| Foreward |
|
Restorative Justice :
Doing Business Differently
In recent years, people have begun to question the adequacy of justice in Canada. Many Canadian communities and justice system professionals are dissatisfied with the way justice is conceived and delivered in Canada. Many communities are turning to alternatives to adversarial justice - the idea of restorative justice. The RCMP, as a national police service, has an important and key role to play in reworking the Canadian justice system. Restorative justice is a priority in the community policing philosophy.
Restorative justice is a philosophy built on the cornerstone of community healing. Like community policing, it's a way of doing business differently. Unlike the current adversarial system, which is based on punishment, restorative justice encourages dialogue and responsibility for past behaviour, while focusing on future problem-solving and offender accountability. Ideally, the victim, the offender and the community should be involved in 'making things right' so that all parties return to their pre-crime states. Within the philosophy of restorative justice, crime is a violation of one person by another, not simply a broken law.
There are a number of options or strategies within the restorative justice approach including Community Justice Forums (CJFs), victim-offender mediation and sentencing circles. Strategies can be as numerous as communities. The RCMP has chosen to champion one specific process -- Community Justice Forums (CJFs).
Restorative justice offers the philosophical base for a justice system that is flexible, responsive and accountable to communities. A key to making change is the training and educating of criminal justice professionals as well as the wider community. The RCMP is committed to promoting restorative justice processes like CJFs as a way of doing business under a community policing philosophy.
As an organization we are committed to sharing the materials and experience we have accumulated on this topic. We are also committed to developing partnerships with communities across Canada. It is my hope that this guide will provide comprehensive information on the process of CJFs and how to facilitate them in your own community. It is written based on our uniquely Canadian experience with the process.
Commissioner J.P.R. Murray
Royal Canadian Mounted Police, Ottawa
The Discretion to
Choose
Restorative Justice
The following was adapted from an article written by A/Commr. Cooper, in the October, 1996 issue of the Pony Express, a publication of the Royal Canadian Mounted Police.
Not too much has been written or said about police officers using their discretion to choose not to initiate criminal proceedings. It is done frequently by many street police officers and we do not think too much about it. Indeed, police officers "let people off" every day for minor infractions and if they didn't, our courts would be even more backlogged than they are. But when it comes to "getting formal" about police procedure and practice in dealing with a criminal matter, our training and imagination, for the most part, starts and stops with the laying of criminal charges and going to court. We are seemingly locked into the court syndrome.
Our criminal justice system is a very complicated process for dealing with offenders. However, I believe the policing profession can contribute substantially to matters by being much more "hands on" and innovative in dealing with less serious offences, particularly where young offenders are involved.
Each of us, as sworn police officers, has a major role to play in the criminal justice system. This is particularly true when decisions regarding criminal charges are being made following a successful criminal investigation. It is at this point in the criminal justice system that police officers decide whether to pursue criminal charges and engage the cumbersome criminal justice system or do something else. We are advocating much deeper involvement and dynamism on the part of investigators and supervisors through this innovative approach which aims to divert cases outside the traditional court system. We advocate restorative justice measures by using your discretion as a police officer. Remember, the expensive court system is not engaged unless a police officer lays an Information.
Let me be completely clear, I am not talking about using the "Young Offenders Act" and its formal procedures set out there, for authorizing diversion. As we all know, that process is bureaucratic and slow. Community Justice Forums sometime referred to as Family Group Conferences, have quickly become a very popular and credible alternative in many Canadian communities. If you are not already using diversion in your community, I would urge you to examine and explore the possibilities. All RCMP Divisions have persons trained in the Restorative Justice process and can provide guidance and assistance in implementing this process.
The Honourable Allan Rock, the former Minister of Justice for Canada, was a strong supporter of alternative measures and openly advocated the wider and wiser use of police discretion in these matters. His comments and encouragement, together with those of many other supporters in our communities, we see a tremendous support for diversionary initiatives. I know that restorative justice is alive and well in the RCMP and many Canadian communities. We have RCMP members and others leading the way in communities. What we need are leaders working with our front-line officers in providing the necessary encouragement and training to ensure broader embracement of the process.
We, in Community, Contract and Aboriginal Policing Directorate, stand ready to provide any assistance or training necessary to keep this process moving.
A/Commr. Cleve Cooper, Director
Community, Contract and Aboriginal Policing Services
Royal Canadian Mounted Police, Ottawa
If each of us were to trace our own ancestry far enough, we would come to a time when civilizations were organized in small, close-knit communities. Whether we were tribes, clans, nomads or organized in agricultural hamlets, we depended on our community for survival and problem solving.
In matters of misconduct, a council, or some type of community gathering would be convened to decide the fate of offenders and victims. The wisdom and experience of the community's elders would be sought as safeguards against rash decisions, retaliation and anger. The method and appearance of 'community justice' varied between cultures but was similar in many ways.
In terms of reparation, the offender might agree to repair the harm inflicted by performing work for the victims. He or she might also pay some form of restitution. Once reparations had been made, the matter was closed and the offender accepted back into the wider community. The community's traditions and values were factored into the process, ensuring its fairness and acceptability. In short, it was a system where justice decisions were made by the people directly affected by the offending behaviour.
Today, people in Aboriginal and non-Aboriginal societies alike are searching for a fair, effective and timely justice system. Restorative justice is a philosophy that addresses these needs. Unlike the current adversarial system which is based on punishment, restorative justice encourages dialogue and responsibility. Community healing is a cornerstone of this philosophy. While there are many restorative justice options in place in communities across Canada, Community Justice Forums (CJF) in particular present opportunities for reintegration, healing and dialogue among key community stakeholders.
What is a Community
Justice Forum (CJF)?
A CJF is a safe, controlled setting in which an offender, victim and their respective families and supporters are brought together with a trained, accredited facilitator to discuss the offence and effects and to jointly decide how to right the wrong that has been done.
The community is best placed to deal with offending behaviour.
The community is defined as those who "did it" and those who "had it done."
Victims are essential to understanding consequences.
Offenders need to be confronted with the consequences; not to do so does them a disservice.
Justice is best determined by those directly affected.
