sentence. Examples of mitigating factors include lack of criminal record; minor role in the offence; culpability of the “victim”; past circumstances such as abuse that resulted in criminal activity; addiction or mental health concerns; and circumstances at the time of the offense, such as provocation.
the condemnation of an individual’s actions, specifically with regard to offending.
The making of amends for a wrong one has done. This can be done by paying money to or otherwise helping (with service) those who have been wronged. In the criminal justice system, reparation is often court ordered.