The following summary is provided in the Department of Justice's 2017 Report: "Spotlight on Gladue: Challenges, Experiences, and Possibilities in Canada’s Criminal Justice System," pp. 23-25.
Defining Restorative Justice as it Applies to the Criminal Law (pp. 23-24)
Justice Melvyn Green (2012) explains that restorative justice is most often applied in Canadian Courts as a model “focused on reparative or compensatory sanctions” (p. 8). The language of Gladue, however, suggests an alternate view that sees restorative justice as “a comprehensive theory of justice in itself,” which does not see rehabilitation and reintegration as sentencing objectives to be balanced against deterrence and denunciation. Instead,
“These conventionally opposing principles are facets of a holistic ‘restorative’ exercise that includes the offended community and the community of the offender in the process of adjudication as well as the determination of appropriate sanctions” (p. 8).
In other words, restorative justice is not just one consideration or one kind of sanction, but rather an alternate theoretical approach to justice. While there is no universally agreed upon definition of restorative justice, the Federal-Provincial-Territorial Working Group on Restorative Justice defines restorative justice as:
“An approach to justice that focuses on addressing the harm caused by crime while holding the offender responsible for his or her actions, by providing an opportunity for the parties directly affected by crime – victim(s), offender and community – to identify and address their needs in the aftermath of a crime.”
Chartrand and Horn (2016) define restorative justice as:
“An approach to crime and conflict that brings the victim, the offender, members of the larger community, and oftentimes professional service providers together into a non-hierarchal setting in order to collectively address a harm that was committed and to set a path towards reconciliation between all relevant parties. (p. 3)”
In practice, as section 4 will explore in greater detail, restorative justice programs tend to be community-based. While there is no single approach to restorative justice, common types of programming include victim/offender mediation, family group conferencing, and various “circle” programs (Chartrand and Horn 2016).
Green (2012) sees Gladue as placing a duty on all justice system participants – not only sentencing judges – to work towards a more restorative process. The comprehensive restorative justice theory, which focuses on community repair and healing, is also seen as more consistent with Indigenous approaches to justice (p. 8).
Restorative Justice in Relation to Indigenous Legal Tradition (pp. 24-25)
In its discussion of Indigenous sentencing approaches, the Supreme Court specified that it did not want to imply that all Indigenous communities shared the same understanding of justice or the same approaches to sentencing. However, Gevikoglu (2013) argues that by characterizing Indigenous legal tradition as primarily restorative, the Court conflates Indigenous justice with Western notions of restorative justice, and with each other. The language in Gladue sets up Indigenous approaches to criminal justice in opposition to the Canadian Criminal Justice system, which has been primarily retributive. Indeed, aforementioned concerns about the difficulty of reconciling retributive and restorative justice is consistent with Gevikoglu’s analysis, even though Indigenous and Canadian approaches to criminal justice do not necessarily contradict. For example, Professor Michael Jackson has laid out an alternative framework of Indigenous justice which complemented, instead of contradicting the Canadian criminal justice system.
Gevikoglu’s concern is that Western notions of restorative justice may not be sufficient to ensure that Indigenous offenders are sentenced in a way that is “appropriate in the circumstances for the offender because of his/her aboriginal heritage or connection” – a key factor in remedying over incarceration, according to Gladue. In Ipeelee, the Court states that sentencing options other than incarceration can play “a stronger role in restoring a sense of balance to the offender, victim, and community, and in preventing future crime” (para 128). Yet, it does not discuss what options other than incarceration might be, it does not refer to anything from the Inuit or Dena legal traditions, and ends up just reducing both Ipeelee and Ladue’s sentences. While restorative justice allows for practices like diversion and sentencing circles to exist in certain spaces within the framework of the criminal justice system, Indigenous communities are not afforded much more autonomy in the sentencing process (Gevikoglu 2013).
Although a detailed comparative analysis of the relationship between restorative justice and Indigenous legal tradition is outside the scope of this report, a number of key differences are highlighted here. Chartrand and Horn (2016) note that restorative and Indigenous legal tradition generally have similar underlying principles, in that both can be described as aiming to achieve community healing, reconciliation, and the reintegration of the offender. However, there are several material differences between the two.
First, Indigenous legal traditions are generally a source of complex mechanisms, both proactive and reactive, that produces and maintains stability and order in Indigenous communities. Prior to the imposition of Western law, Indigenous legal tradition “shaped behavior, guided relationships, and addressed conflict” through kinship – which Chartrand and Horn describe as producing “multidirectional legal obligations towards everyone and everything” (2016, p. 6). While Indigenous legal traditions are diverse, a common theme through most are the idea of law being interconnected, intertwined, and rooted in relationships between people and to nature (p. 5-6). In addition, Indigenous legal traditions still had a retributive element - where kinship responsibilities were disregarded, communities utilized sanctions and penalties, which were generally enforced by family or community members (p. 7). Finally, Indigenous legal traditions placed a high importance on spirituality (p. 13).
As the imposition of Western law and colonial policies have displaced and disrupted kinship practices (p. 11), both the Truth and Reconciliation Commission and the United Nations Declaration on the Rights of Indigenous Peoples have called for the “recognition, revitalization, and full integration and implementation” of Indigenous legal tradition alongside Canadian law (p. 8). Chartrand and Horn (2016) trace an ongoing relationship between Indigenous and Restorative justice – Indigenous legal tradition was influential in the early development of underlying principles, values, and programs of restorative justice. Restorative justice has similarly influenced the programs and processes of modern Indigenous justice – where Indigenous legal traditions would have been punitive historically, programs today take a more restorative approach. As both Indigenous and Restorative justice continues to be integrated into the Canadian criminal justice system, the relationship between the two will undoubtedly continue to evolve.
- Research and Statistics Division Department of Justice, Canada. "Spotlight on Gladue: Challenges, Experiences, and Possibilities in Canada’s Criminal Justice System." Government of Canada. pp. 23-25. [footnotes ommitted]
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