Transformative Justice Australia, 1996
The Maori people of New Zealand traditionally used a form of collective response to offending behaviour that was adopted and modified by the
New Zealand government in 1989. It was officially incorporated into their juvenile justice system under the name "Family Group Conferencing" (FGC). It is clear that other indigenous peoples around the world from Botswana to Canada have also developed similar processes for dealing with conflict.
In 1990, John McDonald, an educator from Australia, witnessed the process and brought the concept home. In 1991, he was instrumental in establishing the process in Wagga Wagga, Australia for the New South Wales Police Service. The results were dramatic and a great deal was learned that helped in modifying the process. McDonald, Sgt. Terry O'Connell of the New South Wales Police, and David Moore, a researcher and professor at Charles Stuart University, expanded their work with the FGC process with the goal of discovering an explanation for its effectiveness. In their research they met and worked with John Braithwaite, an Australian sociologist whose concept of reintegrative shaming described what they were observing in conferences. In addition, the work of American psychologist Don Nathanson was incorporated to provide a psychological explanation for the process. The media was instrumental in spreading the work of McDonald, O'Connell and Moore through the media.
In 1992, guidance counsellor Marg Thorsbourne from Queensland, Australia, recognized its application in dealing with school discipline problems and conducted the first school conference.
News of the dramatic success of this process spread to North America and in 1995 the first conferences were held here in Canada. The Australians developed a training program and travelled to North America to train police and educators in facilitating FGCs.
In 1997, the Royal Canadian Mounted Police invited the Australians to Canada to conduct training sessions across the country. Fifty-seven participants, both police and community members from across Canada were trained in Regina, Saskatchewan in January, 1997. The name Family Group Conferencing was modified to reflect a Canadian experience with the process which is now referred to as Community Justice Forum (CJF). Within the RCMP, the demand for CJFs has increased dramatically, a testament to the value of the process. Forums are currently being offered in many communities across Canada.
How CJF Differs from the Court System?
Fact finding versus problem solving
The current criminal justice system is concerned with determining legal guilt and assessing blame. The focus is on facts which meet the rules of evidence; emotions are not considered appropriate in a court room. The court concerns itself with whether a crime was committed and whether the Crown can prove the offence was committed by the accused. Ultimately, the question becomes "How do we punish the guilty party?"
CJFs begin with an admission from the offender. Consequently, determining guilt is not an issue. Instead the questions are "Who has been harmed and how have they been harmed?" followed by "How can the harm be repaired while reducing the likelihood of future harm?" Thus, the focus is on problem-solving.
Focus
Court systems are focused on offenders, the incident and how they should be punished. The roles of the victim and the wider community are often overlooked. While focus on the offender establishes a rationale for punishment, it does not allow for, nor encourage, offenders to take responsibility or learn from their actions.
In CJFs, victims and offenders play key roles in both identifying the problem and finding solutions to repair the harm. Offenders are encouraged to take responsibility for their actions. The needs of victims and the community are recognized.
Punishment versus Responsibility
Punishment is the main objective of the criminal justice system. An elaborate system of weights and measures exists to determine the level of punishment. There is no re-integrative component evident in current court practices.
Punishment is not the key concern in CJFs. Having the offender assume responsibility for his or her actions is a primary goal. It ensures a sense of accountability not always found in the court system where offenders are represented by lawyers, encouraged to plead "not guilty" and seldom face their victims.
Win-Lose versus Win-Win
The adversarial system assumes that each case must have a winner and a loser. Defence and Crown battle for a victory by discrediting the opponent's case as much as possible. Often the losers are the victims and the community at large, even when a case is won by the prosecution. This approach also encourages offenders to avoid responsibility for their actions.
The process of CJFs allows all parties to be winners. All participants are involved in deciding the outcome through this problem-solving model. All must agree that the outcome is fair to victims, offenders and the wider community.
Alienation versus Reintegration
The criminal justice system often evokes a sense of alienation for both victims and offenders. The stigma of being charged with a criminal offence can alienate an offender from his or her community or even their family. If found guilty, an offender may be physically removed from their community to serve a sentence. Victims also report feelings of alienation and isolation from the court process where they have little to no involvement.
One of the most important features of CJFs is the commitment to the reintegration of the offender back into the community. Victims' feelings of alienation are reduced as they become central actors in achieving justice. The concept of reintegration is central to the larger goal of healing and of repairing harm. Unless everyone touched by an incident can be involved in making things right, healing cannot take place.
A great number of people, both in the criminal justice system and in the general community, believe that the present criminal justice system does not meet the needs of the community, victims or offenders. It is extremely expensive, time consuming, victims are not heard, meaningful reparation is rare, recidivism is high, rehabilitation is almost non-existent and adversarial. While the current court system is required to address a broad range of offences, many forms of these could be better handled at the community level.
In a CJF, the offender's behaviour is condemned; the victim's and community's needs are addressed; consequences are established; victims and offenders are supported; forgiveness and apologies may occur and reintegration of the offender begins. Forums are cost effective, timely, fair and cooperative. Many community programs claim reduced recidivism rates as well as high participant satisfaction. More importantly, harm is repaired.
Cost Effectiveness
In the long run, CJF's should prove to be a more cost-effective method for resolving conflict. In a CJF, offenders and their families are not required to hire legal counsel. People do not have to book full days off from work to meet court commitments. Forum times are scheduled to be as convenient as possible for all concerned. Court, probation and legal aid costs are not being incurred and Police Officers are not being paid while awaiting their turn to testify.
A chance to be heard
In a forum every person affected by an incident is given the opportunity to share their reactions to the crime and how it has affected their lives. This includes victims, parents, friends, witnesses, and anyone else directly involved.
Contributing to the outcome
People directly affected by an incident decide how to repair the harm after hearing from all participants. Outcomes must be fair and the solutions can be as creative as the people in the forum wish it to be.
Gaining perspective on the incident
Offenders, victims and their supporters hear directly from each other. All participants have the chance to explain their views and to hear another version of the story.
Curiosity is satisfied
Many people, especially victims, have a strong need to ask "Why did you do this?", "Why me?" These questions are rarely answered in a court room but are answered within a CJF. Often, it is a relief for the victim to discover that they were not a personal target. Parents of an offender may not have been provided with an adequate answer to why their child committed an offence. CJFs can provide such answers.
Immediacy
While a court case may take months to process, a CJF can be conducted in a matter of days or weeks following the incident. The details and feelings are still fresh but enough time has passed for people to reflect on what has happened. Families, the community and victims appreciate the timeliness of CJFs. CJFs are advantageous because participants have a recent memory of the incident whereas the time delays of the current justice system may mean that the impact of the crime on the victim and offender will have faded by the time it gets to trial.
Restoring or creating bonds
In a CJF, family ties are strengthened, new bonds may be forged between parties and trust and stability are restored within the community. Families feel they have regained control over their lives, support is given and received, respect is earned by offenders who take responsibility for the harm caused and labels of "victim" or "offender" are removed.
Closure and healing
Once an offender understands the true consequences of their actions, an honest apology can be made to all victims. When people see and believe in the honesty of an apology, they are usually quick to forgive. Victims often feel a great sense of relief when forgiveness occurs because forgiving is the cornerstone of healing. Apology by the offenders' and forgiveness by the victims', set the healing and reintegration process.
Learning experience
Everyone can learn from participating in what is essentially a problem-solving exercise. Offenders learn to recognize the effect of their actions on others and to take responsibility for them. Families begin to understand each other and communities learn how to repair the harm. Police and schools, using CJFs, can learn a more holistic approach to problem solving and the communities trust in them is enhanced within the community. All participants -- offenders, victims, teachers, police, and community care-givers -- cast off their labels and are humanized in each other's eyes.
There is a clear theory behind CJFs' success. The key premise of the process is that shame has the potential to change behaviour. The Western culture has developed a "negative" image around shame. However, in many other cultures shame is used positively to change behaviour.
This section will provide a brief overview of the sociological and psychological explanations behind CJFs and the role of shame. For those interested in an in-depth explanation of the theory behind the process, please refer to Appendix A for a reading list of additional work on the topic.
The Sociology of Shame
The sociological explanation behind the use of shame in a forum comes from the work of Australian sociologist John Braithwaite. In a nutshell, Braithwaite (1989) believes that we can use the dynamic of shame in a positive way to change behaviour. Braithwaite states that shame is the reason we do not commit crimes. People are shamed either internally through some sort of developed conscience or externally through family and friends. According to his theory, very few people will not experience shame in one of these forms with the exception perhaps of a sociopath.
Often, people comment that this process would not work for many of today's youth as they do not hold values. It is a mistake to assume that contemporary youth do not have values. They may not share 'adult' or stated societal values, but they have their own set of values that they honour. For example, loyalty to friends is a value most youth share.
In his work, "Crime Shame and Reintegration", Braithwaite (1989) makes a very important distinction between what he calls stigmatizing shaming and reintegrative shaming.
Reintegrative versus Stigmatizing Shaming
It is important to understand the difference between stigmatizing shaming and reintegrative shaming. Recently, in Western Canada, the parents of a young shoplifter forced him to wear a sign around his neck indicating that he was a thief and paraded him through various malls. Certainly, the boy experienced intense shame and humiliation, but what effect did the experience have on him? It may well be that he will not shoplift again for fear of being put back on public display. But what does that kind of labeling or stigmatizing do in the long term to the youth and the family? There is no reintegrative component to this type of shaming.
There is little doubt that serious damage has occurred to the bond of trust between parent and child. This form of stigmatizing shaming offers little hope of reconciling the offender with the community. More importantly, it may lead to the destructive responses indicated on the compass of shame (see next page). Often we witness this stigmatizing shaming in the court system.
In a CJF, individuals do experience shame, but it is in a controlled environment of care and respect. Rather than leaving permanent scars of stigmatization, the process can provide an opportunity to take responsibility for actions and to repair harm. The community acknowledges the worth of the offender as a human being by condemning the offending behaviour and giving the offender an opportunity to repair the harm. Reintegrative shaming is followed by efforts to restore the offender as part of the community through gestures of forgiveness and acceptance of his/her apologies. Shaming is an important first step, but it is followed by efforts to reintegrate.
Psychologically speaking
Donald Nathanson, (1992) an American psychiatrist, argues that there is a good foundation for the use of shaming from a psychological perspective. He argues that all human beings, regardless of their colour, gender or background are born with nine innate 'affects' or what we might call emotions. These are physiological responses to certain conditions or experiences and are divided into three categories.
Negative - fear/terror, distress/anguish, anger/rage, dissmell, disgust, shame/humiliation
Neutral - surprise/startle
Positive - interest/excitement, enjoyment/joy
The term 'negative' does not refer to the emotion being innately negative. Rather, it refers to the fact that our body does not like to feel the 'negative' emotions, i.e. anger or fear. We try to avoid bringing these affects into play at all costs. Often, we modify our behaviour to avoid experiencing negative affects. Although we are socialized to control these emotions, we still will have these reactions when confronted with certain situations. The logic is that if everyone experiences shame on a physiological level, we can use this affect to change behaviour. The compass of shame (shown below) explains how people will react to shame.
In his book called Shame and Pride, Nathanson (1992) described our response options to shame as 'the Compass of Shame'. The four points of the compass indicate ways people respond when shame is chronic or unrelieved: Withdrawal; Attack Self; Avoidance and Attack Other. In a forum setting these may be displayed by any of the participants. Consequently, it is important for facilitators to recognize them and understand why they occur.
Withdrawal - unresponsive to others; a parent who refuses to attend
Attack Self - using negative terms to describe self; depression; drug or alcohol abuse
Avoidance - attempts to shift blame to others; may sit facing away from group or with arms crossed
Attack Other - name calling; finger pointing; accusations about others' conduct
The Compass of Shame
Perhaps the notion of affects can be best explained through an example.
Imagine you have taken a group of friends out for dinner. You hand the waiter your credit card to pay the bill. The waiter returns to your table and announces that your card has been rejected because it is over the limit. Imagine how you'd feel at that instant: shame and outright humiliation. You can react in one of several different ways: you could get angry and make a scene; you could crawl under the table; you could try to make light of the situation by saying that your spouse forgot to make the card payment; or you could simply hand over another credit card.
You do have control over how you choose to handle your embarrassment or shame, however, the initial feeling was involuntary. These involuntary responses can have a profound effect. Regardless of how you handle the situation you will probably never forget the shame or humiliation that you felt at that moment. For a long time afterwards when you pay with a credit card, that memory will return and may even cause a queasy feeling in the pit of your stomach.
In a CJF, shame is experienced as the understanding of the real effects of offending behaviour on others. When shame and remorse are genuinely felt, they are followed by a need to relieve those feelings. Generally this is accomplished through an acknowledgement of how others have been harmed, followed by an apology for causing the harm. Victims and other participants easily sense when a display of remorse and an apology are genuine. When they recognize the genuineness of the apology, they are quick to accept the apology and to forgive the offender. This is an important and powerful event leading to the reintegration of an offender. In addition, it is likely to be very satisfying for victims.
Forums work because participants move from the negative feelings of shame and anger towards positive feelings of respect and forgiveness.
How To Ensure Compliance with the CJF Agreement
Early data in Canada reveals that compliance rates are extremely high in CJF agreements. When conducted by properly trained facilitators, 95 - 97% compliance rates are being reported in communities like Fort St. John and Sparwood, B.C.
The explanation for this success is clear. A CJF agreement is an undertaking that the offender has been involved in negotiating. Offenders are likely to comply with an agreement that they and their community of care have been active participants in creating. It is not an arbitrary and adversarial sentence imposed by someone offenders neither know nor respect.
The offenders understand that once they comply with the terms of the agreement, the matter is closed. They also know people will ensure the terms of the agreement will be adhered too and they will be there to support them.
Despite the high success rates reported to date, on rare occasions the offender does not comply with the terms of an agreement. When this occurs, the facilitator will assess the circumstances before deciding on a course of action. Had there been any attempt to comply? What reasons do the offender and the family offer for non-compliance? How does the victim view the degree of compliance or the efforts made to comply? Are there circumstances beyond anyoneÕs control that could not have been foreseen? In some cases, the forum may be reconvened to address the issue of non-compliance. Whether to reconvene, close the file or initiate other sanctions must be decided in each jurisdiction.
Appropriate Referrals for a CJF
Deciding which situations to refer to a forum will vary dramatically from one person or agency to the next. It is important to keep an open mind and to review all the circumstances of an incident rather than creating rigid policies to determine what can and cannot be referred to a CJF.
CJFs are currently being used in civil matters such as child custody cases, neighbourhood disturbances (barking dogs, loud music), workplace disputes, and harassment. In schools, CJFs are being used for serious discipline problems like bullying, truancy, and harassment.
For criminal matters, the CJF process is most commonly used as a pre-charge diversion at the investigating officer's discretion. The process has been used in Canada, with both young offenders and adults, in cases of theft, assault, mischief, break and enter, hit and run, drug possession and bomb threats. Municipal by-law infractions may also be suitable. Using CJFs to help deal with impaired drivers and some motor vehicle offences may also prove to be effective.
As a probation term, pre-sentence option, pre-release or even during incarceration, CJFs have been used for very serious crimes. We strongly suggest that new facilitators or new programs not attempt to deal with serious crimes. Inexperienced facilitators should not attempt sexual assaults and domestic violence issues, if at all.
When deciding if a situation is suitable for a CJF, the following questions should be considered:
The answers to these questions will determine if the matter is suitable. For forum purposes, there is no such thing as a "victimless crime". Sometimes it is useful to think in terms of those who have been adversely affected rather than to the traditional image of a "victim". The value of property does not limit eligibility for a forum, nor does a record of criminal convictions. Forums may equally be applied to both youth and adults. In some jurisdictions, CJFs are even being used with children under the age of 12.
Participation by all parties must be voluntary while some jurisdictions require that there be enough evidence to support a charge. We advocate a forum should be considered if the offender has made an admission and agrees to participate.
Each community or agency must decide the criteria and "comfort level" for initiating the forum model. As facilitators gain experience and develop understanding of the process, they may want to handle more difficult cases.
Participants
As the facilitator, you should have a detailed overview of the circumstances of a case. Additional information such as the offender's family background and previous police contact, is very helpful. As you work through the case file, you will learn much more about the parties involved.
An essential part of the preparation is determining who will attend the forum. While every person directly affected should attend, sometimes it is difficult to identify those people.
Offenders and their families should be asked who has been affected in the family and who should attend as support. The offenders parents, siblings and grandparents whereabouts should be determined. When told that a family member will not attend or is not wanted, it is imperative that you probe the reasons for this decision. It is possible that the individual planning to avoid the session, is the most important person to have at the forum. For example, when an offender doesn't want a particular grandparent to know about his/her behaviour, it could be because he/she is the person whose opinion means the most to the offender. Having him/her at the forum could have a significant impact on the offender.
Always discuss with victims the importance of having support persons in attendance. If there are employees, other family members or friends who have been affected, they should also be invited. While there is no need to keep the numbers of offender and victim supporters equal, ideally neither the offender nor the victim should attend alone.
For some victims, safety may be a concern. The attendance of supporters helps to address this fear and other adjustments can be made to increase the
victim's sense of safety. Note that the investigating officer's presence may be sufficient. Usually, all that is required is an explanation of how a forum is physically arranged (the offender will not sit next to the victim) and a review of what typically happens during a forum. Additional doubts about the process, may be addressed by explaining the benefits of the process for victims. Inform victims that they will have an opportunity to tell the offender how their actions have affected them and they will have input into the outcome. This aspect is extremely reassuring for many.
Other participants might include: witnesses, extended family, friends, teachers, counsellors, coaches, social workers -- anyone who has a direct connection to the offender and the victim(s) of the offence. It is the facilitator's responsibility to decide who should attend.
Having a clear, thorough understanding of how and why CJFs work will be crucial when contacting potential participants. You must be able to clearly convey the dynamics of the process, why they should attend and what they can expect. Well prepared participants contribute greatly to the success of a forum.
