The Layman’s Law
And the Practicality of Restorative Justice
The following web exclusive is a part of the [special focus] on Canada’s Criminal (Justice) System in the [Sept/Oct 2011] issue of Canadian Dimension.
In 1974, Judge Gordon H. McConnell set a precedent in Canadian law, when he sentenced two men responsible for 22 acts of willful damage. Instead of incarcerating the young men, McConnell ordered the offenders to meet their victims to atone for their offence and ultimately make repairs when possible or pay the out-of-pocket costs sustained by the individual victims. Now commonly referred to as the “Elmira Case” by those familiar with restorative justice, the case has been seen as a breakthrough for an alternative approach to crime which seeks to actually bring restitution to the victims, rehabilitation to the offenders and reconciliation between the involved parties. This is an idea that stands in stark contrast to the punitive legacy of the criminal justice system.
The direct result of the ruling saw the Canadian Criminal Code changed to allow for interaction between both the victim and the offender. As well, it saw the founding of the Victim Offender Reconciliation Program (VORP), which was the first of its kind. According to Wayne Northey in his article, “A Brief Look at Restorative Justice”, its impact was felt on an international scale. He states, “Over 200 mediation programs in North America alone trace their origins to the program [VORP]” and that “several hundred similar programs now exist in Europe and elsewhere.”
Judge McConnell had been prompted to make such a ruling on the advice put forth by Mark Yantzi, a volunteer probation officer from the Mennonite Central Committee (MCC). Since volunteering for the MCC, Yantzi has been involved in a number of restorative programs, has addressed the sensitive topic of sexual abuse in his book, Sexual Offending and Restoration and, on the whole, he remains a prominent figure in the movement for restorative justice. Currently he is an Adjunct Professor at Queens University of Religion in Kingston, Ontario.
In interviews, Yantzi describes the aims of restorative justice as wanting to “involve [the] offender and victim in direct ways.” This is in contrast to the current representative courts where both the victim and the offender are primarily disengaged from the process. In order for restorative justice to be implemented, Yantzi stresses the need for the full participation of those involved in the conflict, as well as the community. He states, “For the offender this means a major focus on taking responsibility for the act and making amends. For the victim this means an opportunity to participate directly or indirectly in sharing the crime and its impact from their perspective. Rather than a philosophical and theoretical conflict between the state and the offender”.
While restorative justice is fairly new to western law, its roots date back thousands of years and its practice remains prevalent in many Aboriginal communities. However, the shift to the “theoretical conflict between the state and the offender” that Yantzi speaks of and its rise into dominance over western jurisprudence has been traced back by a number of scholars to the Papal Revolution. It was in this time that the conflict between an offender and the victim, transformed in to a conflict between the offender and the state.
In Wayne Northey’s article (noted above), Northey touches slightly on the immense topic of the origins of western law. He argues that secular states took their cue from how the church dealt with their religious heretics, saying, “These ‘social heretics’ began to emerge under new state law codes as ‘criminals’ whose victims were no longer the actual victims, but ‘Rex’ or ‘Regina’, or later ‘We the People’ under the United States Constitution.” The result being that “with the rise of the king’s power, the purpose became to uphold the authority of the state.”
In his 1977 essay, “Conflicts as Property”, renowned Norwegian criminologist Nils Christie, outlines rather eloquently the primary fault of the criminal justice system when saying that “we have focused on the offender, made her or him into an object for study, manipulation and control. We have added to all those forces that have reduced the victim to a nonentity and the offender to a thing.” As well, Christie argues that conflicts are the property of those involved, but that overtime they have been hijacked by “specialists”, making the conflict no longer about the involved parties or an experience that can be learned from, but something that is dissected and argued upon by detached individuals who do so, more often than not, in pursuit of personal gain.
Though Christie acknowledges that the victim of the offense is deprived of so much, he goes on to argue that it is society who has the most to lose in that the bulk of society is excluded from a “continuous discussion of what represents the law of the land”. Likewise, when asked about the community’s involvement, Mark Yantzi says it is “vital”, that “the issues the justice system deals with are often the result of unresolved (or violently resolved) issues that arose in the community,” and that “community members are compelled to be there and give evidence, but have no role in determining a solution.” Yantzi goes on to say that he has seen a number of “amazingly creative and satisfying solutions” come forth when people are brought together in an appropriate environment, which sees that “everyone has a voice and can share their perspectives.”
Despite its continuous growth by non-profits and its obvious appeal, restorative justice has fallen by the wayside in regards to the public discourse. This has primarily occurred as a result of the revving up of “tough on crime” legislation, which is being rammed through by Harper’s majority government. This is happening in spite of the declining trend in crime and no statistical evidence to suggest that such an approach significantly reduces the rate of crime or recidivism. Yantzi notes that while the annual budget for the police and the criminal justice system continues to grow, “there is little increase in government funding for alternatives,” resulting in a number of restorative programs being terminated due to inadequate funding. As Canada grows regressive in its punitive approach to crime, the rate of incarceration is on the rise. As well, programs that rehabilitate offenders and bring about reconciliation with them and their victims are becoming even scarcer than they already are.
When asked if he found the current criminal justice system to be detrimental to the involved parties, Yantzi found that it is, saying that “rehabilitation, when it is forced [it] is ineffective.” He goes on to acknowledge the enormous complexity of the individual history of those involved, which can rarely if ever be addressed by a punitive judicial system and states that “persons in prison oftentimes have tremendous deficits and past victimization.” An argument that is substantiated by a survey done through Correctional Services Canada, which found 41% of male federal inmates have been seriously abused throughout their childhood. A similar finding put out by the Elizabeth Fry Society, found that 80% of federally sentenced women have a history of sexual abuse.
On a whole, this would suggest that a competent approach to crime would be to address it at its origins in the community and not in the courtroom, where ”they are artificially reconstructed”, as Yantzi puts it. Elaborating on the atmosphere of prisons, he goes on to says that “if prisons were trusting therapeutic communities, the time away from the community could be constructive and life changing. In the current surroundings I feel it is becoming increasingly less so, given increased numbers, double bunking etc.”
Many not only share Yantzi’s sentiments, but believe that the end result of an even more punitive justice system can only produce a higher rate of recidivism amongst those convicted and further alienate the public from taking part in resolving the conflicts that arise in their community and directly impact their lives. This, in effect, leaves the state of crime in society precisely the same if not worse off than it was before.
Eugene is a writer and activist living in Hamilton Ontario.