Part IV: Restorative Justice

Introduction

Adversarial justice can be stressful and traumatizing for everyone in the process, and there may be limits – constitutionally, conceptually and practically – with respect to any law reform effort to mitigate the harsh and alienating component of our criminal process. Knowing that there are limits to the changes which can be made to make adversarial justice a gentler process, there has been a growing movement over the past thirty years to move minor criminal cases out of the institutionalized system and into an alternative process in which the restorative aspects of justice outweigh the retributive aspects. In fact, the 1996 sentencing reform in Canada recognized for the first time that “alternative measures” were part of the criminal justice landscape.

In the 2001 report, it was noted that restorative justice programs around the world seem to increase victim satisfaction, and the report concluded by stating that:

[I]t is critical to review this restorative justice movement as it may be that in some cases victim satisfaction can only be enhanced outside of a criminal court setting. Studies of mediation programs consistently reveal a high level of victim satisfaction for some cases; however, the empirical evidence relating to increased victim participation in the criminal process does not lead to the same finding. The studies do demonstrate that victim participation has not led to chaos in the courts, nor has it led to a significant impact on sentence outcome. However, when the studies turn to victim satisfaction the results are inconclusive and discouraging. (Young 2001b:61)

As this report has shown, studies over the past two decades have demonstrated some increases in victim satisfaction with various aspects of the process, but for the most part, the causes of dissatisfaction still persist and the goal of integrating victims, and increasing their level of satisfaction, is a work in progress. As such, restorative justice continues to be touted as a popular and effective alternative to the traditional process from the victim’s perspective:

Many touched on a theme that the restorative justice program supported them in ways that the formal criminal justice system did not. That is, some felt they did not get the kind of victim services they desired, nor did they feel listened to by court officials/other representatives of the criminal justice system or school system. In contrast, a consistent them was that participants felt the restorative justice program provided them with attention, answers and services that they otherwise did not have access to. (Bargen, Lyons & Harman 2019:18)

Unlike the criminal justice system, restorative justice is meant to be “both backward-looking – condemning the offense and uncovering its causes – and forward-looking – making amends with the victim and the general community while actively facilitating moral development and pro-social behaviour of the offender” (Luna & Poulson 2006:790). In other words, it focuses on “healing and redress rather than violence and duress; it favours the victim’s gain over the infliction of pain” (Fattah 2011:720). As was noted by the Law Commission of Canada in 2003:

One of the ways we deal with conflict is through the justice system. But, over the past several decades, some Canadians have become dissatisfied with how the formal justice system responds to conflict. Conflicts are framed in legal language, rather than in terms of how individuals experience them; remedies often do not provide adequate redress for those who have been harmed; and the process is frequently time-consuming, costly and confusing (Law Commission of Canada 2003:xiii).

There is no universal definition for restorative justice (Jones & Nestor 2011; Belknap & McDonald 2010; Berlin 2015; Van Camp & Wemmers 2013), but most programs are comprised of some form of mediation or dialogue between offender and victim. However, there are also several restorative justice programs and initiatives that focus on the offender, rather than the victim, such as Circles of Support and Accountability, which started in Canada and aimed to help sex offenders reintegrate into the community upon their release. These programs are beyond the scope of this report.

There continues to be an extensive amount of research and literature pertaining to restorative justice both in Canada and abroad (at least 2 books, over 100 articles and 18 government reports since 2000), and the importance of this concept is underscored by the fact that, in 2002, the UN recognized and addressed it with the adoption of the Basic Principles on the Use of Restorative Justice Programs. In 2015, Manitoba even enacted the Restorative Justice Act (C.C.S.M. c. R119.6), which is the first of its kind in Canada. The Act created an advisory council to oversee implementation of a strategy designed to increase the use of restorative justice and to promote public safety by providing for a resolution that affords healing, reparation and re-integration (OFOVC 2017d).

The Benefits of Restorative Justice

Restorative justice programs have grown in popularity within the victims’ rights movement because there are many different reasons why victims find non-adversarial processes more rewarding. Some victims wish to confront their offenders. Some victims are seeking reparations or an apology. The reasons for participation are varied:

The available research is relatively consistent regarding victims’ expectations. Victims participate in restorative justice programs to seek reparation, help the offender, confront the offender with the consequences of the crime, and to ask questions such as why the offence was committed. Interestingly, regardless of the seriousness of the offence, the reasons given by victims for their participation in restorative justice programs remain quite consistent.(Wemmers & Canuto 2002:35)

Generally speaking, restorative justice has been found to be extremely beneficial for victims (see, for example, OFOVC 2017d; Evans, McDonald & Gill 2018; Gavielides 2015):

Research on restorative justice has found many positive benefits, such as high levels of participant satisfaction, decreased fear for victims, and reduced recidivism for offenders. Research has also suggested that restorative justice processes may have positive impacts on a participant’s overall well-being (Rugge & Scott 2009:1).