There is no set number of participants for a forum. However, a greater number of participants increases the likelihood that participants will gain an understanding of the impact of the incident in its entire context.
Scheduling/Venue
Scheduling a forum may require considering different factors unique to each community. Office hours, travel and school schedules may all be relevant. Forums may need to be scheduled when the investigating officer is on duty. However, with a variety of people and work schedules, it may be difficult to accommodate everyone. Forums should not interfere with schooling and as a result could be held during evening hours or weekends.
Forums should be scheduled as soon as possible. However, where there has been severe physical or emotional trauma, some time may be needed before bringing everyone together.
The venue should be accessible to all participants. A participant with whom you have only had telephone contact may not have mentioned being in a wheelchair or on crutches. It should be a comfortable, neutral setting with adequate lighting and air. Distractions must be kept to a minimum. Post a ÔDo Not DisturbÕ sign on the door if necessary. A photocopier or carbon paper forms must be available.
Seating Plan
A seating plan should be drafted for each forum as it will assist during the forum as an aid to remembering names and relationships. It also helps the facilitator schedule each participants involvement in the discussion.
Ensure that enough chairs are available to accommodate the group. If someone does not appear, remove a chair and draw the others together as an empty chair can be a distraction. Physical barriers, such as tables should be removed. A circular or horseshoe shaped grouping is ideal and sample seating charts for both arrangements are included for your convenience. The advantages of such arrangements include; eye contact between participants, no head of the table, equal status of participants and no physical barriers to communication.
The offender and the victim are situated in the midst of their support group across the circle from each other. Whether you place the offender group on your left or right is your decision as the facilitator; however, consistency should be maintained in all forums to eliminate confusion. The two groups are separated by the facilitator at one end and the investigator at the other. Have angry or aggressive participants seated next to you.
Seating Plan when Investigator is present.
A second row of participants can be added for large forums
Seating Plan Horseshoe Shape
A second row of participants can be added for large forums
Facilitators should arrive early enough to prepare the room as some participants may show-up well before the scheduled start of the forum. Upon arrival, ensure that chairs are arranged according to the seating chart and place a box of tissues within reach of the participants. Refreshments should be placed in a location where it is not disruptive to participants of the forum. It is important to make time to collect your thoughts and review your notes.
Ideally, the offender and victim groups should be kept separate upon arrival. This avoids an awkward situation before the session begins. Once everyone has arrived, show each participant to their assigned seats and begin the session on time. Be punctual as it is unfair to hold up the process for a latecomer, unless the the person is essential to the process.
Co-facilitation
Facilitating a CJF can be quite demanding, especially with larger groups. In some cases it may be beneficial to have two facilitators. It is important that the two facilitators share a good rapport and a clear understanding of the process. The roles should be flexible enough to accommodate the dynamics of the forum. If the two facilitators are compatible, the participants will experience little difficulty
following the flow of the forum. As an example one facilitator might take the lead role throughout the conference while the other monitors the process and takes notes. Another option is to alternate the lead role. Pauses can be used for you and your partner to consult and discuss progress. For the latter style, the facilitators should be seated next to each other. Co-facilitation is also a preferred method of introducing a newly trained facilitator to the process.
Double check for Coordinators/Facilitators
Following a script
Scripts have been developed to ensure that facilitators do not inadvertently deviate and impair the ability of the group to complete this process. Because reintegrative shaming occurs in a specific sequence, it is absolutely essential that the script be read and followed to ensure a positive outcome. The script should actually be read at forums even though this may feel unnatural. While experienced facilitators may be tempted to paraphrase the script, we recommend you follow it in its entirety. The script has been developed and modified by experienced facilitators who have learned that even seemingly minor changes can alter the course of a forum.
For easy reference, facilitator's should have the script, details of the incident the seating plan, a list of participants and their relationships to each other and any other information required to ensure a smooth process.
Parts of the script
Introduction
Offender's story
Victim's story
Victim supporters
Offender supporters
Offender response
Reparation / Agreement
Participant interaction
Signing agreement
Recognizing and dealing with strong emotions in a CJF
CJFs provide a forum for feelings to be expressed in a safe and controlled environment that enables participants to repair the harm and move toward healing. Facilitators must learn to recognize and understand emotional reactions such as anger, shame and moral indignation.
For example, anger is often displayed by CJF participants. It may be directed at the offender, the victim or at the 'system' and it is important to understand where this anger originates. Knowing when and how to redirect or manage anger, is a critical skill for facilitators to develop.
Facilitators must allow for the expression of anger without allowing it to derail the process. For example, when a parent is angrily blaming others for the offender's actions the emotion may be redirected by asking 'Did you hear Susan say she threw the rock through the school window?'. A good facilitator will be observant of the participants reaction and can manage the anger by redirecting and refocusing this reaction.
In his research, Nathanson (1992) indicates that shame may be displayed as anger directed toward others. An offender's parent may lash out toward the victim, the offender or the system in reaction to their own sense of shame. A victim may express anger at the offender or his or her family. This may stem from the victim's shame at being a victim and their sense of feeling helpless.
Moral indignation may cause resentment from other participants if allowed to continue for too long. It can take the form of repeated or excessive demands for material reparations; a failure to see the offender's sense of remorse; the offender's ignore other participants; others' refusal to listen to the offender; or a 'lecturing' tone of voice.
The facilitator can address extreme displays of anger or moral indignation with comments such as:
"I know you're finding this difficult. I think we all are. I'm struggling to understand why you are so angry."
"What is it about what's happened that you find most difficult?"
"It's clear that you are very angry. Does it seem that we don't understand that?"
"What do you need to hear or see to convince you that John is truly sorry for what he has done?"
You may be aware through previous contact that some participants may be very angry. Plan to have such persons sitting next to you so that you can reach out and intervene. This often has a settling and calming effect.
Silence can be a very powerful tool in forums as it allows everyone a chance to absorb what has just been said. Do not worry that silence will extend for long periods of time. Participants may feel compelled to fill the void with their thoughts or feelings. Facilitator's can use silence to gather their thoughts and review the progress of the session.
