Criminal Law

Australia should be therapeutic jurisprudence role model for Canada

By Staff

In the third instalment of a four-part series, Oshawa criminal lawyer Lawrence Forstner examines what makes Australia a leader in therapeutic jurisprudence.

Canada should take a leaf out of Australia’s book when it comes to the application of therapeutic jurisprudence (TJ) in the justice system, Oshawa criminal lawyer Lawrence Forstner tells

Since its development by American mental health and disability law professors David Wexler and Bruce Winick in the late 1980s, the concept, which emphasizes the healing potential of the law, has seen uneven uptake globally, says Forstner, principal of Forstner Law.

But, he says our Commonwealth cousins in the southern hemisphere have been consistently recognized as world leaders in the field.

“Australia is a huge centre for therapeutic jurisprudence,” Forstner says.

In 2004, magistrates in the state of Western Australia, who perform a role similar to justices of the peace in Ontario, officially resolved to apply therapeutic jurisprudence in their courts.

Since then, a variety of experimental projects have been carried out in regional courts, including unique sentencing regimes for Indigenous offenders, and those with drug and alcohol problems, according to the Australasian Institute of Judicial Administration (AIJA).

The AIJA, a group of judges, magistrates, tribunal members, court administrators, legal practitioners, academic lawyers and court librarians, also offers its members advice on applying the concept to the justice system.

Wexler, a founding father of TJ, has also praised initiatives in the Australian state of Victoria, and area magistrate Pauline Spencer, who he credits for her role in “mainstreaming” the idea. In a recent paper, Wexler said an amendment to Victorian state legislation permitting courts to convene hearings on compliance with conditions that allow offenders to serve their time in the community was a classic example of what he calls the “therapeutic design of the law.”

Wexler also singled out Arizona for its therapeutic jurisprudence-friendly rule authorizing judicial mediation in criminal settlement conferences.

Forstner says Canada’s reputation in the field took a hit during former prime minister Stephen Harper’s Conservative administration when the populist focus of criminal justice policy resulted in a series of stiffer mandatory minimum sentences for various offences.

“We have been seen as a leader at times, especially compared to the U.S., but our record is pretty hit and miss,” he adds.

Stay tuned for the final segment in the series, when Forstner looks at the future of therapeutic jurisprudence in Canada’s criminal justice system. For part one, click here. For part two, click here.

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