Herman Wong Before we begin, please know that this show is not intended to be legal advice, or be a replacement for a legal representative. Hi there, I want to let listeners know that today’s episode features a candid discussion of inter-partner violence, gender-based violence, and sexual violence. For resources on where to seek help or learn more about these topics, please take a look at our show notes. If you are in immediate danger or require urgent medical assistance, please call 911. Welcome to Law Syrup the show where we talk to special guests about hot topics in Canadian law. This podcast is a co-production with the Ontario Justice Education Network, also known as OJEN. I’m Herman Wong, and let’s start the show. Hi everyone and welcome to another episode of Law Syrup. Today we're doing things a little bit differently because I am joined by a lovely co-host. Her name is Amelia Berot-Burns and she is a project coordinator at OJEN. She also brought the idea of doing an episode on gender-based and inter-partner violence. So not just in terms of what they are, but also the ways that the legal system is implicated, whether it's through criminal diversion or restorative justice and these are all terms that you will likely be hearing a lot during this episode. We also have the pleasure of being joined by an incredible woman, her name is Pam Hrick, and she is the Executive Director and General Counsel of the Women's Legal Education and Action Fund, otherwise known as LEAF. So Pam and Amelia, thank you both of your time and for joining us today. And Amelia, I'll let you take it from here. Amelia Berot-Burns Thanks so much for that introduction, Herman, and thanks for joining us today. Pam, really appreciate your time. Recently, your organization released a report on restorative and transformative justice for sexual violence, and this report explores barriers and availability of restorative and transformative justice options for sexual violence in Canada. We're wondering if you could give us a bit of background on this report and some of these concepts that were touched. Pam Hrick Yeah, absolutely. I mean, first of all, thanks for having me. I'm really grateful to be having the opportunity to speak with you today about these really interesting and important subjects. We did release a report called Avenues to Justice last fall. It's authored by Mandi Gray and Tamara Burnett and explores what is restorative justice and transformative justice as concepts. How are they or could they be better applied in the context of sexual violence to give survivors more options for pursuing justice that feels right for them? Before getting into describing some of the concepts, I think it's really important that no matter how you conceptualize restorative justice or transformative justice, and there's no one universal definition of either concept or process, we have to acknowledge that both restorative and transformative justice have their roots in many Black, Indigenous, queer, trans, and sex worker communities. And it's members of these communities that have led the work on restorative and transformative justice. It's also, I think, important to provide the caveat that not all restorative justice practices are Indigenous, nor are all Indigenous practices that address harm done to others are restorative in nature. To move on to sort of the definitions, the ideas sort of at a high level can be defined as, in the case of restorative justice, focusing on repairing harm and restoring relationships. And you can kind of think of transformative justice as going beyond repair and restoration to try to actually transform the underlying conditions, structures, institutions, and even communities that may have created the conditions and circumstances that allowed for the harm to be done. So these are practices, I should say in the case of transformative justice, it's a practice that has historically existed outside state institutions. So they're entirely community-based, they don't engage the criminal system at all. Whereas restorative justice has existed both in purely community-based formats, as well as being integrated into some state-based practices. There are a lot of ways in which the two concepts and the processes through which they're put into practice overlap. And so that's why in the report that we released, Avenues to Justice, Mandy Gray and Tamara Burnett adopted the framework of a restorative transformative justice continuum. And we have adopted that same sort of mindset and understanding of these practices in our work at LEAF. I can touch on a little bit of the commonalities between the processes that fall along this continuum. They are generally non-adversarial, they are focused on accountability, and they're generally non-carceral and recovery-focused ways of understanding justice. You can contrast that with some of the more traditional criminal system hallmarks, I'd say, which are that they are adversarial processes in the criminal system and much more focused on punishment. So these ways of thinking about justice and doing justice often give survivors more options for healing, either inside the criminal legal system or purely outside of it in those community-based processes. They represent a different way of thinking about justice, but one that's still rooted in evidence and history. Amelia Berot-Burns Thanks for that really great answer, Pam. I think for myself, I think of it almost as on one side, we have a punitive system, which is what we traditionally think of in the criminal justice context. And on the other side, it sounds like this restorative and transformative justice idea comes more from a sense