Silence gives all participants time to reflect on what has been said and to add their own comments.
Sometimes participants assume that the Forum must be a serious proceeding and they may be embarrassed or apologetic for unintended humour. It may serve to break the tension and allow connections or bonds to be formed between participants.
With an understanding of the theory behind CJFs, facilitators will learn to recognize and manage emotional content effectively. They will also develop a style and comfort level that ensures a successful forum as experience is gained.
Adequate preparation before conducting a CJF is the best way to avoid surprises or the need for trouble-shooting during forums. Facilitators will be much better prepared if they make direct contact with each participant and ensure that each is ready for the session. Participants surprised by unexpected occurrences in forums, may react with anger or resentment directed at the facilitator. This can happen when they have not been advised of who else will be attending the session or when they have not been given any explanation of what to expect during the process. Facilitators' also risks losing credibility if they appear surprised and unprepared for issues that arise. Preparation greatly reduces the potential of unforseen circumstances.
If an offender denies responsibility for the incident and stands firm on the denial, the forum must end. Remember, without an admission there can be no Forum.
If an offender admits to a new offence, the facilitator must decide immediately if the forum needs to be stopped. For example, if an offender admits to a different or new offence, the facilitator should tell him or her to avoid any further mention of it and must then decide if the forum should continue. On the other hand, if the forum is dealing with a shoplifting incident and the offender admits to having committed the same offence in the past, the facilitator will probably let the session continue.
If disclosures of sexual abuse arise, the forum may continue only if the alledged perpetrator is not present. In that case, acknowledge what has been said and decide if it is advisable to continue under the circumstances. If the accusation involves a participant, and is related to the incident in question, the forum must be stopped immediately.
If one of the participants walks out of the forum, you can often continue provided that person was not the offender or victim.
Strong emotional displays are not unusual and should not be discouraged. The use of offensive language is common and should only be addressed if it is excessive and causing distress to other participants.
Some people may laugh or smile inappropriately during a forum. Various other expressions may be exchanged between participants. These responses are often misread and may make others react. If you see this happening address it directly. You may ask if they are aware of their expression or ask a parent to interpret this behaviour. If the offender or parent says this is how they react when nervous, may help to defuse the situation.
While you may want to comfort someone who is crying or sobbing, refrain from intervening. Allow the group to sit in silence and give the person time to vent his/her distress. Often, others in the circle will be so deeply affected that they too may become emotional. This could be the single most powerful moment during the forum when the offenders can clearly appreciate the effect of their behaviour on others.
What if the offender doesn't show up for the Forum?
CJFs' cannot be held without the offenders presence. Rescheduling will depend on why the offender failed to appear.
Can a Forum be held if the victim does not agree to it?
It is recommended that you do not proceed with a forum in the absence of a victim. However, this is a judgement call that will depend on all the circumstances. In some cases, victims may submit a letter addressing the questions they would like asked in the forum. In others, family or friends may attend on behalf of the victim. Should victims be unwilling or unable to attend, it is important that their voice be heard in some manner.
When a victim expresses reluctance to participate, the facilitator should attempt to find out why. There may be concerns that can be addressed or some misunderstanding of the process that the facilitator may be able to correct.
Can the offender bring a lawyer to speak on their behalf?
Because forums are an "alternative" community process, facilitators should not allow the participation of traditional justice officials. If absolutely necessary, a lawyer may attend but may not participate nor speak on behalf of an offender and must sit outside the circle.
What about refreshments?
Refreshments need not be elaborate but are an important element to the process. Drinks and snacks are adequate. If resources are limited, consider your local community. You may wish to identify businesses that are willing to make contributions as they see the value in such a process. For example, local bakeries, grocery stores and other small businesses may be willing to make contributions.
What if an agreement cannot be reached?
This situation rarely happens. However, if resolution seems impossible, the forum should be concluded and the referring agency be notified of the outcome.
Can forums be held in the police setting?
Forums can be held anywhere, but a neutral site is preferable. Above all participants of the forum must be comfortable with the location.
Are forums open to the public?
No, only those with a legitimate reasons to be there are invited. Facilitators must know who will be in attendance prior to the session.
What if someone shows up impaired?
Forums should be re-convened if a key participant displays signs of impairment. If the impaired person is not essential to the process as the person to leave.
Signposts of Restorative Justice
We are working toward restorative justice when we...
Crime wounds ... justice heals.
Harry Mika and Howard Zehr, May 1997
APPENDIX A
Bibliography
APPENDIX B
Best Practices
Many of the following 'Best Practices' appeared in the Pony Express, the RCMP's national newsletter.
Community Justice Forums in Action
Note: all names are fictional, and some details have been changed to protect the identities of those involved.
Mad Bomber:
The case:
A 16 year old girl phoned in two bomb threats to the local high school.
Background:
This was not the first time the school received bomb threats and the principal decided not to evacuate. When confronted, the youth stated that she was bored and wanted to get out of class. She was suspended from school.
The Forum:
The girl attended a CJF accompanied by both parents and a brother. Also in attendance was the school principal, the superintendent of schools, the chair- person of the school discipline committee, the school's guidance counsellor, the two secretaries who had answered the phone calls and the investigating police officer.
The girl admitted the offence and added that she did not realize that her actions would have such serious consequences. The secretaries talked about the effect that the threats had on them and their families. Both had been experiencing added stress and nightmares. The principal talked about the emotional pain of being forced to make the difficult decision to evacuate the school. He related that in a previous evacuation, some of the special needs children had been injured, and that his infant son had been attending the school daycare that day.
While the girl expressed deep feelings of shame and remorse for the harm she had caused, forgiveness was expressed by the victims. To make reparation, she agreed to work one hour a day with the school handicapped children until the end of the school year (7 months). She further agreed to apologize in writing to the families of the principal and secretaries.
Follow up:
The girl was allowed to return to school and successfully completed the term as agreed. She has since decided to make special education her career choice. All participants were supportive of the CJF process.
Hands off
The case:
Tina was accused of assaulting her daughter's second grade classmate by grabbing his arm and shirt. Tina's daughter witnessed the altercation which took place in the school cloakroom. The victim's mother wants charges laid against Tina. At first, Tina denies the allegation, but then admits and wants to make amends. Both sides agreed to work out their difficulties in a CJF.
