Law Times

Page 12 April 13, 2015 • Law Times www.lawtimesnews.com Toronto spice attack Restorative justice for adults rare but making a comeback By JUdy van rhiJn For Law Times he case of a restaurant owner who attacked a man using spices gained attention in late 2014 not just be- cause it was a case of vigilantism gone wrong but also for f lagging the use of restorative justice in adult cases. While the case gained media attention for its novelty in apply- ing an approach aimed mostly at youth, it was really nothing new. A spate of pilot projects several years back fizzled after authori- ties decided not to continue with them. While nothing systemic is now in place, the practice is re- turning on an ad hoc basis where all of the legal stars align. The Ministry of the Attorney General has undertaken a num- ber of restorative justice projects, but it's Justice Peter Harris of the Ontario Court of Justice at Old City Hall who's spearheading the current revival. Assistant Crown attorney John Flaherty believes the setting is conducive to the suc- cess of the efforts. "Here at Old City Hall, there is a broad spec- trum of specialized courts," he says. "We're trying to be open to the creation of a multifaceted form of restorative justice in a police set- ting and an after-trial setting." He notes that when Harris an- nounced the restorative justice effort, many Crown prosecutors showed an interest and are con- tinuing to develop it under the guidance of the ministry. "It is well within the parameters afforded to Crowns," says Flaherty. Flaherty had a direct role in the spice case in which police charged Naveen Polapady, a To- ronto restaurateur, with assault after he threw spices at a man he thought had broken into his car a few days earlier and subsequently beat him with a stick. "That case involved a full-blown trial with cross-examination of the parties for three days," says Flaherty. "They did not come to the pro- cess with willingness. There was an element of planned violence apart from the issue of mistaken identity, so there was legal culpa- bility. The use of force was beyond what was reasonable in the cir- cumstances. The finding of guilt was premised on that." Harris heard the case and di- verted the parties to St. Stephen's Community House prior to sen- tencing. Peter Bruer, manager of conf lict resolution and training at St. Stephen's, notes many organi- zations have the experience to do adult restorative justice because of the previous pilot projects and are grateful for the chance to use it. "It has returned on an ad hoc basis, but you need a particular combination of counsel, Crown, and judge to make imaginative things happen. It says to people in conf lict, 'First, you guys try to figure it out.' It's not that satisfy- ing if someone else imposes the outcome. Isn't it better to be asked, 'What do you want?'" In this case, the offender and the victim came to an agree- ment on the sentence, according to Bruer. The circle also included Flaherty, representing the Crown, Calvin Barry, representing Po- lapady, two investigating police officers, and two facilitators. Fla- herty notes it's not easy to achieve multiple results in the criminal field where there are so many needs to address. In this case, each party had its own concerns. The Crown wanted to ensure the of- fender wouldn't be celebrated as a martyr for vigilantism. The police officers wished to address the crit- icisms of the investigation. The defendant wished to avoid a pos- sible jail sentence and the victim wanted his injuries and concerns addressed. "Part of the restoration was how he was perceived by his neighbours," says Flaherty. "The incident had led to judg- mental treatment of this victim's lifestyle and character. This was addressed in the restorative ap- proach as well as the relationship that might be between the parties in the future. They reside in the same neighbourhood." The outcome included state- ments to the media, attestations, payment to the complainant for missed work and medical expens- es, and an opportunity for the defendant to hear the full impact of his actions. "It is amazing how often it is not about property," says Bruer. "It's about respect or an apology. Often, the real problem is personal." Barry describes restorative justice as a really useful process. "After being a prosecutor for 17 years and a defence attorney for 12 years, I thought I'd seen ev- erything. It is a novel and positive movement of justice. It was a great result for the accused and of great benefit to the victim." Barry also notes the approach is in line with current attempts to increase victims' rights. Toronto-based mediator Rita Czarny has seen restorative justice work in other adult cases. "I have seen the process make such won- derful changes," she says. "When you go to the court process, whether you take respon- sibility or not during the process, you are making your actions sound less harmful to minimize the penalty as opposed to a meet- ing where you internally appre- ciate what you've done. You are dealing with a human connection and people say they can move on with their life having learned something as opposed to being very angry with the system. Peo- ple who don't know about it say it's too easy to get off that way, but it's really hard to meet with people you've hurt." The final result for Polapady's case was a conditional discharge with six months of probation. Flaherty is hopeful other cases will follow this course. "Our hope is we'll be able to keep the justice system connected up to the needs of participants as well as affirm confidence in the justice system." Bruer is also hopeful for a re- vival of the broader use of restor- ative justice. "The courts don't have the capacity to solve every problem. It's a blunt instrument. Thank heavens that judges and Crowns recognize that." LT FocuS on ADR www.kuretzkyvassos.com Tel: (416) 865-0504 w Kuretzky_LT_Apr7_14.indd 1 14-04-02 9:08 AM T Many of the efforts at adult restorative justice are occurring at the Old City Hall courthouse. Photo: Pigprox/Shutterstock

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