Questions from Almost 50 Years of Restorative Justice in Canada

This is the second part of the series “Questions we don’t dare to ask”.  You can read the introduction to the series, and the first article (Siri Kemény's critical reflections on the role of the mediator) here. 

When Grandad sat there, upright yet reposed, he would share stories about his experiences: a childhood in Montreal, Canada, being raised by his aunt and uncle as his mother passed away around the time of his birth, enlisting with the Black Watch during World War II and going oversees to be a part of the Canadian liberation of Holland, meeting my Nana at a dance in Brantford, the hometown of Alexander Graham Bell, the inventor of the telephone, when he was working for the Bell telephone company, tagging cars with pamphlets when he started his own insurance business, and dozens of stories in-between. The narrative arc was similar. Some details to set up what would usually turn out to be a humorous anecdote. During my childhood, each story was new and exciting. When I was a teenager, the stories began to repeat. As a young adult, I’d heard each of the stories many times. Grandad’s dementia and Alzheimer’s had settled in, to stay. But, so too had the rhythm of his storytelling: his warm-hearted, cheerful presence in my life. In a way, I came to be in his words. Grandad’s stories were repetitive. But they were a lifeline, a rhythmic heartbeat of connection, belonging, and love. 
Stories are relationships. As we relate to each other through stories, we become. Stories are a gift we give each other for how to be. As we narrate our lives, we become: stories are constitutive (Brown and Augusta-Scott, 2007; Page and Goodman, 2020). When I was a child, I was engrossed by Grandad’s stories. Now, as an adult, I know we are stories (King, 2008).

There is a story about restorative justice, that it originated in the mid-1970s in a small town, about 15 minutes from where I live in Canada, called Elmira. Certainly, it is well-known that a young probation officer, Mark Yantzi (who later founded Community Justice Initiatives, a thriving, forward-thinking restorative justice organisation to this day), recommended to a judge that two young people who vandalised a neighbourhood meet with the people who had been impacted, thus giving precedent to responding to harm differently within Canadian law. Since that time restorative justice programmes have proliferated across Canada, from Circles of Support & Accountability to Victim Offender Dialogue to Family Group Decision Making, from youth diversion in minor crimes to dialogue in the aftermath of violent harms, from educational to workplace to prison settings, taking many forms while striving to meet needs and fulfil obligations for accountability. And, as restorative justice practices have multiplied, those doing the work have gained wisdom for how to walk alongside people who have been hurt and those who have caused harm. Really, the story of restorative justice practices is one of relationships, bringing people together in democratic, collaborative processes to work things out — a strengthening of human connections and bonds, the making of stronger communities.

But, centring the Elmira case as an origin story misses, or perhaps dismisses, how a restorative ethos in justice predates the 1970s, as evidenced by millennia of indigenous ways of being in North America that share some similarities to present day restorative justice practices. The Elmira narrative erases a vital aspect of the relationship between indigenous peoples and settlers in the area now known as Canada. Of course, there is sometimes a nod in restorative justice literature in the direction of the Indigenous roots of restorative justice, but that is all it is, a gesture. Canada itself is a settler, colonial state, a violent imposition on Indigenous Nations (e.g., the land was not empty when settlers arrived), where the primary mechanisms of making indigenous peoples assimilate or disappear, in order to steal lands and resources, have been — and continue to be — through law, policing, and prisons. In fact, the town of Elmira sits on the unceded, traditional indigenous territories of the Anishinaabe, Haudenosaunee, and Neutral peoples. What happens when the story of restorative justice whitewashes indigenous narratives about history and even justice? I’ll return to that question shortly.

There is a subtle yet seismic shift in Howard Zehr’s Little Book of Restorative Justice, from the earliest to the latest editions. In fact, it’s so subtle, I worry that many in the restorative justice movement have missed it. When Zehr set out to articulate how restorative justice was unfolding in North America in Changing Lenses (1990) and the aforementioned little book (2002), he distilled restorative justice down to five guiding questions:

1. Who has been hurt?
2. What are their needs?
3. Whose obligations are these?
4. Who has a stake in this situation?
5. What is the appropriate process to involve stakeholders in an effort to put things right? (Zehr, 2002, p. 38).

However, in the newest version of the Little Book of Restorative Justice, right between questions number four and five is a new question:

6. What are the causes? (Zehr, 2015, p. 49). 

Zehr explains: 
“The guiding questions of restorative justice can help us to reframe issues, to think beyond the confines that legal justice has created for society, and to ‘change our lenses’ on wrongdoing.” (2015, p. 50 emphasis added)

My own work has steered me towards a ‘trauma-informed’ framework that trauma awareness and recovery should be central considerations in restorative justice work, as healing from harm and holding accountable are nearly impossible if trauma is overlooked. When researching for my book about youth justice in Canada, I found that 90% of young people who come in conflict with the law have experienced some form of childhood trauma, such as neglect, sexual abuse or experiences of family violence (Oudshoorn, 2015). A trauma-informed perspective necessitates using an equity-informed lens, because systemic violence, like colonialism and racism, that cause collective traumas, determines who Canadian police target and arrest. It is not so much that people ‘come in conflict with the law,’ but certain identities (e.g., Indigenous, Black, and racialised people) and struggles (e.g., addictions and poverty) are ‘criminalised,’ or made criminal. In Canada, for example, while only representing 4% of the populations, indigenous peoples are greater than 30% of those living in prisons (Kingsley, 2020).

