Ontario should allow restorative justice in cases involving sexual offences: report

A new report is calling on the Ontario government to revisit a policy that prohibits the use of restorative justice as an alternative to criminal prosecution in cases involving sexual offences.

The report was issued today by the Women’s Legal Education and Action Fund, or LEAF, and the nonprofit Community Justice Initiatives.

It says the Crown policy deprives those who have experienced sexual harm from choosing the form of justice that best fits their needs.

Restorative justice is an approach that allows those harmed and those who take responsibility for said harm to reach a resolution together, typically with the help of a facilitator.

Rosel Kim, a senior staff lawyer for LEAF, says a moratorium on restorative justice for sexual offences was put in place in the 1990s, in part due to concerns it would be traumatic for those harmed.

The policy’s existence means there is no incentive to invest in this type of program, Kim says.

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“It has created this lack of access and … we’re saying it’s time to amend the policy that’s preventing that,” Kim said in an interview this week.

She said attitudes toward restorative justice also have changed over time.

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The groups carried out a study over a year to gauge whether support for restorative justice had increased among those working in the gender-based violence sector, including front-line workers, nonprofit groups, lawyers and therapists.

The study involved a mix of interviews, surveys, focus groups and a community gathering, the report says.

Among survey participants, 86 per cent strongly or somewhat support expanding restorative justice options for gender-based violence, and 89 per cent strongly or somewhat agree that all complainants should have such options made available to them.

The report says some participants stressed people should not be pressured into choosing a restorative approach, and Kim says the process should be initiated by the person harmed.

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Aside from changing or eliminating the policy, the report recommends expanding education on restorative justice to inform the public and the gender-based violence sector about non-criminal legal and community-based options to address sexual harm, as well as specialized training for lawyers and judges.

The report also calls for provincewide consultations to determine jurisdictional authority and oversight, and how restorative justice processes should be formally credentialled.

The province should fund and launch at least four pilot sites dedicated to restorative justice for sexual harm so prosecutors can refer cases to them, the report says. The pilot programs should be community-led and “shaped by survivor input,” it says.

The report further urges the government to support Indigenous sovereignty in justice processes and invest in the revitalization of Indigenous legal orders, including community-based approaches to address sexual violence.

“We are sort of continuing to see resources flow into these kinds of adversarial systems that have been retraumatizing survivors,” Kim said. “We’re really hoping to see more investment in processes that can provide healing and prevention and also accountability.”