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

2. Re-Assessing "Needs" in Relation to Access and Justice

2.1 Introduction

For anyone trying to explain the historical waves of the "access to justice" movement by demand factors, the present day policy debate must be a puzzle. In times of rising unemployment, marginalization of the welfare population and increasing refugee migration, the "legal needs" of the poor are clearly growing. Nevertheless, in the very time of growing needs, welfare spending is coming under pressure including the budgets for legal aid subsidies. Government spending remains cyclical with the economic recession where it ought to be anticyclical in order to compensate for growing poverty (Blankenburg 1993: 201).

Blankenburg's assessment of the puzzling (lack of) governmental response to "needs" for access to justice in times of economic recession provides a good starting point for a re-assessment of approaches to justice, beyond access to the legal system. As he noted, circumstances such as unemployment, welfare, and refugee status often result in poverty, and the condition of being poor may well create legal needs. Yet, while poverty often creates legal needs, it is important to recognize how the needs of poor clients are seldom congruent with just "legal needs" (Wexler 1970; Gavigan in Comack et al, eds. 1999).[24] Interestingly, Blankenburg's concern is with legal aid as a response to "legal needs;" yet, if legal aid is merely the "first wave" of access to justice initiatives, as Cappelletti and Garth suggested, it is unlikely to provide a response which is truly effective (Cappelletti and Garth 1978). Indeed, as Richard Young and David Wall suggested, "the present legal aid scheme may not in practice contribute much to social justice, and may even play a part in perpetuating social injustice" (Young and Wall, eds. 1996: 25). Moreover, the poverty context is complicated; as some studies suggest, current legal aid policies must take more account of differences within poor communities: "research and public policies that treat the poverty community as a nondifferentiated homogeneous population are subject to problematic results" (Meeker, et al. 1986: 159).

In the context of this review of access to justice in the administration of criminal law, however, Blankenburg's assessment is significant for what it reveals about the concept of legal "needs" needs which are much more often conceptualized in the context of civil law, not criminal law. Indeed, it is startling how many policy studies of "legal needs" seem to focus primarily, or even exclusively, on ideas about needs for legal services in relation to matters that fall within the scope of civil law activity (Johnsen in Regan et al., eds. 1999: 205).[25] As well, while many studies have used legal categories of claims to assess legal needs, rather than more broadly-based social indicators of "need" (Mossman 1993: 17; Hanks 1987), there is an absence of any discussion in the majority of these studies about "needs" within the criminal law context. Thus, Johnsen reported, "civil legal aid appears vulnerable to shifts in both the economy and political ideology;… only within criminal legal aid has a broad consensus on minimum standards developed" (Johnsen in Regan et al., eds. 1999: 231). Similarly, Bogart et al explained in the context of Ontario's review of legal aid:

Almost all of the studies and the discussion of legal needs in general and their relevance for legal aid are focused on civil disputes (including, of course, family issues). Criminal issues almost always receive separate treatment on a basis that affords those charged with serious criminal offences highest priority in legal aid schemes. The rationale that has long been accepted is that being convicted of serious criminal charges can result in the loss of freedom, the severest sanction (Bogart et al. in McCamus, Ontario Legal Aid Review 1997: 319).

Yet, within this consensus about minimum standards for legal aid in criminal law matters, the fundamental question is whether the provisions of legal aid actually address "needs" in this context - or whether they simply replicate the legal categories of the criminal justice process. As Bogart's comment suggests, policy-makers have tended to assume that "needs" in the criminal justice context are commensurate with categories of offences and the processes of criminal law and sentencing. Although the traditional priority accorded to legal aid services for indigent accused persons is not our primary concern here, there is a need to examine more carefully the criminal justice context and the "needs" of those who become involved in it: what are the "needs" of offenders, victims, their families and communities, and society at large? Such a question moves beyond the requirements of legal representation (Johnson Jr. 2000: S83), and even legal aid delivery (Ewart 1997; Zander 2000), to more fundamental issues about the criminal justice system. To be sure, there are a few examples of "legal needs" surveys which do take account of those involved in the criminal justice system; in New Zealand, for example, needs assessments have been undertaken in Maori communities to assist in policy-making for disadvantaged communities in relation to crime and other kinds of legal needs (Opie and Smith in Reilly et al., eds. 1999: 143). Yet, by focusing close attention on the question of "needs" for those in the criminal justice system, different kinds of questions emerge. For example, Barbara Hudson has argued that a focus on "needs" in relation to the sentencing of offenders raises policy questions about the relevance of "difference," especially for those who are women and racial minorities:

