Tuesday, October 15, 2013

R v. Pauchay: Contrasting Traditional Court Practices to Restorative Methods of Justice

R v. Pauchay:
Contrasting Traditional Court Practices to Restorative Methods of Justice
Jesica Murray
Aug 10, 2010

Interspersed in a passage with heavy Pythagorean Cult imagery, Plato once decided that Socrates would declare that justice’s “real concern is not with external actions, but with a man’s inward self.”[1]. While the Platonic-Pythagorean view, which is of course arbitrary like any other view, that only the individual that is in tune with the cosmic ratios of the universe is capable of being “just” may seem somewhat naïve today, if not ludicrously comical, to take Socrates’ words literally would also marginalize the akousmatic analogy; what Socrates really meant to say is that justice is in the mind, that just people must think like just people before they can behave justly and that actions and behaviours do not characterize the abstract mode of thought that truly defines justice. Continuing on with the Pythagorean Cult imagery, Socrates eventually concludes that “It seems, then, that virtue is a kind of mental health or beauty or fitness, and vice a kind of illness or deformity or weakness.”[2]. Once again, this should not be interpreted literally; Socrates seems to simply be acknowledging that those who commit injustices are often not of sound mental health and that the path back to just thinking should be viewed as something clinical, as strange and mystical as views of the clinical may have been at that time.

These ideas are, although exaggerated, largely consistent with the ones underlying the new paradigm of restorative justice, which focuses on reconciliation and not upon punishment. The new paradigm attempts to reduce the influence of the formal criminal justice system in the process of determining punishment in favour of a larger role for the community, including one defined by the victims, and with the eventual intent being social reintegration through the repaying of some concrete debt to the victim instead of through some abstract debt to society[3]. Restorative justice systems do not assign blame or guilt to past events, they ask the offender to take responsibility for past actions by demonstrating a thorough understanding of the consequences of any negative behaviour and then taking concrete steps to reverse the results of any negative actions in order to set things right for both the community and the victim[4]. This is generally accomplished through a victim-offender mediation process that is overseen by either an individual mediator or a team of mediators and that requires an admission of guilt by the offender at a very early stage in the process in order to get right to the catharsis[5]. An underlying assumption driving this meditative approach is that one of the root causes of anti-social behaviour is often real or perceived alienation from the community[6]; the aim of this mediation is to, through lengthy and thorough dialogue, force the offender to build a new relationship with the community by grieving with it[7], with the hope that this will eventually lead the offender to adjust her inward self to think in terms of principles that Socrates would find more conducive to a just individual. Finally, once at least some form of venting and reconciliation is established, a bond is established between the victim and the offender where the offender promises to perform some appropriate task in order to reverse past wrongs in exchange for forgiveness and reintegration into the community[8].

Where a new paradigm exists, an old paradigm cannot be far away. Adjudicative and adversarial approaches to law are interrelated but they are not precisely the same thing and they should be defined separately before they are synthesized into a coherent system. Adjudication is a verb that refers to the process of a judge making an official decision of the guilt or innocence of an accused party.[9] Strictly literally, there is no reason that an adjudicative process must adhere to any kind of objective system of legal standards such as legislative or case law. An informal legal system where decisions are arbitrarily made by a collection of “wise people” or “sages” that, like oracles, are not required to justify their decisions would fit the definition of an adjudicative system; all that adjudication itself refers to is the act of judging. However, within the context of a traditional English legal system, adjudication is always tied to an adversarial system[10]. In an adversarial system, conflict is abstracted into a set of rational arguments that use empirical evidence and Aristotelian logic to simulate a battle between the identified parties. It is the judge’s responsibility to adjudicate in the matter by weighing all available evidence and interpreting it in the context of an objective system of legal principles, specifically legislative and case law, in order to determine who the “winner” in the conflict between the two parties is[11]. The emphasis in this system is on the individual rights of disputants and on the concept of compensation to counteract the infringement of rights, not upon compromise or reconciliation[12]; the assumption underlying all independent parties in the theory of adversarial justice is cold, autonomous self-interest[13], with disputants having little interest in the ultimate well being of the parties they defeat in combat.

