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RESTORATIVE JUSTICE
My talk tonight will focus on my experience with the restorative justice movement of the late 1980’s until 2008 and some musing as to successes and challenges facing us going forward. I will also “blue sky” some ideas on how we might want to address those challenges.
It is my view that in 1988, the Hughes Commission Report on Access to Justice accidentally triggered an opening of the door to the decade of restorative justice in British Columbia that was unprecedented. The linkage in BC of restorative justice and aboriginal justice initiatives during this period are striking but were unexpected in nature.
The Hughes Commission Report embraced the notion that our European justice system was not sensitive or responsive to the needs of Aboriginal Communities and that we needed to explore alternatives to the current justice system. There was a sense that if we failed to address this issue, no progress could be made on the over-representation of aboriginal people in custody. The Government of the day’s response included plans to enlighten its officials.
Cross-cultural sensitization sessions were set up for approximately 100 bureaucrats in Kamloops and aboriginal elders and leaders spoke to us about their system, the systemic unfairness of ours as it related to Aboriginal peoples and the practices of aboriginal communities in dealing with disputes through restorative justice concepts.
After two hard-hitting days they dealt with fairness issues such as the unequal treatment of war veterans when they returned from the war, education restrictions, the right to vote, the Indian Act and Potlatch persecutions. I went through a personal transformation.
I was appointed to lead a delegation of justice officials on Vancouver Island from 1989 to about 1991 which met with aboriginal communities throughout the Island and asked how we could do justice differently and be more responsive to the needs of Aboriginal communities. This culminated in the creation of a project involving the South Island Tribal Council, judiciary, Crown Counsel, senior police officials and the federal Department of Justice. A meeting in Parksville was held which established the South Island Justice Education Project funded by the Federal Government.
It involved a two-pronged approach:
1) A cross-cultural sensitization and educational process where non-aboriginal learned of tradition aboriginal practices and restorative justice; and
2) A diversion project for youth that saw them meet with elders and learn of their roots.
While this project was controversial, it attracted the attention of Judge David Arnot of Saskatchewan, seconded to the Aboriginal Justice Directorate of Justice Canada who wanted to roll out the project nationally in 1992. I advised against it as I believed, and still do, that such programmes need to be developed by, and not for, communities.
During this same period, a new policing concept was developing called community policing. The purpose was to reach out to communities to create partnerships in crime prevention and crime fighting. The police were engaging the community to form part of the solution, much as we were, in a parallel stream, engaging aboriginal communities.
In 1992, a national policy report on implementing community policing emanated from Ottawa calling for the RCMP’s direct involvement in developing and promoting community mediation programs.
Thus, in the early 1990’s, as community policing spread across British Columbia, Sparwood, a small town in south-eastern British Columbia, emerged as a leader in restorative justice. Glen Purdy, a local defence counsel was unhappy with the length of time it took to process youth through the court system. The local police agreed. They approached Provincial Court Judge Warenchuck who advised Jake Bowman, the Officer in Charge of Sparwood, and Glen Purdy that if they wanted youth cases heard and dealt with expeditiously then they should review some materials on the restorative justice practices of New Zealand and implement a similar process rather than rely on the conventional court system.
This culminated in the Sparwood Restorative Justice Project in 1995, modeled after the 1991 New South Wales “Wogga Wogga” model supported by Sgt. Terry O’Connell of the New South Wales Police Service, using a family group conference (FGC) model. The Sparwood model appeared remarkably successful. Glen Purdy provided the following statistics to me over the years that followed its implementation:
Family Group To Court
Conferences
1994 --- 64
1995 48 0
1996 21 2
1997 19 2
1998 12 6
Jake Bowman leaves
1999 6 12
2000 1 20
In January 1996, I was approached by Judge David Arnot, Aboriginal Justice Directorate for Justice Canada, to travel to Australia and New Zealand to explore restorative justice practises there and its applicability to Canada. We travelled there with Assistant Commissioner Cleave Cooper of the RCMP, 3 aboriginal leaders from Saskatchewan and other federal officials.
