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 (continued)

2.3 The "Needs" of Offenders in Criminal Justice Processes

The conclusion of those who have studied our criminal justice system is that it discriminates against the poor and harms as many people as it helps. Instead of developing effective ways of dealing with conflicts within our families, our schools and our communities, we dump all our disadvantaged social misfits into the criminal justice system, where they are repeatedly warehoused and then thrown back into the street. Instead of dealing wisely with the near-universal tendency of adolescents (especially boys) to commit minor criminal offences, we arrest thousands of low-income young men and lock them up with experienced criminals who give them advanced lessons in crime.

The Canadian criminal justice system is not only unjust but also an abysmal failure that pushes young people into crime instead of helping them to stay out of it (National Council of Welfare 2000: 3).[35]

In its detailed report on issues about policing, bail decisions (including conditional releases), and sentencing, the National Council of Welfare identified how neutral principles work to effect discriminatory treatment for accused persons who are poor, and especially for visible minorities who are poor. At the outset, the NCW's report, Justice and the Poor, suggested that studies about the propensity for committing crimes remain inconclusive; although some early studies linked socio-economic background to criminal actions (people from poor neighbourhoods were more likely to commit crimes), the NCW report identified two recent Ontario studies which found that money worries played only a minor role in relation to criminal activity. The studies examined family characteristics of incarcerated adolescents and found that the most prominent factors were "physical abuse between the parents and toward the children, family breakdown with estranged fathers, and excessive drinking by the parents and the children" (National Council of Welfare 2000: 7, quoting studies by Ulzen and Hamilton 1998; and Shamsie, Hamilton and Sykes 1996). Other studies have revealed connections between crime and unemployment; "kin-based job networks" (family connections which allowed adolescents to find jobs and build legitimate careers) were identified as "a crucial factor distinguishing young delinquents who later reformed from those who continued to commit crimes into adulthood" (National Council of Welfare 2000: 7, quoting Hagan 1993). As well, youth who live on the street are more likely to be involved in criminal actions because street culture is often conducive to committing crimes; at the same time, it appears to be significant that large numbers of young people who end up on the street come from broken families and have histories of abuse by their parents or foster parents. As Hagan concluded, "many children abused and neglected by their families are forced out on the streets where they are then abused by our legal system" (National Council of Welfare 2000: 9, quoting Hagan 1994).

In such a context, questions about the needs of those involved in criminal activity must take account of the broader circumstances of their lives. The studies suggest that large numbers of young people, especially young men, may engage in activities which violate the law, and many of them are likely to have little familial support - and even a history of past familial abuse - as well as no job or much prospect of obtaining employment. Arguably, their needs include social supports in terms of education and employment opportunities and a chance to build trusting relationships. Indeed, as the NCW report noted, lack of employment may affect an offender's eligibility for bail and their sentence if convicted; and the fact of a criminal conviction may well affect their subsequent ability to find employment. In such a context, it is not difficult to conclude that the traditional criminal justice system may not respond appropriately to the "needs" of the accused, and that other alternatives which can look at the whole person, not just the isolated criminal act, may offer more to the accused and perhaps also to the community. Instead of the usual response of the criminal justice system: arrest, a bail hearing, and a guilty plea or finding of guilt, and sentencing (including possibly incarceration), responses may be tailored to the more fundamental "needs" of the accused (Griffiths 1999).[36] After examining the exercise of police discretion, decision-making in bail hearings, and sentencing, Justice and the Poor concluded that there was evidence that poverty systematically disadvantages accused persons in the traditional criminal justice system. In such a context, it is at least arguable that restorative justice practices may ameliorate some of these problems, an issue which is addressed more fully in chapter 3. In relation to proposals for replacing traditional criminal justice with restorative justice programmes, however, there are three general issues which are addressed here.

The first issue is the differential enforcement of youth and street crime on one hand, and white-collar crime on the other. As the National Council of Welfare reported, white-collar crime is committed primarily by persons with good educations and good jobs: tax fraud, embezzlement, securities and antitrust violations, and criminal negligence arising out of violations of occupational health and safety provisions. White-collar criminals "are responsible for more deaths and steal much more money than the poor, but are seldom called criminals and are seldom condemned by a society in which many people believe that 'greed is good'" (National Council of Welfare 2000: 11, quoting Braithwaite 1992). In addition, because poor people are less likely to be able to pay fines, they are more likely to be imprisoned for non-payment of fines than middle-class Canadians. In recommending a principle of "equality"for the criminal justice system, therefore, the National Council of Welfare suggested that the impact of the criminal justice system should be substantially the same, "regardless of … gender, age, race, sexual orientation, national or ethnic origin, religion, employment or family status, income, social class, physical or mental disabilities or place of residence within Canada" (National Council of Welfare 2000: 103). In particular, the NCW report recommended the adoption of the system of "day-fines"in which the amount of a fine is determined by a combination of the seriousness of the offence and the income available to the accused (National Council of Welfare 2000: 115). The study also recommended equality of treatment for white-collar criminals. In exploring how executives who foster life-threatening working conditions are not so different from bank robbers who panic and kill someone, and rich men cheating on their income tax are not so different from poor mothers who cheat the welfare department, Justice and the Poor quoted a story told by Roland Penner, former Attorney-General of Manitoba:

