Federal-Provincial-Territorial Meeting of Ministers Responsible for Justice and Public Safety

Introduction

RJ, part of Canada’s CJS for over 40 years, is valued as an effective approach to transform the CJS and make communities safe.  RJ is drawn from Indigenous principles and processes.  It seeks to repair harm and attempts to address the circumstances which contributed to the crime. RJ gives victims the chance to meet or communicate with the person who caused them harm to explain the real impact of the crime - it empowers victims by giving them a voice. Indigenous people and traditionally marginalized populations are overrepresented in Canada's CJS, as both victims and offenders. The Key Elements of Success considers that RJ provides a more holistic approach to addressing the needs of unique communities, thereby reducing overrepresentation and increasing access to justice.

For RJ to become a formal justice option, all system players will be required to commit to change.  RJ has however, been applied in a “patchwork” approach across Canada.^{Footnote 1} The Key Elements of Success outlines what jurisdictions should consider to bring RJ out of the shadows. 

Recommendation 1: Recognition of RJ as an investment in an effective and efficient CJS

The effective implementation of RJ processes has been recognized as a meaningful and efficient way of contributing to a just, peaceful and safe society. It has been shown to reduce recidivism (by up to 12%), and increase victim and community satisfaction. RJ is an investment.

Government has an important role in supporting partnership governance. This is consistent with the role that government players have in participating meaningfully in the committees as described in Recommendation 3.

In order to foster partnerships within and outside of government required for the success of RJ, it is important that engagement and support is coordinated between all levels of government, and is structured, transparent and accountable.  It is also important for RJ programs to be locally and culturally responsive and relevant. This may include having restorative justice programs designed and delivered by local communities and organizations to better meet the needs of community members, in particular Indigenous communities and organizations.

It is also important for government and the criminal justice system actors to be deliberative in their leadership to empower and support shared leadership among key stakeholder representatives in the system and community.  They must do this while maintaining an oversight role focused on protecting the rights of those served through such processes.

The transformation of the criminal justice system based on restorative principles and goals will be achieved with a commitment from governments to provide sustainable funding in partnership with the communities they serve.

Recommendation 2: Endorsement of the guiding principles and goals being applied nationally to ensure that a restorative approach starts the transformation of the criminal justice system to being more effective and just

Restorative Principles

Principles are the values which should be kept at the forefront when accelerating the use of RJ – they are the reference points which shape the approach. A restorative approach to the CJS should be based on the principles of:

• Collaboration - among parties to the process and system and community partners; collaboration across the system, with other systems, and with/within community.
• Inclusive – pay attention to connections and relationships involved and include all those with a stake in the outcome in meaningful ways.
• Safety and Respect - concerned with safety and well-being of participants; culturally responsive.
• Flexible - flexible practices that consider histories, contexts, causes and circumstances of harms and impacts.
• Accountability - transparent, publicly shared outcomes and system accountability, promotes individual and societal accountability and responsibility.
• Transformation - forward-focused, problem-solving, preventative and proactive; seeking to respond to the range of harms and impacts to all affected in an effort to restore just relations between individuals, groups and communities.

Goals for Restorative Justice

Goals are how we define success. The goals listed below reflect the opportunity that a restorative approach can bring as an integral part of the CJS:

• Responsive:  to the needs of those affected by crime, with particular attention to the needs of victims and the reintegration needs of all parties. 
• Reduce the cycle of harm:  decrease recidivism. The CJS should achieve public safety and prevent further harms from occurring to vulnerable individuals and communities and reduce reliance on incarceration and reduce over-representation of Indigenous and marginalized individuals in the justice system; consider systemic factors and root causes of crime and seek meaningful outcomes.
• Increase access to justice - ensure initiatives based on RJ principles are accessible for consideration at all stages of the justice system and in all communities and support culturally relevant RJ programs designed and delivered by Indigenous communities as appropriate.
• Contribute to and support safe and strong communities: attend to cultural and spiritual safety of participants.  
• Increase public confidence and accountability in the administration of justice: by enhancing community engagement, leadership and partnership in responding to conflicts and addressing harm connected to crime.  Hold the offender accountable in a meaningful way.

Recommendation 3:  Commit to collaboration: A formal structure in each jurisdiction to bring together RJ stakeholders.

A structure where stakeholders can be brought together, is key to the success of RJ. This can be an existing RJ committee, or a new committee, in each jurisdiction, so that jurisdictions work with all sectors in the criminal justice system to ensure consistency, and alignment.

