Multi-Site Survey of Victims of Crime and Criminal Justice Professionals Across Canada
4. Findings From Criminal Justice Professionals (continued)
4. Findings From Criminal Justice Professionals (continued)
4.12 Restorative Justice
In recent years, restorative justice approaches have become more widely used at all stages of criminal proceedings. Restorative justice considers the wrong done to the person as well as the wrong done to the community. Restorative justice programs involve the victim(s) or a representative, the offender(s), and community representatives. The offender is required to accept responsibility for the crime and take steps to repair the harm he or she has caused. In this way restorative approaches can restore peace and equilibrium within a community and can afford victims of crime greater opportunities to participate actively in decision-making. However, concerns have been raised about victim participation and voluntary consent, and support to victims in a restorative process. This study included several exploratory questions to discover the extent to which criminal justice professionals have participated in restorative justice approaches and their views on the appropriateness and effectiveness of these approaches.
4.12.1 Participation in Restorative Justice Approaches
Of the various respondent groups, defence counsel are most likely to have participated in a restorative justice approach; close to 60% of defence counsel surveyed, compared to 43% of Crown Attorneys and one-quarter of judges, indicated having ever participated in a restorative justice process. Please refer to Table 82.
Table 82: Have you ever participated in a restorative justice approach ?
Respondents reported having been involved in various restorative approaches, including sentencing and healing circles, diversion, mediation, and community and youth justice forums. As Table 83 below shows, defence counsel and Crown Attorneys are slightly more likely to have participated at the sentencing stage, while police as well as victim services providers and advocacy groups are more likely to have participated prior to charges being laid. A significant proportion of Crown Attorneys and defence counsel who have participated also indicated having taken part in restorative processes after charges had been laid, but before sentencing.
| Victim Services (n=38) | Crown Attorney (n=81) | Defence Counsel (n=107) | Police (n=118) | Advocacy Groups (n=17) | |
|---|---|---|---|---|---|
| Pre-charge | 42% | 52% | 64% | 74% | 47% |
| Sentencing | 37% | 61% | 66% | 25% | 29% |
| Post-charge, pre-sentencing | 8% | 32% | 19% | -- | 24% |
| Other | 18% | 6% | 8% | 20% | 29% |
| No response | 16% | 6% | 2% | 1% | -- |
Note: Respondents could provide more than one response; totals sum to more than 100%.
Table 84 below shows the most common explanations for respondents' lack of involvement in restorative justice. Across all respondent groups except victim services, the most common reason is that restorative approaches are not available or not yet widely used in their province. Several Crown Attorneys, defence counsel, and judges pointed out in interviews that restorative justice tends to be used primarily in rural, northern, or remote Aboriginal communities. It was even suggested that there may be a perception among some members of the police, the Crown Attorney, and the bench that restorative justice is only to be applied in cases involving Aboriginal people. A few respondents said that restorative justice is only used for young offenders.
A sizeable proportion of respondents in all groups explained that restorative justice had never come up as an option or that they had never had a case suitable for restorative justice. Other common explanations for respondents' non-participation in restorative justice were that such approaches do not protect the victim adequately (a particular concern for advocacy organizations and Crown Attorneys) and that such approaches do not act as a deterrent.
Certain respondent groups gave other reasons for their non-participation in restorative justice, which do not appear in the table below. For example, 13% of both victim services providers and advocacy group respondents reported that restorative justice is not part of their agency's mandate, while 11% of victim services, 6% of police, and 5% of probation officers reported that it is not part of their job responsibility to become involved in restorative processes. Ten percent of victim services providers, 5% of police, and 2% of probation officers said that restorative justice is not an appropriate or viable option in the cases they deal with. Eight percent of police attributed their non-participation in restorative justice to their lack of knowledge about it.
Among defence counsel, 5% expressed concern that restorative justice approaches do not adequately protect the accused, and the same proportion reported that such options are only available for youth. Twenty percent of judges explained that restorative justice had never been presented to them as an option by the Crown Attorney or by defence counsel.
Table 84: Why have you not used of participated in a restorative justice approach ?
In interviews, judges commented extensively on the use of restorative justice. Several suggested that the logistics involved in these approaches are a significant obstacle to their more frequent application. Restorative justice processes are more time-consuming than court processes and demand from community members a significant commitment of time and effort in order to succeed. It is often difficult to identify a group of individuals who are prepared to participate, particularly since these individuals are usually volunteers. In rural areas where participants may be required to travel considerable distances in order to attend restorative processes, the fact that they are not paid for their time or transportation is especially an issue. As a potential remedy to this situation, a few judges suggested promoting less elaborate restorative approaches (e.g., mediation as opposed to community conferencing or sentencing circles).
Other logistical issues include the potential for conflict of interest in Aboriginal communities where many community members are related; and, in large and medium sites, the lack of an identifiable community of individuals who could participate.
4.12.2 Victim Involvement in Restorative Justice
There was disagreement both within and across the survey respondent categories on the extent to which victims are involved in the decision to use restorative justice approaches, as Table 85 demonstrates. Victim services providers more often believe that the victim is only sometimes consulted, while police, advocacy groups, and Crown Attorneys more often think that consultation with the victim does indeed always take place. Defence counsel are evenly split between those who think that victims are always involved and those who believe that they are only sometimes involved.
| Victim Services (n=38) | Crown Attorneys (n=81) | Defence Counsel (n=107) | Police (n=118) | Advocacy Groups (n=17) | |
|---|---|---|---|---|---|
| Victim is always involved | 32% | 52% | 44% | 80% | 59% |
| Victim is sometimes involved | 45% | 38% | 43% | 14% | 24% |
| Victim is seldom involved | 8% | 5% | 9% | 6% | 12% |
| No response | 16% | 5% | 4% | -- | 6% |
Note: Some columns do not sum to 100% due to rounding.
