How restorative justice could change sexual assault cases in the NWT

Survivors of sexual violence say restorative justice – an alternative to the traditional court process – can lead to more healing, accountability and transformative change. But that option isn’t allowed for sexual offences in the NWT.

Restorative justice can take many forms.

It usually involves communication between the victim, the offender and sometimes the community to address harm caused by a crime. It almost always involves the offender taking accountability for their actions.

However, restorative justice isn’t always an option victims can choose.

A “diversion protocol” dictates whether charges are laid in court or a case is diverted to a Community Justice Committee, an NWT Department of Justice spokesperson told Cabin Radio.

Right now, the spokesperson said, “offences of a sexual nature are ineligible for diversion.” Instead, restorative justice in the NWT focuses on crimes like theft, mischief, alcohol and drug offences, vandalism and some forms of assault.

This is the same as many other jurisdictions across Canada, including Alberta, Ontario, Quebec, Nova Scotia and Newfoundland and Labrador.

In British Columbia, Saskatchewan and New Brunswick, legislation allows for some sexual assault cases to be diverted to a restorative justice process. Manitoba and Prince Edward Island are reported to have allowed it occasionally.

Even when a case isn’t related to sexual violence, there are factors – like how victims feel, the offender’s criminal history and their attitude are key factors – that affect whether restorative justice is offered.

“Diversion is only possible if the offender accepts responsibility for the offence and is willing to participate in the community justice process,” the Department of Justice spokesperson wrote.

While the process can look different in every case, the outcome of restorative justice can include measures like community service work, restitution (giving something back or offering a form of compensation), counselling, apologies or curfews.

Now, the department is considering changes to its approach. Advocates hope those changes will eventually allow victims to select restorative justice for sexual offences, if they wish.

An updated protocol

A criminal lawyer based in Yellowknife, who requested anonymity to discuss the sensitive nature of his work, said in June 2024, the Public Prosecution Service of Canada issued an update to its deskbook – a document that lays out the guidelines all federal prosecutors must follow.

That update widened the scope of restorative justice to allow more cases to be resolved through alternative measures, the lawyer said.

The NWT’s diversion protocol, which restricts the use of restorative justice, has not received a similar update. But the Department of Justice told Cabin Radio it is currently re-examining that policy, which has been in place since 2010.

The updated draft protocol is scheduled to be complete within the next year, the department said.

The lawyer said he has seen restorative justice allow for communication between a victim and offender in a way that isn’t usually part of a court proceeding, unless it’s in the form of a victim impact statement.

“They don’t often get a genuine face-to-face accountability, apology type of response to what’s taken place,” the lawyer said.

“One of the benefits of restorative justice is it would give an offender an opportunity, and a victim an opportunity to have a direct apology, a demonstration of remorse and a commitment by the accused.”

Restorative justice also allows for victims to ask questions of their offender, and for the accused to hear first-hand of the impact of their actions, the lawyer said.

Not a ‘soft’ approach

At a conference on restorative justice in Toronto last month, survivors of sexual violence described it as a transformative process for them – and for the offenders.

“My assailant went to therapy for about seven months, and we eventually met in a facilitated circle,” said Marlee Liss at the conference.

“It was a circle that changed everyone’s lives. It was healing in a way that blew my mind. It was the opposite of the courtroom in terms of being trauma-informed. The way that I walked out feeling was opposite to the courtroom as well.

“I felt like I let go of, like, 100 lb of trauma and just experienced a sense of closure and even empowerment that I didn’t know could be possible with the justice process.”

“Basically,” she added, “I haven’t shut up about restorative justice ever since.”

Liss is the founder of Survivors 4 Justice Reform, a coalition with chapters across Canada – including the NWT – and internationally that works to challenge justice systems that re-traumatize survivors.

After Liss was assaulted at the age of 21 in Ontario, a nurse at the hospital where she had a rape kit administered said she had two options: go home or report the crime to the police.

“At that point, because I didn’t want [to do] nothing at all, I ended up going to the police and reporting and starting a court process, and that lasted for about three years,” said Liss.

“During the actual assault, I remember saying no and having this realization that my voice was powerless. It wasn’t going to change the situation. And as I started going through the court process, I found the same thing was happening.”

Before the preliminary trial in her case, she remembered being told she had to answer every question posed on the stand or she risked being charged herself.

“I remember having this thought of: not only am I worried I’ll be unable to do that – because I can speak very grounded and coherent about this today, but at the time I wasn’t in this space, I was still dealing with brain fog and freeze response – and I was terrified they’d asked me a question on the stand and I would just freeze, and nothing would come out,” said Liss.

“And then would I be penalized for my trauma responses?

“In this process where we’re supposedly fighting for survivors’ right to consent, I don’t have a right to boundaries or consent, I don’t have a right to sit on the stand and say I’m not comfortable answering that to the defence lawyer.”

Instead of moving forward with the criminal trial, Liss advocated for her case to be handled through a restorative justice process, something she had learned about through her own research into alternatives to incarceration.

While the case was diverted to a restorative justice process, the Crown lawyer who organized that was later disciplined as there has been a moratorium on the use of restorative justice in Ontario sexual violence cases since the 1990s, according to a report from 2023.

Liss and other survivors who spoke at last month’s conference said they sometimes hear from people who think the restorative justice approach is “too soft.”

“I personally believe that they’re clinging to the belief that punishment equals justice. And I think as a society, we even dress punishment up with phrases like being tough on crime, as if harshness automatically equals accountability, but it doesn’t,” said Emily Quint, a sexual violence survivor who is currently on a waitlist to have her case be addressed through restorative justice.

“You can send someone to jail and they can serve every day of their sentence without ever admitting the harm they caused.”

Another survivor, Amanda Carrasco, said she has heard from incarcerated people that a restorative process would be more difficult than being imprisoned.

“There’s nothing that’s easy about this,” Carrasco said.

“Any one of us who have been a part of that process – whether it is letter writing or any engagement in that process, or sitting face to face with the person that committed the greatest harm to you – there is nothing soft about that in any way, shape or form.”

At the same time, the speakers were not advocating for restorative justice to be the default path in cases of sexual assault, as it may not be appropriate for every instance or be the will of every survivor.

“We need victims to be given that option and make that decision for themselves on how they want to move forward,” said Carrasco.