What is beyond doubt is that responding to difference is the most challenging of tasks for criminal justice: the ideal of finding a response to difference which neither represses it, as in the future-oriented strategies of old-style rehabilitation and new-style incapacitation, nor denies it, as in oversimplified and unsophisticated proportionality schemes. Whilst proportionality of penalty to harm is an important element of penal justice, and whilst fairness and equality of treatment are vitally important values of law, "justice" involves more than questions of distribution; it involves moving beyond the "distributive paradigm," towards acknowledging the demands of alterity, that is to say, of developing sensitivity to the needs of the "Other," someone who is unlike in biography and perspective. "Justice" is about recognizing the Other in her/his individuality and ensuring that what is delivered by law is appropriate to that individual (Hudson in Ashworth and Wasik, eds. 1998: 249).

Such conceptions of criminal justice challenge fundamental issues within the traditional paradigm of liberal legalism. Moreover, as Trubek argued, the rigidity of rights-claims in the traditional adversarial system has attracted considerable criticism; as a result, proponents of restorative justice seek to redefine the purpose of law as fulfillment of needs rather than protection of rights:

A needs-based approach to justice has appeal to many. It seems better able than legal justice to deal with the complexities of particular conflicts and to be more responsive to individual concerns. In this sense, it seems to promise truer or more fundamental self-empowerment than liberal legalism (Trubek in Hutchinson 1990: 125).

Accordingly, as Trubek suggested, a needs-based approach to justice signaled "not another wave of the quest to achieve justice within liberalism, but an effort, however tentative, to expand our ideas of self and empowerment" (Trubek in Hutchinson 1990: 128). In this way, a focus on individual needs and empowerment has the potential to achieve individualized justice, by contrast with the emphasis on abstract rights within liberal legalism. Trubek recognized the vulnerability of these needs-based justice practices; for example, it is clear that power may be exercised (and even abused) other than in hierarchical contexts, so that it is necessary to ensure that participants in restorative justice programmes experience real empowerment, not merely "the legitimation of their own subjugation or control" (Silbey and Sarat 1989: 457). Interestingly, recent poverty law scholarship has similarly focused on the need to examine lawyer-client relationships carefully, so as to recognize how the construction of lawyers' roles may limit client autonomy; or, on the other hand, how poor clients may sometimes assert "self" and "empowerment" in spite of their lawyers' efforts to maintain control over the proceedings (Simon 1995: 6; White 1990).

In the criminal justice context, some of the implications of these differing approaches based on "rights" and "needs" were assessed in an exchange between Daniel Van Ness and Andrew Ashworth in 1993 (Van Ness 1993; Ashworth 1993; Van Ness 1993). For Van Ness, restorative justice "seeks to respond to crime at both the macro and the micro level - addressing the need for building safe communities as well as the need for resolving specific crimes" (Van Ness 1993: 259). Comparing restorative justice programmes to traditional criminal justice, Van Ness suggested that restorative justice:

  1. views crime as more than an offence against the state - crime also causes injuries to victims, the community, and the offender;
  2. recognizes that the primary goal of a criminal justice process is to repair these injuries; and
  3. promises a collaborative effort between the state on one hand and victims, offenders and their communities on the other.[26]

As Van Ness explained, "the focus of restorative justice, then, is intentionally holistic" (Van Ness 1993: 259-260).[27] In responding to Van Ness, Ashworth's critique identified the problem of adopting a "harm" basis within criminal law itself. For Ashworth, the claim that victims have rights to services, such as restitution and better communication within criminal justice processes, does not necessarily mean that they should also have procedural rights in the criminal courts. Particularly in relation to the goal of fairness in sentences among different persons accused of the same crime, the use of a "harm suffered by the victim" approach may lead to disparate sentences for the same offence. As well, Ashworth pointed to the vagueness of the concept of "community harm" in some restorative justice proposals:

