Restorative Justice Program Protocols

1.0 General Protocol

1.1 Introduction

The Nova Scotia Restorative Justice Program is grounded in a shared commitment to collaboration by Justice Partners from government and community in support of restorative justice in Nova Scotia.

These Justice Partners have a common commitment and responsibility to the public interest to ensure the administration of criminal justice is accessible, meaningful, effective and efficient. Justice Partners maintain restorative justice is central to achieving this goal and are committed to collaboration in support of the Nova Scotia Restorative Justice Program (NSRJP) in accordance with the Memorandum of Understanding (MOU) signed by the Justice Partners and the following program protocols as well as applicable operating procedures and policies.

The NSRJP is established and supported by the Attorney General for Nova Scotia. Further, the NSRJP is authorized by the Attorney General for use by the police and the Crown as a program of alternative measures for adults under the Criminal Code (Canada) and as a program of extrajudicial sanctions for young persons under the Youth Criminal Justice Act (Canada) and the Youth Justice Act. As reflected in the MOU, Justice Partners are committed to pursue and support coordinated implementation of the NSRJP throughout the justice system.

Justice Partners understand restorative justice as an approach to justice focused on securing just relations among individuals, groups, communities and institutions in society.

Justice Partners are equally committed to supporting and facilitating access to Customary Law Processes for Indigenous young persons and adults in Nova Scotia. It is intended that restorative justice should complement and support the commitment to honour customary law and Indigenous justice.

The NSRJP protocols are consistent with the legal authority for the NSRJP and set out the philosophical and operational framework by which discretion is exercised to refer to NSRJP, including eligibility for referral, referral options (including reasons guiding use and referral to restorative justice), procedures for referral to Regional RJ Teams, and the operations of the Regional RJ Teams.

These protocols apply to all ongoing and future referrals to the NSRJP until such time as the protocols are amended or replaced.

1.2 Authorization

The NSRJP is supported and approved by the Attorney General for Nova Scotia as an integrated program for adults and young persons in conflict with the law. The program may be used by Justice Partners and the Judiciary at their respective stages of the criminal justice process as contemplated in these protocols and pursuant to their authority and discretion available at law and as consistent with their roles and responsibilities. In addition, for purposes of the police and crown protocols, the NSRJP is authorized as a program of alternative measures for adults under section 717 of the Criminal Code, RSC 1985, c C-46, and as a program of extrajudicial sanctions for young persons under section 10 of the Youth Criminal Justice Act, SC 2002, c 1 and Section 10 of the Youth Justice Act, SNS 2001, c 38 (Program Authorization).

In the case of young persons, subsection 10(2) of the YCJA provides that an extrajudicial sanction may be used only if:

it is part of a program of sanctions that may be authorized by the Attorney General or authorized by a person, or a member of a class of persons, designated by the lieutenant governor in council of the province;
the person who is considering whether to use the extrajudicial sanction is satisfied that it would be appropriate, having regard to the needs of the young person and the interests of society;
the young person, having been informed of the extrajudicial sanction, fully and freely consents to be subject to it;
the young person has, before consenting to be subject to the extrajudicial sanction, been advised of his or her right to be represented by counsel and been given a reasonable opportunity to consult with counsel;
the young person accepts responsibility for the act or omission that forms the basis of the offence that he or she is alleged to have committed;
there is, in the opinion of the Attorney General, sufficient evidence to proceed with the prosecution of the offence; and
the prosecution of the offence is not in any way barred at law.

Additionally, subsection 10(2) of Nova Scotia’s YJA provides that an extrajudicial sanction may be used only if:

it is part of a program of sanctions that is authorized by the Minister or authorized by a person, or a member of a class of persons, designated by the Governor in Council of the province;
the person who is considering whether to use the extrajudicial sanction is satisfied that it would be appropriate, having regard to the needs of the young person and the interests of society;
the young person, having been informed of the extrajudicial sanction, fully and freely consents to be subject to it;
the young person has, before consenting to be subject to the extrajudicial sanction, been advised of the young person’s right to be represented by counsel and been given a reasonable opportunity to consult with counsel;
the young person accepts responsibility for the act or omission that forms the basis of the offence that the young person is alleged to have committed;
there is, in the opinion of the Minister, sufficient evidence to proceed with the prosecution of the offence; and
the prosecution of the offence is not in any way barred at law.

In the case of adults, subsection 717(1) of the Criminal Code provides that alternative measures may be used to deal with a person alleged to have committed an offence only if it is not inconsistent with the protection of society and the following conditions are met:

the measures are part of a program of alternative measures authorized by the Attorney General or the Attorney General’s delegate or authorized by a person, or a person within a class of persons, designated by the lieutenant governor in council of a province;
the person who is considering whether to use the measures is satisfied that they would be appropriate, having regard to the needs of the person alleged to have committed the offence and the interests of society and of the victim;
the person, having been informed of the alternative measures, fully and freely consents to participate therein;
the person has, before consenting to participate in the alternative measures, been advised of the right to be represented by counsel;
the person accepts responsibility for the act or omission that forms the basis of the offence that the person is alleged to have committed;
there is, in the opinion of the Attorney General or the Attorney General’s agent, sufficient evidence to proceed with the prosecution of the offence; and
the prosecution of the offence is not in any way barred at law.

