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2008 Winners - Solutions-oriented writing (1st place)
Circle of justice
By Kelly Ebbells
McGill Daily (McGill University)
In Manitoba’s vast interior lies a small Ojibwa reservation called Hollow Water. An isolated community of about 1,000, Hollow Water has struggled with alcohol and drug abuse, as well as an unsettlingly high rate of sexual abuse which has landed countless offenders in jail, over and over again.
“Those places are not conducive to healing,” says Marcel Hardisty, a community worker in Hollow Water. He speaks slowly over the phone to me, articulating each syllable. “It’s not designed to rehabilitate anybody; it’s designed to toughen them up.”
Twenty years ago, elders and community leaders at Hollow Water teamed up with social services counsellors and launched what Hardisty describes as a comprehensive networking and healing system, called Community Holistic Circle Healing (CHCH). If a community member is accused of a crime, instead of being sent to a prison or detainment centre, another community member or an officer refers the victimizer to CHCH. Hollow Water has confronted sexual abuse, incest, and alcoholism not through retributive, punitive measures, but through these restorative-justice healing circles.
The essential premise of the restorative approach is that crime is not committed against a law that is then enforced by the state, but against another individual. As such, to deal with crime is not the job of the state, but of the community and the goal is not to inflict equal punishment but to repair harm.
“CHCH evolved under a whole understanding of cycles,” explains Hardisty, also the President of CHCH. “Abuse itself is a cycle. There’s a victimizer and a victim is created, and the victim becomes another victimizer. In order to break that, people have to recognize this.”
If the offender agrees to bypass the courts and work with CHCH, the process of restorative justice begins. The first step for facilitators is to work to help the offender take responsibility for the crime committed. As well, CHCH pays close attention to the victim’s needs, to determine the depth of harm inflicted. Over a period of weeks or even years, CHCH brings together the victim, offender, family, counsellors, and community groups for counselling sessions and a sentencing circle.
Hardistry says the program is still struggling, but that it has lowered re-offending rates and decreased drug use in the area. And, of course, it has kept many more people out of jail.
“You’d think our society would learn by now. They’ve got to look at different approaches, so as to re-establish balance. That’s what we did here,” Hardisty says.
“It gives power back to the community, the victims. It lets people have a say in what treatment ought to be, and how they want to be involved in addressing the harm done.”
Hollow Water represents one of the more impressive success stories for restorative justice, but its methods are by no means isolated. Over the past 30 years, indigenous self-determination movements have emerged in countries like Canada, Australia, and New Zealand. Simultaneously, native people have begun recovering or reinventing traditional practices and healing rites, including restorative justice.
This has coincided with a growing dissatisfaction with traditional justice systems, encouraged by victims’ rights groups, Mennonite reformers like Howard Zehr, and scholars like Michel Foucault. As a result, many Western countries began investigating the merits of restorative justice.
In the last few years, these intellectual and cultural currents have converged and this cross-pollination was epitomized by last week’s National Restorative Justice Symposium, which took place in Montreal as part of Canada’s National Restorative Justice Week. It was a meeting ground where indigenous peoples, government agents, lawyers, victims’ groups, religious activists, criminologists, and academics gathered to discuss the state of restorative justice across Canada.
The conference proved that there is a strong will among members of smaller communities, as well as qualified support among courts and governments, to move ahead with restorative justice. Some see restorative justice as a panacea; others see it merely as a complement to our overburdened justice system. Regardless, there is an emerging theoretical consensus that, if we want to fix a justice system mired with repeat offenders, prison overcrowding, and racial and sexual discrimination, restorative justice may be the way to do it.
A history of justice
The first formal restorative justice program in Canada got its start in 1974 in Kitchener, Ontario; other restorative justice programs grew over the course of the decade. Federal and provincial governments first began to take notice in the mid-1980s, and have been flirting with restorative justice ever since.
There are two major streams in restorative justice approaches the minimalist approach and the maximalist. Minimalists see a limited role for restorative justice, as a secondary method that can usually be used effectively for non-serious crimes. Maximalists believe that restorative justice should be used as a foundation for an entirely different structure for the criminal system.
Canada’s federal government first took an interest in restorative justice in 1987, when Parliament was in the midst of reviewing its ban on capital punishment. The Standing Committee on Justice heard from a number of practitioners of restorative justice, and in a report the following year, it recommended implementing various pilot projects. While government-sponsored projects began getting off the ground, projects rooted in rural and indigenous communities were also able to pick up steam.
At the conference I chatted with Derek Lyons, the restorative justice coordinator of Nishnawbe-Aski Legal Services, an organization that provides restorative justice services for 21 of 49 First Nations communities in Treaty Nine territory in northern Ontario. Lyons is a native of the region and a graduate of Queen’s law school.
Lyons is convinced that Nishnawbe-Aski Legal Services needs funding, and good training for new justice stakeholders judges, crown attorneys, defence counsel who tend to be skittish about the restorative justice process. He acknowledged a need for both restorative justice and the traditional court system, pointing out that many remote, fly-in communities don’t have the capacity to start dealing with people committing crimes.
