ABSTRACT
It is impossible to say whether restorative justice is good or bad in any given context without looking at the alternatives. One must always ask the question: restorative justice compared to what? One context in which restorative justice is decidedly better than the alternatives is that of Indigenous criminal offenders in Canada. In this chapter, I test the judgement of the Supreme Court of Canada in R. v. Gladue (1999) that strongly endorses restorative justice in sentencing of Indigenous offenders against what I consider to be generally persuasive and principled objections to restorative justice. I give reasons why neither the objection that restorative justice is insufficiently retributive nor the objection that restorative justice is an abdication of state responsibility are persuasive in the Indigenous context.
I aim to contribute to the Handbook’s ambitions of challenging the restorative justice movement by examining two collaborative experiments where Canadian courts and Indigenous communities have partnered in seeking restorative solutions. The first is the case of R. v. H.G.R. (2015) that was, in my view, a failed collaboration. The second example, however, provides a ray of hope. The BC First Nations Courts support restorative processes which, compared to everything else on offer for Indigenous people in Canada, appear to hold a possibility of genuinely healing and suggest a genuine opportunity for reconciliation not just between the victim, offender, and communities but between Canada’s Indigenous people and its criminal justice system.