To put the point bluntly, in what sense can restorative justice be applied to the community? How can the harm to the community be assessed? What forms of restorative justice should be used? How should their quantum be assessed? And how does this process differ from that under a punishment paradigm?…. I find no contradiction in being strongly in favour of better services and fuller compensation (restitution) for crime victims, whilst rejecting greater victim participation in the process of criminal justice and remaining skeptical of many other aspects of restorative justice (Ashworth 1993: 294 and 299).[28]

While it is clear that restorative justice proponents view the need for healing - on the part of the offender, the victim and the community - as primary, more traditional theorists of criminal justice continue to give priority to ideas of "rights" in criminal procedure and "just deserts" in sentencing. In this context, there are obviously differing understandings of the "needs" of participants in the criminal justice system, although these "needs" appear to be more often determined by reference to abstract principles than by empirical studies. Similarly, "needs" for legal aid services for accused persons have been defined in terms of offences in the criminal justice system rather than in relation to accused persons - that is, "need" means the need for legal representation at different points of criminal law processes. In such a context, there are undoubtedly many accused persons, victims, family members and even lawyers who feel a loss of power within the criminal justice system, so that opportunities for empowerment in restorative justice processes must appear attractive. At the same time, if we are serious about pursuing justice, and not merely better access to it, it may be important to test some of these assertions with empirical research about "needs." In providing an overview of some of the literature about "needs" in criminal justice, this chapter examines ideas about needs in relation to areas of criminal justice where restorative justice practices have been advocated: the "needs" of aboriginal accused and their communities; the needs of offenders, including young offenders and those from racial minorities; and the "needs" of victims and communities.

2.2 Aboriginal "Needs" for Justice: A Need for Aboriginal Justice?

If one follows respect, the conclusion is that no (justice) system is more valid than the other. But the Euro-Canadian validity is forced upon our ways. The Euro-Canadians are breaking our laws day in and day out, as they accuse us of breaking theirs (Ross 1995: 432, quoting an Ojibway Elder).

No one associated with the criminal justice system in Canada can ignore its impact on aboriginal people. As Carol La Prairie reported, the rate of incarceration of aboriginal people in some Canadian provinces (especially Saskatchewan, Alberta and Manitoba) is significantly higher than their proportion of the population (La Prairie in Roberts and Cole, eds. 1999: 179). Even in provinces such as Ontario, where the rate of incarceration for aboriginal people is somewhat less dramatic, there are good reasons to believe that the figures collected by government may underestimate the numbers of aboriginal people involved with the justice system. As Jonathan Rudin has argued, individuals usually have to self-identify and produce their status card or status registration number in order to be included in the statistics; thus, it is likely that non-status Indians and Métis may often be excluded from the statistics, even though their circumstances are similar to aboriginal people who are included (Rudin in McCamus, Ontario Legal Aid Review 1997: 447). Beyond the statistics, moreover, it is clear that there is a need to identify why there are disproportionate numbers of aboriginal people in the criminal justice system - in order to design appropriate responses.

In his review of legal needs of urban aboriginal people and those on southern reserves in Ontario, Rudin identified three theories that have been used to explain the over-representation of aboriginal people in the justice system. According to Rudin, the "culture-clash" theory is based on the lack of familiarity of aboriginal people with the system of justice in Canada; thus, there is a need to assist them to participate in it more effectively. To this end, initiatives such as the aboriginal courtworker programme, native Justices of the Peace, cross-cultural training programmes and specialized legal aid services were designed to "assist Aboriginal persons involved with the law to better understand their rights and the processes they are involved with" (Rudin in McCamus, Ontario Legal Aid Review 1997: 458). Similarly, as Donald Auger argued, the justice system must take account of the fact that English (or French) may not be the first language of most aboriginal accused. Moreover, even with appropriate court interpreters and glossaries of aboriginal words, the translation of aboriginal languages to English or French may be difficult because of differing meanings within cultural contexts:

For example, in the native language there is no way to translate the word "guilty." In the Ojibwa and Cree language there is a way to say "I did it," but that has a totally different meaning than saying "I am guilty," which would roughly be translated as "I did it and I meant to do it." Thus the role of the court interpreter is not just interpretation, but also translation. That is, in addition to getting the client to understand what the word means in his or her own language, the interpreter must also provide some translation of what the word means because some of the words involve whole ideas or sets of ideas and come from a different philosophical background…. [This creates problems because] there are not many people … who can … translate the meanings of these words for a person who requires that some translation be provided (Auger in McCamus, Ontario Legal Aid Review 1997: 422).

