Restorative Justice Techniques: the “Best Interests” of Lawyers, Clients, and the Community

Camille Tokar (2L)

As part of the perspectives speaker series, Sue Hopgood of the Alberta Conflict Transformation Society led a roundtable discussion about the benefits of restorative justice techniques. “What exactly is restorative justice?” you might ask.

Does the kid-who-dropped-the-rock-off-the-bridge-that-killed-Stanley-the-busdriver case ring a bell? This case epitomizes how successful restorative justice can be in action. The offender’s participation in a pre-plea sentencing circle convinced the Crown to settle for six months house arrest and three months probation instead of the three years incarceration it was seeking!

According to Hopgood, restorative approaches model community conferencing techniques that have existed in many cultures for centuries. Circle sentencing is nothing more than a circular consensus ad idem – the victim, the offender, friends, family, and community members gather around a circle and talk about how the crime has affected them. Instead of focusing on punishing offenders, restorative justice seeks to repair the social relationships that have been harmed by crime.

Restorative techniques give the offender, the victims, and the entire community affected the safe place that they need to air out their issues. As a result, victims are often able to begin the process of forgiveness and offenders are often able to release the guilt that would otherwise fuel addiction, mental health issues and recidivism. To put the icing on the cake, the agreed sentencing recommendations are often more lenient than would be expected.

The burning question is: if everybody wins, why isn’t everybody doing it? Lawyers are reluctant to refer people into restorative justice for good reasons. Aside from the usual time and cost issues, it may be difficult to find eligible clients. Offenders must be willing participants and the nature of the crime cannot be one that would cause more trauma to discuss (eg. no sexual assault or child abuse cases).

Another issue for lawyers is the potential for conflicts. The notion that a client’s best interests could, or should, be compromised for the good of the community is antithetical to the adversarial system and counterintuitive to lawyers. Muddling the offender’s interests with the victim’s interests erode a lawyer’s clarity on exactly what their client’s best interests actually are and interfere with a lawyer’s ability to advance those interests. The techniques may inadvertently extend a lawyer’s duty from their clients to the entire community. This has conflict-of-interest-stomach-ache written all over it – especially if you are the only lawyer present!

Not that I want to be Cynical Cynthia here, but victims aren’t usually known for their empathy and compassion. In the restorative ring, unlike the courtroom, the only control on volatile, irrational players is the physical presence of community members. Restorative justice techniques must be applauded for their progressive, intuitive nature and the potential they hold to enhance communities and realize true justice. However, in practice lawyers will be weighing the chance of possibly getting a reasonable sentencing recommendation by advising their clients to work out the emotional shrapnel of their crimes with angry victims against the risk of career-threatening-ethical-conflicts – they may just decide to take their chances on the judge!