Let's suppose I became philosopher-king and I could make any changes I wanted. Suppose I decided that minor social control offences and crimes without victims were to be eliminated from the Criminal Code. Also suppose that minor property offenders were to be dealt with in the community rather than in jails. At the same time suppose that I made tax evasion, knowingly polluting the environment, false advertising, fraudulent bankruptcy, and price-fixing crimes which carried automatic jail terms. Now, let's introduce the proverbial "man from Mars" who always gets into stories like this one. He arrives and I take him on a tour of (the provincial jail near Winnipeg). What would he say? "You sure have a problem with your middle-class White people, don't you?" (National Council of Welfare 2000: 27, quoting Harp and Hofley, eds. 1980).

Penner's story underlines how the definition of criminal activity, as well as policies about enforcement - including issues of differential enforcement in relation to the poor - may have dramatic implications for how we define the problems of offenders in the criminal justice system. In this way, it is important for both traditional criminal justice processes as well as restorative justice initiatives to take into account this broader policy context.

The second issue is the connection between "needs" of accused persons and the definition of criminal activity itself. Before deciding that the most appropriate response to criminal activity is restorative justice, it may be important to determine whether there are too many activities which are currently labeled "criminal." As Ron Levi argued, "often as a result of zero tolerance policies and other 'get tough' measures, youth are brought before the criminal justice system for activity that can often be dealt with otherwise" (Levi in McCamus, Ontario Legal Aid Review 1997: 758). The National Council of Welfare also noted the relationship between the number of police officers and population figures in different communities: increasing the number of police in some communities resulted in immediate "crime waves."[37] Similarly, the NCW report suggested that legislation such as Ontario's Safe Streets Act,[38] and city bylaws which limit the activities of beggars, may increase the numbers of accused persons charged with criminal offences. Indeed, in its 1995 study of legal aid, the National Council of Welfare noted the impact of several offences related to activities which are proscribed in public, "including drinking on the street,… shouting, swearing, loitering and being obnoxiously drunk":

Such laws have a much greater impact on the poor, some of whom are homeless and many of whom spend a great deal of time on the street or in other public places to stay out of their overcrowded homes. In Canada in 1992, these laws were used to lay more than 100,000 charges against men and over 10,000 against women, reminding us of the famous saying: "The law, in its majestic equality, forbids the rich as well as the poor to sleep under bridges, to beg in the streets …" (National Council of Welfare 1995: 6).

Thus, in determining how to respond to the "needs" of criminal accused, particularly those who are young and poor, it is possible to consider restorative justice practices as alternatives to the traditional criminal justice system. However, it is arguably just as important to re-examine the kinds of activities which are labeled "criminal" to determine whether de-criminalization of some activities might alleviate the need for a criminal justice system response altogether. In this context, one of the guiding principles for criminal justice proposed by Justice and the Poor was "restraint," the idea that the justice system should refrain from intervention.[39] Of course, there may still be a need for better supports for offenders, especially youth, whose family and employment situations impact on their ability to achieve independence effectively. The fundamental question is whether labeling their activities (and these accused) "criminal" is the most effective way to achieve these goals. Another way of looking at this question is to ask to what extent community resources which were once available to assist young people, and which were withdrawn in the 1990's, are now being redeployed (perhaps only partially) to restorative justice programmes as a result of the change in definitions of criminal activity.

In this context as well, it may be important to take account of a third issue: the characteristics of offenders, including gender and race. As Maureen Cain and others have suggested:

"[The] most consistent and dramatic findings from Lombroso to post-modern criminology is not that most criminals are working-class … but that most criminals are, and always have been, men. Instead of asking how the maleness of men connects with this result, … we ask why women do not offend, as if even the criminogenic properties of maleness were normal compared with the cheerful and resigned conformity of women. This is because the criminological gaze cannot see gender; the criminological discourse cannot speak men and women (Cain 1989, as quoted in Walklate 1995: 20-21).