The literal whitewashing of indigenous narratives about justice by the restorative justice movement has meant that restorative justice has been narrowly imagined in Canada as a programme, and typically as an extension of criminal punishment apparatuses. For as much talk as there is about restorative justice as a philosophy or a set of principles, the harms that are typically being addressed are those defined by the state as ‘crime,’ which ignores the harms of the state itself (e.g., the mass incarceration of indigenous peoples). Fania Davis (2019) puts it bluntly about restorative justice in The Little Book of Race and Restorative

“During its first forty years … the restorative justice community has historically failed to adopt a racial or social justice stance.” (pp. 1 & 2)

While restorative justice has emphasised relationships, what we have so often missed are the unequal power relationships and corresponding traumatic impacts that our social systems produce. Canada punishes indigenous peoples for committing crimes through its legal system, yet the same system of law has been at the heart of most of the oppressions experienced by Indigenous peoples.

In some ways, addressing root causes of harm brings us closer to the remarkable work being done in the transformative justice movement. ‘Transformative justice,’ in the words of Johonna Turner (2020) 

“can … be understood as a political project for envisioning, creating, and sustaining safe and accountable communities. Yet, it is a project that recognises how dynamics and patterns of domination are also replicated within our relationships.” (p. 300)

Transformative justice has a twofold agenda: abolish harmful systems of state violence (e.g., policing and prisons), while creating social landscapes that collectivise care (Ben-Moshe, 2020; Kaba, 2021). The transformative justice work of community accountability, while similar to restorative justice, has been fully separate from the criminal punishment system. We might learn from that in restorative justice. Yet, I am not a purest. Reform and abolition likely fit best along a continuum. Sometimes restorative justice programmes need to partner with existing systems however fraught that might be. If that sort of partnership is necessary, we should ask, are programmes resisting or replicating the types of harms being addressed? Liat Ben-Moshe (2020) offers another to think about it: 

“Reformist reforms are situated in the status quo, so that any changes are made within or against this existing framework. Non-reformist reforms imagine a different horizon and are not limited by a discussion of what is possible at present.” (p. 16)

My point in the article is about power. The power of storytelling to constitute a movement of restorative justice. The power of hierarchical social systems to hold back some of the possibilities of reforms. The power of accountability — that we, too, doing the work of restorative justice in Canada can take responsibility for our shortcomings and invest our efforts towards equitable relationships and caring communities. 

• What’s your restorative justice origin story? 
• Does it account for those most marginalised in your communities? 
• Does it disrupt unequal power relationships? 
• Does it share ownership of justice with communities over systems?

Whether it was the first time or the twentieth, my Grandad always told his stories with the same vigour, the same twinkle in his bright blue eyes, and the same head-thrown-back-laugh at his own jokes. One story he often told was about missing some of the fighting during WWII because he got the mumps. The joke was that other soldiers wanted to kiss him to acquire the virus to gain reprieve from the horrors of the frontline. Whether it was the first time or the twentieth, I would listen with the same vitality, returning his gaze with my brown eyes, and laughing enthusiastically when the punchline landed. ‘Well … did you kiss them?’ I would ask. He’d chuckle, bellowing, ‘you’re a character!’ 

Photo: Judah Oudshoorn's Grandad in 2014

You know, we’re all characters. It takes a certain amount of integrity, authenticity, and humility to courageously share our stories in ways that recognise that we are, at times, as much antagonists as protagonists.

Judah Oudshoorn is a professor in the social service worker program at Conestoga College in Kitchener, Canada.  He is a long-time restorative justice practitioner, researcher, and writer. Judah is passionate about social justice, especially decolonising and anti-racist approaches. He is grateful for his partner (Cheryl), children (Emery and Chase), and his reclining chair (oh, and hot coffee, too, of course).
Contact: joudshoorn@conestogac.on.ca

Ben-Moshe, L. (2020). Decarcerating disability: deinstitutionalization and prison. Minneapolis: University of Minnesota Press.

Brown, C. and Augusta-Scott, T. (eds.) (2007). Narrative therapy: making meaning, making lives. London: SAGE Publications.

Davis, F.E. (2019). The little book of race and restorative justice: black lives, healing, and US social transformation. New York: Skyhorse Publishing.

Kaba, M. (2021). We do this ’til we free us: abolitionist organizing and transforming justice. Chicago: Haymarket Books.

King, T. (2008). The truth about stories: a native narrative. Minneapolis: University of Minnesota Press.

Kingsley, M.F. (2020). Indigenous people in Federal Custody surpasses 30Investigator issues statement and challenge. Office of the Correctional Investigator.

Oudshoorn, J. (2015). Trauma-informed youth justice in Canada: a new framework toward a kinder future. Toronto: Canadian Scholars.

Page, J. and Goodman, P. (2020). Creative disruption: Edward Bunker, carceral habitus, and the criminological value of fiction. Theoretical Criminology 20(2):222–240.  Https://doi.org/10.1177/1362480618769866.

Turner, J. (2020). Creating safety for ourselves. In: E.C. Valandra and W.W. Hokšíla (eds.) Colorizing restorative justice: voicing our realities, chap. 17, pp. 291–321. St Paul, MN: Living Justice Press.

Zehr, H. (1990). Changing lenses: a new focus for crime and justice. Scottdale PA: Herald Press.

Zehr, H. (2002). The little book of restorative justice. New York: Skyhorse Publishing.

Zehr, H. (2015). The little book of restorative justice: revised and updated. New York: Skyhorse Publishing.