Similar disagreement was evident among interviewees. For example, a few Crown Attorneys who were interviewed reported that cases do not proceed through restorative justice unless the victim approves it. Others said that restorative approaches are sometimes used even without the victim's consent simply because these cases are not worth going to court (in these instances, however, the victim is always informed of the decisions). A few Crown Attorneys added that victims always have the opportunity to participate in restorative justice beyond the initial decision to use the approach, but that many victims do not wish to participate. Small numbers of defence counsel and victim services providers made similar comments.
4.12.3 Cases Where Restorative Justice Would Be Most Effective
Crown Attorneys, victim services providers, and judges were asked to comment in interviews on when they believe that restorative justice approaches would be most effective. There was substantial agreement that such processes would be particularly effective in cases involving young offenders, first offenders, and minor property offences. However, the effectiveness of restorative approaches in dealing with crimes of violence was much debated by interviewees. Generally speaking, although respondents agreed that restorative approaches should not be used for sexual assaults, child abuse, and other violent offences; several respondents in each group think that some minor assault cases could potentially qualify. In addition, interviewees disagreed over whether restorative justice is a suitable way of dealing with spousal violence, given the family and power dynamics involved in these cases.
Several interviewees said that they would not close off any offences to restorative justice, but would rather make a case-by-case assessment by considering the facts of the case and the personalities and communities involved. From the perspective of these respondents, factors other than the nature of the offence should determine whether restorative processes are used. They believe that restorative approaches would be particularly effective, for example, in cases where there is a relationship between the offender and the victim; where all parties agree that the approach is appropriate; where the victim consents to the process; and where the offender is willing and motivated to participate.
Interviewees also suggested that restorative justice would be most effective where an offence affects an entire community or parts of it (e.g., disputes between neighbours or friends) and where the community takes a direct interest in the process and is prepared to participate. As an example, a few judges said that restorative approaches would be particularly effective in Aboriginal communities or other small, tightly knit communities.
Several judges expressed a wish to see restorative justice approaches used more often and more effectively in the future, and some added that this will only be possible if resources are committed to creating the necessary infrastructure. Although defence counsel did not comment extensively on restorative justice, a few offered some general remarks in favour of such approaches. They commented that restorative justice can provide an economical option for keeping cases out of court and that they work well if there is a desire to repair personal or community relationships.
4.12.4 Protection of Victim Safety
Crown Attorneys, judges, and victim services providers were asked in interviews about the importance of consulting the victim in the use of a restorative justice approach. Almost all respondents in all three categories believe that such consultation is indeed important. There was widespread agreement that in order for restorative justice to adequately address victims' needs, victims should consent to and participate in the process, and that there is less chance of success if such consultation does not occur. However, several interviewees reiterated that the decision to proceed with a restorative approach is not the victim's alone to make and does not require the victim's permission, since the offence and the restorative process do not affect only the victim, but rather the whole community.[38]
At the same time, Crown Attorneys and victim services providers expressed concern in interviews that restorative justice may not always adequately protect victims and address their interests. This concern, as already noted in Table 84 above, was also evident from the quantitative data, which showed that 18% of Crown Attorneys and 10% of victim services gave inadequate protection of the victim as the reason they had not participated in a restorative approach. In interviews, Crown Attorneys, judges, and victim services providers reiterated that restorative justice should not be used for violent offences where there are real safety concerns or power imbalances between victim and accused because of the potential for victims in such cases to be pressured or intimidated into participating. From the perspective of these interviewees, the ability of restorative approaches to adequately protect victims depends on the structure of individual programs; on the existence of a proper support structure to guarantee victim safety; and on the facilitator's training.
4.13 Victim Safety Post-sentencing
Victim safety is an important consideration at all stages of the criminal justice process, including probation. Respondents to the probation survey were asked several questions about victim safety at this stage. More than two-thirds of probation officers (68%) reported that they generally recommend in pre-sentence reports that conditions for the victim's safety be placed on the offender. Approximately one-third said that they usually speak to victims who know the offender when preparing pre-sentence reports, and a similar proportion said that they speak to all victims.
To ensure that conditions of probation are followed, at least half of respondents reported that they conduct collateral checks or monitor the offender directly; one-quarter said that they consult the victim about any breaches of conditions; and about one-tenth monitor criminal justice information system and databases. Twenty-eight percent simply said that they verify compliance with probation conditions but did not explain specifically how this is done. Table 86 provides compete results.
| Ways of ensuring conditions are followed: | Probation (N=206) |
|---|---|
| Collateral contacts or checks | 58% |
| Direct monitoring of offender | 50% |
| Verify compliance with probation conditions | 28% |
| Consult with victim about any breach of conditions | 25% |
| Monitor criminal justice system information or databases | 11% |
| Passive monitoring | 2% |
| No response | 8% |
Note: Respondents could provide more than one response; total sums to more than 100%.
[38] Restorative justice does, in principle, require voluntary agreement of the victim, the accused and the community
- Date modified: