Resolution rather than punishment
Is restorative justice a concept whose time has come?
By Loreth Beswetherick
A couple of weekends ago they were hanging in the village.
That’s normal for many 14-year-old girls in Whistler.
A regular Saturday afternoon on the town may include checking out the popular stores — the ski shops, the Body Shop, Le Chateau, Willy’s and of course, Pharmasave.
Except, for these four local girls, that particular weekend was different. Their day landed them afoul of the law.
It could have led them down a slippery slope to the provincial courthouse in Squamish, some form of punishment six months to a year after their crime, plus the stigma of a criminal black mark against their names.
But, it didn’t.
The Whistler police took some creative licence in dealing with the girls. It’s called "police discretion". It’s as old as the hills but it has many of the same elements of a new way of thinking about juvenile crime and punishment — restorative justice.
While police discretion is generally used only in cases where the juvenile brush with the law is minor, restorative justice models can be used in crimes of a more serious nature.
Restorative justice is about healing as opposed to punishment.
It is about humanizing the crime and it is something school trustees Andrée Janyk and Alix Nicoll would like to see implemented in Whistler.
In the four young girls’ case, it was the undercover, private security firm that caught them. They were nabbed shoplifting at Pharmasave in Marketplace but, it was not the first store they had been to that day. Two of them were caught with more than $100 worth of goods and not all of the cache came from the pharmacy. The other two had smaller, less expensive items, according to the RCMP.
Community police officer Warren Tomalty said peer pressure appears to have motivated the crime. He also said shoplifting seems to have become a bit of a game being played around town by local teens. The cops may have caught these four but they know there are others out there taking the same risks. Just two weeks before the four girls were caught, the RCMP, in the middle of an under-cover surveillance operation, chanced upon two local boys of similar age doing the same thing.
Tomalty too is interested in exploring a local system of restorative justice. His only recourse at the moment though, is police discretion.
He knew he wasn’t going to send two of the girls through the court system but he had to think long and hard about the other pair with the larger cache of stolen goods. Tomalty said he met with their parents and he talked with Pharmasave owner, Dave Stewart.
The parents, the four girls, the police and Stewart all reached an agreement. The girls had to pay for what they stole plus give the items back to help Stewart recover security costs. They also had to personally go to all the store owners and apologize. At the time, some of the stores didn’t yet know the girls had stolen from them.
The one pair of teens was also given eight hours of community service while the other pair had to do 16, said Tomalty. The community work included engraving skis on the mountains so they could be identified if stolen, plus the girls had to do vehicle checks and hand out brochures on safety and the perils of drinking and driving.
Tomalty said all the girls felt, and expressed, remorse and that was a key factor in his decision not to go the court route.
It is also key that guilt is admitted, that it is a first offence and that everyone agrees to undergo the process. If innocence is maintained, there is no option but to go through the legal system.
"It’s almost identical to restorative justice," said Tomalty. "Instead of sitting down with a committee of four or five different adults from the community, we sat down with their parents and the victim." Coming face to face with the victim affected by the crime is a tenet of restorative justice. The crime is also dealt with in the community where it occurred, not in a Squamish courthouse.
Tomalty said everyone agreed the penalty fit this crime and he said the store owner felt the process was positive. He said the traditional route would still likely have resulted in the foursome doing community service but it would have been six months to a year down the line.
"This is immediate. They have to face their victims, which is something you never see in shoplifting cases. They are paying their penalty and their parents are involved from the outset," said Tomalty. "Where else do you see the punishment fitting the crime and being implemented within a week?"
He said this type of police discretion is as old as the first English bobby and works well.
RCMP can’t, however, use it for anything more serious, and this is where Janyk and Nicoll feel a restorative justice program could come in.
With restorative justice, focus is on the harms of a crime rather than the rules that have been broken. There is equal concern for both the victims and the offenders.
Restorative justice is based on the premise that crime is first an offense against human relationships and, second, a violation of a law. The goal is to heal the community affected by the crime as quickly as possible. The action is swift and the penalty is designed to fit the offence. Restorative justice almost always involves the offender coming face to face with the victim soon after the offence. It is almost always a highly emotionally-charged experience.
When a crime occurs, restorative justice recognizes there are both dangers and opportunities. According to Ron Claassen, co-director for Peacemaking and Conflict Studies at Fresno Pacific College, the danger is that the victim, the community and the offender all emerge from the experience further alienated, more damaged, disrespected, disempowered and less co-operative. A young offender caught shoplifting could, for example, assume a negative label that will affect her actions in society for the rest of her life.
The opportunity presented, on the other hand, is that the injustice is recognized. Equity is restored and the future is clarified so everyone involved feels safer, more respectful, more empowered and co-operative with each other and with society.
In effect, the proverbial scales of justice are balanced.