As a result of these problems and others, Auger identified aboriginal people as "the poorest of the poor" in Ontario, and suggested that their disproportionate representation in the criminal justice system indicated "a pressing need for legal services" for them (Auger in McCamus, Ontario Legal Aid Review 1997: 433).[29]

Yet, as the Royal Commission on Aboriginal Peoples concluded, these programmes do not attempt to change the way that the criminal justice system deals with aboriginal people; they merely attempt to lessen the feelings of alienation experienced during the interaction (Rudin in McCamus, Ontario Legal Aid Review 1997: 458, quoting Bridging the Cultural Divide 1996: 93). Moreover, as Justice Murray Sinclair suggested, it may be time to question how the Canadian justice system deals with aboriginal people: "Perhaps the question should be restated as 'what is wrong with our justice system that Aboriginal people find it so alienating?'" (Rudin in McCamus, Ontario Legal Aid Review 1997: 459, quoting Sinclair 1994). In addition to such critiques, Rudin concluded that the culture-clash theory was not entirely satisfactory since it did not explain the over-representation in the justice system of aboriginal people who had lived for many years in urban areas of Canada. Thus, he concluded that while the theory had some merit, it was not sufficient on its own to explain the high rate of representation of aboriginal people in the criminal justice system.

Rudin considered a second explanation: the socio-economic theory. According to this theory, the over-representation of aboriginal people in the criminal justice system is directly related to their poverty - that is, the likelihood of incarceration is greatly increased for those who are poor, and since aboriginal people are often the poorest of the poor in Canada (Auger in McCamus, Ontario Legal Aid Review 1997: 433), they are more likely than others to be represented in the criminal justice system. Although Carol La Prairie has suggested that factors such as the relatively higher aboriginal birth rates and the disproportionate number of aboriginal people currently in the age group most vulnerable to criminal law intervention also need to be considered, she identified the socio-economic situation of aboriginal people as a major factor; quoting Michael Tonry, she argued that:

… group differences in offending patterns are the consequence of historical experiences and contemporary social and economic circumstance … Poverty, disadvantaged childhoods, welfare, educational deficiencies, and lack of marketable skills are powerfully associated with a number of social pathologies, including criminality (La Prairie in Roberts and Cole, eds. 1999: 182, quoting Tonry 1994).

Significantly, if poverty is regarded as the explanation for over-representation on the part of aboriginal people in the justice system, measures such as culturally-specific justice programmingwill not respond effectively to these "needs." La Prairie's concern is that because such indigenization programmes "do little to address socio-economic marginalization they will not substantively address problems of over-representation" (Rudin in McCamus, Ontario Legal Aid Review 1997: 460, quoting La Prairie 1988). Instead, initiatives designed to develop economic self-sufficiency among aboriginal communities, coupled with provision of legal aid services for aboriginal accused, will be much more effective in changing the proportion of aboriginal people in the criminal justice system. While Rudin indicated some agreement with this socio-economic theory to explain the problems of aboriginal representation in criminal justice processes, he concluded that it was ultimately inadequate because it could not explain why aboriginal people are so poor - indeed, in the words of the Royal Commission on Aboriginal Peoples, why aboriginal people are "poor beyond poverty."

For Rudin, a third theory was most persuasive: the theory that colonial policies of assimilation in Canada destroyed the lives of thousands upon thousands of aboriginal people. Pointing to the Report of theAboriginal Justice Inquiry of Manitoba, Rudin argued that "… the relatively higher rates of crime among Aboriginal people are a result of the despair, dependency, anger, frustration and sense of injustice prevalent in Aboriginal communities, stemming from the cultural and community breakdown that has occurred over the past century" (Rudin in McCamus, Ontario Legal Aid Review 1997: 462, quoting Report of the Aboriginal Justice Inquiry of Manitoba 1991: I, 91). Rudin agreed with the recommendations of theRoyal Commission on Aboriginal Peoples that the colonial legacy must be taken into account in designing interventions which can substantially affect the relationship between aboriginal peoples and the criminal justice system:

While not ignoring the impact of the culture-clash between Aboriginal and non-Aboriginal society nor the socio-economic realities confronting Aboriginal people, this report agrees with the conclusions of others before it, that the experience of colonialism best explains Aboriginal over-representation…. Without taking away the need for programs that provide Aboriginal people with assistance in dealing with the court system, both through courtworkers and counsel, it is hard to see how reliance on a legal system that is rooted in the colonial system that has led to the problems faced by Aboriginal people can lead to real change (Rudin in McCamus, Ontario Legal Aid Review 1997: 463).[30]

Thus, in assessing the "needs" of aboriginal accused in the criminal justice system, and the appropriateness of different kinds of interventions, these theories or explanations for the current over-representation are critical. If socio-economic factors affect the rate of aboriginal involvement in the criminal justice system, then many of the "needs" of aboriginal accused require a focus on the reasons for their impoverishment. If colonial heritage is the explanation for over-representation of aboriginal accused in the criminal justice system (perhaps in addition to other explanations), different "needs" must be met: very likely, "needs" for an indigenous justice system. In this context, La Prairie has drawn attention to the need for much better data in Canada, similar to that now collected in other western countries, in order to be able to assess whether policies respond to the issues precisely (La Prairie in Roberts and Cole, eds. 1999: 184).

However, as the literature about Aboriginal people and criminal justice reveals, a more fundamental "need" has been frequently identified in relation to aboriginal communities: a need for recognition of their own justice system. As Auger suggested, such a need does not mean that aboriginal communities would need to establish their own system: "they merely need to have the existing system that is already there to be recognized by mainstream society." Such recognition of aboriginal justice systems would go beyond "diversion programs where Indian people are allowed to participate in sentencing panels but not in the determination of guilt and certainly not in determining what the system should look like and what the laws should be within the community" (Auger in McCamus, Ontario Legal Aid Review 1997: 420). Similarly, Roach suggested that recognition of Aboriginal justice could reduce "both incarceration and victimization" of Aboriginal people:

The holistic approach of Aboriginal justice both promises prevention in the future and recognizes the need to address past abuses suffered by offenders and victims. Aboriginal people have been frequently and grievously harmed by the failures of due process and crime control, but their own traditions and circle healing initiatives offer the most developed and inspiring alternative to the linear processes of the due-process obstacle course and the crime-control assembly line (Roach 199: 251).

Others have also criticized traditional processes of criminal justice for Aboriginal people. As Daniel Kwochka explained, the process of sentencing in Canada's criminal justice system does not accord with fundamental values of aboriginal communities and aboriginal justice. As he says, Aboriginals view the sentencing process as:

  1. based on a foreign goal of punishment, instead of upon the aboriginal goals of restoration and rehabilitation;
  2. conducted in an improperly adversarial fashion, with sides being taken, hard-line positions being entrenched, helpful witnesses being challenged as liars, and the accused being treated as an adversary of his own community;
  3. based on the belief that a sentence which is imposed by uninvolved, third-party strangers to the group can be effective, contrary to an aboriginal belief that solutions must be proposed by all of the affected parties if they are to have any chance of being carried out by them; and
  4. focused too narrowly on events, when the real issues centre on the quality of relationships which surround all the effective parties (Kwochka 1996: 160-161).

Kwochka's analysis is similar to those of the Ojibway Elder quoted at the outset: there is a need for aboriginal justice processes to replace the criminal justice system. In the past decade or so, there have been a number of initiatives in Canadian courts to support the need for specialized sentencing processes, respectful of aboriginal culture (Stuart in Galaway and Hudson, eds. 1996: 193); as well, it has been suggested that the decision of the Supreme Court of Canada in R. v. Gladue in 1999 (which confirmed the interpretation of section 718.2(e) of the Criminal Code)[31]"has brought the notion of healing into the mainstream as a principle that a judge must weigh in every case involving an Aboriginal person in order to build a bridge between their unique personal and community experiences and criminal justice" (Turpel-Lafond 1999: 35). In such a context, the "needs" of the offender in relation to sentencing have been defined explicitly in accordance with aboriginal culture.