of healing and coming together. And so how might this kind of work in a situation where there is inter-partner violence or gender-based violence? Pam Hrick So I think, you know, sitting where I am from my perspective, it's important to acknowledge that not every circumstance of intimate partner violence, not every case is going to be suitable for restorative or transformative justice. Looking to restorative and transformative justice can provide the alternatives for survivors to choose, to pursue what justice looks like for them. And justice for a lot of people, a lot of survivors, isn't going to look like calling the police, or criminalizing their partner. In circumstances of intimate partner violence, you often hear and understand that what survivors want is for the violence to stop and for their partner to understand how they are causing harm and to be accountable for that and not to do it moving forward. They don't want to see their partner thrown in jail. They might have implications that would arise from that beyond simply the separation from the partner, but also there could be immigration consequences to somebody who has precarious status. There could be financial consequences for somebody who relies on a partner who is doing harm to them, who is being violent, to bring money into the household to pay for living. So if you jail that person or make it difficult for them to work, that can have repercussions for the individual survivor or victim, however they choose to self-identify. All of that being said, what we have seen I think more recently is affirmations and recognition, I'll say, among mainstream, I'm putting this in air quotes, sort of “mainstream feminist organizations”, “mainstream justice processes” , recognizing all the ways that the criminal system can do harm, the kind of harm that I've just described, and why there would be reasons that survivors want to look at other ways of pursuing what justice looks like for them. One example I'll give is that in the Renfrew Inquest in 2022, the jury made a number of recommendations, including that the Ontario government should explore incorporating restorative justice and community-based approaches in dealing with appropriate intimate partner violence cases to ensure safety and best outcomes for survivors. So what that might look like in the intimate partner violence context is where some survivors or victims want to prioritize accountability, safety, and rehabilitation rather than punishment. You might be able to engage in one of those processes where you have somebody who has done harm, who is showing signs that they want to be genuinely accountable for that, to confront the ways in which they are causing harm, and to learn and change their behaviours moving forward. It could lead more likely to an apology or an acknowledgement of wrongdoing, of using counselling and other support systems for the perpetrator to understand what they have done, and to approach that person and those circumstances in a way that allows and acknowledges that perhaps that person may well be an example of breaking down the victim-perpetrator dichotomy. I think when we look at the criminal system in particular, there's not a lot of room to acknowledge that some people are both causing harm and have been harmed themselves. So with a restorative justice or transformative justice approach, there's more room to acknowledge sort of the history that that person who has done harm is carrying forward with them and to try to help them address it and work forward through it to try to achieve the objectives that the survivor has indicated are paramount for them. So going back to perhaps safety and accountability and prevention of further harm. So having those options out there, not diverting everything to restorative or transformative processes. Again, I don't think it's going to be appropriate for all cases, but giving those options to survivors in the context of intimate partner violence can be a way to better address the harm and get the outcomes that survivors want to prioritize. Amelia Berot-Burns Yeah, I really appreciate that you've highlighted the grey areas of kind of human nature. Like no case is going to have someone who's all bad and someone who's all good. There's no perfect victim. And I think that that narrative is really pushed in our current criminal justice system. Yeah. And I think for our listeners who maybe are less familiar with our current processes, could you let our listeners know what a survivor might do if they were to go through the criminal justice process or what they might be forced to do? Because it sounds like what you're saying is that this restorative and transformative justice program allows for a little bit more control in the survivor's hands. So is that control taken away from a survivor if they go to the criminal justice process? Pam Hrick In many ways, yes. So if I sort of try to paint the picture and go step by step through the incident of harm, the violence taking you all the way through to the potential resolution of the case, you have somebody who has been harmed, you have a victim who would have to call the police to engage the state and the criminal system in addressing the violence that they are experiencing. They would have to provide a detailed statement to the police of the abuse that they've experienced. They might have, and not even might, there are many cases where you may have the police be skeptical or misunderstanding of the violence that's been described, maybe questioning its seriousness or whether it happened at all. You would have a situation where the police would have to lay charges against the person