Janyk and Nicoll’s first steps in exploring a program for this community were to invite Vincent Stancato, co-ordinator of Community Accountability Programs for the Ministry of Attorney General, and Lola Chapman, program co-ordinator of the highly successful Ridge Meadows Youth and Justice Advocacy Association, to speak at an inaugural meeting of Whistler’s new Safe Community Committee last fall.
The committee was officially struck last October and will serve as an umbrella group for other community initiatives geared toward safety.
The Safe Community Committee vision is to foster community safety, school safety and citizenship. Representatives from the chamber of commerce, Tourism Whistler, Whistler-Blackcomb, council, health services, local doctors, the schools, the municipality and the RCMP have all been invited to the table and the group will likely meet two to four times a year once programs are up and running.
Stancato said the Ministry of the Attorney General is currently working to develop restorative justice programs in this province. He works with communities to help develop programs and provides training at no cost. He pointed to the Maple Ridge-Pitt Meadows program as an exemplary one. It was set up over five years ago and has seen more than 600 offenders referred through the program since its inception.
Run by Chapman, that program takes referrals not only from police but also from the Crown, which Stancato said is unusual. There is only one other B.C. program that is mandated to take referrals from Crown prosecutors.
Stancato said four basic models are generally used in B.C., ranging from circles that include the whole community, to ones that use facilitators or mediators and mentors.
A Circle Sentence is based on traditional North American aboriginal justice where the premise is that the crime is not against one individual but against the entire community. It involves exchanging of gifts and cleansing ceremonies. Circle Sentencing was resurrected in 1991 by supportive judges and community justice committees in the Yukon and other northern Canadian communities.
The significance of the circle is more than symbolic. Everyone in the circle, including police, lawyers, judge, victim, offender and community residents, participate in the case deliberations. Through this partnership an appropriate action is decided upon that addresses the needs of both victim and offender.
Victim-offender mediation programs, on the other hand, use trained third party mediators to help the victim and offender talk about the impact of the crime on everyone involved and to develop a plan for restoring losses incurred by the victim. Parents are often part of these sessions. Victims are given the opportunity to tell how the crime affected them and it helps them learn why it happened.
This is the model similar to the one used by Chapman.
She said her program, for which she was awarded the Canada Certificate of Merit in 1995, also uses mentors who help offenders follow through on their penalties. Some of the offenders actually end up volunteering as mentors themselves. It gives youth a second chance and those that have been through the program are proving less likely to re-offend.
Chapman used a case of vandalism to explain how restorative justice helps the victim as well as the offender. She said in this particular case, a young woman was woken from sleep late at night by a crash and the sound of breaking glass coming from her young baby’s room. In a panic she stumbled into the room full of glass. Her child was crying and there was a huge rock lying millimetres from the baby’s head in the crib. There was broken glass in the crib. A group of youths had thrown the rock.
Chapman said the woman truly felt victimized. She was afraid of the youths and didn’t understand why she and her baby had been singled out for an attack. A highly–emotional restorative justice session with the woman, the youths and the mediators saw the offenders shed tears and explain that what they did was a stupid random act and that they hadn’t meant to hurt her. They realized how afraid she had been and how they could have injured her child. They apologized and she left understanding she wasn’t a target. She left without fear of the future.
The Ridge Meadows Youth and Justice Advocacy Association can also refer youths and their families to other community resources as needed. Offenders who refuse to comply with conditions set or who re-offend are referred back to the court system.
While Stancato recommends taking baby steps in developing a Whistler-specific model, Chapman’s program has evolved to a point crimes dealt with include everything from car theft through to arson, narcotics and fraud.
Stancato said programs can be tailor-made by picking and choosing from what already works.
Although formal restorative justice programs are relatively new in this country the concept is gospel in countries like Australia and New Zealand, where models are based on Maori aboriginal philosophy.
One of Tomalty’s concerns in setting up a local restorative justice program is that it takes a lot of work to train members of the community and to implement the system. He said local youth do not offend that often and the program may only be used a couple of times a year. He said if the committee is used infrequently, members could be rusty. He noted it is the transients who tend to run into trouble with the law much more often than the local kids.
While Tomalty is thinking restorative justice for locals only, Janyk envisages a Whistler restorative justice program that deals, not only with local offenders, but with the resort’s transient population as well.
She said transients are key and if visitors offend against this community they need to be held answerable to this community.
"Going to court in Squamish doesn’t give Whistler the opportunity to let them know how they hurt this community," said Janyk.
Once this ski season wraps up, the Safe Community Committee will roll up its sleeves and get down to work toward implementing a local program, Janyk said.
Stancato said the National Crime Prevention Centre provides grants of up to $50,000 for safe community initiatives and grants are also available from the Ministry of Attorney General.