What is restorative justice?

- December 18, 2014

Dalhousie Schulich School of Law faculty member and restorative justice expert Jennifer Llewellyn. (File photo)
Dalhousie Schulich School of Law faculty member and restorative justice expert Jennifer Llewellyn. (File photo)

Restorative justice has become a major topic of discussion this week, with the news that several of the Dal Dentistry students who were the subject of mysogynistic posts online have elected to pursue a restorative justice process under the university’s Sexual Harassment Policy.

So just what is “restorative justice”?

“Restorative justice is an idea that says, at its core, justice has to be about repairing or addressing the harm caused to social relationships when wrongdoing happens,” says Jennifer Llewellyn, Viscount Bennett Professor of Law at Dalhousie and an international expert in restorative justice.

“It is the idea that justice demands we understand that harms are not done just to the individuals but to the way individuals are connected to others.”

This understanding requires bringing together offenders and those harmed by their actions as well as others from the community who are affected to resolve conflict, says Prof. Llewellyn, who has decades of experience putting the concept of restorative justice into action. She has developed and facilitated restorative justice projects across the world, having worked for the Truth and Reconciliation Commission in South Africa in the wake of apartheid and the Truth and Reconciliation Commission that has addressed abuses of First Nations people in Canada’s residential schools.

Closer to home, she has advised Nova Scotia’s Department of Justice in the development of its restorative approach to Youth Justice, helped to design a restorative public inquiry process for former residents of the Nova Scotia Home for Coloured Children and consulted on the creation of Dalhousie’s own restorative justice program.

Dalhousie has been using restorative justice processes to resolve issues of student discipline since 2011, when the university began participating in the Restorative Justice Pilot Project with the Halifax Regional Municipality and the Nova Scotia Department of Justice. That program engages students facing summary tickets or certain criminal charges in a restorative justice process that involves collaborating with victims and the community to create an understanding of harms caused and meaningful ways of addressing them. Since 2013, restorative justice has also been an option for addressing violations of Dalhousie’s Code of Student Conduct.

Learn more: Restorative Justice website

Considering restorative approaches

In a restorative process, all parties are actively engaged in understanding what happened, who was affected and determining measures to hold offenders responsible and accountable — not only for their past actions, but for shaping for the future. In other words, those who’ve agreed to take part in a restorative approach, with the support of facilitators and community experts, make a plan to address the harms involved and to prevent future harms. Those who caused direct harm have a specific responsibility to be engaged in addressing those harms and setting things right.   

A key distinction between restorative justice and retributive justice is that victims and their needs are central to the entire process. Offenders must give account for their actions within the process and be actively engaged in understanding and figuring out how to make up for the harms caused to earn trust from the victims and the community.

Prof. Llewellyn says restorative justice often offers a more satisfying process — and result — for victims than traditional adversarial approaches.

“If you ask people who have been harmed what justice looks like — beyond just what the system normally gives them — they will tell you, ‘I want my harm acknowledged. I want it to be recognized. I want to know why this happened. Not just who did it, not just the facts. I want to understand how and why this could happen to me and to others. I want to know it won’t happen again. And I want some sort of process that I’m going to have a voice in and have faith can actually put in place a plan that this won’t happen again.’”

The format of restorative justice approaches varies depending on the needs of the parties involved. At Dalhousie, for example, some restorative justice processes begin with a conflict resolution manager meeting privately with all of the parties involved in a conflict. From there, these parties come together in a “circle” or “conference,” where they meet face-to-face and explain what actions caused harm and how, why those actions may have occurred and what steps are necessary to resolve the issue. The participants who have been harmed, as well as those who caused the harm, must agree to the steps that might be required to resolve the issue.

Prof. Llewellyn points out that restorative justice can be an intense process for those who have caused harm, requiring significant work from them to make amends. More importantly, it is more likely to result in meaningful shifts in behaviour. She cites a study entitled Restorative Justice: The Evidence, by University of Cambridge researcher Lawrence Sherman and Dr. Heather Strang, director for the Centre for Restorative Justice at the Australian National University, that indicates parties involved in restorative justice cases generally feel high levels of satisfaction with their outcomes.

“People who have an actual experience with restorative justice processes feel them to be more just and fair, because they’ve had an active role and understand the outcomes and think the outcomes are more likely to be meaningful for them,” she says. “That’s not just victims and offenders — that’s also the community.”

Asking the right questions

Other organizations have also applied restorative justice processes to resolve disputes and create meaningful change. In fact, Nova Scotia has the most robust and comprehensive restorative justice program in Canada, with nine restorative justice agencies across the province.

Gerald Hashey, senior manager at the Nova Scotia Human Rights Commission, began instituting restorative justice approaches in 2012.

“We bring folks together who’ve experienced some pretty significant harms,” he says. “There are lots of issues around sexual harassment, racism, discrimination and homophobia.”

Hashey says the Human Rights Commission employs a restorative justice approach in about 90 per cent of these cases. He believes restorative processes answer key questions that other disciplinary approaches tend to ignore.

“The investigator or facilitator [in a restorative process] is concerned not only about what happened, but about what matters about what happened, because to not ask that question presupposes that you know better than the people involved... What matters about what happened informs what has to happen next.”

Yvonne Atwell is the executive director of the Halifax Community Justice Society, which administers youth restorative justice processes on behalf of the Nova Scotia Department of Justice. Young people at risk between the ages of 12 and 17 are referred to its program at various points in the judicial system if they meet certain criteria, including a willingness to accept responsibility for their actions and to being held accountable to the outcomes of the restorative process.

“The hope is they appreciate that what they’ve done doesn’t just impact them: it impacts a whole group of people, including their classmates in school, their friends, their family and even their entire community, depending on the case.”
She adds that what distinguishes restorative justice approaches from more traditional ones is they provide more opportunity for voices to be heard.
“What people want to be heard, and in the traditional justice system the victim, as well as those broader groups impacted, are not always heard…  [in restorative justice] the victim has more of a role to speak, and it allows other voices to play a stronger role.”

Producing change

That sort of approach, according to Prof. Llewellyn, is more likely inspire concrete changes in an offender’s behaviour. She says the compliance rate of offenders in carrying through on the pledges they make in a restorative justice agreement is about 80 to 90 per cent.

“When people commit to things and are not being forced to [do so] by a system, they’re making a commitment to other people that they’re going to follow through,” she says.

“When we don’t include the voices of those who’ve been harmed, we actually don’t require very much of the people who’ve done the harm.”

Learn more: Restorative Justice website

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