Background:
Tina has been going through a long, drawn-out, and expensive custody battle. She also recently found out that her daughter has been sexually abused by an older family member. Regardless of these events, Tina's family was somewhat dysfunctional. Tina's stress was such that it caused her to express her anger inappropriately.
The Forum:
The next day, Tina and her daughter participated in a forum involving the victim, his mother, the school principal and an RCMP employee trained in facilitating CJFs. Tina spoke first, explaining that she was angry when she saw the victim and her daughter sitting together in the cloakroom and reacted by forcibly pulling them apart.
She was ashamed of her actions and the impact they had on her daughter and the victim. The victim explained he was scared to go to school after the incident, and his mother was very angry that someone would hurt her son.
Tina apologizes to the boy and his mother. They both accepted the apology, and the boy even gives Tina a hug. Tina asks for help in arranging a counsellor to help her deal with her anger and stress. The children return to the classroom hand-in-hand and the mothers left together.
No last chance
The case:
Jim is accused of stealing money from a classmate's wallet at his private boarding school. When the school found out , Jim was expelled. He is now asking to be reinstated since he has paid back the money, and sent a letter to the victim apologizing for his actions.
Background:
According to the school, the case was more than a simple theft. Jim, an assistant dormitory rep, was in a position of trust and authority over the victim. As the Forum unfolded the facilitators realize there was more to the story than they, or the school administration, originally thought. Jim has a history of this kind of behaviour and the other students were sick of it. When this theft occurred, Jim blamed other students for it.
The Forum:
A forum was held involving Jim, his father, the victim, the two dormitory house parents, several student representatives, several school administrators and an RCMP CJF facilitator.
Jim spoke first, admitting to the theft. After hearing about the impact of his actions on others involved, he apologized to everyone and asked for a chance to redeem himself. However, the other students were firm in their opinion that Jim could not return to school.
The students angrily tell the school administration that Jim is a habitual thief and a bully, and they did not think he deserved another chance. The administration was at a loss; were not aware of the magnitude of the situation, and did not want to over-ride the will of the students.
The facilitators called for a break and to hold a open discussion with the students to see if they can get to the bottom of the situation. While Jim and his dad wait outside, negative comments about Jim were raised by the students. It became clear that such strong feelings may jeopardize the CJF itself.
The facilitators realize there was more to the case than originally aware. Given the strong tradition and culture of the school, it would take more time and preparation to introduce the CJF process.
The facilitators decide to call the forum off and planned to hold preparation sessions before trying another forum at the school. This would ensure they know all the details of the case and that the students are indeed committed to the process. They thank everyone involved, and told Jim they were proud of him for facing up to what he had done although the process did not turn out the way he had hoped.
Teasing hurts
The case:
Carrie, Sheila and Lucy were caught writing graffiti on a portable classroom at the towns Secondary School. The portable was the classroom for developmentally delayed teens, and the girls had written messages about the 'retard' class on the walls.
Background:
Carrie was 17 years old. A former student at the Secondary school, she now attends the specialized learning centre. She has caused her parents a lot of grief over the past few years. Adding to this strain the family also has a developmentally delayed child at home. Sheila is 16 and attended the town Secondary school. She is feeling very guilty about the incident. Lucy was also 16 and attends school with Carrie. The graffiti-writing was her idea and she felt no remorse about the crime. In fact, she did not take the incident nor the CJF seriously.
The Forum:
Carrie and Sheila come to the Forum with both parents. Lucy brought her mother. A representative from the local youth services bureau, a school counsellor and the CJF facilitator were also present.
The girls began speaking one by one. While admitting their involvement in the crime, they showed very little emotion. The parents spoke about this incident and past behaviour. They told the group they are worried their daughters were getting out of control.
The school counsellor then spoke, recounting the financial and emotional tolls of the girls' actions had on the school and the other students. She tells the girls that she has a developmentally delayed child herself and found their actions particularly hurtful. She then read several letters to the girls, written by the students in the portable classroom. The letters recounted the students' hurt and anger about being called retards. As the counsellor read the letters, all three offenders begin to cry as they realize the full impact of what they had done. Lucy's mother later tells the facilitator she had not seen Lucy cry in years.
The offenders agree to apologize to the students by writing them a letter. They also agree to volunteer some time to the developmentally delayed class by accompanying the students on a field trip. The parents agreed to pay for the damage to the school and the girls all agreed to attend counselling sessions at the Youth Services Bureau.
"Found" phone card
The case:
Kelly opened her phone bill and was shocked as the total was for over three hundred dollars. She knew she had not made the calls and upon checking her wallet, she realized her calling card was missing. As she had not reported the card missing or stolen, the phone company advised her that she was responsible for the charges. When Kelly failed to pay the phone bill the phone company threatened to cut off her phone and to begin legal action. Kelly called the police and asks them to help.
Background:
Investigators discovered that a girl named Lilly found the card on the street and used it to make several long distance phone calls. She then gave it to her friends, Mike and Mark, who did the same.
The Forum:
A meeting was called with Kelly and the offenders who each brought a family member. The facilitator also invited a representative from the phone company's credit department.
All three offenders admitted to the crime and offered to pay for the calls. They appeared remorseful and apologized to Kelly for their actions. Kelly told the offenders how stressful and upsetting the incident had been and that she was concerned they have permanently damaged her credit rating. The phone company rep confirmed the damage to Kelly's credit, and that they would take legal action.
The offenders agreed to pay for the calls, plus the interest charged on the unpaid account and to write a letter to the phone company explaining their responsibility for the situation. The phone company rep agreed to place this letter on Kelly's file and to reinstate her credit rating as soon as the bill was paid. The rep also added a disclaimer to the letter, ensuring the offenders' admission of guilt will not be used against them if they open phone accounts in future.
Coming in from the cold
The case:
Jeffery, a young offender, is accused of breaking into a car and causing about $1,000 in damage to the convertible roof. Both he and the owner of the car are willing to try to resolve the situation in a forum setting.
