PERTH COUNTY – In 1974, two Elmira teenagers got drunk and damaged numerous properties in their hometown. A pair of young probation officers stepped in and offered an alternative to the usual punishment. They asked the presiding judge if the youths could meet their victims face-to-face.
This would allow the youths to apologize to the victims and pay for damages. The judge agreed, and the meetings profoundly impacted both the teenagers and their victims. The Victim Offender Reconciliation Program (VORP) was born.
Although Indigenous cultures have long used similar conflict resolution practices, this broke new ground within the established Canadian justice system. Community Justice Initiatives (CJI) was founded to apply these restorative justice principles in response to all kinds of crime and conflict. Since 1974 a restorative justice movement has spread to more than 50 countries.
Now, the idea of CJI’s model of restorative justice is being introduced to Perth County.
Recently while Ryan MacTavish, the VORP coordinator at CJI, was participating in an Indigenous Reconciliation Walk in Kitchener, he met Allison Large, a Stratford Courthouse Crown attorney.
“We kind of enveloped her because we had a lot of walkers and then she introduced who she was,” he said. “So that’s how the conversation started.”
MacTavish said discussions have been taking place about how a restorative diversion can be injected into the Stratford court system.
“We’re past the preliminary portion of it,” he said. “We’re talking about how a referral will come through.”
Andrea Charest, Executive Director of It Takes A Village has worked with CJI in the past as a volunteer mediator. She recently contacted MacTavish about having CJI do restorative justice work in Listowel.
“It turns out it’s the timeliest conversation because we are already injecting it into the Stratford Courthouse which gets those cases,” said MacTavish. “We’re looking at setting up a resource area or support system in the Listowel community. So the idea is to have Andrea at the helm helping with the establishment of that support because (It Takes A Village) already does some of the community supports when it comes to court support and having people come in because not everyone does have access to Zoom or Wi-Fi to get onto a call and join a virtual court.”
He said that in an ideal situation, a community like Listowel becomes involved and plays a key part in the restorative process.
“The community perspective comes into play when you have trained mediators from the community sit and hold the space and help people feel comfortable and confident to address the harm in a very supported way,” said MacTavish. “That’s why I think members of the Listowel community must be part of this… We need to start exploring how to engage the community and help them to understand that this is an amazing process to heal the harm.”
He pointed out that smaller communities can feel a greater impact from the harm caused by burglary, arson or assault than a city like Kitchener, Waterloo or Guelph because people tend to know who the individuals involved are.
“Word travels fast in smaller communities,” said MacTavish. “Creating relationships and building rapport is a fundamental piece of restorative justice because when you boil it down… you are sitting in a room with somebody and asking them to be vulnerable and share how they have been impacted or affected by harm or why they created harm, to begin with, those relationships are fundamental. You have to have trust when you are asking people to be vulnerable so the same transfers over to the community.”
When CJI receives a referral they generally receive a police synopsis.
“It just kind of outlines the event that took place as it has been reported to the police which is one perspective,” he said. “It doesn’t always have the emotional details that we look to have an understanding of before we bring people together. At that point, we’ll also receive some contact information for the victim and for the individual who created the harm.”
It’s MacTavish’s job to reach out to both parties to explain the nuances of the program, the expectations and outcomes that may result in their participation.
“I am completely transparent when presenting that information,” he said. “If an accused individual is willing to participate, take accountability, it can’t just be for the reason that successful completion could mean a dismissal of charges. It can’t be solely motivated by any mitigation of sentencing that they may receive. It has to be authentic and part of my job is to access where they are in that spectrum of accountability.”
There is a lot of preparation in the case development stage.
“It very much is a participant-driven process and it’s completely volunteer,” said MacTavish. “If an accused individual can’t see any value in it then they don’t have to participate. You don’t want to make someone come and be accountable.”
He compared forced participation with making a child apologize for doing something wrong.
“If you just bring people and tell them they need to apologize it is never something that is going to have a long-lasting positive impact,” said MacTavish. “For that to happen you need to have an investment from both sides so once people agree I try not to stand in the way but I do measure risk depending on the complexity of the harm and the depth of the harm.”