who has caused the harm, the perpetrator. Ontario has what's called a mandatory charging policy, which means that police have to lay charges in IPV cases, intimate partner violence cases, if there are reasonable grounds to believe that violence has occurred. And sometimes what this has resulted in is both the victim and the perpetrator being charged. So that is an issue right off the bat. And just by way of brief historical background, what happened before this policy was put in place is you'd often have police show up and say, well, he's saying he didn't do it. She's saying that he did. We don't really know what happened here. We're not going to charge anyone. And, you know, domestic violence is a private issue. And I think a lot of feminists thought that having a mandatory charging policy would help this be taken more seriously. However, a lot of feminist organizations, and I think the same feminist legal advocates that in very good faith advocated for that many years ago have recognized that it didn't turn out the way that they thought it would. And it has led to situations where people are discouraged from calling the police because they are perhaps aware of the mandatory charging policy and don't want to engage the criminal system, or that they are actually being charged once they call the police seeking police help. So appreciate the brief indulgence to provide that history for folks who are not perhaps familiar with this. So we're back to the process somebody who has experienced abuse might follow. Police lay a charge, say you get to that point. And at that point, the victim or survivor is a witness in the case. And the case is driven forward by the Crown. In criminal cases, there are two parties. One is the state. The other is the accused person. And again, the victim or survivor is a witness. The prosecutor in Ontario will be driven forward by what's called a Crown policy directive. So there are guidelines, steps and constraints that are put on Crown prosecution discretion in a centralized way in Ontario. So you'll have the ministry issue guidelines, and they have issued guidelines on how you prosecute intimate partner violence cases. The perpetrator, the person who's charged will probably be released on bail. And there may be conditions attached, for example, prohibiting communicating with the victim. The victim or survivor, they'll have to meet with the Crown and share their experience again. So the first time they've had to report it to the police, they'll have to tell that story and that experience again to the Crown. And they'll also receive an Ontario support as a victim witness from something called the Victim Witness Assistance Program. From there, there are a couple of ways that a case might be resolved. It could be resolved before a trial, for example, with the person who's accused completing domestic violence education or counselling. If there's a guilty plea, and there are other certain factors there that are present. There are also very limited circumstances where you can resolve a case in that way, again, according to how the Crown dictates these things are prosecuted. But if the case isn't resolved before trial, it could move forward to a circumstance where a victim has to testify, be cross-examined by Defence counsel , have to share their experience again in open court, have the experience be questioned, be called a liar, perhaps have it minimized. And you can understand all the ways that that could be very retraumatizing for somebody. And then at the end of the day, there might be a finding of guilt. And there's only a finding of guilt if there's proof beyond a reasonable doubt that the violence occurred as alleged. And then from there, there would be an opportunity to provide what's called a victim impact statement, perhaps to seek restitution, like compensation for counselling, and then a sentence would follow from that.So, you can even see in the length of time that I have taken to describe it. It is a very, it can be a very intensive process. It's a process in which a heck of a lot is demanded of victims and survivors to get from initiating a complaint to resolving the complaint. And there are so many ways in that process that a victim or survivor can be caused additional harm. Amelia Berot-Burns Yeah, it's such an inherently vulnerable place to disclose something like that that's happened and then have it be that rigid and formalized. I can only imagine that it's not something that's easy to go through. So, I think you've highlighted pretty clearly what the issues are with that current structure just by describing it. But is there anything else that you can flag that might be causing additional harm through that process or anything that you've heard from people who have survived this process? Pam Hrick Yeah, I mean, the real, some of the real highlights would be there are, you know, barriers to reporting and, you know, not to repeat myself, but people may understand the repercussions of actually engaging the criminal system and the skepticism that they might be facing once they do. There's a general lack of belief, especially among more communities, some communities more than others, and specifically the communities that have historically been surveilled or otherwise disproportionately impacted by police conduct. So, you think of Black, Indigenous and other racialized communities, sex worker communities that would be hesitant to engage the system in the first place because they have just seen the overall harm that it has done to members of their communities. You can see the way that control is sort of lost by the victim or survivor. A specific example of