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Therapeutic jurisprudence: a criminal justice revolution

In the first instalment of a four-part series examining therapeutic jurisprudence, Oshawa criminal lawyer Lawrence Forstner discusses how the way an accused is treated in court will shape their perception of the system.

The criminal justice system could be revolutionized by a widespread embrace of therapeutic jurisprudence, Oshawa criminal lawyer Lawrence Forstner tells AdvocateDaily.com.

The concept, which emphasizes the healing potential of the law, has existed for 30 years, but has only recently started to build a following in Canada and across the world, he says. 

“The idea is that any time someone interacts with accused people or others in court, it can have either a therapeutic or an anti-therapeutic effect,” says Forstner, principal of Forstner Law. “Like it or not, the way the judge, defence lawyers, prosecutors, and even court staff speak will change the substance of the message received by someone facing criminal charges.

“If we can acknowledge that our behaviour towards other people can have this positive or negative effect, then we can start to harness that knowledge to align with the goals of the criminal justice system,” Forstner says.  

He explains how even minor gestures can shape the way accused persons view the system and their sense of how fair their treatment will be.  

On one occasion, Forstner remembers a judge repositioning a monitor in the courtroom. The Crown attorney then pointed out that the accused person’s family would no longer be able to see a video played in court.

“I’m the one who needs to see it, not them,” snapped the judge.

“In essence, the judge was right that she was the one who needed to view the evidence in order to make the right decision,” Forstner says. “But I could see the accused’s and his family’s shoulders slump all at once as they were made to feel ghosted, disappeared, and eliminated.”

Had the judge delivered the same message in a more compassionate way, it could have set a very different tone for the rest of the proceedings, Forstner says.

“Something I’ve seen over and over again is that very tiny gestures can make a big difference.”

In practice, Forstner sees his role in terms of therapeutic jurisprudence as that of being a go-between for his client and the court.

“It’s all done in a collaborative spirit. I’ll try to alert the judge right at the beginning by bringing out a great deal of information about my client’s struggles and successes,” Forstner says.

Developed by mental health and disability law professors David Wexler and Bruce Winick in the late 1980s, Forstner first practised therapeutic jurisprudence without knowing the term in his pre-law career, during more than a decade as a probation and parole officer.

Building on this experience at law school, he developed an interest in group programming and therapeutic approaches to criminal law, which is when he began to study the idea more closely. And it really struck a chord.

“It lined up what I was thinking, which was that the criminal justice system needs to be put into therapy,” Forstner says.

Properly practised, he says therapeutic jurisprudence could cut recidivism and save the system millions of dollars, and provide more positive outcomes for society.

Stay tuned for the remainder of the series, where Forstner will take a closer look at the potential benefits of therapeutic jurisprudence, the places where it’s already practised, international leaders in the field, and finally, roadblocks that remain to its widespread adoption in Canada’s criminal justice system. 

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