Restorative Justice

I have been told there is an old Chinese curse, "May you live in interesting times." For Canadian advocates of Restorative Justice, these are definately interesting times. With the proclamation of Bill C-41 in September 1996, it now appears there is growing government interest in Restorative Justice and victim offender mediation programs. Where this becomes "interesting" is that one does not need to listen to justice systems officials and politicians for very long to ascertain that "restorative justice" is merely a catch phrase, a flavour of the month, a glib response to a deep and complex issue.

It is disturbing that some government officials speaking about 'restorative justice' seem to have little understanding of what the term means. The push for new, "restorative" programs comes not so much from any meaningful re-thinking of how justice is done in Canada, or what truly needs to be done to achieve justice, but rather from the political need to find a more economical response than the overwhelmingly expensive court and prison solution of the present criminal justice system. Furthermore, while victims are now an "in" group whose needs have to be addressed, the "restorative" directions being considered by governments generally offer very little that will truly change the process or outcomes for victims, offenders or communities.

How does all of this impact victim offender mediation? It is truly ironic that while Canada can legitimately lay claim to being the birthplace of victim offender mediation (based on work beginning in Kitchener, Ontario in 1974), this country now trails, by a great distance, those nations making effective use of this restorative process.

At the heart of this Canadian failure to embrace victim offender mediation lies a failure to grasp and incorporate restorative principles and values into our criminal justice system. Victim offender mediation is not a complete answer to the Canadian criminal justice system's failure to provide justice to victims, offenders and communities.

Victim offender mediation is one way of doing Restorative Justice, but it is not the only way, and it is not Restorative Justice itself. Cut off from its Restorative Justice roots, put into place without the guiding values of the restorative vision, victim offender mediation can be as retributive and ineffective as anything else. Only with the focus of restoring victims, offenders and communities to safety, health and healing can this process be effective. Without this focus, it becomes just another way to keep the pain and brokenness alive.

For those Canadian grassroots community-based groups who for the past twenty years have provided Restorative Justice through victim offender mediation programs to a few scattered Canadian communities, it is a disturbing scenario to see governments grasping desperately at mediation and "restorative justice" as an economic saviour for the present failing justice system. If we are to have any impact on the formulation of policy we must speak as quickly, loudly and collectively as possible. Since the spring of 1996 a number of individual advocates and organizations offering existing victim offender mediation programs in Canada have been working to speak with such a unified voice. It has not been an easy process.

In the same way as the mediation community struggles to define what exactly mediation is and how we know if someone is doing it well, so we have struggled to clearly articulate the essentials of Restorative Justice. As there is no one central authority to define mediation, the sources of Restorative Justice are many and ancient. While the working group represents the oldest and largest victim offender mediation programs that have developed from the original Kitchener experience, Restorative Justice practices have age old roots in many cultures, including the First Nations cultures in Canada.

In the face of this need to recognize that many peoples must ultimately define the restorative values at the heart of victim offender mediation, there is also a more immediate need to make a clear statement about the essence of this radically different vision of justice, or see it co-opted into irrelevence by a justice system seeking to save itself.

The following is a beginning attempt to articulate what a number of experienced victim offender mediation practitioners see as the crucial Restorative Justice foundation for the effective implimentation of these mediation programs. We acknowledge that it is not a final word, but we are convinced that such a bedrock must be what victim offender mediation prgrams are built upon and from which justice reponses flow to truly meet the needs of victims, offenders and communities.

It is our hope that governments, provincial and federal, will heed this call to base their response to demands for more effective and true justice on a solid foundation that meaningfully addresses the legitimate needs of victims, offenders and communities. Further, we hope that this initial statement will encourage further dialogue that will grow and refine the understanding of what the foundational principles of Restorative Justice are for all the peoples of this nation.