that is the directive and how these cases are prosecuted. The Crown can't withdraw charges solely based on the victim or survivor's request. And even in the way that the directive is worded, it's just one factor among others that a prosecutor has to consider when deciding whether or not to continue prosecuting someone who's been charged with a crime involving intimate partner violence. And it's really driven forward by broader kind of contextual and systemic considerations rather than a survivor simply saying, I don't want this. I want it to stop. So, those are some of the ways in which there are real problems and that have been recounted by survivors and victims that have gone through this process and that have spoken openly about it. Amelia Berot-Burns Yeah. And , so section 717 of our criminal code allows for Crown attorneys to divert cases from this traditional court structure into alternative measure programs. Is this coming from that place of understanding that this traditional structure has not been helpful maybe to survivors? Why is this process significant in the context of inter-partner violence in particular? Because I know 717 can go to other things as well. Pam Hrick Yeah. So, without speaking to all of the motivations that are behi nd section 717 of the criminal code, which allows these cases sometimes to be diverted out of the system resolved by ways other than a formal finding of guilt or a conviction, I think there's a recognition of there being other ways to perhaps more effectively address harm and prevent it and seek accountability for it than to go through the formal rigid court process that requires all of the trappings and protections that are to slip into my lawyer mindset, the constitutionally protected rights that accused persons have, and they must continue to have. Section 717 recognizes there are perhaps other more effective ways to address harm that's been done than to pursue a prosecution to conclusion. I think perhaps another at least tangential motivating factor for it is recognizing that the criminal system cannot bear the weight of simply prosecuting everything that has been charged over the course or over the sort of breadth of the many, many criminal offenses that exist. The system would collapse under its own weight. In fact, we are seeing in Ontario at least the system collapsing under its own weight already. So, 717 at least allows for cases to be thoughtfully and in a structured way dealt with in incorporating other ways to address the harm than simply that full-fledged prosecution. So, there are certain specific circumstances that 717 sets out that must be or conditions that must be met before you can do what's sometimes referred to as diversion, but these alternative measures, they can't be used if someone denies involvement in the offense or says that they want the charge to be dealt with by the court and they have to be generally willing to assume responsibility for their actions and prepare to make what you call meaningful amends. I think it might be helpful to provide a few examples perhaps of what alternative measures might look like. So, there are formal programs in Ontario. Two of them I'll highlight. One is called the Direct Accountability Program and that can include community service, attending programming or restitution. There is also something called the Indigenous Community Justice Program and that is culturally based and provides support both for pre- and post-charge diversion that includes meaningful alternatives to the criminal process and it also includes Indigenous specific practices of healing circles and developing a healing plan Those are examples of formal programs that constitute alternative measures, but in some circumstances, you could have simply comm selling, additional addiction or mental health counselling. As I describe these, I want folks to keep in mind there's a broad range of offenses for which alternative measures could apply. Nothing in this section of the Criminal Code limits the type of offense that can be subjected to, can be resolved by alternative measures. However, where the restrictions come in is in the Crown. Again, going back to the Crown being directed and how it handles criminal charges sort of in a centralized way by higher-ups in the Ministry of the Attorney General. Section 717 alternative measures cannot be pursued in Ontario in sexual offense cases. For intimate partner violence cases, they are, quote, I'm using air quotes, “presumptively ineligible” and so they're only available in exceptional cases in Ontario and I think that's significant because of the potential availability of restorative justice and transformative justice and criminal charges related to IPV and sort of gives the hook for better exploring, for example, that recommendation from the Renfrew Inquest jury to try to explore and implement where appropriate more restorative and transformative, more restorative justice processes for intimate partner violence. Amelia Berot-Burns Yeah, thanks for giving those examples of what alternative measures could be. I think a lot of people think of it and maybe like a divorce family law setting where it's just people across the table doing traditional mediation and it's nice to hear that it can take so many different forms depending on what the situation calls for. I think something that might seem obvious and you kind of did touch on, but the accountability piece is pretty central and how can this be navigated if there isn't a willingness to participate from all parties involved because it kind of is, yeah, dependent to have someone willing to be helped and go through this process and kind of