Seeking restorative justice

When Marlee Liss was raped in 2016, she reported it to the police, which started a three-year process that only exacerbated her trauma.

She struggled with panic attacks and suicidal ideation in the aftermath of the attack and says when the preliminary hearing began 17 months later, every step of the process recreated the sense of powerlessness she’d experienced. 

That was compounded by the feeling of being dehumanized on the stand. She lost faith in the system and became desperate for a different pathway forward that would align with her needs. 

Although Liss was studying social work at the time, she’d never learned about restorative justice, nor had anyone mentioned it in the nearly three years her case was in the court system. She came across the concept in her own research, but wishes someone along the way — a rape crisis centre, a trauma counsellor, a lawyer, a prosecutor, or a victim advocate — had steered her towards the option.

She says that after she put the idea of restorative justice on the table, a Crown attorney went out on a limb to help her access it. 

“It was the first time since the assault that someone showed enough respect for my needs and boundaries to listen and act accordingly,” Liss recalls. 

The process saw her assailant undergo months of therapy and eventually face her in a restorative circle. He looked her in the eyes and apologized. In that moment, Liss says a knot untied in her stomach.

“Unlike the court process, this was trauma-informed and survivor-centred. I finally felt heard, and empowered, and reassured that my assailant would not do this again. It was healing in a way that I didn’t know justice could be.”

She says everyone walked away from the circle more transformed and healed. The closure she gained from the experience was not something she had expected, nor was the sense of hopefulness that came with it. 

For Liss, the contrast between the two routes to justice was “night and day.” She became passionate and founded Survivors for Justice Reform to ensure that every survivor was aware of the option of restorative justice.

A system aligned with what survivors want

Across the country, however, accessing restorative justice isn’t always easy or possible. In late November, the Women’s Legal Education and Action Fund (LEAF) released a report that calls on the Ontario government to change that. 

Written in conjunction with Trent University, Toronto Metropolitan University, and Community Justice Initiatives (CJI), the report found strong support across the gender-based violence (GBV) sector to expand access to survivor-led, community-based responses. It also looked at how Ontario can enhance access to restorative and transformative justice for survivors of sexual harm. The report builds on LEAF’s previous calls for change in this realm.

“There is more of a willingness to learn about restorative and transformative justice, and to expand access for survivors,” Rosel Kim, a senior staff lawyer at LEAF, says of what they found in their one-year study.

That’s a good thing considering the criminal legal system continues to fail survivors of sexual violence, she says, adding it’s time for Ontario to modernize its justice system and align it with what survivors, experts, and communities want to see.

LEAF says the Ontario government needs to amend Crown policy D4, which currently prevents survivors of sexual assault from diverting their matters out of the criminal process, even though diversion is allowed with other types of criminal offences. 

The group also wants the province to invest in restorative justice and transformative justice education and programs, as well as fund pilot sites.

Permitted but limited

Section 717 of the Criminal Code allows for diversion from the criminal justice system into alternative methods under certain conditions. 

However, when that section was introduced in 1996, there was concern from the gender-based violence sector that things like restorative justice might not be appropriate for sexual assault because of the unique harms. As a result, Ontario and other provinces implemented policies like D4 to prevent sexual offences from being included in this diversion provision. The intent was for this moratorium to be temporary, allowing the government to establish safeguards for survivors, but there has been no movement on that front since.

Other provinces, including British Columbia, Nova Scotia and PEI, have lifted their moratoriums. Alberta allows exemptions on a case-by-case basis and has been funding a restorative justice pilot program. Its system operates in two streams—one where a guilty plea is entered, and there’s restorative justice at sentencing, often in collaboration with Indigenous communities. The second involves diversion from the court system as envisioned in the LEAF report.

There have been a couple of examples in Ontario where, despite the moratorium, survivors were able to access these options, although in one case, the Crown prosecutor who allowed the diversion was disciplined for it.

Kate Crozier, the interim executive director of Community Justice Initiatives (CJI), co-authored the LEAF report and assisted in describing the restorative/transformative justice practices for focus groups that were part of the study. She says the response of groups was “transformative.”

