Chapter 5: Restorative Justice

One of the disappointments of my current illness is not being able to participate in a committee in Ottawa that will oversee a number of restorative justice initiatives. I have just been appointed, and the current emphasis on restorative justice, which is looking at a whole range of ways of dealing with unacceptable and criminal behaviour, is a move in the right direction for corrections. The committee is starting with various projects to explore ways — other than formal channels and processes — to bring together offenders and those who have been offended against. We would like to see if we can encourage resolution to the situation between them.

Offender-victim reconciliation is only one part of restorative justice, as it has developed over the past few years. We do this with a very select group. In some cases, with many of our criminals, especially drug dealers, it's very hard to define who is actually the victim. It's a diverse group, so other ways of bringing restoration and holding offenders to account for their behaviour must be found.

There are strong indications of interest among governments both in this province and federally to develop restorative justice initiatives. The Attorney General of British Columbia has made several announcements over the past couple of years about various projects that are more consistent with restorative justice principles than the traditional punitive court models. At Ferndale we host an annual conference on restorative justice. Up until now, we have targeted the clergy for this event, but in the last year we have been opening it up to the public, law-enforcement people, judges and others. The field is growing quickly, both in practical projects and as a fast-developing area of academic interest. I am involved in setting up a centre for restorative justice at Simon Fraser University in the School of Criminology. It will be concerned with both teaching and collecting information, and will make a significant contribution to corrections in Canada and across the province.

I am honoured that the Commissioner has recently announced an annual award — to be named after me — for restorative justice projects in Canada or individuals who develop projects that are deemed to have value and credibility and are models for restorative justice. In my view, this is a very strong step, not just because I am involved, but because it shows a commitment to really pushing the envelope on restorative justice initiatives, and to trying to find more satisfactory ways of holding our offenders to account for their behaviour. One of the shortfalls in programming is that it never really holds anyone to account in a way that says "I'm sorry for what I did." When people can actually express remorse and sorrow for what they did, and more importantly, if they can do it to the affronted, we know that it is often a life-changing experience.

The Betty Osborne case

One of our more satisfactory experiences with restorative justice was the Betty Osborne case in Manitoba, which drew strong public attention because of the victim. The people involved in the murder of that young woman had never been held to account, except for one accessory who had a peripheral part in the incident, and the only one ever convicted. The case attracted national attention through the media and various documentary films pointing out the severe injustice that had taken place: the family had never been properly dealt with as victims. It called attention to our need to be much more sensitive and responsible in such a case. The situation came to a head when the young man was being considered for parole and was then paroled without anyone advising the victim's family. It caused a great deal of concern.

The good news is that it brought about a series of meetings and healing circles which were sponsored by the Native community in Manitoba. Eric Robinson, the MLA for Rupertsland, and Chief Phil Fontaine, then the National Chief of the Assembly of First Nations, participated in this whole process. It was fascinating to see what happened. For the offender, it was a life-changing experience. He was able for the first time to describe what happened on that night. Whether any further action will be taken is probably moot at this point, and I don't know whether there is enough evidence to proceed against other individuals. At least, the family has the story and the truth about what happened. This exercise is a model for what we hope the restorative justice initiative can accomplish.

Elbow Lake Institution as an Aboriginal-based facility

In converting Elbow Lake Institution to an Aboriginal-based facility, I wanted to make sure that we designed many of the operations of the facility on restorative justice principles, including discipline and a variety of other traditional correctional practices. We hope to use healing circles wherever there is conflict, as opposed to various disciplinary practices using boards, for example. There are sufficient legal grounds for us to do this, and we certainly have the support of the Correctional Service of Canada. It will give our work a unique flavour. That was one of the reasons I was so keenly interested in converting Elbow Lake into an Aboriginal facility. It will allow us to do so some things that traditionally we have not been able to practice, such as giving the Elders a more prominent role in dealing with the actual day-to-day behaviour of the individual. They are employees; we hire Native Elders on contract much as we would hire Chaplains or counsellors. Their job is to manage not only the spirituality programming, but also the teaching of cultural matters. Both are important to set in practice a number of Aboriginal traditional ways of resolving disputes.

