Restorative Justice and the Law

How Restorative Justice Is Applied By the Law

There are a number of methods that justice officials can use to employ a restorative justice remedy if one is found appropriate.  It will generally be one part of a package of conditions, often including treatment programs and strict curfews, so that the severity of the offence will be reflected in the remedy.  To qualify, an offender must accept responsibility for the criminal act they have been charged with and for its consequences: R. v. Clough, (2001) B.C.P.C. 0074.

The decision to allow the use of a restorative justice process can come at many levels and take a number of forms.

Diversion Program:
An offender who qualifies for a restorative process may be diverted to such a program instead of being officially charged.  This referral is made at the Crown’s discretion under section 717(1) of the Criminal Code

RCMP or police officers will sometimes recommend an offender for a diversion program instead of formal charges.  At other times, diversion will be negotiated with the Crown

  • To qualify, an offender must accept responsibility (but they need not plead guilty) for the offence and its consequences
  •  No criminal record will result, but the diversion itself will be recorded

Diversion is generally available for less serious, first time offences.  In deciding whether to divert, Gladue impact factors such as a troubled personal history or substance abuse problems should be taken into account.  There are many diversion programs throughout British Columbia specifically for Aboriginal people.

You can learn more about Diversion in general here.

Conditional Sentence:
Section 742.1 of the Criminal Code allows a court to sentence an offender found guilty of a crime to a term of incarceration served in the community instead of in prison.  To qualify for a conditional sentence, the offence itself must meet some pre-requisites:

The offence must carry no minimum sentence

  • The appropriate sentence in the circumstances must be less than two years
  • There must be minimal danger to the community so that the risk of re-offending during the term of sentence and the potential damage of such an offence are fairly low.  Properly tailored conditions can cancel out some of the risk posed to the public: R v. Proulx, [2000] 1 S.C.R. 61.

If these pre-requisites are met, the court must then consider if a conditional sentence will meet the demands of sentencing in light of the circumstances of the case.  Restorative justice measures combined with strict conditions are capable of meeting the gravity of many offences.  Conditions are strictly enforced and if they are not followed the offender will often be sent to prison as a result.

Probation:
Section 731 of the Criminal Code allows for a term of probation to be included in addition to a conditional sentence or combined with imprisonment.  Probation is less severe than a conditional sentence and is not a term of incarceration, but they both impose similar restrictions and before probation can be combined with imprisonment the offence must meet the same requirements:

  • The offence must carry no minimum sentence
  • The appropriate prison term must be less than two years
  • The threat posed by the offender to the public should be minimal

Probation added to a conditional sentence or to a prison term may make an otherwise too lenient sentence more suitable: R. v. L.A.M., (2006) B.C.P.C. 0211.

The law uses these methods to reduce incarceration while taking steps to heal the harm done by the offence and rehabilitate offenders in appropriate cases.