Other indigenous nations in Quebec and New Brunswick, including Kahnawake and a few Mikmac communities, have established their own restorative justice healing circles and support groups, but with very little or no support from the courts or the Ministry of Justice.
“I see it going into non-aboriginal communities,” Lyons says.
Despite his enthusiasm, concrete support for restorative justice is still weak. At the federal level, restorative justice is a politically risky cause, despite heightened lobbying efforts. At the provincial level, the success of institutionalizing restorative justice into mainstream justice programs varies widely. While British Columbia, Saskatchewan, and Nova Scotia have made progress in institutionalizing the practice, Quebec has been slower to find a place for it.
The Superior Court only recently instituted facilitation conferences between attorneys and judges a development which Maurice Galarneau, a Crown prosecutor, defended at the Symposium. When a number of participants expressed concern that the court’s facilitation project did not involve the victims or offenders, Galarneau’s aversion to rapid change was evident.
“That’s the system we implemented. We’re not going to change the system overnight. Very frankly, I think this is the best legal system we have in the world. We must be the guardians of a huge democracy here,” he says.
Protection or punishment?
Galarneau’s testament stands in stark contrast to the will of others in Quebec working for a transformation of the justice system.
I met Mylne Jaccoud, a professor of criminology at the Universit de Montral and one of the foremost experts on restorative justice in Quebec. She gained her first insights about restorative justice in Inuit communities, but she speculates that, ironically, Qubcois are suspicious of the modern restorative justice movement because they perceive it as rooted in Anglo-Saxon tradition.
Jaccoud takes a maximalist approach to restorative justice, and believes it has the potential to radically alter our current justice system. She envisions a new role for police, attorneys, and courts, and she argues that prisons should be abolished.
“It’s demagogic to look at serial killers,” Jaccoud says, anticipating my question about what society can do with very dangerous criminals. “I don’t understand why we focus on these very few people in our society. I’m not stupid; I’m not against protection. If someone is truly dangerous, we have to exclude this person from society. But we must be clear about the difference between protection and punishment.”
For Jaccoud, society’s most dangerous criminals should be treated in hospitals, not packed away in prisons.
“It’s paradoxical that we use restorative justice for minor cases, ones that need less healing. For more serious cases, where the most healing is needed, we punish,” Jaccoud tells me.
The Collaborative Justice Project (CJP), based in Ottawa, demonstrates that it is possible to deal effectively with violent offences such as armed assault and armed robbery within a restorative justice framework.
Jamie Scott, the former coordinator of the CJP, spoke at the Symposium about the process of implementing a restorative justice framework in a court a process remarkably similar to the restorative justice system used by Hollow Water.
The pilot project, Scott told the audience, dealt only with serious crimes, after someone has been charged but not yet sentenced. After an offender admits guilt, the court postpones sentencing and the case is moved to a restorative justice framework. Then, the CJP prepares with the accused to explore an understanding of accountability; a similar preparation is done with the victim, to explore their needs. Secondary victims, or witnesses, are brought in, after which CJP facilitates direct or indirect contact between the victim and offender. Finally, the group submits a resolution agreement to the court, which informs the judge’s sentencing.
Scott went on to pose some of the most important questions at the conference.
“Why does the success of restorative justice pilot projects not translate into funding, political will, and changes to social policy? Why do politicians still believe they can get mileage from a law and order’ agenda?”
Overcoming colonialism
For Hollow Water, the challenges are obvious and overwhelming. But Hardisty is convinced that the community has started down a path combating the effects of colonialism.
“When there’s a spiritual void, an emotional void...those are things that were targeted under attempts at assimilation or extermination, residential schools, and the Indian Act,” he says. “They were deliberately designed to ensure that [indigenous peoples] would become so dependent on handouts. You have a people who are prone to dysfunctional behaviour, who are broken. That’s what we’ve been dealing with. We’ve been fighting hard to undo the process of colonization.”
Hardisty also pointed to problems in his community with the Band Council elections, a political process that he says rends the community with factionalism. With leaders more accountable to the Ministry of Indian Affairs then to the community, he worried about the future prosperity of the CHCH program.
Social problems like drug abuse, unemployment, and sexual violence are creeping up again, and Hartisty thinks that CHCH’s success in resolving these issues largely depends on the community regaining economic self-sufficiency and more control over their political institutions.
“We need to have access to resources around us,” Hardisty says. “We’re forcing the government to look again at our treaty agreements. You can’t talk about healing and not talk about economic development.”
For Hollow Water, CHCH remains the key to dealing with one aspect of the consequences of colonialism.
It is heartening to Hartisty that now, many others are trying to emulate the example of restorative justice.
“There are more non-aboriginal people interested [in restorative justice] than our own. Our own people are afraid of it. The kids that come from the university they’re so excited to come and learn about our ceremonies. There is more interest from Europeans and Asians then there is among indigenous people.
“I love that,” he chuckles. “That’s the only way of creating understanding.”