Beyond a focus on sentencing per se, Rupert Ross has recommended a comprehensive process of aboriginal justice: that is, using aboriginal justice processes to fully replace the system of criminal justice for aboriginal people. According to Ross, aboriginal justice has seven important aspects, all of which differ significantly from those of the criminal justice system:

  1. the involvement of all the people who operate in relationships, not just individual offenders;
  2. a recognition that people need help to deal with their incapacities and to learn skills to avoid future problems, rather than an emphasis on "choice";
  3. a focus on disharmonies in relationships which lead to inappropriate actions, not just a focus on the actions themselves;
  4. a structure which reduces, rather than escalates, tensions (unlike the adversary system which may increase hostilities);
  5. a commitment to convincing people that they are more than their antisocial actions and to overcoming alienation, rather than labeling and stigmatizing them;
  6. a need to bring the offender to a felt awareness of the impact of his or her actions on others, to understand the consequences of the actions, rather than simply providing restitution; and
  7. a reliance on people who are connected, rather than on professional experts
    (Ross 1995: 432-434).

As is evident, these recommendations are not simply designed to reduce alienation for aboriginal people in the Canadian justice system. Instead, they recognize a "need" on the part of aboriginal people to be judged within their own culture and system of justice. Such a model clearly responds to a felt need on the part of aboriginal people to return to their own justice systems, abandoning the idea that traditional criminal justice processes are appropriate for meeting their needs. In such a context, there would no longer be "culture clash" since aboriginal people would no longer be involved in the traditional criminal justice system; at the same time, it is unclear what would be the continuing impact of socio-economic problems for aboriginal justice processes. In this way, different understandings of the reasons for over-representation of aboriginal people in the current justice system impact on choices about appropriate strategies for confronting this problem. Reflecting the view that aboriginal justice is the appropriate strategy overall, Griffiths and Hamilton concluded that:

Criminal behaviour is often only a symptom of deeper community and individual ills…. Aboriginal-controlled justice programs and services, premised on Aboriginal culture and traditional practices, hold great promise and can provide models that may be utilized by non-Aboriginal communities as the search for more effective criminal justice strategies intensifies (Griffiths and Hamilton in Galaway and Hudson, eds. 1996: 189-190).

In assessing one example of aboriginal justice, moreover, Phil Lancaster suggested a need for resources to be provided to aboriginal communities for justice initiatives, and that aboriginal communities should have discretion in the use of funds and in the distribution of specific justice roles: "Rather than providing funds for police, probation workers, child and family service workers, courts, judges and others, funding might be more effectively spent by developing a holistic approach based on custom to work in the community and with the outside justice institutions" (Lancaster 1994: 349).

In addition to this literature supporting a general recognition of aboriginal justice, however, there are some studies that focus on "needs" in terms of particular kinds of criminal activity. In particular, there are recent studies about the needs of aboriginal women in the context of wife abuse and sexual assault. While extolling the virtues of restorative justice in a number of programmes across Canada, Curt Taylor Griffiths also noted some critical issues surrounding the involvement of victims in community justice initiatives (Griffiths 1999: 292 ff). Significantly, he reported on a 1998 study showing the exclusion or minimization of crime victims in a Winnipeg project; at the same time, he identified an evaluation of the Hollow Water programme, also in Manitoba, in which victims seem to have felt "pressured to have the case heard by the community program rather than in criminal court; [concerned at] receiving too little information about the process to be followed; and a lack of support from the community" (Griffiths 1999: 293). Griffiths also specifically drew attention to the "competing and conflicting goals in community justice" and the difficulty of achieving community consensus, quoting the concerns expressed by La Prairie:

On the one hand, community justice is about autonomy, empowerment, and control. On the other hand, community justice is about tradition, and, in contemporary terms, about 'healing' and the transformation of communities into healthier states of being. The reality, however, is that the primary goal of community justice is the exercise of social control, the use of surveillance, and the dispensing of 'justice,' which may or may not involve punishment … the potential for community justice to divide rather than unite people, particularly where communities are small in size and geographically isolated, is great (Griffiths 1999: 293, quoting La Prairie 1996: 127).

