Towards Restoring Justice
by Jan Slakov, RJ Volunteer
I write this as someone who has volunteered for Salt Spring Island’s Restorative Justice program for over three years, so I’ve seen how restorative practices can enable positive growth and transformation, not just for offenders or “responsible parties” but for the wider community as well.
I’m convinced that some form of restorative justice (RJ) would be highly appropriate for dealing with violations of injunctions aimed at preventing citizens from standing in the way of industrial activities which are arguably so damaging that drastic efforts are required to bring them to an end.
Perhaps the strongest reason for the use of restorative justice in cases such as the criminal contempt of court charges against land protectors is that it could enable the legal system to uphold justice and to better respect the intent of our laws. It could also help society to adapt to the requirements of our current time of great change.
The late First Nations leader, Arthur Manuel, described how his nation struggled to uphold their treaty rights with respect to the Sun Peaks recreational development on their ancestral lands. After concerted efforts to communicate the concerns about the damaging consequences of the development, the multinational developer decided to make no changes to accommodate the needs and concerns of the Secwepemc people. Then chief Manuel consulted with lawyers about getting a court injunction to halt construction while talks took place. The lawyer explained that getting an injunction would be difficult “because injunctions were generally given on the balance of convenience. Halting construction would require the layoff of hundreds of workers and cost millions of dollars in delay, something the judges would be reluctant to order.”
This view of the “balance of convenience” places high value on monetary considerations, but we know that the real costs, in terms of the earth’s carrying capacity, in terms of respect for indigenous rights, of many of these “development” projects is extremely high. Surely, if the intent of our laws is to protect our well-being and that of other creatures we share the earth with, it is time to adjust our way of dealing with court injunctions.
At the same time as the cases of people who violated the Trans Mountain injunction are being processed, there is a parallel legal action underway, to appeal the ruling which allows the Kinder Morgan pipeline expansion to get underway. For some reason, that appeal process is proceeding comparatively slowly. Indeed, it is entirely possible for the grounds of such appeals to be upheld in court, but for the ruling to come down so late that irreparable damage has already occurred.
Co-director of the Zehr Institute for Restorative Justice, Howard Zehr, defines RJ as “a process to involve, to the extent possible, those with a stake in a specific offence, and to collectively identify and address harms, needs and obligations, in order to heal and put things as right as possible”. What would restorative justice look like for those engaged in civil disobedience?
Since civil disobedience entails violating laws, and since upholding the rule of law requires some form of deterrence, there would be a need for some penalty to be imposed. In order for there to be some uniformity of the penalties imposed, these could be determined as they are being determined now, through dialogue between advocates for defendants, representatives of the Crown, and a judge.
But because the people who engage in civil disobedience do not pose a threat to the safety and security of their fellow citizens, it would seem wrong for those penalties to extend to incarceration. In order for restorative justice to work, it requires that participation be voluntary. So, most likely, those found guilty of criminal contempt or other changes linked to acts of nonviolent civil disobedience would have the option of completing at least some of their community service requirements as participants in a restorative justice process.
The process would need to bring “those with a stake in [the] specific offence” together to “heal and put things as right as possible”.
Since the “affected party” or victim of contempt of court can be seen to be the public or, more nebulously, the rule of law, it would be very useful to have as diverse a group of members of the public involved, as well as at least one person engaged in the practice of law (or retired but still interested in the practice of law).
A restorative justice process entails asking participants to bring forward the harms that an offence (and related actions) can cause. It also entails seeing the offence within a wider context. From this basis of understanding, determinations about how to address harm and allow for positive transformation can usefully come forward.
In our current context, where many see our democracy as imperilled, where there is such enormous inequality that the foundations of our democracy are shaky, citizens are looking to our legal system for some succour. The system has, at times, showed itself to be incapable of adapting to uphold universal principles of the rule of law (as outlined by the World Justice Project: https://worldjusticeproject.org/about-us/overview/what-rule-law ). But it has also, at times, helped society advance in terms of deepening its respect for fundamental rights and responsibilities.
I believe that each one of us, each citizen, is called now to do our best to avert or mitigate the crises we see unfolding around us. Even if the future holds hardship that most in our society have never had to endure, even if it is already too late to prevent some enormous losses from coming to pass, we still need to work to uphold our common humanity. The extent to which we can evolve from focussing on blame and anger, towards respect, compassion and adherence to the highest values and callings of our conscience is, surely, a testimony to the extent of our evolution as human beings.
These contempt of court cases offer all participants and the justice system as a whole, a real opportunity. Let’s make the best use of it we can.
For me, next steps will involve sharing this statement with others in the hopes of coming up with a vision or statement which could offer the court guidance for dealing with other cases of the current contempt of court charges, but also for future instances of civil disobedience. I hope I will not be alone in seizing this opportunity.