Restorative Justice week is November 19-26, 2017. When thinking about criminal justice and corrections, it is imperative to ensure our contemplation extends to exploring the appropriateness of restorative justice. This Restorative Justice week, I challenge us all to contemplate how innovation in the direction of restorative justice is relevant not just to minor cases, but to the most difficult ones, like the example of Karla Homolka’s current circumstances, as discussed below.
Restorative justice is variously defined, but the official definition of Restorative Justice accepted by the Correctional Service of Canada is:
a philosophy and an approach that views crime and conflict principally as harm done to people and relationships. It strives to provide support and safe opportunities for the voluntary participation and communication between those affected (victims, offenders, and community) to encourage accountability, reparation, and a movement towards understanding, feelings of satisfaction, healing, safety and a sense of closure. (CSC)
Restorative justice principles and processes seek to cultivate healing for those who have been victimized by crime, to ensure offenders are held accountable in meaningful ways, and that individual community members are involved in the responses to crime, in order to create healthy, safe communities.
We need to talk about Restorative Justice not just when it is relatively easy, like when a kid steals a bike, as is provided for under the Youth Criminal Justice Act, which emphasizes the use of extrajudicial measures and sanctions under s. 4 and s. 9, but also when it is hard. We need to consider restorative justice because our prisons are overburdened, our population is over-incarcerated, (Annual Report of the Correctional Investigator 2016-2017). There are many thousands of Canadians who are spending time in jail, and many thousands more who will be charged, many who will be released. Accused persons and offenders are part of our communities. The law provides some guidance as to how to balance the rights of a person who has served time for a crime, and completed that sentence, with public safety, but the formal law does not provide easy answers. We need to go not just supply side to a larger and larger criminal and correctional industrial complex, but demand side to look critically at how we are filling our prisons, and how we deal with those who have been there.
Consider the case of Karla Homolka, who served 12 years in custody, after being sentenced in 1993 for her part in the horrific murders of Leslie Mahaffy, Kirsten French, and her own sister, Tammy Homolka. Over the course of the infamous trial of her spouse and accomplice, Paul Bernardo, that followed, the public and media were transfixed by her dangerousness, and, as Kilty and Frigon have persuasively argued, paid far less attention the reasons why she acted as she did (Kilty and Frigon)
Upon her release in 2005, Homolka went in to hiding, only to be discovered by an investigative journalist, Paula Todd, in the Carribean, in 2012. (Todd; Ha) After a brief surge in media attention, Homolka flew below the public radar for five years. However, this year, Karla Homolka has surged into the spotlight again, despite her strongly expressed objections, because she was “discovered” living near Montreal, in Chateauguay, Quebec, with her husband and three children, all born since her release. Self-proclaimed vigilantes have established groups and pages on social media to track Homolka's movements.
RobsonCrim contributor Jennifer Kilty has offered useful commentary about this attention, contending that:
Allowing the stigma that Homolka will eternally carry to affect how we treat her children is a community failure and runs the risk of irrevocably damaging the mother-child relationship. While Homolka remains enigmatic in her dual identity as both victim and victimizer, it is important to consider that after 25 years, being a mother of three is now her most significant identity. Permitting Homolka to reintegrate and fade from our gaze will not only help protect her relationship with her children, it will prevent re- traumatizing the community with each media story that recounts the lurid details of this case. (Kilty)
Without taking any position on what Homolka deserves, there can be no question, as Kilty writes, (Kilty) that her children are not at fault for what transpired all those years ago and are at strong risk of harm from the negative attention.
Further, what of the voyeurs and vigilantes obsessing over her case in ways that are incredibly troubling, in ways that define the “watchers” at least as much as they define Homolka, and in ways that put those “watchers” at risk of arrest themselves.
Those participating in vigilante and voyeur campaigns to surveil and harass Homolka run the risk of incurring criminal charges for harassment or uttering threats. Charges might legitimately be laid under s. 264 of the Code in relation to harassment and s. 264.1 in relation to uttering threats. Further, all who participate in those online groups might be charged for aiding and abetting in the offence pursuant to s. 21 of the Criminal Code, which provides for party liability, or even with conspiracy pursuant to s. 465 of the Code if the threatening or harassing conduct amounts to an indictable offence.
Without some measure of restorative justice, the situation is only escalated: the Homolka case is an illustrative example of the practical necessity for restorative measures. At this stage, several decades after her conviction, and more than ten years since her release, self-help vigilantism combined with formal system responses are likely to lead to more charges, more people in prison, more crime and, more harm, specifically harm to children. .
This November, I am honoured to be on the organizing committee for the National Restorative Justice Symposium taking place in Ottawa. Speakers will include Justice Minister Jody Wilson-Raybould, Supreme Court Justice the Honourable Malcolm Rowe, and Canadian Bar Association President Kerry Simmons. The Symposium is an annual event, but this year, the interest level is different. This is the first conference I have ever attended or organized that has hit capacity weeks before taking place. All seats are full for the conference, but a waiting list is available. The tag line for the conference is that “our time is now”. Perhaps, after the passing of “get tough” rhetoric on crime, and increasing incarceration rates, the tide is turning towards a more compassionate, innovative, forward-looking criminal justice and correctional system, as it, even just for practical reasons, must do even in difficult cases.
Corrections Canada Definition – Restorative Justice: http://www.csc-scc.gc.ca/restorative-justice/003005-0007-eng.shtml
Corrections Canada Website – Restorative Justice Week: http://www.csc-scc.gc.ca/restorative-justice/003005-2000-eng.shtml
Criminal Code of Canada SC 1985, c. 46.
Youth Criminal Justice Act SC 2002, c. 1.
Ha, Tu Thanh, "Karla Homolka lives in Guadeloupe and has three children, new book reveals", Globe and Mail, 21 June 2012.
Kilty, Jennifer, “Watching Karla, 27 years later” Winnipeg Free Press ( 7 May 2016) https://www.winnipegfreepress.com/opinion/analysis/watching-karla-27-years-later-378490126.html
Kilty, Jennifer and Frigon, Sylvie, “Karla Homolka—From a Woman in Danger to a Dangerous Woman” (2007) 17 Women and Criminal Justice 4.
National Restorative Justice Symposium 2017: https://ers.snapuptickets.com/ers/online-registration-closed.cfm?y=cmVhc29uPW1heGVkT3V0
Todd, Paula Finding Karla: How I Tracked Down an Elusive Serial Killer and Discovered a Mother of Three. Canadian Writers Group/The Atavist : June 18th 2012.
ZInger, Ivan Correctional Investigator, Annual Report 2016-2017 (July 2017)