In this context, there have been other expressions of concern about aboriginal community justice in the context of wife assault; according to Evelyn Zellerer, "when gender and culture are considered in terms of the responses to wife abuse, difficult challenges are raised" (Zellerer 1999: 345). In her study of community members' perceptions of wife abuse in the Baffin region, including their views about appropriate strategies for intervention in a community justice context, she identified several key areas of concern, including recognition (or the lack of recognition) of family violence as a priority among aboriginal leaders. As she noted, the Report of the Aboriginal Justice Inquiry in Manitoba concluded that aboriginal chiefs and councils, as well as aboriginal government leaders, had failed to deal with issues of domestic abuse (Zellerer 1999: 349, quoting Aboriginal Justice Inquiry 1991). As well, she pointed out the need to take account of "needs" of victims, as well as of offenders, in community justice; and of the impact of power relationships within communities: "Care must be taken to ensure that family networks and power structures do not perpetuate the victimization of women" (Zellerer 1999: 351).[32] Zellerer also expressed concern about conflicts inherent in traditions of respect for aboriginal elders, when elders do not take wife abuse seriously enough, as well as the ways in which aboriginal cultural values might diminish the significance of wife abuse:

Cultural prescriptions against interference and confrontation have important implications for responses to violence. The data from this study suggest that Inuit feel uncomfortable participating in a process that involves community residents passing judgment in a public forum on another resident. This may hinder the ability of community residents to mediate and resolve disputes in their own communities and may increase women's vulnerability. It may mean that an entirely different approach to crime will be created or recreated from traditional times, one obviously different from the criminal justice system but perhaps also one different from our current conceptions of restorative justice (Zellerer 1999: 354).

Similar concerns were identified by Griffiths and Hamilton, who suggested that communities might be unwilling to assume responsibility for offences involving sexual assault and violence, having regard to the needs of the offenders and victims, but also the needs of the community. As they concluded, "Caution must be exercised in expecting or assuming that communities have the interest and/or expertise to respond, treat and control offenders convicted of acts involving violence and sexual assault" (Griffiths and Hamilton in Galaway and Hudson, eds. 1996: 188). Interestingly, Jean Lash similarly criticized the Supreme Court's decision in R. v. Gladue for its failure to recognize the accused as an aboriginal woman, and the victim of wife abuse (Lash 2000: 85).[33] In such a context, the needs of aboriginal women may be equally ignored by both the traditional criminal justice system as well as in restorative and community justice initiatives. Thus, while there may be substantial consensus that the "needs" of aboriginal accused can be met more effectively within a holistic aboriginal justice system,[34] the "needs" of victims of violence may require careful attention to underlying values within traditional processes of aboriginal justice.

  • [24] As Gavigan argued, the relationship between legal services and client needs must take account of the extent to which poverty impacts on all aspects of the lives of poor clients:

    To a great many lawyers and legal aid administrators, legal services for the poor mean criminal defence work, criminal legal aid…. Nevertheless, in its report Legal Aid and the Poor, the National Council of Welfare (1995: 9-12) argues that legal aid programs emphasizing criminal legal aid do not address the legal needs of most poor people, including not incidentally, poor women…. The image of the poor in these "legal aid" programs becomes blurred and imprecise, and the experience of poverty becomes abstracted into discrete legal problems or issues. But the lives of poor people do not lend themselves to simple one-on-one legal solutions. Poverty law lawyers must have and hold onto an appreciation of the complex and central nature of poverty in the lives of their clients and the need to acknowledge that the most significant struggles, defeats, and victories in their clients' lives are seldom, if ever, experienced in the courtroom. When a poverty law lawyer wins a welfare case or a landlord and tenant case, the best legal result is that the client is still on welfare or is still a tenant. Those victories are important, but they are hardly "transformative" of the deeper problems of the poor litigant. The lawyer may win, but the client remains poor (Gavigan in Comack et al, eds. 1999: 220-1).

  • [25] Johnsen identfied the legal needs research as vast:

    Among the early, well-known studies were Abel-Smith, Zander and Brooke (1973) from the UK; Eskeland and Finne (1973) from Norway; Messier (1975) from Canada; Cass and Sackville (1975) from Australia; Schuyt, Gronendijk and Sloot (1976) from the Netherlands; and Curran (1977) from the USA. Among recent studies are the Comprehensive Legal Needs Study (CLNS) conducted by the American Bar Association … and Blacksell, Economides and Watkins (1991) from the UK - although the latter try to avoid the term 'legal needs' in their analysis…. (Johnsen in Regan et al, eds. 1999: 209).

