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Restorative Justice

Restorative Justice

Let’s listen and hear above the noise, shall we?

Is Restorative Justice as bad as the media coverage suggest? Read The Star Class Action Story.

The short answer is “no”. This is a U.S. class-action case. Most of the shoplifters who have been legally stopped for theft and attended a restorative justice program don’t even know that these lawyers grabbed on to the case.

RJ is a viable and proven system of justice that actually addresses the issues at hand, knowledge, behaviour, and actions of people engaged in criminal activity. And the stats say it works – better than the criminal stream for sure!

The U.S lawsuit that is being described as some sort of major collusion to extort money is noise and does not address the crime and response activity. That can still be met with RJ as a solution. 

Because of this noise of a class action, there is a risk that the original program which has tremendous value, may get shelved.

Rather than looking for the root cause of an issue and tweak the process so it improves just so slightly as to be a completely sound program, the masses have looked at the one slight crack in the program to dismantle it and claim an award for damages. 

The reality is that the initial act which triggered all steps was a theft, perpetrated by the (now claiming to be) victim.

I have been asked to comment on what the Canadian program might look like, so here it is.

Let’s start with the streams of justice – there are three.

Criminal Justice System

The Criminal Code of Canada lays out the legal system with respect to theft and fraud, and a number of other crimes, that are dealt with by retailers. 

Typically the process is that a customer engaging in criminal acts against the retailer is arrested and held by store security, and police are called.

Police may attend (they should attend but they don’t always) to take over the arrest. They may choose to charge the person and then the matter falls before the Courts and the Crown Attorney is the next responsible person.

The Courts may hear the case, but the Crown Attorney has a program available to them called “Diversion Program”…a program designed to elevate the burden of so-called victimless crimes on the resources of the Court. In my opinion, a flawed program at best. The Crown can divert the case. No penalty, no education. Justice certain not restored.

This is where the program being heavily scrutinized by the US as a result of this Class Action comes into play – it may very well be the solution to a problem in Canada. So let’s try to listen and hear above the noise folks.

Civil remedy

You can sue

The Civil Code in Quebec and the Common Law in the rest of Canada are the basis for legal action whereby you hold another person responsible for damages and set out those damages in financial terms.

A lot of retailers in Canada use civil remedy or civil demand notices. The key is this; it is not one or another, you can sue and charge criminally at the same time. This leads me to RJ

Restorative Justice 

RJ was first used as a mainstream solution in Canada as long ago as 1974. See RJ Canada History

It is proven but has not gained momentum. It is the oldest known legal system in Canada, and the best way to describe it is this; 

First Nations communities did not know of the criminal prosecution system until Christopher Columbus landed in North America. Part of his crew was so called prisoners, and he had to build the first prison to hold them after they landed. What they did know is that they had a collaborative and inclusive justice system that worked!

Before this period of time, villagers took matters into their own hands, and the communities through healing circles, guiding the offender to a better path. They all took part in the solution; the accused, the victim, and the community.

So how do they work together?

Remember what I wrote about in terms of Diversion? I said I didn’t have much faith in it. Why? Because I know of one person who has been diverted (an option for first-time offenders) 11 times! 

How is that possible?

Because when you are diverted, you have no record, so offend again, and the system says you are eligible again.

How is RJ a viable solution in Canada for shoplifting?

There are a number of things happening now that are all quickly converging and become a huge potential problem for retailers.

First things first – Police have as much of a challenge to place resources where they are best served – violent offenders. I agree and have no problem with that, but it also means they are responding less and less to shoplifting activity. 

Even if they do attend and prosecute, that Diversion program we spoke of … it just does not work.

One major city undertook an expensive study that resulted in findings that suggest the need for transformation. One of the recommendations which will probably go through is to stop going to shoplifting calls in the city. Allow the retailer to take the initiative to resolve it themselves. 


That wasn’t in the report.

Restorative Justice has a place in this that can be a solution to those first-time offenders who may not be best served being prosecuted.

Put them through a Restorative Justice Program where they learn about the impact their actions have on others, and all of the wonderful things that RJ presents. Recidivism is extremely low (put somebody through the criminal system and some say you educate them to be better criminals – especially if they are incarcerated).

So while we read the headlines of a class action suit, and accusations are made about racketeering by some very reputable and credible  people in the US let’s remember this – (1) RJ works, (2) the current system needs a fix, (3) the claimants started the process by committing crimes, and (4) there is noise that may interfere with doing the right thing.

That “right thing” is incorporating RJ into the existing justice streams where it is best served.

What went wrong?

We’ll see what the Courts say if they get a chance to hear everything, but the way I see it is one simple step in the process left a question, was it a “this or that” factor? In reality, they should be asking “how do we make this work for everyone?”


About Stephen O'Keefe

As an independent consultant I leverage my experience and knowledge to help a number of companies achieve results. Clients range from non-retailers looking for guidance to serve their retail customer, to retailers looking for quick solutions to unique and costly problems, right to the Industry Association. Bottom line Matters!

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