Co-ordinating Canada’s Restorative and Inclusionary Models of Criminal Justice: The Legal Profession and the Exercise of Discretion under a Reflexive Rule of Law

Source: (2004) Revised Version of a Presentation at the Colloquium on the Legal Profession, Organized by the Chief Justice of Ontario’s Advisory Committee on Professionalism, Toronto, Ontario, Canada. Downloaded 21 February 2005.

The paper outlines the historical origins and current significance of traditional adversarial models of justice (punitive, rehabilitative and corrective), and explains how these have mutated into a model of criminal justice which is procedurally formal but inclusive of victims’ interests. This formal inclusionary model is to be contrasted with the more flexible restorative model which has recently been adopted, in varying degrees and in various guises (for both youth and adult criminal justice), and which operates in tandem with the formal, inclusionary approach. The paper then discusses the manner in which such a hybrid system requires careful professional attention to the exercise of discretion at all levels in order to ensure fairness, equality and effectiveness. Police, prosecutors, defence counsel, judges, correctional officials, various non-legal professionals and lay members
of the community must be committed to, and integrated in different ways with, both the formal, inclusionary model and the restorative model in order to ensure these different approaches operate in a mutually supportive fashion rather than being at odds with one another. The full complexity of integrating these different models may not always be appreciated by all participants in the process, including the Supreme Court of Canada, as evidenced even in such otherwise progressive and innovative sentencing decisions as R. v. Gladue and R. v. Proulx. This situation provides new challenges for the legal profession. The paper concludes with an assessment of the capacities of the new integrated system of hybrid criminal justice to meet the goals set for it in the relatively recent sentencing provisions of the Criminal Code and in the policies of the new Youth Criminal Justice Act. (excerpt)