Although the rate of criminal activity for women remains lower than that for men, there is some evidence that the number of women offenders has increased in the United States. In a 1998 report, for example, concern was expressed about the increased number of women offenders and the failure to meet their "needs" in the American legal system and especially in prisons:

Evidence shows that greater emphasis should be placed on the concerns of and programs for adult female offenders. In 1995, more women were arrested, convicted, and sent to prison than ever before; female offenders made up 6.3 percent of the state and federal prison populations, an increase from 3.8 in 1975. The nature of the crimes women are convicted for today has also changed. In 1975, women were most likely to be incarcerated for crimes such as larceny, forgery, embezzlement, and prostitution. In 1995, an increasing percentage of women were sentenced to prison for drug offenses. Unfortunately, this increase in the number of female offenders has not been matched by enhanced attention to specialized programs geared particularly for women…. This is especially true in light of the criminal justice system's recent adoption of a more punitive philosophy (National Institute of Justice 1998: vii).

The National Institute of Justice's report included similar concerns about female juvenile offenders, concluding that "girls are still seriously neglected by the juvenile justice system" (National Institute of Justice 1998: viii). Although there appears to be little analysis of differences between young women and young men who are in trouble with the criminal law in Canada, there have been some suggestions that restorative justice interventions may need to be designed to meet the specific "needs" of young women offenders (Pepi 1998: 85).

According to Dianne Martin, female offenders in Canada are broadly typical of female prisoners throughout the western world: they are "generally poor, young, white, single mothers with few, if any, previous convictions": they are involved in minor crimes such as shoplifting, prostitution, and drug-related offences. As well, "the majority are also survivors of violence" (physical or sexual abuse, or both) (Martin in Roberts and Cole, eds. 1999: 190-191). As Martin noted, a substantial proportion of women offenders are also poor; indeed, she characterized welfare fraud as "a woman's crime":

There are many reasons for this situation. The increase in the need for social assistance caused by the recent recession has been accompanied by the usual increase in resentment expressed toward recipients. This resentment translates into support for harsh punishment for those who break the rules, even where the offence is motivated by "need not greed," and where poverty and privation have compelled a recipient to fail to disclose the contributions of a boyfriend or the extent of part-time employment earnings. In these difficult cases, pitiful and understandable circumstances seem to cry out for mercy, but the mercy received is often minimal and a jail sentence is a real risk (Martin in Roberts and Cole, eds. 1999: 193).

Martin's analysis is confirmed by the statistics of persons charged for 1994. Although 55% of persons charged with prostitution were women, the percentages of women charged for other offences were relatively small, except for the offences of fraud (30%) and theft under $1000 (33%) (Martin in Roberts and Cole, eds. 1999: 193, quoting from Commission of Inquiry into Certain Events at the Kingston Prison for Women 1996: 205). Thus, it appears that female offenders in the justice system may have needs because of their poverty, as well as because of their experiences of violence and abuse in the past.

Moreover, as the findings of the Commission on Systemic Racism in the Ontario Criminal Justice System demonstrated, there are also problems for offenders who are members of racial minorities in Canada. As the Commission concluded:

The Criminal justice system operates through a series of highly discretionary decision making stages. Discretion is exercised in subtle, complex and interactive ways, which leave considerable scope for racialization to influence practices and decisions, and for bias to be transmitted from one stage of the process to others (Commission on Systemic Racism 1995: 105).

The Commission's data revealed that there was significant over-representation of Blacks among accused in the Ontario criminal justice system.[40] As Frances Henry suggested, the Commission's report provided excellent research data to explain this overrepresentation of Black accused in prison - the result of the impact of imprisonment before trial, and the "differential treatment with respect to bail and other pre-trial measures" for Black accused (Henry 1996: 231). In her review of the Commission's findings and conclusions, Toni Williams also emphasized how it is necessary to examine all stages of the criminal justice process to assess whether, and in what ways, racism affects decision-making about Black offenders. As she concluded in relation to theories about sentencing, moreover, it is possible that "cultural beliefs and assumptions about black people may implicitly shape judges' assessments of the individuals before them … [especially when] judges are asked to assess intangible factors such as the attitude or personality of a convicted person" (Williams in Roberts and Cole, eds. 1999: 214).

In the context of such data, it is not surprising to find research which reveals that "members of many racial and ethnic minorities [in Canada] have strong perceptions that they are discriminated against by the criminal justice system" (Etherington 1994: x). Moreover, as Etherington suggested, there is a need to examine how discretion is exercised by prosecutors, and to develop guidelines to structure it, "including a directive that race or ethnicity not be a consideration in initiating plea discussions or in reaching a plea agreement" (Etherington 1994: xiii). In reviewing a range of reports about discrimination in the justice system, Etherington reported a degree of consensus about measures to address these problems.[41] However, he suggested as well that problems within the criminal justice system are often linked to broader concerns about racial discrimination in Canadian society. As Etherington explained:

The criminal justice system does not exist in isolation and many of the barriers to access to justice faced by minorities originate in institutions which are generally perceived to be extrinsic to the criminal justice system. Where individuals are rejected by, or perceive rejection by dominant groups in society, the potential for conflict between them and the values of the majority may increase. It is critically important to ask whether or not the broader non-criminal justice system provides access to justice to racial and ethnic minorities in their pursuit of economic and social justice or their attempts to gain redress for wrongs suffered in those areas of activity (Etherington 1994: xix).

