The Evolution… con't.

One thing that these Courts all have in common, is that they are predicated on the process beginning with an accused voluntarily agreeing to plead guilty to an offence (or offences), and thereafter submitting to the program the Court imposes in its best effort to "heal the harm". While in the program, the offender is subject to conditions of release and, if he or she breaches any of those conditions, they may be returned to the traditional Court system to there be dealt with according to law - i.e.: punished.

But while this Therapeutic Justice model is going in the opposite direction of the Crime Control model, it does have one thing in common with the Crime Control model – and that is the suspension, in varying degrees, of the citizen's right to Due Process.

In The Role of the Courts2, it was asserted that:

The Due Process Model is fundamental to our Canadian way of life, and it is the primary function of our Courts and Judges to ensure that it is given effect.

Make no mistake, the movement to Community Courts, and Therapeutic Justice, is a movement away from Due Process and as such, is truly a fundamental change to our approach to criminal justice.

But does that mean we are moving in the wrong direction?

The John Howard Societies in Alberta (and across Canada) have been saying for over 5 decades that punishment is not the answer to controlling crime; that crime prevention is a community responsibility and begins in the community; and that the primary focus of the criminal justice system ought to be on healing the harm crime causes to all in the community. So this movement towards Therapeutic Justice certainly accords with our Societies' beliefs – which beliefs, by the way, are based on the best criminological evidence that's available.

But John Howard Societies also believe very strongly in the fundamentals of Due Process as contained in the Canadian Charter of Rights and Freedoms, so how to accommodate these (apparently) conflicting viewpoints within our Vision is of no small consequence.

The answer lies, we believe, in safeguards that are, or must be included in the process of administering Therapeutic Justice. These safeguards are the very safeguards that are at the core of the Due Process model, and include such elements as:

  • the treatment of all citizens with dignity and respect;
  • the imposition of penal sanctions as a last resort, when all else fails, and that such sanction be appropriate to the crime and the offender;
  • the right to counsel; and
  • the right to be tried by a fair and impartial Court, according to law, and to be presumed innocent unless proven guilty beyond a reasonable doubt.

So first, the citizen must have a meaningful choice as to whether to apply for entry into the therapeutic Justice Process or proceed through the Due Process system as it presently exists. Second; if the citizen continues to offend, even after having participated in the Therapeutic Justice process, then that person faces the prospect of being limited to the Due Process of our criminal justice system as it presently exists.

Canada has nothing to lose by adopting a Therapeutic Justice approach that parallels our existing Due Process system, without entirely replacing it, and has everything to gain. This is but a next step in the continual evolution of our legal system; a step away from the notion of protecting the citizen's basic rights and freedoms from erosion by the state, and towards implementing the citizen's right to live in the community in harmony and dignity. And if by chance this does start to lead to the erosion of existing fundamental rights and freedoms, our Judges remain the gatekeepers of the process, and will continue their vigilance in this regard.

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