Committees^{Footnote 2} provide an opportunity for jurisdictions to operationalize a collaborative approach. This approach ensures consistency, alignment and acceleration.  Jurisdictions will agree to work with partners in government, law enforcement, the court system and in communities to achieve better justice outcomes.

A formal structure could be a RJ committee which includes:

• Participation of a cross-section of system stakeholders (e.g. Crown, Police, Judge, Legal Aid, corrections, victim services, RJ agencies, those that serve marginalized communities), Indigenous peoples and community members (i.e. individuals directly impacted by the CJS).
• Participants with the sufficient authority to design, implement, and provide ongoing oversight of RJ (e.g. program authorization or legislation; protocols and policies) ^{Footnote 3}.
• Ongoing evaluation, accountability, education and training.

RJ committees could focus efforts on operational acceleration including:

• Program Authorization
• Development of Memorandum of Understanding with partners
• Development of system and program protocols - Key considerations for system protocol design include eligible matters/offences; eligible offenders/parties; other restrictions/factors in favour of referral. Protocols should contemplate RJ principles and goals as a comprehensive justice pathway – as a fundamental part of the criminal justice response and not merely an alternative measure.
• Consider and respond to issues raised by stakeholders, including the referral and consideration of cases at all stages of the CJS: pre-charge, post-charge, pre-sentence, post-sentence, and re-integration.
• Strengthening the quality of practice in accordance with nationally recognized Principles and Guidelines for Restorative Justice Practice in Criminal Matters (2018).
• Advocating consideration of the needs of victims and enhance collaboration between RJ programs and victim services.
• Increasing public and justice system awareness of the value of RJ as an evidence-based and trauma-informed approach and understanding of how to operationalize.
• Fostering data collection and reporting on RJ processes and encourage research that furthers RJ practice.  Ensure sharing of best practices, ongoing education and training.

Recommendation 4: Focus on a principled approach to education, training and evaluation. 

A critical element of acceleration, program effectiveness, integrity and sustainability is training, education and capacity building. Education and training must be oriented and planned for building principle-based knowledge, the skills and attitudes necessary for effective restorative justice process design and case management.

It is inadequate to train administrators, practitioners and referral sources without ensuring they understand why and how they are to work in a restorative way. A coherent strategy is required to ensure that mentorship, coaching, continual professional development and reflective learning take place. Education strategies communicate, operationalize and maintain a shared understanding of the restorative approach.

Consideration could be given to investing in a “Centre” to develop and deliver core education for all participants in the process (including Crown, police, RJ agencies, Indigenous justice workers etc.). Such a centre or centres could be affiliated with recognized universities or colleges.

Consideration could also be given to bringing Indigenous communities and organizations with significant experience in designing and delivering Indigenous community-based restorative justice programs together to share lessons and provide training to other practitioners who wish to learn more about RJ in Indigenous contexts.

A principle-based curriculum for RJ education and training could ensure consistency, but also allow flexibility across the country. This would take into consideration the varying needs and capacity in each jurisdiction.  An education strategy could ensure RJ training is offered by a variety of justice stakeholders such as the Indigenous Bar Association, the Canadian Association of Chiefs of Police, National Criminal Law Program, Association of Legal Aid Plans of Canada and National Judicial Institute.

At a minimum, a curriculum could focus on: 

• principles of restorative justice;
• Indigenous understanding of restorative justice and to the basis of RJ being drawn from Indigenous traditions;
• trauma-informed practices;
• root causes of crime and violence and their effects/impacts;
• fairness and equality in practice: human rights, procedural justice;
• the needs and interest of victims, the impact of victimization;
• the Principles and Guidelines for Restorative Justice Practice in Criminal Matters (2018); and
• Canadian criminal law context, including enabling legislative authorities.

Public education is also crucial to the success of RJ. This requires attention to public understanding and expectations of justice. Investments need to be made to enhance public understanding which will result in community providing leadership, involvement and support.    

Knowledge-base: Research and Formative Evaluation

Research and evaluation are key. This is critical to ensure programs are built and maintained in alignment with the principles of RJ and are meeting the needs and align with the CJS.

Provinces and Territories should work collaboratively towards developing baseline indicators on the use of RJ, through annual counts of referrals received by RJ programs, cases accepted/completed and the number of offenders and victims served – this will provide the needed data for measuring the increased use of RJ in the CJS. 

Capacity building for data collection in each jurisdiction and standardization of definitions are critical elements of this work. It is fundamental to the success of RJ that the importance of research and data be recognized as providing important information and knowledge to guide development and implementation of RJ programs.