PREFACE TO RESTORATIVE JUSTICE PRINCIPLES

Victim Offender Mediation, while similar initiatives were beginning elsewhere, had its true genesis in Canada. This process is now used internationally by hundreds of programs in more than a dozen countries. This response to crime in our communities did not just appear. It is a process founded on specific understandings of victims, offenders and communities. These understandings and guiding principles have come to be known as Restorative Justice.

It is our conviction that without the focus and guidance of Restorative Justice principles victim offender mediation loses its potential to address crime in ways that are both meaningful and effective.

It is important to acknowledge that Restorative Justice is not a set of values and principles that have only recently been articulated. In fact it is an articulation of values and principles long known and practised by many non-Western cultures. In Canada, the First Nations people are a clear example of this tradition.

It is the premise of Restorative Justice that a fundamental reassessment of the goals and means of the criminal justice system must be undertaken for this troubled system to address the needs of our communities and its individual members.

Crime needs to be redefined. At present the State and the offender are the primary actors and primary focus of the justice processes. Crime needs to be seen as a harm done by the offender primarily to victims. This harm, and the offender's responsibility to make amends for the harm done, must be the focus of the justice process. Victims and offenders must be primary actors with the focus on their needs. Harm done to the community must also be addressed by the offender.

The ultimate goal of the justice processes should be the nurturing of safe, healthy communities. Restorative Justice principles hold that such communities are not created by punitive responses that leave wounded and angry victims with their needs unmet, and angry and bitter offenders who are convinced of their own victimization, but have never been accountable to their victims.

When driven by Restorative principles, Victim Offender Mediation provides a process that encourages the victims and offenders to focus on the harms done, the steps needed to make amends for those harms and an acknowledgement of responsibility made concrete by the offender's taking actions to try to make right the wrong.

Victim Offender Mediation processes are flexible enough to involve the larger community, when appropriate, to address the offender's responsibility to making amends to the community as a whole. However, the community's need for safety and health is always served by a process that pro-actively offers to both victims and offenders the opportunity for respect, responsibility, healing and integration into the community as valuable and worthwhile members.

PRINCIPLES OF RESTORATIVE JUSTICE

1. Crime is first of all a harm done to "victims". The State 2. The duties of the State are to provide resources and processes that effectively address the harms done to victims, the re-integration of offenders into the community and ensure that the broader community harms and needs are adequately dealt with in a manner that nurtures a safe, healthy society and a restored community.
3. A fundamental component of crime is that it is an act of disrespect toward another. Restorative justice holds that effective responses to crime must be responses that address the issue of respect for the humanity of both the victim and the offender.
4. Individuals who create harm for others need to be accountable and responsible directly to those harmed in ways that meaningfully addresses the harm done. The "offender's" responsibility is to make right the wrong to the greatest degree possible. This includes attending to needs created by the offence, and attending to personal needs which led to the offence.
5. It is in the best interest of the community, the victim and the offender for justice responses to focus on healing and integration of victim and offender into the community. Leave one or more of the three parties to crime out, and restorative justice is negated. "Victims" must be respected and their needs fully met. Offenders must be respected bot their criminal act(s) condemned.
6. Restorative justice also recognizes that "offender" and "victim" labels are temporary and interchangeable over time within any community.
7. Restorative justice addresses crime at the earliest point possible with the maximum amount of voluntary cooperation and the minimum amount of coercion. Processes that delay addressing the crime create further harm and victimization for all involved in the process.
8. Processes that encourage collaboration and voluntary participation create potential for transformation and healing. Adversarial, coercive processes tend to increase or multiply harms and to be counterproductive to transformation and healing.
9. When offenders and/or victims are unable or unwilling to respond to crime in a collaborative way, the State on behalf of the community must use alternate processes, including seperation of the offender from the community and deprivation of freedom of movement. All parties must still be treated with fundamental respect. The ultimate goals must be retained: responsibility and accountability for the offender in making right the harm done, and encouraging healing and health for all involved to the end that the community is peopled by healthy and whole persons.