goes back to the question of what is a success in this situation because how do you measure what justice is if everyone's coming into it with a different sense of what they want out of the situation? Pam Hrick I think you've asked a really important question and I think that is one of the reasons why people who engage in restorative justice work in the context of sexual violence and intimate partner violence have to be very carefully trained to sort of mediate that process. So, I wouldn't see intimate partner violence cases being resolved by alternative measures that include only, for example, a charitable donation and that's not going to get to the sort of crux of the issues that caused the harm in the first place and that's not going to be really what I would assume most survivors would consider meaningful accountability for the harms caused. But in a case of intimate partner violence, what you really want to see and ensure is that you had supports for both the survivor and the perpetrator that allow them to engage in this process if there is a willingness on both sides and I think that's a key threshold issue. If there's not willingness on both sides, a restorative process is probably going to fail and not be appropriate for the circumstances. So, this goes back to me saying earlier not all IPV cases are going to be appropriate for restorative or transformative justice, but where you do have that willingness and you're going to engage in something like mediation is an example of restorative justice that could fit into the framework of alternative measures under the section of the criminal code. You want to have somebody who is mediating that process, who's providing structure to that process, who understands the dynamics of intimate partner violence, who is able to understand and see where perhaps there might be opportunities for manipulation because we also know and have become more and more aware of the ways in which abuse is not simply physical. There have been lots of conversations recently in Canada about coercive control and that form of violence which is not necessarily physical being better understood in the family law context as well as other contexts. So, you want somebody who is managing a restorative process, who really understands the ins and outs and dynamics of intimate partner violence and can really help navigate that process in a meaningful way that helps people get to that sense of okay, this is what accountability looks like, this is what justice feels like for me, and you want people to be informed on both sides and have common understandings about what this process can and cannot do. So, it's very, I think, complicated in the intimate partner violence context but that does not mean that it's not possible to navigate and offer as an alternative for survivors. Amelia Berot-Burns Yeah, I think that touches on my next question really well about the limits of this process in our current landscape, especially in Ontario. There seems to be a lack of funding and education around these pieces, both on the Crown side and in the community side. So, how might someone learn more? How might we advocate for more funding in these spaces and how might we grow these alternative processes? Pam Hrick I think there's a really important piece of collaboration and common advocacy that needs to be done among legal organizations like LEAF, among frontline service providers to survivors of intimate partner violence and sexual violence more broadly, and as well as amongst other community members to try to really elevate the existence of these forms of justice to try to tackle common misperceptions. One of the big misconceptions, I should say, is that this is just a lenient form of resolving and addressing harm that's been done of addressing violence against women, gender-based violence and intimate partner violence, generally speaking. It's not just a slap on the wrist and I think there's an education piece that needs to be brought forward and really built upon to address that misconception among the broader public and among justice stakeholders too. I'll say specifically in this case, among folks who might occupy upper tier offices within the Ministry of the Attorney General, the Attorney General himself. It doesn't do us a lot of justice, pun intended, to think of the only way to seriously address gender-based violence and intimate partner violence as being throwing the criminal system at the problem. It's not, and so I think we have a lot of education, collaboration to do in this sector to try to sort of change the narrative about restorative and transformative justice. Alongside that, there's the advocacy piece about funding these programs, whether they are fully community-based and we should fund those programs or whether they are programs that are also integrated into the criminal system in some of the ways I've talked about already. One of the biggest challenges, and this came forth in our Avenues to Justice report as well, is that there aren't enough providers and overseers of restorative justice and transformative justice processes to address the demand for it, to make it a viable option for a lot of people who are looking for ways to address the violence that they have experienced that might not involve the carceral system, and there really aren't enough of these in the community-based programs that are allowing people to train up in these areas in the way that I sort of described. The expertise needs to be developed to deal with sexual violence and intimate partner violence through restorative and transformative processes already. So, LEAF is involved in some of this advocacy. I