Like Etherington, the National Council of Welfare's 1995 report also drew attention to the need for broader measures to prevent offending behaviour, particularly for young males. The report identified the success of a sports camp for young aboriginals in northern Manitoba and preschool programs in Michigan, both of which resulted in a decrease in criminal activity on the part of teenagers (National Council of Welfare 1995: 75). As these broader approaches to criminal activity reveal, the "needs" of offenders may encompass matters that go beyond individual acts of criminal offences, and they may need to take account of issues of poverty, gender and race - and the interrelationship of these characteristics for some offenders. In this way, the "needs" of offenders may require quite specific responses from the criminal justice system, whether it is the traditional system or one that embraces restorative justice.

2.4 The "Needs" of Victims and Communities for Justice

As explained, there has been a marked increase in recognition of the "needs" of victims in the criminal justice system in recent decades. These developments reflect earlier stages of criminal justice, prior to the creation of state-organized processes which clearly demarcated criminal justice as "public" and different from "private" civil claims. In a 1985 study of alternatives to criminal courts, Tony Marshall provided an analysis of the "needs" of victims in the criminal justice process. According to Marshall, victims suffer two kinds of losses: 1) material losses, including loss of money or property, or physical injury; and 2) emotional losses, including feelings of anxiety, insecurity or "pollution." However, as he noted, the criminal justice process is not well-designed to respond to either of these needs of victims. In relation to material losses, for example, the criminal justice system conceptualizes the offender's actions as primarily creating a "debt to society," so that it is "not well geared to helping out the victim financially" (Marshall 1985: 20). As well, the victim's emotional needs can be met only if the state can ensure that the offender is punished. Perhaps more importantly, Marshall suggested that victims' participation in criminal proceedings (as witnesses, for example) may actually "reinforce victims' sense of powerlessness arising from the initial criminal experience and further add to their dissatisfaction or even distress" (Marshall 1985: 21).

The inability of the criminal justice system to meet these "needs" of victims is the basis for many claims about the potential for restorative justice. As Mark Umbreit suggested, for example, processes of victim-offender mediation can hold offenders accountable for their actions and emphasize the human impact of the crime on the victim, as well as providing opportunities for offenders to take responsibility for their crime by making amends to victims; in addition, victim-offender mediation can promote active involvement by victims and communities in the justice process and enhance the quality of justice experienced by both offenders and victims (Umbreit 1994: 5). In a similar way, Bazemore suggested that victim-offender mediation in relation to juvenile justice could better respond to the needs of victims, but that it could also respond more appropriately to the needs of all involved:

But what may be the most unique insight of the restorative justice perspective is that advocacy for victims rights and involvement is not a zero-sum game. A focus on the needs of victims is therefore not incompatible with a concern with the needs and risks presented by offenders and with a concern with the general needs of communities. Restorative justice recognizes three clients … in any "justice" process: victim, offender, and the community (Bazemore 1999: 299).

Although the processes of victim-offender mediation are considered in detail in chapter 3, it is important at this point to analyze how the "needs" of victims are defined - and the consequences that flow from such definitions in relation to the choice of processes to respond to these needs. In such a context, it is also important to consider the extent to which different processes, including the criminal justice system, priorize the needs of victims, and communities, in relation to those of offenders.

One way of ensuring that victims' "needs" have some degree of priority is the creation of Victims' Bills of Rights. Thus, Bacchus suggested that the enactment of An Act Respecting Victims of Crime in Ontario in 1996 represented "a significant step in acknowledging the needs of victims of crime in the criminal justice system," and resulted in requirements for Crown counsel to ensure the participation of victims in accordance with the statute (Bacchus in Roberts and Cole, eds. 1999: 219).[42] This emphasis on victim involvement in the criminal justice process has also been evidenced by assertions that victims' "needs" must be recognized as "rights." In their analysis of critical victimology, Mawby and Walklate emphasized that accused persons have "rights," and that the criminal justice system must therefore recognize that victims' "needs" are also "rights."[43] At the same time, they argued that there remain many unmet needs for those who do not fit current notions of "victims," and that it is critical to recognize how structural inequities in society fundamentally affect criminal victimization (Mawby and Walklate 1994: 169). Mawby and Walklate identified four areas where "rights" for victims need to be improved: the right to play an active role in the criminal justice system (including mandatory victim impact statements); the right to knowledge about the progress of the case against an accused and the right to compensation; the right to financial help (including insurance schemes and the assistance of police); and the right to advice and support from state-funded agencies.