If both parties reach an understanding there will be an agreement put in place that discusses the boundaries and helps everyone feel like it isn’t going to happen again. If an agreement is not reached a summary of what was discussed will go into a report which gets sent back to the Crown attorney’s office.
“Sometimes there can be a list of requirements, sanctions or terms placed on the person who has created the harm,” said MacTavish. “Three weeks, three months we’ll do follow-ups with the participants to see how things are going, are things sustainable.”
There is a wide variety of situations that can lead to mediation.
“One of the more recent cases was a family had lost their son to a young driver on an Elmira road,” he said. “We got to sit with them, prepare them so the family of the deceased, both the mother and the father were a part of our process and they met with the young man who accidentally took their son’s life and we were able to facilitate a conversation with them, very powerful. It’s one of those things where I was honoured to be part of that conversation and to help facilitate it but the people do the work.”
MacTavish said the job of the CJI mediators is just to hold the space for the participants.
“We try to do that in the best possible way with best practice, trauma-informed practice and just try to make people feel comfortable,” he said.
CJI has yet to receive a referral from the Stratford Courthouse.
“They have other diversions, obviously, John Howard’s direct accountability – there are different things the court can mandate – counselling, anger management, addictions treatment,” said MacTavish. “It’s tough to mandate someone to enter into mediation. You can only suggest this as an opportunity to them if they are interested in taking it. That’s what I’m exploring right now (for) Stratford. Let’s just make sure all the nuts and bolts are tight. Does everyone have an understanding of how this is going to operate.”
He reiterated that they could use Kitchener mediators to hold space for these conversations but he believes it’s more poignant if the mediators in Perth County come from the communities where the harm takes place.
“The idea then is to start here, figure out the best way to engage the Listowel community and use that as the template to embrace some of the other communities so they have an understanding of what this program is designed to do and how it’s supposed to support everybody,” said MacTavish.
Executive Director Chris Cowie said it’s not up to CJI whether VORP becomes a viable option in Perth County and he said “that’s part of the problem.”
“The thing about restorative justice is that it is a world view as opposed to a program,” he said. “It’s a different way of looking, first of all, at what justice is. I and many others who are strong restorative justice advocates would say that the western understanding of justice is an extraordinarily limited version that doesn’t bring about anything that constitutes justice. So when we normally look at things through what I would say is a legal lens, our systems tend to be obsessed with always looking at what rule was broken and who was the person who broke that rule and how can we punish them in response to that. Once those things have happened we kind of assume that’s what justice is.”
Cowie says restorative justice looks at things more relationally and focuses on how someone has harmed someone else.
“If I harm you in a particular way, it might vary, the kind of response you have and the needs you are left with than someone else who I would harm as well,” he said.
As an example, he spoke of the possible trauma caused by home invasions. He noted that some people might need to move away and they may lose trust in other people.
“Other people don’t respond in those types of ways,” said Cowie. “They’re a little bit more concerned with just the financial impact of what happened. So restorative justice says what is the relationship that has been damaged and what has transpired here.”
This puts the offender in a position where they may be able to make direct redress for what has happened when the harmed person is articulating what needs to be done to mend the relationship.
“The deeper issue… I would argue is oftentimes they are asking for an acknowledgement, an acceptance that you did something wrong and an apology so that there is some sort of reconciliation that takes place,” said Cowie. “One of the things that I often say is that in many ways crime is a rather arbitrary construct. If we look at the LGBTQ2+ movement we have people who now celebrate something that not that long ago was considered a criminal offence to do. So it’s kind of a moving target.”
He said he likes to take harm and wrongdoing out of the realm of crime.
“The restorative response to wrongdoing can happen in any context,” said Cowie. “It can happen in the workplace. It can happen in schools. When you talk about how it can impact my community it’s a matter of moving people’s understanding of justice to that more relational way and getting people away from things that are just punishment oriented which tend to only exacerbate the problem. We know from many, many studies that, first of all, punishment does not deter crime.”