In a similar vein, it was noted in 2014 that:

Generally, a meta-analysis of the documented studies seems to suggest that those who participated in such a program were more likely to: believe the criminal justice system and the handling of their case was fair, believe they had an opportunity to tell their story, feel their opinion was adequately considered, think the judge or mediator was fair, feel the offender was held accountable, receive an apology or forgiveness, believe the outcome was fair, be satisfied with the outcome, believe the other party’s behaviour improved, and were less likely to remain upset about the crime, and be less afraid of revictimization (Marshall 2014:586).

While some of the benefits that have been recognized relate to the ultimate outcome of the process, it is important to note that the research has also shown that sometimes the outcome is less important than the process itself. For instance, a recent Canadian study found that “the need for support was often experienced as an independent benefit of the restorative justice process, sometimes surpassing any outcomes (positive or negative) of the encounter with the offender” (Bargen, Lyons & Hartman 2019:17). Van Camp and Wemmers (2013) similarly noted that restorative justice was valued by victims regardless of the outcome and that having an opportunity to participate in the process and to present their complaints (“voice”) was a strong indicator of respondents’ satisfaction.

Despite the widespread potential benefits of restorative justice programs, some criminal justice professionals remain hesitant to refer victims to such programs. A Quebec study of victim service providers found that many were sceptical of restorative justice programs and reluctant to refer victims to them (Coté & Laroche 2002). Ironically, the reluctance to refer was often related to concerns that these programs could trigger secondary victimization. The 2018 Criminal Justice Professionals Survey also found that, despite 90% of police and 91% of victim service workers being aware of restorative justice programs, only 51% of police and 62% of victim service workers made referrals to such programs (Bourgon 2019). This stated reluctance may relate to the fact that there is considerable disagreement amongst criminal justice professionals as to whether restorative justice is appropriate for violent or sexual offences (Prairie Research Associates 2004; Bourgon 2019; OFOVC 2017d).

Victim-Offender Mediation

Victim-offender mediation is the most researched, empirically supported and widespread form of restorative justice practice around the world and it has attracted a large body of research studies (Umbreit & Armour 2011). As such, it is not surprising that victim-offender mediation has been integrated into criminal justice systems around the world (ibid). Even the United States, with its aggressive system of adversarial justice, has over 300 victim-offender mediation programs alone (ibid) and at least 29 states make reference to victim-offender mediation in their victims’ rights statutes (Umbreit, Coates & Vos 2004; Lightfoot & Umbreit 2004).

While victim-offender mediation has historically only dealt with property crimes and minor assaults (and, to a large degree, still focuses on these kinds of offences), there is a growing practice of using victim-offender mediation for serious violent offences (Umbreit, Coates, Vos 2004; Public Safety Canada 2005). In this regard, the CSC Restorative Opportunities Program is the most well-known program in Canada which deals mainly with violent offences. Since the program was established in 1992, a total of 257 offenders have participated in victim-offender mediation, the large majority of whom were convicted of either murder, manslaughter or attempted murder (51%) or sexual offences (27%) (Correctional Services Canada 2018). As with other victim-offender mediation initiatives, which will be discussed below, victims have expressed great satisfaction with the program’s mediation process (ibid) and it has been found to have a positive impact on the participants’ physical and psychological health (Rugge 2006).

The tangible benefits of victim-offender mediation have been demonstrated extensively and have been found “across sites, cultures and seriousness of offenses” (Umbreit et al. 2005:273). Moreover, as was noted in the 2001 report, victims tend to be more satisfied with mediation than traditional criminal justice processes:

Restorative justice has been found to be an effective mechanism for addressing crime and wrongdoing. Typically, crime victims report being satisfied with victim-offender mediation more than 80% of the time and nine out of ten state that they would recommend mediation to a friend (Umbreit, 1999; Umbreit & Armour, 2011; Umbreit, Coates, & Vos, 2001). This compares favorably to satisfaction with traditional court processes, where victims report satisfaction rates of 42–79% (Sherman & Strang, 2007; Strang, Sherman, Mayo-Wilson, Woods, & Ariel, 2013; Umbreit, 1999). Furthermore, commonly over 80% of the time victims report being satisfied with mediation outcomes (Umbreit, 1999; Umbreit, Coates, & Vos, 2004).  In several studies, victims indicated over 80% of the time that they found the mediation process and any resulting agreements fair, compared to 37–56% of those who attended court processes (Hansen & Umbreit 2018a:188).