Although it is already functioning as an Aboriginal facility, Elbow Lake is only now beginning this program. It's a little premature to judge the overall results, but we definitely see results individually, case by case. There's no doubt that a number of situations have been satisfactorily resolved through this process. In some cases, it has had a significant, life-changing impact on the individual. Elbow Lake has had a fairly long history of spirituality and teaching cultural practices. Now we are working with the Chehalis Band, in particular, and the Sto:lo Nation, and we are developing a number of other projects for incorporating traditional Aboriginal practice into correctional policies.

I would guess that from 20 to 25 per cent of our inmates are Aboriginal. The majority — 80 to 90 per cent — are on the Prairies, mainly Cree Indians. On the Prairies, I think that 60 to 70 per cent of the defendant population are Aboriginal. The national average is probably closer to B.C.'s average, and we're the second-highest at 20 to 25 per cent. Quebec has very few and the Maritimes virtually none, because the population is so small there. Aboriginals represent a number of different backgrounds and traditions. It's a bit of a problem for us. On the West Coast, should we practice West Coast traditions or do we practice Prairie traditions? Most of our Elders come from the Prairies, so they tend to come from the Cree tradition. The sweat lodge is a Prairie institution, while the longhouse is West Coast. The daily practices and rituals are different, yet there are many general similarities; it's not as if they are wildly different. It's something we have to work with. We have to find what is common, a middle ground. I am absolutely convinced that once a Native offender gets on what they describe as the red path (which is on the way to spiritual healing through their culture), it's almost inevitably life-changing. Once they are committed to that course, it's rare that you see them turning back.

In Elbow Lake, we see evidence of the legacy of residential schools. The province's Residential Schools Project is dealing with some of the kids who came through that experience and are now adult criminals. We are involved with that project as well, and we have identified a number of kids who had bad experiences in residential schools, although some were good. I've talked to some Native people who say that it was not a negative experience for them. George Isbister, one of our Elders at Elbow Lake, told me that his own experience wasn't that bad, but for others it was, so it is a mixed bag. There are some clear cases of abuse that took place, and we see it worked out in subsequent criminal behaviour. It usually runs to violence and substance abuse.

There is clear evidence of fetal alcohol syndrome. I couldn't give you a percentage, but we've been looking at it. I know that staff in the reception centre are trying to see if they can start detecting fetal alcohol syndrome among incoming offenders more quickly. The target population is not just Native, but all those who would be highly predisposed to the syndrome. It is a severe disorder and extremely difficult, because there is no known method of treatment.

Restorative justice and public understanding

By undertaking very specific projects and publicizing these initiatives, we can make the public more aware of restorative justice. I don't think they generally know that these initiatives are being tried. Or they think of restorative justice as little community-service projects. In a small way they probably are, but the full extent of restorative justice is not widely known. It has basically been the purview of the clergy and those with a political interest in restorative justice. If you ask most people in the street, they wouldn't have a clue what you are talking about.

It is going to need a good deal of communication. One of the ways we try at Ferndale is to hold an annual conference to educate people who we believe have influence in the community. We have to develop more initiatives and projects using the restorative justice model, and be able to demonstrate its effectiveness before people will start to realize that it is a more satisfactory approach. Some television documentaries have been produced to describe restorative justice. Across Canada, there are some very good spokespersons representing victims' groups, who are speaking on behalf of restorative justice initiatives. And we now have a number of victims who can speak on its behalf. Once a victim has gone through a satisfactory restorative justice initiative, he or she will often become a very good spokesperson. For instance, Wilma Derkson from Winnipeg works with the Mennonite Central Committee and other organizations on restorative justice. Her daughter was brutally raped and murdered 12 years ago. They never found the perpetrator. She has taken a very strong restorative justice position, and has gone across the country doing public speaking, interviews and presentations. She is a very articulate person — just one example of the people out there trying to explain and make this agenda more prominent.