We met with Sgt. Terry O’Connell of New South Wales Police, who hosted us in Sydney and took us to Canberra to meet John Braitwaite, one of the leading criminologist/sociologist, who authored a book called “Crime, Shame and Reintegration.” We saw an effective use of conferencing and our group became convinced of the viability of this process in Canada.
The conference we witnessed involved five young teenagers aged 15 or 16 years. They had broken into one business three times over a two week period, stealing various items. On the last occasion they smashed $20,000 worth of computers, shutting the business down for four days. The employees received no pay for those four days.
A total of twenty-four people attended the conference. We were in an anteroom off to the side, but had a visual contact through a one-way viewing glass and had access to an audio feed.
The five young men swaggered in, appearing quite cocky, and my impression was that there were so many variables that it was virtually impossible for this to result in a resolution of any meaningful kind. I could not have been more wrong. The event proved to be a powerfully emotional one.
The police facilitator asked three questions:
1) What did you do?
2) Why did you do it?
3) What are you going to do about it?
The victim began understandably very angry. The boys hung their heads and their parents were embarrassed, upset and distraught.
At the end of 2 _ hours, a resolution was at hand but a dispute was ongoing between the victim and one of the fathers. The father insisted on 300 hours of community work; the victim said that even 150 hours would be too much. A strange alliance emerged between the victim and the boys, with the victim now appreciating who these young men were certainly not organized crime.
And it occurred to me that, if in our current court system, I called the victim at home to tell him a judge imposed 300 hours on the offenders, his reaction would have been, “why, that’s a mere slap on the wrist! Jail should have been imposed.” Engaging the victim, empowering them, educates them.
But I was moved by one powerful fact which had no legal significance in any real sense of our traditional system. The victim said to the boys that he could understand why in their mob, brain-dead actions they would steal and ransack his office. Greed and stupidity were the drivers, he felt. But he could not understand what led them to destroy a picture of his deceased father, the only one he had. There were no others. It was irreplaceable; nothing they could do could bring it back.
In a court room, the key facts a prosecutor would rely on were the theft of money and damage to computers. It is doubtful that the police would even include the fact of the destroyed pictures in their report to the prosecutors. If they did, I doubt the prosecutor would make reference to it in the court as it would not likely affect the case’s outcome.
And yet there, in the conference, it brought tears to the eyes of these boys, and they cried. They understood finally the true extent of the damage they did which could not be repaired. It was the tipping point that created an extraordinary emotional explosion that achieved something no court proceeding could have. We were all moved deeply by this experience.
In December 1996, we travelled in a one week marathon from Whitehorse, Yellowknife, Iqaluit, St. Johns, Fredericton, Halifax, and Ottawa meeting with communities and justice officials engaging in discussions with respect to restorative justice practices.
In 1997, our activity continued as we met in various provincial capitals with defence counsel, Crown prosecutors, judges and senior police officials to get their buy-in. During this same timeframe the Aboriginal Justice Strategy of Justice Canada was reaching out to bring people together at conferences to address best practices in dealing with justice issues outside of the traditional justice system. All of this activity saw the RCMP at the forefront of restorative justice, both within and outside of aboriginal communities against the backdrop of their fully engaged community policing philosophy. They became the local champions and often the local trained facilitators for family group conferencing under a program called Community Justice Forums.
The long term RCMP plan was to act as champions for restorative justice to jump start the process and then the expectation was that as the programs matured, the police role would become a referral agency rather than playing the central role of facilitation. Assistant Commissioner Cooper saw the RCMP as change agents taking the lead during the transition.
The positioning of the RCMP strategically as a champion was attractive, as they are located in most areas of Canada, can be directed to participate and symbolize the justice system generally. The community policing model practiced in Canada at that time was a perfect fit for restorative justice practices. They also had significant funding along with Department of Justice to promote Community Justice Forums.
The theory was solid but where the rubber hit the road proved to be challenging in practice. Where the line officers bought in to the concept, programs flourished; where they did not, programs floundered. Ultimately, another significant factor would come into play and that was the national strategic approach the police would take to policing.