Clearly, these two paradigms are in contradiction with one another, as can be explained by exploring the case of R v. Pauchay. The facts of the case are not in dispute[14] and are explored in great detail in the case. The crime that Mr. Pauchay admits guilt of is criminal negligence[15]; specifically, Mr. Pauchay left his two very young children out in the snow in the midst of a long night of drinking in February and they both perished due to hypothermia[16].  It also happens to be the case that Mr. Pauchy, at the age of 25, had a criminal record with 51 entries on it[17]. 

The traditional, adversarial system would see this case as very open and shut. First, there’s a confession[18]. Second, the law quite clearly states that the punishment for criminal negligence causing death is “imprisonment for life”[19]. As the crime would be against the state, a short adversarial trial between Mr. Pauchay and an abstraction of the king would quickly establish blame and guilt and impose a sufficient punishment; the facts being clear and undisputed, the adjudication being uncontroversial and the criminal being thrown away to think about his crime for the rest of his life with no chance of parole and no opportunity to repent, make amends or be forgiven[20].  The old paradigm would explicitly argue against restorative justice approaches, such as that of a sentencing circle, by deploying an array of precedents such as that in R v. Morin [1995]  9 W.W.R 696[21], the general argument being that there is a class of particularly heinous crimes like the one committed by Mr. Pauchay that require punishment in traditional terms due to the violent and anti-social nature of the crimes themselves, a view articulated by the judge in R v. Morin, “it is clear that the circumstances require, at a minimum, a penitentiary term.”[22]. The argument against a restorative approach in this case also included the observation that Mr. Pauchay had already been convicted sixteen times for refusing to follow through with court orders, suggesting that Mr. Pauchay was not a rational candidate for a sentencing circle due to his historical lack of respect for the decisions of the court[23].

The new paradigm, however, would see things differently. In this specific circumstance, Mr. Pauchey has requested a sentencing circle, which is an experimental approach to restorative justice that has been explored extensively in Canada[24]. The circle would consist of members of the community that would confront Mr. Pauchey about the consequences that his drinking and negligence have had with the goal of having him understand these consequences, acknowledge them as real and work out a plan for the future that will help heal the offender, victim and community, allowing for full reintegration back into society.[25] While the punishment that Mr. Pauchay would ultimately receive would be determined by the residing judge and not by the sentencing circle[26], a purist on the restorative side would argue that the focus should not be upon abstract kinds of punishment for crimes committed against the state at all but upon getting Mr. Pauchay the help he needs to, at the very least, stop drinking so heavily[27]. The intimidating and often violent language of adversarial justice, language that would speak of “imprisonment for life” and how it is “clear” that a penitentiary term is “required”, would be replaced by constructive dialogue between Mr. Pauchay and his community; in time, stigmas and negative labels associated with Mr. Pauchay’s mistakes would hopefully be completely forgotten as Mr. Pauchay once again becomes an essential, integrated member of his community[28]. Advocates of applying restorative justice principles to this case would point to the criteria for circle sentencing developed in R. v. Joseyounen and take it as a valid precedent, arguing that the relevancy of a sentencing circle in R. v. Pauchay is directly established by case law.