know we have uh, there are a lot of partner organizations that have been as well, and I think it's a really wonderful opportunity to be able to highlight how so many of these practices, but not all of them, are rooted in Indigenous communities, and while we are advocating for looking at restorative and transformative justice more broadly and making it more available, this also really provides an interesting and important opportunity to revitalize Indigenous legal orders and Indigenous practices that have been sort of snuffed out by the colonial criminal legal system as well. So, I think there's a lot of work to be done, but a lot of exciting opportunity in this moment to really change discourse on restorative and transformative justice for these forms of violence and to make some meaningful inroads to make it more available to survivors as well. Amelia Berot-Burns Yeah, thanks for that additional comment, and I think it's important to, yeah, decolonize how we conceptualize justice, and it's so important to remember that in situations like this, where there's more than one party, punishing one person doesn't help another person heal, and so, to me, restorative justice kind of is the only option, even if it's in conjunction with the criminal justice system. Like, the survivor needs to be a consideration, and so, this is a very hopeful thing for me that it is increasingly in our society that we're able to talk about these things, and whether or not we're in a place where it's successful every time, at least it seems to me like we're maybe moving in that direction as it enters the mainstream. Before we end today, is there anything else that you want to discuss on this topic that we haven't been able to touch on yet? Pam Hrick I think, I just want to highlight, I haven't had the chance to talk about the ways in which some provinces are making more headway than others and really proactively, or I shouldn't say proactively, it's not proactive, it is in response to many, many years of communities and survivors saying that the criminal system doesn't work for them. I want to highlight an example in Alberta. Alberta, their courts have recently launched a pilot project for restorative justice and criminal matters that specifically considers referrals for gender-based violence and sexual violence, so I would commend to folks who want to learn more about this, taking a look at the plan and some of the supporting documents and referral guides that have been produced for the Alberta Restorative Justice Committee pilot project in that province, and it feels to me like having pilots being put in place and led by courts in this manner provides an opportunity for other provinces, other courts, to see that this is really a viable way of dealing with intimate partner violence, gender-based violence, again, in appropriate cases, and to take up those examples and implement them across the country in more meaningful ways. So, I think that's a really interesting piece for me, and I also, again, want to highlight, though, that it's not going to be sufficient to simply invest in processes that tie restorative justice to the criminal legal system, that aren't, you know, exclusively dependent on a charge having been laid to access restorative justice or transformative justice. It's really important to invest in fully community-based processes as well for folks who do not want to engage and be forced to engage in the criminal legal system too. So, I'm very hopeful that we'll continue to make inroads in trying to force some of these changes forward, and it feels like a real privilege to be at LEAF, at an organization that has historically advocated for women, girls, trans, and non-binary people, including on issues of gender-based violence, to be here at a time when we're really critically evaluating our engagement in the criminal legal system, acknowledging the harms that it has done, and we're able to amplify, learn from, listen to, and, where needed, get out of the way to allow, to cede space to the communities that have been saying this for years. And so, I'm hopeful we're able to be part of bringing forward some of the solutions that we've been told are needed for such a long time. Amelia Berot-Burns Yeah, and thanks for mentioning those resources. There are quite a few out there for anyone who's interested in learning more about transformative and restorative justice. We can link in our show notes the Alberta's Restorative Justice Committee pilot project, as well as LEAF's Avenues to Justice report, along with some other interesting resources that you sent to me before this show. So, I just want to say thank you again for being with us today and talking about this really important subject, and I hope that our listeners learned something. Pam Hrick Thanks for having me. I really enjoyed the conversation. Herman Wong Yes, thank you so much, Pam. Thank you so much, Amelia, for hosting this episode. Again, all the resources that we've mentioned throughout this show will be posted in our show notes as resources, so feel free to take a look at LEAF's website as well as our resources below for more information. But apart from that, once again, thank you so much to Pam and Amelia. We're so appreciative of your time, and we learned so much from both of you today. So, thank you so much. Thank you for tuning into another episode of Law Syrup. On the next episode, I’m joined by my high school friends as we discuss how each of us made our journey to law school. Law Syrup is produced by me, Herman Wong, and the Ontario Justice Education Network. For more information, check out www.ojen.ca and our show notes. See you next time.