As the head of an organization that supports men in the justice system, I spend a lot of time observing or reading about criminal trials. What strikes me is how few people are actually satisfied with the outcomes. Naturally, those convicted are not likely to be happy, but the victims, their family, and their friends are often less than satisfied as well. Common responses I’ve heard include “the sentence isn’t long enough,” “that’s not what I wanted,” “nobody asked me what I wanted to see happen.” This is usually followed by, “at least it will give us closure; we can put this behind us and move on.” But if the outcome of the trial is not what they wanted, if it doesn’t address the harm done to them, how can victims move on or find the closure they need?
What most people don’t realize is that the court system is not designed or intended to repair the harm done to victims. To do that, you need a different approach, something commonly known as “restorative justice,” which operates in a wholly different fashion. It is a practice I have engaged in and promoted for more than 15 years.
The practice of restorative justice (in non-Indigenous communities) came about in North America in the 1970s. Our formal system of justice is, and was then, a two-part process. The first part of any trial is to determine guilt. If a victim is involved at this stage, it is only to give testimony. If a finding of guilt is made, then the trial moves to the punishment phase, known as “sentencing.” The person harmed may give a victim impact statement during this phase, but they play no part in determining what the sentence should be. (And in many cases, the victim impact statements are read out after the judge has already decided what the outcome will be).
The accused has an even smaller role in the court process than those harmed. Other than to say how they plead and to testify if they choose to do so, their lawyers do all the speaking. If found guilty, the accused has no role in determining the consequences beyond the opportunity to say a few words just before the sentence is handed down.
Unlike the formal system of justice, restorative justice is not focused on determining guilt or dispensing punishment. Its principal focus is to determine what harm was done and finding the best way to repair that harm. It does not involve a judge, jury, or lawyers – in fact the main participants are limited to those most closely affected by the crime. This includes the victims, their family and friends, the person accused, and representatives of the community. As a result of being involved and playing a key role in determining the outcome, the person harmed and members of their immediate community are much more likely to feel satisfied with the result. At the same time, the accused is able to take responsibility by acknowledging what they did and be involved in determining what the amends should be.
Restorative justice is not actually new and is not unique to North America. Forms of it can be found in every part of the world.
Indigenous communities in Canada have long practiced forms of restorative justice, and here in Manitoba they have greatly contributed to its growing popularity. Most significantly, a large number of First Nations and Métis communities have created models that bring restorative justice inside the formal legal system. Court is held in these communities with judges present to pass a sentence designed, supported, and carried out by representatives of the local community. However, restorative justice has not reached the same level of practice outside the Indigenous communities; the most common forms found in Winnipeg, and across Southern Manitoba, are diversion programs, such as those operated by Onashowewin, Mediation Services, the Salvation Army, and the John Howard Society of Brandon.
When charges are laid or pending, they can be diverted by the Crown prosecutor and sent to a community based program for a restorative justice alternative. Should the matter be successfully resolved in the community, it will not be sent back to the courts. Not only does diversion save court costs, it allows the matter to be resolved without any finding of guilt or creating a criminal record.
I spent many years volunteering with Mediation Services in their court mediation program, which accepts a wide range of cases from assault, theft, and break and entry, to aggravated assault and breaches of trust. Participation is voluntary for both the accused and the complainant. After some initial casework, if both parties are in agreement, they are brought together for a facilitated discussion led by a team of two volunteer mediators. The mediators facilitate the discussion in order to allow the parties to explore what happened and to come up with their own resolution. Mediation Services then monitors the agreement to see if it is carried out.
I have seen truly transformative moments occur between parties in mediation sessions. The most important aspect of the process, in my mind, is the fact that it puts the person who was harmed in a key role: they are able to share the impact of the incident directly to the other party, while being part of developing a solution to address the harm done. This gives back a sense of power and ownership over the situation to the complainant. Equally important, the accused is also involved making amends, apologizing directly while having half the responsibility for determining what the consequences need to be.
The mediation process results in agreements in almost every case. Compliance is also very high, with mediated conditions being met in approximately 80 to 90 percent of cases. By contrast, research conducted by Mediation Services found that, when the court orders the sentence, like making restitution payments, the conditions are met only about half the time.
Restorative justice can be used in many more ways than just court diversion programs. It has been employed with those facing jail sentences as an alternative to incarceration; with those already serving sentences so they can better understand the impacts of their actions; and with individuals convicted of serious sexual assaults after they are released from prison. This is in contrast to the traditional court model, which is only employed up to the point of conviction and sentencing.
The practice of restorative justice is ever evolving and examining new avenues. Many new approaches seek to bring restorative justice to the traditional courtroom. Restorative justice is an alternative that continues to have any impact long after a verdict was handed down. It is the modern version of using justice to find peace.
John Hutton is the Executive Director of the John Howard Society of Manitoba, and a founding board member of the Restorative Justice Association of Manitoba. He grew up reading Rupert’s Land News.