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

Source: (2005) Canadian Criminal Law Review, vol. 9. 215-260.

Canadian criminal justice has moved to a hybrid system involving a formal but inclusionary criminal trial as the predominant model with an informal restorative justice model as an increasingly significant alternative. This system invokes traditional punitive, rehabilitative and corrective elements yet deploys them in new institutionalized contexts. The formal inclusionary model integrates victims’ concerns at all levels from policing and prosecution through the trial to sentencing and parole, while maintaining due process protections for the accused. The informal restorative model responds to criminal harms by bringing together victims, offenders, their respective families and community representatives in a deliberative process which can result in accountability, reparation and community based solutions to go to the root of crime causations… These developments in Canadian criminal justice reflect the postmodern conditions of our regulatory or supervisory state. Such participatory processes, rejecting a purely hierarchical approach, are characteristic of what has been termed a reflexive rule of law in deliberative constitutional democracies, and are parallel to legal evolution in other domains. If properly co-ordinated, these models have great potential for enhancing criminal justice in current Canadian society which exhibits increasing structural complexity, social diversity and public alienation from legal institutions. However, members of the legal profession, including bench, bar and chair must accept their responsibilities and new obligations in order to endure the new hybrid system functions effectively. (excerpt)