He pointed out that when people are punished through the criminal justice system they usually emerge from incarceration as rather angry and more damaged people.
“We’re perpetuating the very problem that we’re trying to address,” said Cowie. “I think one of the places where we need to begin when it comes to some of the advocacy stuff is with the courts. I think they should be responsible for letting victims know restorative processes are available. Most of the time victims are completely erased from any of the processes… and they are the people that are left with the most needs.”
He said victims get left to their resources to try to fix the problems that have been created while we’re obsessing about punishing the person who has done it.
“One of the biggest factors in trauma is people just having the opportunity to have questions answered and be able to tell their story,” said Cowie.
The CJI mediation model always has two facilitators and they always do case development first – so meeting with the victim ahead of time and meeting with the perpetrator ahead of time.
“Sometimes we even do what I call a little bit of conflict coaching when we are meeting with them,” he said. “Some offenders… sort of fumble their way through an apology which when you are hearing it you understand… in their heart, they are in the right place but the way they are saying things could end up not landing in the victim’s heart in the same kind of way so we… coach them through what might be a more effective way.”
When they meet with victims they prepare them, too.
“We’re looking for them to be past the place where they are wanting to punish somebody and they are focusing on what their needs are and can talk about what’s happened,” said Cowie. “It’s really important that they not soft-sell how they’ve been damaged, that they give the full story of how it impacted their life and their relationships.”
The facilitators’ thoughts, feelings and values are not to be impressed upon the process at all.
“The role of the facilitator is to ask questions and get people talking to each other in such a way that victims can articulate exactly what their needs are,” he said. “When they can identify those things and the other person can respond to them then that becomes a much more meaningful kind of process.”
CJI has a partnership with Conrad Grebel University College at the University of Waterloo. The Peace and Conflict Certificate Program has a few workshops that are designed and delivered by CJI.
“One of those is our basic training which is called Transformative Mediation,” said Cowie. “That zeros in on bringing people’s needs to the surface as opposed to having what is often called ‘solutions-focused mediation’ where the mediator is trying to zero in on solutions.”
That core training is a four-day process and then they do role plays with some CJI senior staff and seasoned mediators.
“Normally we can spot the people who are going to have the right kind of qualities and seem to have the knack for doing it,” he said. “For about every 20 people that we train, we probably zero in on one or two. Then if they are interested they go through additional training after that because the transformative mediation training is not necessarily victim-offender focused.”
CJI also does a lot of work in the area of sexual harm and that is a much more intense process. Most of the time there has been long-term historical sexual abuse involved so the case development is not a single meeting.
“That is a whole different layer of training as well just to understand sexual trauma and what is going on,” said Cowie.
He admits concerns with restorative justice becoming too professionalized, because Cowie says no matter how educated or well trained some people are, if they don’t have the aptitude to mediate well they shouldn’t be doing it.
“You are going to do more damage than good,” he said. “But some people with a minimum of training you can tell that they just have an aptitude for it and every bit of training is just going to get them better.”
Cowie said it was hard to zero in on qualities needed to mediate well.
“I would say someone who is a very good listener, somebody who is very humble,” he said. “General speaking people who are really good problem solvers are not great at this because then they can’t seem to overcome their propensity to solve problems for others and imprint their feelings on things.”
He started doing VORP work with young offenders around 1990 but he admits he was probably a bad facilitator for quite some time.
“I was somebody who liked to be able to participate in solving the problems,” said Cowie. “I thought I was pretty sharp that way and could come up with good ideas and lots of times it looked really good, but it took me a long time to figure out that it’s easier to do that. It might contribute to feeling better about something but it’s just not about me.”
He said facilitating is about being very in tune with the people who are there, being able to get them to talk to each other without becoming the star of the show.
“I’m obviously a very strong advocate for this and care deeply about it,” said Cowie. “I’m very critical of our system which generally does a heck of a lot of damage.”
Colin Burrowes, Local Journalism Initiative Reporter, Listowel Banner