There are also some studies which define the "needs" of victims in relation to the benefits of restorative justice, at least on the basis of victims' responses to such programmes. For example, Umbreit et al identified a number of studies which seem to confirm victims' preference for victim-offender mediation programmes in the United States.[44] For the victims in these surveys, it appears that there was a serious "need" to confront the offenders face-to face. The authors suggested, moreover, that victim-offender mediation might meet the needs of victims, not only in crimes of property and minor assault but also "in crimes of severe violence, including murder;" at the same time, the authors identified a need for much more research and assessment with larger samples before any firm conclusions can be drawn. Indeed, they recommended caution, suggesting that "many unintended negative consequences could result from such initiatives, including a significant re-victimization of the victim" (Umbreit et al 1999: 340). In this context, it may be significant that the authors also stressed the usefulness of restorative justice to meet not just the needs of victims but also those of offenders and communities:

At its core, the process of victim-offender mediation and dialogue in crimes of severe violence is about engaging those most affected by the horror of violent crime in the process of holding the offender truly accountable, helping victims gain a greater sense of meaning, if not closure concerning the severe harm resulting from the crime, and helping all parties to have a greater capacity to move on with their lives in a positive fashion. This emerging restorative justice practice certainly warrants further development and analysis, along with an attitude of cautious and informed support (Umbreit et al 1999: 340-341, emphasis added).

The benefit of restorative justice practices for communities has been identified as a major impetus for their adoption in Australia. In a review of three case studies in the Wagga Wagga model, O'Connell identified the need for such practices in order to re-establish "community":

Conferencing is about re-creating community, one that is critical to assist us make sense of a world that has experienced significant social change over the past 40 years…. [All] those involved [in criminal justice] at some stage experience some "disconnection" from community…. [The] conference process allowed those communities to be strengthened and … individuals to re-connect with those who are significant in their lives. These experiences raise questions about our increasing reliance on professionals … (working in relative isolation) to assist communities re-establish themselves in the aftermath of any disruption that threatens social cohesion (O'Connell in Healy and Dumont, eds. 1997: 143).

Although it may not be appropriate to design restorative justice practices with the "needs" of only victims in mind, it may be important to have a clear understanding of the relationship among competing demands within such processes. Particularly where there may be conflicts or inconsistencies between the "needs" of victims, and the "needs" of communities or of offenders, it is important to implement protocols for defining the compromises that may be appropriate to meet the "needs" of these different interests. For example, the Criminal Code reforms (Bill C-41) which codified the rights of victims to participate in sentencing hearings, and which set out provisions for restitution of victims, for the introduction of victim impact statements, and for victim fine surcharges appear to have provided victims with more involvement in the traditional criminal justice process; as Sandra Bacchus suggested in her review of these provisions, however, it is possible that attentiveness to the "needs" of victims may result in more conditional sentences in order to improve the potential for offenders to be able to provide restitution to their victims (Bacchus in Roberts and Cole, eds. 1999: 225, quoting R. v. Visanji et al[45]). In this way, implementing victims' needs for restitution clearly affects the scope of sentencing of offenders. Moreover, balancing the "needs" of victims and offenders will be necessary in restorative justice processes as well as in the traditional criminal justice system. In this way, it is also important to note that there are others who may be harmed, in addition to the victim, including the offender (Llewellyn and Howse 1998).

In this context, the gender of victims may also be an important factor in meeting victim "needs." As the National Institute of Justice report in the USA indicated in 1994, "women were victimized about five times more often than men by persons with whom they had intimate relationships - spouses, former spouses, or boyfriends/girlfriends" (National Institute of Justice 1998: viii). Comparing the treatment of female victims of crime in 1975 to 1995, the report concluded that there had been some positive changes in the criminal justice system's response to female victims of crime: the criminalization of domestic violence, the establishment of sexual assault treatment centres, the enactment of victims' bills of rights, and the passage of the Violence Against Women Act in 1994. All the same, the report concluded that:

Despite these changes, current data on violence against women illustrate the need for additional measures such as a coordinated and integrated approach to reduce and prevent victimization of women. A coordinated approach to this problem suggests collaboration among law enforcement, prosecution offices, and the courts, as well as victim advocates and service providers. For the criminal justice system's response to be effective, professionals within the system should share a vision that prioritizes the safety and well-being of female victims (National Institute of Justice 1998: 56).[46]

