Projects‎ > ‎

Due Process for Offenders and Victims in Restorative Justice

Lead Researcher: Bruce Archibald

The purpose of this project is twofold: to investigate the protection of procedural due process in restorative justice; and to explore the manner and extent to which the due process protections operate in practice in NSRJP.

Consistent with the principle of the rule of law, restorative justice in Canada is established by statutory authority and must comply with the due process requirements of the Canadian Charter of Rights and Freedoms. The NSRJP has been authorized for federal offences pursuant to the Criminal Code or the Youth Criminal Justice Act, by the Attorney General of Nova Scotia as a program of "alternative measures" (Under the Criminal Code) or "extra-judicial sanctions" (under the Youth Criminal Justice ct) in the NSRJP Protocol. In Nova Scotia it can also be authorized for provincial and municipal offences under that province's Youth Justice Act.

Certain mandatory minimum statutory conditions must be met in Nova Scotia restorative justice process: a referral must be appropriate having regard to the victim, the offender and society; the offender must "accept responsibility for the act or omission which forms the basis for a charge"; the offender must "freely and fully consent" to participation in the program; the offender must have been "informed of the right to counsel and given a reasonable opportunity to retain and instruct counsel"; there must be "sufficient evidence to proceed with the prosecution of the offence"; and, the prosecution must not be "in any way barred at law". The restorative justice process is entirely voluntary from the perspective of the offender, and each authorizing statue states that such process is not to be used if the offender denies involvement in the offence or expressed the with to have the matter dealt with in court. The latter option becomes a "fail-safe" matter in that both authorizing statues provide that any acceptance of responsibility, admission or confession made during a restorative process is inadmissible in any civil or criminal proceedings. But if there is only a partial fulfillment of a restorative justice agreement by reason of which formal charges are laid in court, the sentencing judge may take this into account, and the court must dismiss a charge if there has been full compliance with a restorative justice outcome agreement.

In addition to the mandatory statutory conditions, the Restorative Justice Protocol sets out discretionary factors to guide the exercise of the discretion of the person considering making a restorative justice referral, whether this be a police officer, Crown attorney or correctional official. These include: the cooperation of the offender; the willingness of the victim to participate in the process; the community desire/need for restorative process; the motive behind the offence; the seriousness of the offence and the degree of the offender's apparent ability to learn from the process and follow through on n agreement; the significance of a potential agreement to the victim; the nature of the harm done to the victim; whether the offender has previously been referred to a similar program; possible conflict with other government or prosecutorial polices; and other exceptional factors which the decision maker may deem appropriate. A "Restorative Justice Checklist" for use by police and Crown attorney is attached to the Restorative Justice Protocol. This checklist sets out the relevant factors governing referral of cases to restorative justice and includes the direction "[i]f not recommending a referral to the Restorative Justice Program, please state reasons". In the minds of some, this was intended to operate as a programmatic presumption in favour of restorative justice; however, it has apparently not had this effect. Nevertheless, it may serve as a reminder to criminal justice system operatives to use restorative justice wherever possible. This latter point ill be a matter for empirical investigation.

In addition to the procedural rights of the offender, one must think of the legal rights of victims involved with the criminal justice system in general and with restorative justice in particular. For example, victims are now often consulted by police, prosecutors and correctional officials in the exercise of their discretion, which may encourage restorative justice process or may push a proceeding away from restorative justice. Moreover, criminal trials now protect victims’ rights more than ever and there are opportunities at sentencing for victim impact statements. Finally, to the extent that victims of crime may have suffered property damage, loss or personal injury, they will have recovery rights in private civil proceedings which may or may not involve third parties, such as insurers. How these victims’ concerns inter-relate to restorative justice in legal and practical terms must be explored in this project.