Many legal proceedings follow an adversarial model, based on the assumption that legal justice requires retribution and that retribution requires both winners and losers. This model seems at odds with a more recent emphasis on restorative justice, as witnessed in South Africa's Truth and Reconciliation Commission and in recent innovations within criminal and juvenile justice systems, where restoring the victim, the perpetrator, and the community have more weight than simply upholding the law and meting out punishment. This panel brings together a provincial court judge, an advocate for restorative justice and a commissioner from Canada's Truth and Reconciliation Commission to discuss the pros and cons of the restorative justice model for the adjudication of justice.
This panel focused on justice in different practical contexts. Bruce Schenk outlined the theory and practice of restorative justice. Restorative justice asks what the goal of punishment really is, and places an emphasis on justice as learning. People tend not to change until they see the impact of their harmful actions. Restorative justice does not eliminate consequences for criminal behavior, but modifies the goals of those consequences so that perpetrators can see the effects of what they have done and are more open to changing those behaviors in the future.
Marie Wilson discussed her work on the Truth and Reconciliation Commission (TRC) of Canada. She briefly outlined the history and background of the residential schools and the abuse of the aboriginal students who were forced to attend them. The primary focus of her talk was on the nature and work of the Truth and Reconciliation Commission. While the Canadian TRC has some similarities to other bodies across the globe, it has distinct characteristics. For example, it was formed at the request of the victims and ordered by the Supreme Court, not the government. The Commission’s primary tasks are to give voice to the victims who had no voice before, and to ensure remembrance of what happened and appropriate reparation. This will be an ongoing task for years, beyond the original mandate of the Commission. The effects of the abuse continue into later generations, and this must be understood as part of collective Canadian history.
Harry van Harten spoke from his experience as a provincial judge in Alberta. He noted that the concerns of the other two panelists, restorative justice and the Truth and Reconciliation Commission, were at the forefront of concerns in all courts, particularly provincial courts such his own. He also discussed the rise of alternative courts and new sentencing guidelines that have arisen over the past two decades and the thinking behind them. Van Harten noted three concerns for the future of the practice of justice: lack of awareness by citizens as to how the judicial system actually works, the “crime industry’s” inherent resistance to structural change, and a general resistance to putting in the time and energy necessary for restorative justice initiatives.