Some of the tangible benefits of victim-offender mediation that have been identified since 2000 include:

  1. It helps victims put the offence and victimization behind them (New Zealand Ministry of Justice 2016; Strang 2002; Choi, Green & Kapp 2010);
  2.  Reduced levels of fear/enhanced feelings of safety (Walgrave 2011; De Mesmaeker 2011; Strang 2002; Strang et al. 2013);
  3. Enhanced restitution – either in terms of reaching an agreement (Spriggs 2009) or higher compliance rates (Latimer, Dowden & Muise 2001; Umbreit & Armour, 2011);
  4.  Empowerment (Koss 2014; Wager 2013; New Zealand Ministry of Justice 2016; Choi, Green & Kapp 2010; Armstrong 2012); and
  5. Psychological benefits such as reduction of stress and PTSD symptoms (Koss 2014; Angel et al. 2014; Strang et al. 2013).

Of course, the praise for this form of restorative justice is not universal amongst all victims, and there are still, however, some victims who are not satisfied with the mediation process. Some of the reasons for such dissatisfaction include:

  1.  Victims felt that their emotions were stifled (Choi, Green & Kapp 2010; Jacobsson Wahlin & Anderson 2012);
  2. Inadequate preparation (Choi, Gilbert & Green 2013; Choi, Green & Kapp 2010);
  3. Revictimization through the process (Choi, Bazemore & Gilbert 2012; Strang 2002); and
  4. Victims felt pressured either to accept the agreement/apology or to finish the mediation (Choi, Gilbert & Green 2013; Choi, Green & Kapp 2010).

There is an enormous body of evaluative literature from many different jurisdictions, and Professor Mark Umbreit has been one of the most prolific scholars who has followed the evolution of restorative justice programs for many decades. In 2018, he and Professor Hansen provided this outline of the various findings from four decades of research:

This research consistently demonstrates that victim-offender mediation is at least as effective as traditional juvenile and criminal justice responses to crime and is commonly shown to be far more effective…To summarize, several key findings about victim‐offender mediation have emerged:

  1. victims and offenders both generally report higher levels of satisfaction with the process, outcomes, and the fairness of the process than those who participate in court proceedings;
  2. victims and offenders tend to derive psychosocial benefits from participating in the victim‐offender mediation process;
  3. most victim‐offender mediations result in restitution agreements that are more likely to be fulfilled than those coming out of traditional juvenile and criminal justice processes;
  4. victims who participate in victim‐offender mediation are likely to receive a direct apology from offenders, which they often value;
  5. victim‐offender mediation tends to reduce the likelihood of offender recidivism;
  6. victim‐offender mediation is typically less expensive than the traditional criminal justice system, producing immediate cost‐savings associated with the process itself (when compared to court proceedings), as well as long‐term financial benefits from decreases in recidivism and incarceration; and
  7. more offenders tend to be diverted away from the traditional criminal justice system when victim‐offender mediation is made available. However, these benefits are not necessarily uniformly experienced across diverse programs, countries, ethnic groups, genders, races, ages, types of crimes, or other intervening variables, all of which need to be more thoroughly researched. However, researchers are increasingly discovering in more detail how victim‐offender mediation works, with whom, and under what circumstances (Hansen & Umbreit 2018b:106-107).

From the Canadian perspective, a 2006 study similarly found that “victims desire more than the ability to make demands. Most victims in the sample said that they had been able to make demands, but what mattered most was that they felt they were heard and were not hindered in making demands” (Wemmers & Cyr 2006b:122)The researchers further noted that “victims find mediation fair because it offers them recognition and respect through consultation, not because it allows them to make demands” (ibid:123). Much of the research into victim-offender mediation confirms the important conclusion identified in the 2001 report that victims are generally more interested in process than outcome (see, for example, Umbreit et al. 2005; New Zealand Ministry of Justice 2016; Miller 2011; Armstrong 2012; Wemmers & Cyr 2005). Being treated fairly may be more important that the actual result of the case.