In Canada, an estimated 150,000 Native children were stolen from their families and forced into residential schools, this was a traumatic event for the Indigenous community. After the policy to “kill the Indian and save the man” there has been a vast number of Indigenous people in the criminal justice system as offenders. The system Canada currently has is the punitive justice system which is a system to punish criminal offenders. However, restorative justice is seen as a more constructive way of dealing with Aboriginal crime, and as a solution to Aboriginal over-incarceration. The restorative justice model is a system of criminal justice that focuses on the rehabilitation of offenders through reconciliation with victims and communities at large. In this paper, I will argue in support of the restorative justice system being a better approach for Canada’s system of justice. (Minifie)
The punitive justice system punishes criminal offenders to deter future criminal behaviour. Approximately two-thirds of the surveyed public across western cultures expressed a desire for harsher sentences for offenders since there is no single approach to the restorative justice model. The restorative justice system does not apply to all cases, it is only feasible for less serious offences. Another critique in switching the justice system of Canada to a restorative approach is many do not trust the restorative justice approach works well enough to be considered for more serious crimes. Restorative justice is not as effective with serious cases because it has limited options since imprisonment is often not a possibility with this model. The final obstacle is there is a lack of clarity of what should be “restored” in a restorative approach. The punitive system has better clarity than restorative which is why it still continues to be used however, this does not mean it is the most beneficial for Canada. (Brooks, 2015)
Restorative justice is a system that focuses on rehabilitation of offenders. Life is incredibly hard for Indigenous individuals once they are back in society because they are dealing with the effects of colonization, systemic discrimination and racism as well as being labelled as an offender after jail time. This led to the Gladue principle which uses a restorative justice model and requires judges to review the backgrounds of offenders. However, it is a process a lot of lawyers do not know how to enact. (Minifie) Punitive attitudes have been linked with demographic variables, crime salience, concern over the state of society, and racial and ethnic intolerance. Research suggests that Indigenous Australians are the most imprisoned group in the world and their punishments are harsher than non-Indigenous Australians in the punitive justice system. (Brookman & Wiener, 2016) The UN committee wrote a report to Canada on how children are treated. The committee has repeatedly expressed its concern that aboriginal and black children are dramatically overrepresented in the criminal justice system. Despite having the Gladue principle, it is not enough to help the Indigenous community and the minorities of Canada who have a disproportionately high number of individuals entangled in the criminal justice system of Canada. (Minifie) The report by the UN committee said, “Aboriginal youth are more likely to be jailed than graduate from high school”. (The Canadian Press, 2012)
The punitive justice system has been incompatible for other countries such as the United States. An example of this is the juvenile system being a punitive system in the United States. The United States’ parties, the Democrats and Republicans have come to an agreement regarding the juvenile system in the United States that it ignores the issues rooted in the disorder of mentally ill delinquents. (Garacia) Components that can influence the behaviour and actions of an individual need to be considered since it is a reason for why an individual did what they did. It can help to find an approach which will better suit the individual and change them into a better citizen of the country. Canada has also faced the consequences of it’s punitive justice system. The UN committee made a report which included Bill C-10 from the Harper government. The report said, “Bill C-10 is excessively punitive for children and not sufficiently restorative in nature”. Bill C-10 is an omnibus crime bill that includes stiffer penalties for youth and makes it easier to try them as adults, this goes against the standards of the UN convention which believes Ottawa should raise the minimum age of criminal responsibility and to ensure that no child under 18 is tried as an adult. However, Ottawa has planned to ignore the suggestions of the UN in this case. (The Canadian Press, 2012) This example showcases the punitive system is incompatible with Canada.
Restorative justice is an approach Canada can incorporate. Canada is already in the direction of steering away from the punitive justice system that the United States has, since for the United States it is not working and leading them to disaster. An example of a change Canada has made is abolishing the death penalty. (Comack & Silver, 2008) This displays it is not outside the realm of possibility for Canada to achieve a more restorative justice system. Restorative justice refers to a “psychological group or category that the victim and offender perceive themselves to be members of in a given social context.” (Wenzel, Okimoto, Feather & Platow, 2007) It allows for a healing process between the victim and offender which provides healthier results for all individuals than a punishment would. (Wenzel, Okimoto, Feather & Platow, 2007) A solution to solve the obstacles previously mentioned of a restorative system is for Canada to follow a punitive restoration model. Punitive restoration is punitive because it extends the available options for a restorative contract to achieve restoration and this may include forms treatment, such as drug and alcohol treatment in custody, suspended sentences or brief imprisonment. It is restorative through achieving restoration of rights infringed or threatened by criminal offences. It provides more clarity on what is restored. Marshall defines restorative justice as, “a process whereby all parties with a stake in a particular offence come together to resolve collectively how to deal with the aftermath of the offence and its implications for the future.” This goal is achieved by promoting a conference that will mediate the issue. (Brooks, 2015) Restorative justice is seen as a more constructive way of dealing with Aboriginal crime, and as a solution to Aboriginal over-incarceration. This system will prove to be beneficial to the quality of life of all individuals and can be compatible with Canada since Canada is currently transitioning certain aspects away from a punitive approach.
Many Indigenous communities traditionally emphasized restorative justice over the punitive justice system we use today, because of the healing process it provides to all individuals in a given situation. The punitive justice has more clarity however, it does not mean it is beneficial to all Canadians. There is an overrepresentation of Indigenous individuals and minorities in the criminal justice system. This overrepresentation of Aboriginals resulted from the policy of “kill the Indian save the man”. The punitive justice system has not worked for other countries, such as the United States. Similarly, the report from the UN committee showcases it is a system that is not working for Canada as well. Canada has currently initiated the process of steering away from punitive aspects in the criminal justice system and moving in the direction of restorative aspects such as the Gladue principle. This displays Canada does have the capability to be compatible with a restorative justice system.