Any student of critical legal studies would conclude that this situation is a mess. With clear precedents for both arguments, the entire approach of referring to case law becomes a sort of elaborate joke, a twisted game where cases are scoured for ideological support and not the initial system of stare decisis theoretically envisioned. As these inconsistencies in case law deny the adjudicator of any kind of a clear, objective guiding force, it is consequently the case that the judge has no option but to use a great deal of discretion in strategically collecting information from previously decided cases with the purpose of constructing an argument that conforms to his own prejudices, predilections and biases[29]. The precedent chosen was from R. v. Joseyounen and consisted of seven criteria that must be satisfied before a case can go to a sentencing circle, six of which were relevant and five of which were clearly shown to be satisfied[30]. The remaining point, whether or not a risk should be taken in the possibility of the production of a lax sentence, was actually not truly relevant because the judge always retains the final say in the outcome of the restorative process anyways; that is to say that if the sentencing circle were to produce a result that the judge felt was insufficient, the judge would retain the right to overturn the circle and enforce a traditional punishment[31]. The court appears to have applied this test correctly, leaving little room for dissent or discussion. From a critical legal studies perspective, the reasons underlying the court’s decision to choose that precedent over another are not important; the judge pieced together the desired precedent to support a decision that he had already made, and quite plausibly for arbitrary reasons: curiosity, excitement or a desire to create an important document to be cited in the future are motives that, while frivolous, are truly not implausible[32]. Likewise, the reasons underlying the decision of this author to support the chosen precedent are not relevant relative to the decision to actually support the precedent because if the reasons were to modulate to their contradictions then the differing results would not be any more or less rational relative to existing case law, nor any more suitable for use as an objective standard; all of the arguments collapse to a personal aversion to non-rehabilitative punishment as a constructive means of correcting negative behaviour and any arguments presented would be manipulated in order to achieve that aim. I concur with the decision to allow a sentencing circle because I think that Mr. Pauchay requires help with his addiction more than he requires a lengthy stay in a penitentiary and any legal arguments that I would construct to support this view would be little more than pragmatic tools to achieve my ulterior, ideologically driven motives, shifting and dishonest arguments that I would support only so long as they are useful to my political views. Critical Legalism demands that these sorts of biases be stated and understood in order to understand what role they play, the logical conclusion being that the legal arguments themselves are no longer even worth articulating; the actual practice of law reduces to little more than the implementation of a collection of opinions, opinions that only require support and corresponding evidence for the cosmetic purposes of maintaining tradition.

The question of restorative vs. adjudicative-adversarial processes in the quest for justice is one that is based upon a more fundamental question, namely the question of what justice is. If justice is a process of retribution and the appropriateness of implementation is to be determined by logic and objective facts then the latter is the approach to follow; if justice is some kind of abstraction of inner peace manifested in a correctness of thought then restorative processes are needed to restore that peace to offenders through reconciliation and reintegration. At least one historical figure that provided an answer to the pertinent question, what is justice?, would likely deduce that a restorative process has a better chance of cleansing an offender’s soul and accomplishing the task of converting the offender into an individual who thinks in just terms and consequently produces just actions.












Bibliography
Neil Brooks, “The Judge and the Adversary System” (1976) Introduction to Legal Studies

Heino Liles, “Circle Sentencing: Part of the Restorative Justice Continuum” (2002) http://www.iirp.org/library/mn02/mn02_lilles.html

Plato, Republic, (New York: Penguin Classics, 1966)

R. v. Pauchey [2009] 1 C.N.L.R. 317, 64 C.R.
Mark S. Umbreit, “Restorative Justice and Mediation: Is the Public Interested?” (2001) Introduction to Legal Studies
Steven Vago & Adie Nelson,  Law and Society (Toronto: Pearson, 2008)




















Cursory Endnote

What do I really think? Well, despite the fact that I like the idea, I don’t personally have a lot of faith in restorative justice procedures due to my rather negative view of human nature. I fully expect that what will likely happen is that the sentencing circle will fail to have any long term effect on Mr. Pauchy and that he’ll probably be found stumbling around in the snow again within a few months after any verdict is completed. However, that doesn’t mean that the approach shouldn’t be attempted. Suppose the sentencing circle succeeds; we have a rehabilitated member of society, the supposed goal of the whole system. Suppose the sentencing circle fails; then we go back to the drawing board and try something else. I’m attracted to this option because it strikes me as an opportunity, one that I think that all people in difficult positions should be given, and while I have little faith in the general criminal taking advantage of this opportunity, the few that do and change their lives drastically make all of the costs and failure and overrun associated with the procedure worthwhile.

I also admit to rushing this slightly, to not spending as much time on it as I could (hey, it’s august) and to it not being the most profound piece of writing I’ve ever constructed.

