An article by Bruce Archibald and Jennifer Llewellyn published in the Dalhousie Law Journal. The Nova Scotia Restorative Justice Program ("NSRJ") is one of the oldest and by all accounts the most comprehensive in Canada. The program centres on youth justice, and operates through referrals by police, prosecutors, judges and correctional officials to community organizations which facilitate restorative conferences and other restoratively oriented processes. More than five years of NSRJ experience with thousands of cases has led to a considerable rethinking of restorative justice theory and practice in relation to governing policies, standards for program implementation and responses to controversial issues. The purpose of this paper is to explore the significance of the Nova Scotia experience to date for sustaining restorative justice beyond the pilot project stage, where a vision of community-based justice is institutionalized with the support of considerable state resources. The first part of the paper explains the genesis, structure, theoretical goals and empirical evaluation of the program to date. The second part examines some of the challenges of institutionalizing comprehensive restorative justice. The paper concludes with general observations about the broader implications for restorative justice theory and practice of the Nova Scotia experience.
Call Number: DAL Dunn Law Library Reserve Collection KB 92 N532 2003 and online via NovaNet
Publication Date: 2003
This book is a collection of papers originally presented at the 6th International Conference on Restorative Justice held in Vancouver, British Columbia, Canada, in June 2003. The conference brought together academics, practitioners and government representatives to engage in a dialogue which aimed to expand on some established restorative justice themes. Restorative justice is coming of age. New publications are embracing some of the controversies and new applications of restorative justice principles and values. This book contributes to this critical debate and is primarily of interest to those familiar with restorative justice approaches and interested in the development of new themes.
Chapter 12 in New Directions in Restorative Justice. In November 1999, after several years of pre-implementation planning and extensive discussions among both non-profit agencies delivering alternative measures and leaders at all levels of the justice system, Nova Scotia launched its ambitious restorative justice initiative. The central objective was to have the restorative justice approach operationalised in different strategic ways, phased in by offender status and by region, and applicable to all offences and all offenders throughout the province. Compared with other Canadian restorative justice initiatives, the Nova Scotia model is unusual not only in its scope but also in its mixture of core paid staff and volunteers, and its province-wide coordination. Initial research indicated that however well funded, prepared and institutionalised, the restorative justice initiative would have to deal with two major ‘walls’ limiting and marginalising its impact on the justice system. These ‘walls’ were the uncertain engagement of post-charge, post-police, criminal justice system role-players, and the hesitant support and participation of victims and community leaders advocating on behalf of victims. This chapter examines the processes and outcomes associated with implementation to date, especially highlighting process issues and the successes and challenges in penetrating these ‘walls’. The chapter draws upon an extensive and in-depth evaluation that the author has been conducting of the Nova Scotia initiative.
Canadian criminal justice has moved to a hybrid system involving a formal but inclusionary criminal trial as the predominant model with an informal restorative justice model as an increasingly significant alternative. This system invokes traditional punitive, rehabilitative and corrective elements yet deploys them in new institutionalized contexts. The formal inclusionary model integrates victims' concerns at all levels from policing and prosecution through the trial to sentencing and parole, while maintaining due process protections for the accused. The informal restorative model responds to criminal harms by bringing together victims, offenders, their respective families and community representatives in deliberative processes which can result in accountability, reparation and community based solutions that go to the root of crime causation. Both the formal inclusionary and restorative models have advantages and limitations which need to be assessed prior to the exercise of official discretion to bring either into play. However, the basic legislative frameworks for these models found in the Criminal Code and Youth Criminal Justice Act are of necessity supplemented by ministerial authorizations, programme protocols and flexible guidelines to assist offenders, victims, police, prosecutors, defence counsel, judges, correctional officials, various professionals and community organizations in choosing appropriate options for the circumstances of any particular case. The legal profession in particular must respond creatively to the flexible requirements of this hybrid system. Moreover, well-meaning but insufficiently comprehensive conceptualizations of the institutional alternatives in such cases as Gladue and Proulx could limit the potential of this intricate system unless understood restrictively and in context. These developments in Canadian criminal justice reflect the postmodern conditions of our regulatory or supervisory stale. Such participatory processes, rejecting a purely hierarchical approach, are characteristic of what has been termed a reflexive rule of law in deliberative constitutional democracies, and are parallel to legal evolution in other domains. If properly co-ordinated, these models have great potential for enhancing criminal justice in current Canadian society which exhibits increasing structural complexity, social diversity and public alienation from legal institutions. However, members of the legal profession, including bench, bar and chair, must accept their responsibilities and new obligations in order to endure the new hybrid system functions effectively.
Restorative justice has become a fashionable term both in Canadian and foreign legal and social policy discourse. Restorative justice is certainly not a new idea. In fact, it is foundational to our very ideas about law and conflict resolution. There is, nevertheless, a lack of clarity about the meaning of this term. Often it is used as a catchall phrase to refer to any practice which does not look like the mainstream practice of the administration of justice, particularly in the area of criminal justice. Little attention has been spent attempting to articulate what distinguishes a practice as restorative. Rather, we have been content simply to identify what restorative justice is not - namely two lawyers, a jury and/or judge in a courtroom.