In an interview with OBA Criminal Justice Section newsletter editor Allison Lee, Jeff Carolin [1], a criminal defence lawyer with a restorative-justice-informed practice, recounts his experience representing a sexual assault complainant in a restorative justice process in Toronto, the first of its kind. In the following excerpts from that interview, Jeff explains how this process unfolded, potential safeguards for defendants who wish to participate, and the roles each actor has to play throughout the process.
Q: Many of us have heard of restorative justice in relation to aboriginal individuals or youth accused of a crime. Could you tell us a little bit about the type of restorative justice work that you've been doing with sexual assault survivors?
A: I’d like to start by attributing something to Marlee Liss,[2] who was my client and has specifically asked me to use her name when I’m talking about her case. Marlee was a complainant in a sexual assault case which was on track for a jury trial in the Toronto Superior Court. I don’t think I can put it better than what she said to me, which was that, after she was assaulted, she thought she only had two choices: one was to stay silent and the other was to call the police. She ultimately decided to call the police, but her experience, as she related it to me and ultimately to all involved parties, was that being a witness to the state’s prosecution was itself a traumatizing experience.
One definition of trauma is experiencing something that overwhelms the body's ability to handle it, and sex assault certainly fits in that category. And then to have that event being essentially taken out of her control again in terms of the prosecution – no control over the timing; no control over what would happen; being subject to a rigorous preliminary inquiry cross-examination -- caused further trauma. Going through all these steps, it never felt like it was in her best interests and ultimately her view was that it wasn't. She also felt the process wasn't in the best interest from a public safety perspective because, as she put it: why is the best possible outcome from the criminal justice system’s perspective that this man be convicted and then go to jail for two or three years? How is that going to make me or other potential people who could be assaulted safer? Marlee and I agree that it is a fundamental contradiction of our system that we incarcerate people in violent institutions so they can “learn a lesson” and expect them to be rehabilitated and pro-social contributing members of society once they are released. And I would add that there is no evidence that jail sentences deter other people from committing crimes of this nature either.
I'm trying to continue this work in whatever ways that I can because I think that it’s important that there is a different option, which won't be necessarily appropriate in every case, but which allows justice system participants to choose a non-adversarial path if the parties are willing to do so and to actually take these moments of harm, of very serious harm, and transform them into personal, interpersonal and systemic healing.
Q: What does this look like in practice? How would one start along the path of restorative justice in sexual assault cases?
A: The most important thing is that the person who has been harmed wants to take part in this process. One of the things that restorative justice does is it asks different questions than the criminal justice system. As Howard Zehr puts it, the criminal justice system asks: was a rule broken? who broke it? and, if we can prove both of these, what should the punishment be? Whereas the questions asked by restorative justice are: who was harmed? what are the needs of the person who was harmed? and whose responsibility is it to meet those needs?
So, it’s relatively simple, but I think these are very powerful questions because what we start with is determining who is harmed. When we remove jail as part of the possible outcomes, as in most (but not all) restorative justice practices, we don’t need to focus all of our energy on ensuring that an accused’s procedural rights are guaranteed, and we get to shift the focus to the person who has been harmed and find out what their needs are. Often, and this is consistent with Marlee’s case, the people who have survived an assault want to a be able to relay the impact of that harm directly to the person who caused it without it being through counsel, without it being through the prism of the rules of evidence and rules of the court, and so on. It also allows the survivor to ask certain questions: why me, what were you thinking, what’s happened in your life that led you to do this? The processes that we can create to facilitate this process actually line up quite well with approaches to healing trauma.
And so, to answer those questions in Marlee’s case, to provide a context for some healing, we participated in a circle process. Those who participated included Marlee herself, her mother, her sister, myself, the Crown prosecutor, the man who assaulted her, his best friend, and two mediators. In Marlee’s case, she also wanted steps taken beyond the circle process. So the man who assaulted her did a few months of counselling connected to consent, power, alcohol, and gender before the process. In other cases, this might include going on to speak about the issue, read certain books, or doing community service.
Q: How do you get crown prosecutors and defendants involved in the process?
A: Well this has been a difficult thing here in Ontario. I’ve been reached out to by complainants since Marlee’s case who are going through the system and want to follow a similar approach. Unfortunately, the Ministry of the Attorney General has taken a stance that these processes should not generally be permitted for sexual assault cases.