There have been some efforts to respond to these "needs" within the traditional criminal justice system in Canada, including specialized courts for prosecuting child abuse cases and domestic violence cases. These courts offer specialized personnel, as well as coordination among social agencies and prosecutors. Yet, as a number of studies in Canada have revealed, the criminal justice system does not provide a safe and effective response to women who are victims of intimate violence. In a study of access to justice for abused immigrant women in New Brunswick, for example, Miedema found that there were strong religious and cultural constraints within immigrant families which made it difficult, if not impossible, for women to seek help in relation to problems of violence on the part of their spouses: "the fear of shaming or bringing dishonor to the family (husband) was a very powerful social control mechanism preventing women from seeking help in case[s] of abuse" (Miedema 1996: 7). In a related study, Miedema and Wachholz concluded that:

The vast majority of participants identified the interplay of cultural norms and structural oppression as very profound barriers to the justice system for abused immigrant women. All the women … described their social life as deeply rooted in patriarchal structures. Many women … indicated that the norm of defining abuse as a private, personal matter in conjunction with the fear of bringing shame to their family meant they were often very reluctant to contact the justice system. Structural constraints, such as language barriers, perceived racism in the criminal justice system and social service agencies, and lack of adequate ethnocultural services and representation, were also identified as disincentives to seeking help in cases of abuse (Miedema and Wachholz 1998: 29, citing Currie 1995).

These concerns are similar to those identified by Martin and Mosher, who suggested that there was a neo-criminalization reform policy for wife assault in the two decades from 1970 to 1990. However, they concluded that "the evidence is compelling that the neo-criminalization strategy [failed] individual women;" as they explained, "an aggressive criminal justice response exposes individual women to harms of a variety of sorts, and offers, only in some cases, potential benefits" (Martin and Mosher 1995: 37).

Martin and Mosher proposed a more complex strategy, one that "neither homogenizes the experiences of abused women, nor denies them the status of rational agents competent to exercise choice in their own best interest" and which recognizes that criminal justice intervention may be only one of a multitude of services and interventions which may be necessary (Martin and Mosher 1995: 43, citing Sheptycki 1991). Such an approach reveals that there may be different "needs" for victims of different kinds of criminal actions, especially in relation to gender; and that even among the victims of wife abuse, there may be different "needs" on the part of individual women because their circumstances differ. Overall, however, in the context of the "needs" of women who are victims of intimate violence, there is evidence that the current rate of reporting is extremely low. Using data from the 1993 Canadian Violence Against Women Survey, Gartner and Macmillan concluded that "police learned of these victimizations relatively rarely, only about 15% of the time" (Gartner and Macmillan 1995: 405). In assessing the scholarly debates about whether increased reporting would respond better to women's needs, however, Gartner and Macmillan were undecided; yet, as they emphasized, their study confirmed "the extent to which crimes of violence against women continue to exist outside of the law's domain" (Gartner and Macmillan 1995: 423).[47]

These concerns about the failure of the criminal justice system for women who are victims may also apply to some victims who are members of visible minorities. As Barbara Hudson suggested, some women and some Blacks who are victims may have difficulty engaging the criminal justice system because they do not fit the construction of the "ideal victim"; for example, this problem has affected "prostitute women or other independent, sexually-active women, attempting to bring rape charges" (Hudson 1998: 244). Moreover, for Hudson, it is important to take note of the differing responses of the criminal justice system to racial and sexual crimes on one hand, and "the street crimes of the powerless": while the latter have been taken seriously and "over-penalized," the former have all too often been ignored:

In other words, the censuring, moral-boundary-declaring, symbolic purposes of criminal law have already been served in relation to these latter types of offences, whereas with racialized and sexualized violence, the symbolic force of criminal law has only recently, and only partially (especially in the case of racial violence) been deployed to demonstrate that society, at least in its official organization, disapproves of these forms of behaviour (Hudson 1998: 245).

For Hudson, it is also important to acknowledge how power relationships within society affect the commission of crime. She suggested, for example, that social inequality which "pushes so many young men into economic marginality" may prompt them to use violence to establish their claims to racial and gender superiority. As a result, she argued that differential power relationships are completely different in domestic, sexual and racial crime, by contrast with property offences and other kinds of "economic survival" crimes. Thus, she expressed concern that victim-offender mediation processes, which make the relationship between victim and offender central - displacing the relationship between offender and the state - may "reproduce and reinforce the imbalance of power of the crime relationship, rather than confronting the offender with the power of the state acting on behalf of (in the place of) the victim" (Hudson 1998: 247). Moreover, while recognizing the victim's "need" for community disapproval of the offender's actions, Hudson questioned the real possibility of community shaming:

… [Most] of us now inhabit not 'communities,' but shifting, temporary alliances which come together on the basis of private prudentialism. Residents' associations; parents' associations; city-centre rate-payers; shopping-mall retailers; share-holders' meetings; women's groups: these are the kinds of collectivities which claim people's allegiances now, rather than communities. The weakest point of [restorative justice] is … what is the community; what is the community interest, and how can it be represented? Without the concern to make safer communities, restorative justice is in danger of merely substituting civil justice for criminal justice. Without the community, restorative justice is reduced to the competing perspectives of the victim and the perpetrator, and there is no social group with reference to whom the offender can experience either shame or reintegration…. To serve the expressive functions of punishment, restorative processes will have to devise ways of clearly separating condemnation of the act from the negotiation of measures appropriate to the relationships between the particular victim, the offender, and the community (Hudson 1998: 251-253).