The Forum:
A forum is organized with Jeffrey, his parents, the victim, two of his friends who had discovered the damage, and an CJF facilitator. Jeffrey began by explaining that he broke into the car looking for a jacket, because he had forgotten his at home.
The victim explained how he felt after the break-in and how his similar mistakes as a young man affected his relationship with his family and impacted upon his life. The friend who discovered the break-in explained that this incident and others like it have created a lot of fear and distrust in the neighbourhood.
Jeffrey's dad apologized for his son's actions, explaining that he no longer feels he can trust his own son. His mother also apologizes for what the victim and his friends had gone through. She further discussed the impact Jeffrey's behaviour had on the whole family.
Jeffrey apologized to everyone including the police, and agreed to work on his parents' farm to repay his father for the money spent on the car repairs. Jeffrey also agreed to carry out community work that involved the collection of canned food to be delivered to the local food bank.
The victim promised Jeffrey a brand new leather jacket of his own once he had completed the requirements agreed to at the forum. Everyone leaves on friendly terms.
Gaining respect for the dead
The case:
Four young offenders were accused of damaging headstones in the local cemetery. Many were quite old and some were damaged beyond repair.
The Forum:
The young offenders met with their parents, the local priest and minister, town council representatives and a CJF facilitator. The teens admitted to the crime with varied reactions. Some were remorseful, one was defiant and another owned up to the responsibility for what he had done.
The town representatives and clergy explained how the vandalism affected them, how shocked and upset they were and how they feel the sanctity of the cemetery has been violated.
The offenders apologized for their actions and told the group they now understood the magnitude of what they had done. With the help of their parents they agree to pay for the damages, perform 10 hours of community work each and plant flowers in the cemetery. They also agreed to research the history of some of the people whose graves they damaged and write brief essays about them explaining their contributions to the community. Everyone left on good terms.
Giving up the fight
The case:
Jeffrey lived in a secure custody facility for young offenders. He broke a minor rule and when disciplined for it, he became physically aggressive and threatened the youth workers, Kevin and Lisa. When Kevin and Lisa tried to move him into an isolation cell swung a chair at Kevin and threatened to kill Lisa. The workers called the police to lay charges of assault and uttering threats. Kevin and Lisa agreed to try a forum to address the problem.
Background:
Jeffrey was serving time for a number of assaults and property offences and had a history of violent aggressive outbursts while in custody. Most of these incidents were handled without police intervention, but the serious nature of this event prompted the youth workers to involve the RCMP. Jeffrey admitted his wrongdoing but attempted to minimize the incident.
The Forum:
Jeffrey admitted what he had done but attempted to minimize his guilt by blaming Kevin for provoking him into the assault. When confronted Jeffrey admitted his actions had a big impact on the workers and the other residents at the facility.
Kevin and Lisa spoke about their reaction to the incident and how it affected their families, as it changed their behaviour at home. Jeffrey's parents were embarrassed by their son's actions and said they were upset when they heard the whole story. Previously they thought the staff over-reacted to a minor skirmish. Suzanne his personal case worker told Jeffrey she was disappointed in his behaviour as she had put a lot of time and effort into working with him. She thought he was making progress.
At first Kevin and Lisa thought Jeffrey should face an extended period of isolation, which would be the maximum penalty. When prompted to speak his mind, Jeffrey agreed he should spend some time in isolation, however he suggested restricted activity instead and offered to apologize to a teacher he was rude to the same day. Everyone agreed to the modified punishment.
After the forum, Kevin told the police officer he had been a youth worker for 10 years, and had never felt so involved in the outcome of an incident.
Unprovoked attack
The case:
At school, Billy punched Mike twice giving Mike a black eye and a bloody nose in an apparently unprovoked attack. The school principal called the police to report the crime, and suspended Billy for three days. He asked for the time to try a CJF before formal charges were laid.
Background:
Billy experienced problems controlling his anger recently. He is from a blended family, and his biological father lives in another province. He has been seeing a mental health worker, but has not been recommended for anger management counselling. This attack was completely out of character; in fact, Billy is often the target for teasing and bullying from other students.
The Forum:
Billy was withdrawn and obviously embarrassed by his actions. He had to be prompted to speak, and said very little. Mike also said little, but his mother spoke for 15 minutes, recounting how her son had become sullen and withdrawn after the attack. She was near tears when she finished and her words had an obvious impact on everyone in the room.
After listening to Mike's mom, Billy spontaneously apologized to Mike, and agreed to start anger management counselling. Mike perked up and smiled, and everyone in the room started talking together. The healing process had begun.
Midnight Sun:
The case:
Two teenage girls in an arctic community were caught going through vehicles looking for things to steal. One of the girls had a tool in her possession which was taken from a local plumber's truck. The plumber was willing to have the matter dealt with by a CJF.
The Forum:
At the forum one of the girls was accompanied by her mother and the other with both parents and three siblings. The girls admitted and apologized for the offence. The victim spoke of the impact their behaviour had on him.The parents and siblings also spoke and emotions ran high.
One family talked about how their daughter had been kicked out of the home two weeks prior. The siblings express their love for their sister, which resulted in the mother and daughter reconciling.
The girls agreed to make reparation by cleaning the victim's vehicles and this decision was supported by everyone. In fact, things went so well the girls' parents later established a friendship with the victim. Participants express gratitude to the local police for their efforts and left the forum satisfied with the outcome.
Walking in Another Man'
The case:
Three 14 year old youth went into the cloak room of a local medical treatment facility where they took a pack of cigarettes and a pair of shoes. Police later found one of the youths wearing the missing shoes and an investigation resulted in all three admitting their involvement.
The Forum:
The three youth, their families, the two victims, a friend of one of the victims and the Detachment Commander were present at the CJF. The victims talked about feeling violated as a result of their property being taken. The offenders' families expressed anger and shame about the behaviour and the grandfather of one of the offenders commented on how the bond of trust between him and his grandson had been severed. This had a profound impact on the offenders and they expressed shame and remorse.
The victims suggested that the offenders do some community work including yard work for the medical facility. Everyone agreed this would be a good plan of action and everyone left on friendly terms.
Index