In support of the legal authorization for the NSRJP, Justice Partners have undertaken to use and advance use of a restorative approach in the criminal justice system and in the community. All partners have signed a Memorandum of Understanding representing their commitments to collaborate in support of restorative justice in Nova Scotia and in coordinated implementation of the NSRJP.

1.3 Principles, Goals and Objectives

Justice Partners are committed to a restorative approach to justice grounded in the following principles, which guide the development, governance and implementation of the NSRJP and the work of the Justice Partners in support of the NSRJP:

Relationally focused: attention to interconnection, seeking to understand and promote just relations between individuals, groups and communities
Comprehensive and holistic: takes into account histories, contexts and causes of harm and its impacts
Inclusive and participatory: culturally grounded and trauma informed, attentive to the needs of parties and the safety and well-being of participants
Responsive: Contextual, flexible practice, accessible, efficient and effective processes, informed by data and knowledge
Focused on promoting individual and collective accountability & responsibility
Collaborative and non-adversarial: among parties to the process and system and community partners
Forward-focused: educative (not punitive), problem-solving, preventative and proactive

Justice Partners have adopted the following goals and objectives for the NSRJP:

Respond to needs of individuals and communities affected by crime: with particular attention to the needs of victims and those harmed by crime (individuals and communities)
Harm reduction: reduce cycle of harm and injustice, prevent further harms to vulnerable individuals and communities and reduce over-representation of marginalized individuals in the justice system
Support individual and collective taking of responsibility for harm and public safety
Increase access to justice: more effective, timely, inclusive, equitable justice system
Provide responsive justice: human-centered justice processes that consider root causes and seek meaningful outcomes and responses
Increase public confidence and accountability in the administration of justice
Build and support healthy, safe and strong communities

1.4 Eligibility

1.4.1 Indigenous Persons

If a person in conflict with the law identifies as an Indigenous person, consideration must first be given to referral to the Mi’Kmaw Legal Support Network (MLSN) to assess whether the matter is appropriate for resolution under Customary Law according to policy and procedure. If not, then the matter may be considered for referral to the NSRJP in accordance with these program protocols.

1.4.2 Eligibility

All matters are eligible for referral by police, crown, courts, corrections and victim serving agencies. Police, crown and corrections shall consider all matters for referral, except where:

A provincial hold or moratorium is in place; or
Referral is otherwise barred by law.

In considering referrals, referral agents shall ensure the following criteria for eligibility are met:

the person referred fully and freely consents to participate
the person has, before consenting to participate, been advised of the right to be represented by counsel and given a reasonable opportunity to consult with counsel
the person accepts responsibility for the act or omission that forms the basis of the offence that the person is alleged to have committed
there is, in the opinion of the Attorney General or the Attorney General’s agent, sufficient evidence to proceed with the prosecution of the offence and
the prosecution of the offence is not in any way barred at law

In furtherance of the overall principles, goals and objectives outlined in section 1.3, referral agents shall also consider the following factors as weighing in favour of referral:

Opportunity for more culturally appropriate, meaningful and effective justice process
Reduction of harm for direct parties (trauma informed)
Potential for victim participation
Enhanced opportunity for access to justice for affected communities – increased confidence in the administration of justice
Opportunity to understand and consider root causes or systemic issues connected to the parties or offence
Reduce over-representation in justice system for individuals from vulnerable and marginalized communities/groups
Access to better supports and wrap around responses to parties needs

In considering whether a referral to the NSRJP is appropriate, Justice Partners may, at any time:

Consult the Regional RJ Team for information, or
Request a case conference be convened with the Regional RJ Team Leads, or a designated representative and other Justice Partners as appropriate, to consider potential for referral

Certain offences are presumed eligible for referral only post-guilty plea/finding. This presumption may be rebutted, and a matter referred earlier in the criminal justice process, where a referral is consistent with the overall principles, goals and objectives of the NSRJP set out in section 1.3. Those offences presumed eligible for referral only post-guilty plea/finding are as follows:

Cases involving death (murder, manslaughter, criminal negligence causing death, impaired driving causing death)
Offences involving abuse of a minor child (under 18 years old) or another vulnerable person, by a person in a position of trust
Child pornography (adult)
Firearms offences
Impaired driving (adult)
Serious crimes against the administration of justice (perjury or intimidation of a justice system participant)

1.5 Referral Procedures

1.5.1 Preparing a Referral

Referrals to NSRJP must be communicated to the Regional RJ Team Leads in a timely manner. The Regional RJ Team Leads are responsible for considering the referral and making the final determination on whether the referral is appropriate in accordance with the protocol.

Referrals to the NSRJP will be forwarded to the appropriate Regional RJ Team Leads with a Referral Form from the referral source. Referral agents are to use this form to communicate relevant information, including public interest considerations and relevant information regarding the offender, victim and community involved in a case. Referral forms must include attachment(s) as specified on the referral form.

1.5.2 Case Communications

Provisions for communication between a referral agent and the Regional RJ Team Leads are specified as needed in the individual referral protocols that follow. All referral sources may consult the Leads of the Regional RJ Teams for information to inform a decision to refer and regarding current cases referred to the Regional RJ Team. Except in cases referred by the Court or pursuant to a sentencing order, referral agents shall not dictate or set conditions or pre-conditions on the restorative justice process.