There were challenges to the building of programs. In Parksville, a well programmed community consultation process took place over 18 months to build a solid foundation. In spite of this, there were few police referrals at the outset. The police had not been brought into the consultation process and educated. They had been forgotten. It was assumed their leadership had brought them along and they had not. Much more work was required to allow the program to become effective, which it currently is.
Secondly, some programs were personality cult dependent. S/Sgt Randy Munro developed a nationally recognized success program in Fort St. John. When he transferred to Nanaimo he helped build a program there that has received international recognition. The Fort St. John program collapsed. He has now retired and as part of his legacy, the Nanaimo program continues to be a model for British Columbia, in part I expect because of his continued involvement with the program.
In Sparwood when Sgt. Jake Bowman left, the earlier graph shows restorative justice resolutions fell to zero and cases returned to court. Programs thrive with champions and die without them.
And when the RCMP focus changed to crime fighting from crime prevention, particularly post 911, the national strategy for restorative justice lost a champion and its national cohesion.
By 2002, for various reasons, the focus of the RCMP moved from the community policing model to an intelligence – led policing model addressing public safety through information sharing and integrated policing. The community partnership was replaced by partners from other policing agencies.
The RCMP lens shifted from restorative justice and community consultation to terrorism, organized crime, and national security issues. By 2002, what was once a gold rush of restorative justice activity faltered, never returning to the 1997 to 2002 levels, but leaving pockets of restorative justice activity going on in many communities, with and without police involvement.
This is not to say that the RCMP do not have a presence in the restorative justice programs. They clearly do as shown by the work of Corporal Jim Cooley in BC, but the depth of their engagement has greatly diminished. One might argue that this was simply the transition Assistant Commissioner Cleave Cooper envisaged as the work of the RCMP as change agents ended.
The decade of activity left its mark but exposed a vulnerability when restorative justice relies on government funding or government champions. When it does so, they are vulnerable to policy shifts which governments or their agencies make as the legal or political environment changes.
In my opinion, to maintain its vibrant presence as a viable option to the traditional justice system, restorative justice needs a national champion to coordinate best practices and to educate the public.
The largest threat to restorative justice at present is a public mood, mind set, or appetite for revenge. Jail them all! Law and order! But it should not be viewed as an all or nothing issue. One solution does not fit all. Family group conferencing would be as inappropriate for dealing with organized crime as mandatory jailing of all youth offenders would be at the other end of the spectrum. Getting tough on serious violent offenders is compatible with using restorative justice for youth. To address this challenge we need to educate the public and build media alliances to ensure the public confidence in the system is improved through the use of restorative justice rather than undermined by it. While leadership is important to succeed, in my opinion you cannot get too far in front of your community or rather than being a leader, you will be out in front, alright, but alone. Communities need to be engaged and brought along.
Potential Future Models or Directions for national coordination.
In the late 1990’s, I sat on an ad hoc steering committee for Justice Canada in relation to the Aboriginal Justice Learning Network. This was a virtual learning institute designed to house best practices for aboriginal restorative justice programs nationally. The solution suggested was to house a web-based site at a university department which would serve as a champion, educator, and media connection site, to store and enable sharing of best practices.
The technology/solution with a university department of criminology/sociology somewhere in Canada may provide a way in which we can link existing restorative justice programs, promote new programs and strengthen the foundation of restorative justice practices nationally. I believe the Canadian Criminal Justice Association is exploring the viability of this type of option for restorative justice programs.
Funding would be preferably minimal and preferably from non-government agencies which are less likely to change basic focus, such as faith-based communities.
Without such a coordinated approach, the Balkanization of restorative justice practices will remain quietly working behind the scenes but without the national impact that these practices truly have the potential to unleash.
I would like to conclude by congratulating you on your ongoing good work in the Greater Victoria area and to say that the public at large need to know of your many accomplishments. Thank you for inviting me to speak.
Robert W. Gillan, QC
Assistant Deputy Attorney General
Criminal Justice Branch
Speaking Notes from presentation to RJ Victoria’s AGM at Victoria City Hall, March 12/08
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