  • [26]The distinctions identified by Van Ness between traditional justice and restorative justice have also been explained in other studies of restorative justice: for example, see Nova Scotia Department of Justice, Restorative Justice (Halifax: NS Dept of Justice, 1998) 2; and Mark Umbreit, Victim Meets Offender: The Impact of Restorative Justice and Mediation (New York: Criminal Justice Press, 1994) at 3-4. According to Umbreit, victim-offender mediation is "the clearest expression of restorative justice," and "represents one of the most creative efforts to: hold offenders personally accountable for their behavior; emphasize the human impact of crime; provide opportunities for offenders to take responsibility for their actions by facing their victim and making amends; promote active victim and community involvement in the justice process; and enhance the quality of justice experienced by both victims and offenders" (Umbreit 1994: 5).
  • [27] Van Ness examined four challenges for restorative justice. He identified these challenges as 1) the challenge to abolish criminal law (concluding that criminal law should be maintained for secondary victims, and because it channels retributive emotions in society and enforces public values); 2) the challenge to rank multiple goals- deterrence, incapacitation, rehabilitation, and retribution (concluding that restorative outcomes should be prioritized over procedural goals); 3) the challenge to determine harm rationally (the need to take account of the potential inconsistency as a result of differences in victims' experiences of harm); and 4) the challenge to structure community-government cooperation (Van Ness 1993).
  • [28] In his brief response to Ashworth, Van Ness suggested that "the major difference between us on this topic is over whether there is actually a need for 'new wine,'" explaining that Ashworth's commitment to the punishment paradigm is too narrow and fails to recognize the political context of sentencing policy. Van Ness also asserted that Ashworth had failed to recognize the interests of the community, an entity quite different from the state. In their interchange, Van Ness and Ashworth thus identified a number of key aspects of current debates about "needs" on the part of those involved in criminal justice processes, by contrast with the "rights-based" system of traditional criminal justice (Van Ness 1993).
  • [29] Kent Roach also identified the "double disadvantage" of Aboriginal people: being significantly overrepresented among both those imprisoned and those victimized by crime. As he argued "respect for the due-process rights of Aboriginal people is necessary, but it alone will not likely reduce Aboriginal overrepresentation in prison…. Packer's two models of criminal justice do not offer much hope for Aboriginal people" (Roach 1999: 250). See also Heino Lilles "Innovations in Aboriginal Justice - Community Justice Update: Yukon" in Healy and Dumont, eds. 1997.
  • [30] According to Judge Murray Sinclair, "the primary meaning of 'justice' in an Aboriginal society would be that of restoring peace and equilibrium to the community through reconciling the accused with his or her own conscience and with the individual or family that is wronged" (Sinclair, in Gosse et al, eds. 1994: 178).
  • [31] (1999), 23 CR (5th) 197, 133 CCC (3d) 385, [1999] 1 SCR 688. According to Turpel-Lafond, the decision in R. v. Gladue creates an obligation for the judge, but this responsibility can be discharged only "if counsel and the supporting agencies in the criminal justice system, such as probation and youth services, assist the court by providing a full picture of the circumstances of the defendant and the offence" (Turpel-Lafond 1999: 37).
  • [32] As Roach also explained, "stated in the abstract, the conflict between Aboriginal justice and crime control is great…. Aboriginal-justice initiatives that took on cases of serious crimes, especially sexual assaults, were vulnerable to public criticism that they did not take crime seriously enough" (Roach 1999: 272).
  • [33] Quoting from the report of Justice Ratushny on the pressures which may force a woman to plead guilty to a charge of manslaughter when she has killed her abusing male partner, Lash concluded that Gladue is not sufficiently responsive to the needs of aboriginal women accused in the context of wife abuse (Lash 2000: 85).
  • [34] See also Heino Lilles' comments that there have been quite a few community justice initiatives in Canada, but the great majority have "withered on the vine" for lack of support; since there is "very little hard information as to how well these initiatives did, as compared to the formal justice system," there is a need for proper evaluation: evaluation which can compare "the results with what the formal justice system would achieve with similar cases" (Lilles in Healy and Dumont, eds. 1997: 246).
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