Like Martin and Mosher, however, Hudson also acknowledged how "get tough" policies in relation to sexual (and racial) violence may not be solved within the current criminal justice system: "penal toughness towards racial, sexual, and domestic violence would only be inflicted on the poor and marginalized, with the powerful continuing to perpetrate their racist and misogynist behaviour behind closed doors." Penal toughness will thus lead to "the rich getting counselling and the poor getting prison" (Hudson 1998: 155).

These comments reveal the political content of discussions of victims' "needs." As Walklate suggested, there has been a convergence between women's advocates (who have drawn attention to the rate and seriousness of crimes of violence against women) and political needs to demonstrate "get tough" policies in relation to crime (Walklate 1995: 33). Similarly, David Garland has argued that current punitive policies have been shaped, at least in part, by a linkage with the interests and feelings of victims:

[Actual victims], victims' families, potential victims, the projected figure of 'the victim' - are now routinely invoked in support of measures of punitive segregation. American politicians announce mandatory sentencing laws and are accompanied at the podium by the families of crime victims. Crime victims are featured speakers at British party political conferences. Measures are named for victims … The new imperative is that victims must be protected, their voices heard, their memory honoured, their anger expressed, their fears addressed. The rhetoric of penal debate routinely invokes the figure of the victim…. A political logic has been established wherein being 'for' victims automatically means being tough on offenders. A zero-sum policy game is assumed wherein the offender's gain is the victim's loss…. [What] is insufficiently acknowledged is the degree to which the figure of the victim has come to have the status of a 'representative individual' in contemporary society (Garland 2000: 351).

As Garland's analysis suggests, the "needs" of individual victims have been appropriated, indeed transformed, by political rhetoric into the "representative needs" of victims. In this way, the focus on victims' "needs" may have contributed to a "get tough" political agenda by providing added support for more and longer periods of incarceration. In such a context, the real needs of actual victims may be less important, even ignored. Moreover, the rhetoric may create a need for those who claim that restorative justice provides a viable alternative to exercise care not to be captured by a "get tough" political agenda and to define the real "needs" of actual victims. Overall, victims' "needs," as well as the "needs" of offenders and communities (including aboriginal communities) appear to be both complex and contested in relation to the goals and values of criminal justice in Canada.

  • [35]In the context of its brief on the issue of mandatory minimum sentences, the Canadian Association of Elizabeth Fry Societies stated that "Aboriginal people, other racialized people, and poor people face a criminal justice system in which discretion is exercised to their disadvantage at every turn, from the investigatory and charge stage by police, to the prosecutorial decisions made by Crown attorneys, to the trial and sentence decisions by judges, to the penal practices, including discipline of prison authorities, through to the parole determinations made by the parole board": see Canadian Association of Elizabeth Fry Societies, Reforming Criminal Code Defences: Provocation, Self-Defence and Defence of Property (Ottawa: CAEFS, 1999) 9.
  • [36] In one such situation, for example, a man with a record of youth and adult convictions for assault and break and enter was once again charged with break, enter and theft. The Crown Attorney wanted a period of incarceration. Instead, the case was handled by a restorative justice programme, which recommended: a suspended sentence, with supervision to be carried out by the restorative justice programme; completion of an Interpersonal Communication Skills Course; completion of an Addictions Foundation of Manitoba assessment and regular attendance at Alcoholics Anonymous; the completion of conditions as outlined in the mediation agreement; and literacy training. The plan was accepted by the judge (Griffiths 1999: 281-382). This example shows how the plan adopted by the restorative justice process attempted to respond to the "needs" of the accused, needs which were arguably much more complex than just the criminal charges he faced. Although the accused was 32 years old at the time, his record of offending as both a youth and an adult revealed a pattern of criminal activity, warranting more and more serious responses within the criminal justice system. By thus "diverting" this case from the court docket, it is arguable that both the accused and the community benefitted more than by sending the accused to jail; moreover, the cost of incarceration was also avoided; in this way, restorative justices practices appear to offer considerable scope for responding to the "needs" of accused persons and communities (Griffiths 1999).
  • [37] As Roach argued, "the under-policing thesis should be approached with caution. Mary Hyde has suggested that 'the dependency of native communities on police for services, not otherwise available on reserves, results in high police to population ratios, increases the likelihood of police interventions and 'criminalizes' behaviour that would not otherwise be criminal if other agencies were involved.' Adding more police may only increase Aboriginal overrepresentation in prison" (Roach 1999: 264, quoting Hyde 1992: 370).
  • [38]The Safe Streets Act provides for a fine of up to $500. for the first offence, and a fine of up to $1000. or up to 6 months in prison or both for the second offence.
  • [39]"Every Canadian report on the criminal justice system … emphasized the importance of restraint. In its broadest sense, restraint implies a) that the criminal justice system should not interfere in people's lives unless intervention is necessary to protect other people from harm; and b) that the justice system should not be used to accomplish tasks that would be better done by other institutions…." (National Council of Welfare 2000: 103).
  • [40] As Roach indicated:

    Over-representation is clear and stark. Black people account for 15% of prison admissions in Ontario, but only 3% of the province's population. The white adult admission rate to Ontario Prisons in 1992/93 was 706 per 100,000 while the Aboriginal and black admission rates were 1993 and 3686 respectively. The majority of the black, but not the Aboriginal, admission rate consists of unsentenced remand prisoners who have been denied bail…. The inquiry explains dramatic over-representation of black people in Ontario's prisons by social and economic inequality and by differential enforcement within the criminal process (Roach 1996: 239).

  • [41]"There is a significant uniformity in the reports for measures to address concerns about racism and discrimination in the exercise of discretion within the justice system. The four types of measures most often repeated are an increase in minorities as justice system actors at all levels; implementation of cross-cultural and anti-racism training for justice system actors; community liaison programs to improve relations between system actors and minority communities; and monitoring bodies or complaint agencies to uncover abuses and to provide access to remedies to minority community members" (Etherington 1994: xiv). Suggestions for better cross-cultural understanding on the part of lawyers were analyzed in detail as well by Michael Wylie, who concluded that legal services in a multi-cultural Canada require lawyers to understand the cultural context within which an individual client's problem is presented. See Wylie "Enhancing Legal Counselling in Cross-Cultural Settings" (1996) 15 Windsor Yearbook of Access to Justice 47.
  • [42]As Bacchus explained, "Crown attorneys are directed to ensure that the interests of victims of crime are brought forward at every stage of the prosecution to a degree consistent with the primary role of a prosecutor, although comments of the victim that are not relevant to issues of sentencing should not be placed before the court. As a result, Crown counsel is sometimes required to act as a screen or filter for the concerns of the victim and must balance the victims' right to dignity and some level of participation in the process with the Crown's function as an officer of the court" (Bacchus in Roberts and Cole, eds. 1999: 219-220, emphasis added).
  • [43] In his review of victims' rights, Roach concluded that "although they achieved some recognition, the rights of crime victims [in Canada] were more fragile than either the rights of the accused or the rights of the disadvantaged groups who claimed equal protection of the criminal law. Part of the reason may be found in the Charter, which entrenched both due process and equality rights, but not the rights of crime victims…. Crime victims have had some impact on the criminal process, but it was limited and contested" (Roach 1999: 309).
  • [44]"Today it is very clear, from empirical data and practice experience, that the majority of victims of property crimes and minor assaults presented with the opportunity of mediation chose to engage the process, with victim participation rates often ranging from about 60-70% in many programs. A statewide randomized public opinion survey in Minnesota found that 84% of citizens, including many who had been victimized by crime, indicated they would be likely to consider participating in victim offender mediation if they were the victim of a property crime…. A more recent statewide survey of victim service providers in Minnesota found that 91% felt that VOM was an important service to be made available to victims on a volunteer basis and that it should be offered in each judicial district of the state" (Umbreit et al 1999: 322).
  • [45]R. v. Visanji, Lall, and Akbar (unreported) Ont. Ct. Prov. Div., 2 July 1997.
  • [46] The National Institute of Justice report also explained how, even when victims' rights are recognized, "they may not be enforced and there are few sanctions for failure." The report described a request by Mary Byron of Jeffersontown, Kentucky to be notified when her estranged boyfriend, who had been charged with raping her at gunpoint, was released from detention. Unfortunately, she was not notified and her estranged boyfriend murdered her. Her estate sued the Jeffersontown Police Department and the detective who had failed to notify her, but the suit was dismissed. On appeal, the court held that there was no duty to notify Byron of her estranged boyfriend's release (National Institute of Justice 1998: 45, citing Lexington Herald-Leader, 13 July 1996).
  • [47] At the same time, it is important to recognize that proposals for innovative intervention strategies within the criminal justice system, perhaps especially in relation to gender issues, may provoke strenuous opposition, as was revealed in the decision of students to alter their approach to legal aid services for abused women in Ottawa: see Ruth Carey "Useless (UOSLAS) v. the Bar: The Struggle of the Ottawa Student Clinic to Represent Battered Women" (1992) 8 Journal of Law and Social Policy 54.
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