“In the gender-based violence sector, there is often a hesitation around restorative justice that is based on some outdated information as well as some myths,” she says.

That outdated thinking leads people to believe this is related to reconciliation or mediating harm. The reality is that mediation-style restorative justice involves gathering input from survivors about their needs, what justice and healing look like for them, and then working with the person who caused the harm to determine to what extent they can meet those needs.

Crozier says that when people are invited into a space where they can be seen as more than just the harm they’ve caused, where others can believe in them and their ability to make change, that’s where people start to want to participate in behaving differently and taking responsibility. 

CJI currently works with about four to five cases at a time, which can each take anywhere from six to 18 months.

“It’s slow work for people to do the real work and not just go through the motions,” Crozier says.

There are a few other organizations that do similar work in the province, and they are ready to start training and scaling up if the province lifts the moratorium. However, Kim says that alone won’t improve access, which is why LEAF is also pushing for the province to fund these programs.

“There really needs to be meaningful investment and also increased public education about these options so that survivors and also the justice system actors and members of the public know about them and can say that they want this option.” 

Resistance persists

Out west, awareness has been a problem for the Alberta Restorative Justice Association, which has had to deal with judges who don’t see restorative justice as being part of the criminal system and Indigenous communities that want nothing to do with the process.

Danielle Boisvert, a criminal defence lawyer with Boisvert Wang LLP in Edmonton, has experience working within the restorative justice system. She says in large part, it comes down to education and communication with the stakeholders involved. 

“There are a lot of Crown prosecutors who aren’t even aware that it exists, despite two years of education, clinics and open houses.”

She says even for defence counsel, it’s a paradigm shift to recognize the availability and think of it for every single file. There’s also been a bit of a chilling effect on prosecutorial discretion from the Crown’s office, so some prosecutors are not willing to explore unique approaches.

While resourcing for the Alberta project has been improving, Boisvert notes that it also depends on how much individual band offices within the local First Nations communities want to contribute to these initiatives.

An empowering and economical investment

The reality is that it’s money well spent, says Kim.

“The survivors have come out and said that the process was very empowering and healing for them, and it worked a lot better for them than the criminal process they were going through.”

Crozier points out that even though scaling up the restorative justice process requires investment, it’s significantly cheaper than the criminal process. On average, it costs more than $100,000 to incarcerate a man for one year in Ontario, and $220,000 to incarcerate one woman for one year.

"We run our program on about $50,000, if that,” she says, noting they’ve tallied up what it would cost to run a pilot project at four organizations across Ontario and could work with the survivors that get referred to them with those funds.

Of course, not all cases referred to this stream move forward. Organizations must assess whether the survivor’s goals align with restorative justice and whether the person who caused harm is genuinely willing to do the work to repair the harm they’ve caused. Crozier says that plenty of cases will be returned to court because they’re not a good fit.

Scaling up also can’t happen overnight. CJI currently trains 12 facilitators twice a year in Kitchener-Waterloo, all of whom already have experience in restorative justice and gender-based violence work. Crozier says expanding would require running more training across the province through people who are already connected to restorative justice work. At the same time, ongoing education for Crowns and the gender-based violence sector is key to determining who is a good fit for this work.

That said, CJI is ready for the project to be implemented today, and the demand from survivors means the group already has a waitlist for its services.

Kim notes that less than six per cent of sexual assaults are reported to police, and the conviction rate is even lower.

“Are survivors getting justice right now under the criminal legal system? It seems like a lot of them are not,” she says. 

“By including restorative and transformative justice as an option, we are asking for more opportunities for people who have harmed to be held accountable, and for survivors to access different forms of justice that might work for them.”

For Liss, sharing her story in the media, online, and most recently in a new documentary, The Limits of Forgiveness, has led thousands of other survivors to reach out to her, which has fuelled her advocacy of the kind of changes LEAF is pushing for.

“We are all asking for the same thing—access to justice that acts as a catalyst for our healing rather than an obstacle,” she says.