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.)
[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
[10] Neil Brooks, “The Judge and The Adversary System” (1976)
Introduction to Legal Studies at 213
[13] Neil Brooks, “The Judge and The Adversary System” (1976)
Introduction to Legal Studies at 218
[20] Mark S. Umbreit, “Restorative Justice and Mediation: Is the Public
Interested?” (2001) Introduction to Legal Studies, 169
[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
[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
[32] Steven Vago & Adie
Nelson, Law and Society (Toronto: Pearson, 2008) at
48
http://dghjdfsghkrdghdgja.appspot.com/thoughts/essays/pauchay.html
http://dghjdfsghkrdghdgja.appspot.com/thoughts/essays/pauchay.html