However, there are some great community-based organizations that are taking up this cause and raising awareness about these approaches – and are willing to support people through them outside the criminal justice system. One such organization is The Neighbourhood Group. They have a program called conflict resolution training. They are the ones who ran Marlee’s process under their old name, St. Stephen’s Community House. Community Justice Initiatives in Kitchener-Waterloo has also been facilitating dialogues around sexualized violence for decades. WomenatthecentrE is an organization here in Toronto that has federal funding to support transformative justice processes for sexualized violence cases. Through these organizations, sexual assault survivors can access restorative justice processes without needing to call the police or engage the legal system.
I think dealing with this through the civil courts also has potential. Civil claims can be resolved through mediation, which leaves room to mediate the dispute through a restorative justice-informed process. I can say more about that in the minute, but in the short term, these avenues create more possibilities for complainants/survivors and are more likely to bring about the type of restorative outcome they desire as opposed to the criminal justice system.
Q: If restorative justice became more prevalent an approach, what safeguards are in place for defendants in the event that the restorative justice process fails, and they end up back in court or in front of a tribunal?
A: This depends on whether and which type of proceedings have been initiated.
Where mediation is an option (i.e. in civil proceedings or prior to any lawsuit/charges being laid), it is possible to outline an agreement to mediate, which can build in protections for someone who might be making admissions that could otherwise be used against them in a civil or criminal proceeding. The agreement would stipulate that any statements, admissions, or apologies are made on a without prejudice basis and are protected by settlement privilege and mediation privilege. Therefore, they could not be used against the individual in a police complaint, civil action, employment proceeding, university proceeding, or whatever the context may be.
I would add here that conservative criminal defence advice might be: never make any kind of statement, in any context, until you’re in court testifying. And it’s true that even with these protections, if you’re making an admission without an undertaking from the Crown not to rely on any such admission, there’s always the chance that the process could go sideways, and someone could tell the police what the defendant admitted to, and, if charges were laid, then there would have to be a voir dire as to whether settlement privilege should apply (which it certainly should in my view!). But that possibility has to be weighed against the possibility that if a complainant wants to proceed through this more human process at the outset, then exploring that, and addressing the harm this way, is likely better than facing public criminal allegations, regardless of what the outcome is. (And, of course, a complainant cannot promise that they will not go to the police if a defendant agrees to participate in an out of court process. But if such a process works out what would their motivation be at that point?)
In terms of admissions and the like being shared outside of the civil or criminal courtroom, the parties can also agree to a confidentiality agreement that goes beyond settlement and mediation privilege. Such an agreement could stipulate, for example, that the defendant’s name not be shared on social media. This can become a tricky issue though if the parties have overlapping social networks.
In Marlee’s case, we were actually able to get an undertaking from the Crown specifically not to use any of what occurred during the restorative justice process in court if things went sideways with the process.
Q: So we’ve covered the adversarial parties in the system: the prosecution and the defence. How do you fit in when you are assisting complainants or survivors of sexual assault through the restorative justice process?
A: I think what I bring is both my legal experience and a separate learning path that I've been on connected to facilitation and trauma healing. I feel like it's bringing two skill sets together when I'm working with people. One is rooted in a trauma-informed approach: how can we meet you where you’re at? How can we acknowledge that something really terrible has happened? And how can we make sure the traumatized individual(s) heals? The other is being able to advise about legal issues along the way and participating in the process.
RESOURCES
The Neighbourhood Group
Community Justice Initiatives
WomenatthecentrE
New Zealand Ministry of Justice Restorative Justice Policy
The Case For Reparative And Transformative Justice Approaches To Sexual Violence In Canada: A Proposal To Pilot And Test New Approaches
This article originally appeared on the OBA Criminal Justice Section’s articles page.
[1] Jeff decided to become a criminal defence lawyer after a short stint of incarceration during the G8/G20 protests in Toronto in 2010. After only briefly experiencing the dehumanizing experience of being locked in a cage, Jeff knew that incarceration could not be the only answer to harmful behaviour. Inspired by the vision that another path is possible, Jeff began expanding his practice into the healing justice and mediation realms. Jeff took part in the first restorative justice process in a sexual assault case in Toronto.
[2] Read more about Marlee’s case here: https://www.thestar.com/news/gta/2019/11/02/how-a-markham-sex-assault-survivor-found-justice-and-peace.html