(Flesch-Kincaid: 25.8/18.5. Heh.)


[1] Plato, The Republic, (New York: Penguin Classics, 1966) at s. 443
[2] Plato, The Republic, (New York: Penguin Classics, 1966) at s. 444
[3] Mark S. Umbreit, “Restorative Justice and Mediation: Is the Public Interested?” (2001) Introduction to Legal Studies, 168
[4] Mark S. Umbreit, “Restorative Justice and Mediation: Is the Public Interested?” (2001) Introduction to Legal Studies, 169
[5] Heino Liles, “Circle Sentencing: Part of the Restorative Justice Continuum” (2002) http://www.iirp.org/library/mn02/mn02_lilles.html at 2
[6] Mark S. Umbreit, “Restorative Justice and Mediation: Is the Public Interested?” (2001) Introduction to Legal Studies, 168
[7] Mark S. Umbreit, “Restorative Justice and Mediation: Is the Public Interested?” (2001) Introduction to Legal Studies, 171
[8] Mark S. Umbreit, “Restorative Justice and Mediation: Is the Public Interested?” (2001) Introduction to Legal Studies, 171
[9] Steven Vago & Adie Nelson,  Law and Society (Toronto: Pearson, 2008) at 60
[10] Neil Brooks, “The Judge and The Adversary System” (1976) Introduction to Legal Studies at 213
[11] Steven Vago & Adie Nelson,  Law and Society (Toronto: Pearson, 2008) at 211
[12] Steven Vago & Adie Nelson,  Law and Society (Toronto: Pearson, 2008) at 211
[13] Neil Brooks, “The Judge and The Adversary System” (1976) Introduction to Legal Studies at 218
[14] R. v. Pauchey [2009] 1 C.N.L.R. 317, 64 C.R. at para 5
[15] R. v. Pauchey [2009] 1 C.N.L.R. 317, 64 C.R. at para 1
[16] R. v. Pauchey [2009] 1 C.N.L.R. 317, 64 C.R. at para 17
[17] R. v. Pauchey [2009] 1 C.N.L.R. 317, 64 C.R. at para 21
[18] R. v. Pauchey [2009] 1 C.N.L.R. 317, 64 C.R. at para 1
[19] R. v. Pauchey [2009] 1 C.N.L.R. 317, 64 C.R. at para 37
[20] Mark S. Umbreit, “Restorative Justice and Mediation: Is the Public Interested?” (2001) Introduction to Legal Studies, 169
[21] R. v. Pauchey [2009] 1 C.N.L.R. 317, 64 C.R. at introduction
[22] R. v. Pauchey [2009] 1 C.N.L.R. 317, 64 C.R. at para 44
[23] R. v. Pauchey [2009] 1 C.N.L.R. 317, 64 C.R. at para 47
[24] Heino Liles, “Circle Sentencing: Part of the Restorative Justice Continuum” (2002)  http://www.iirp.org/library/mn02/mn02_lilles.html at 1
[25] Heino Liles, “Circle Sentencing: Part of the Restorative Justice Continuum” (2002)  http://www.iirp.org/library/mn02/mn02_lilles.html at 2
[26] R. v. Pauchey [2009] 1 C.N.L.R. 317, 64 C.R. at para 53
[27] Mark S. Umbreit, “Restorative Justice and Mediation: Is the Public Interested?” (2001) Introduction to Legal Studies, 169
[28] Mark S. Umbreit, “Restorative Justice and Mediation: Is the Public Interested?” (2001) Introduction to Legal Studies, 169
[29] Steven Vago & Adie Nelson,  Law and Society (Toronto: Pearson, 2008) at 48
[30] R. v. Pauchey [2009] 1 C.N.L.R. 317, 64 C.R. at para 22-36
[31] R. v. Pauchey [2009] 1 C.N.L.R. 317, 64 C.R. at para 53
[32] Steven Vago & Adie Nelson,  Law and Society (Toronto: Pearson, 2008) at 48

http://dghjdfsghkrdghdgja.appspot.com/thoughts/essays/pauchay.html