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Corrections system provides a model for therapeutic jurisprudence

This is the final instalment in a four-part series on therapeutic jurisprudence by criminal lawyer Lawrence Forstner.

The front half of the criminal justice system has no idea what’s going on in the back half, Oshawa criminal lawyer Lawrence Forstner tells

Forstner, principal of Forstner Law, says the concept of therapeutic jurisprudence — which emphasizes the healing potential of the law — is underutilized up to and including the sentencing stage of the criminal justice system.

But, it’s a different story once defendants are convicted and move into the next phase, he says.

“Post-sentence, you find that the correctional system uses a lot of these therapeutic tools and strategies, and it’s well-documented that they work in that context,” Forstner says. “But, they’re hardly ever employed in the court, with the possible exception of the so-called ‘problem-solving’ courts.

“I sense that there are huge barriers between the Ministry of the Attorney General (MAG) and the Ministry of Community Safety and Correctional Services (MCSCS), and it’s unfortunate that there doesn’t seem to be a desire to learn from the Effective Correctional Intervention (ECI) practices and theories used in the Correction's world, ” he adds. 

The theory of therapeutic jurisprudence was developed in the late 1980s by David Wexler and Bruce Winick, both American mental health and disability law professors. 

Forstner’s unique background — he spent more than a decade as a probation and parole officer with MCSCS before articling with MAG, working as a Crown attorney, and then becoming a criminal defence lawyer  —  means he has experience in both justice system 'silos', and he says all Ontarian's would benefit from greater integration of the two.

“If the front half knew what was going on in the back half of the justice system, and embraced  these ECI techniques that have been proven to reduce recidivism, ultimately there would be reduced cost, and huge improvement in societal rehabilitative capacity,” he says.

Forstner says that effective correctional intervention is based on a therapeutic approach, where risk assessment is done in tandem with motivational interviewing, and cognitive behavioural practices, to help target risk/need areas "in ways that include clients in the process, rather than militating change externally.  Acknowledging the client's personal self-agency in this context, helps speed positive change."

“If you can build a rapport and talk to people in a way that acknowledges where they’re at, you’re going to get less resistance,” he says. “Unfortunately, in the front half, it seems to be much more binary.We need to understand that therapeutically sensitive approaches to administering justice in the courts, increase the chances of beneficial outcome at every stage where they are employed.”

Properly practised, therapeutic jurisprudence does not interfere with the key purposes of courts and sentencing — fact-finding, rights protection, adjudication, and fair outcomes, says Forstner.

“Therapeutic jurisprudence in no way overrules or sacrifices the basic notions of privilege, rights, or legal interests,” he says. “It’s more of a lens through which system participants can view and understand the things that they do.”

This is the final part of Oshawa criminal lawyer Lawrence Forstner’s series on therapeutic jurisprudence in Canada’s criminal justice system. For part one, click here. For part two, click here. And for part three, click here.

To Read More Lawrence Forstner Posts Click Here
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