The Decibel - Restorative justice and the Hockey Canada trial

Episode Date: August 5, 2025

The Hockey Canada case captivated the country — raising complex questions about consent, hockey culture and even how sports organizations handle accusations of assault. In late July, all five of the accused members of Canada’s 2018 world junior hockey team were found not guilty of sexual assault. After the verdict, a lawyer for one of the players, Megan Savard, said her client, Carter Hart, would have been open to a restorative justice process instead of a trial.Some legal experts say restorative justice is an alternative to the court process that could offer healing for victims and offenders. Jennifer Llewellyn, law professor and chair in restorative justice at Dalhousie’s Schulich School of Law, joins The Decibel today. She’ll explain how restorative justice works and its potential to address issues like the ones raised by the Hockey Canada case.Questions? Comments? Ideas? Email us at [e-mail]

Last month, Justice Maria Carossia found five former junior hockey players not guilty of sexual assault. Michael McLeod, Carter Hart, Alex Formanton, Dylan Dubay, and Cal Foote were acquitted of all charges. Following the verdict, a lawyer for one of the players, Megan Savard, said the Crown did not have to take the case to trial. Instead, her client, Carter Hart, said he was willing to engage in a restorative justice process. Instead of pursuing restorative justice, the Crown forced a distressing and unnecessary trial to the detriment of Mr. Hart, his co-defendants, the complainant, and the Canadian public. Some legal experts say that restorative justice could be an alternative to find closure and accountability for sexual assault cases. But it's not an option everywhere in the country.

Today, Jennifer Llewellyn is here. She's a law professor and chair in restorative justice at Dalhousie's Shulik School of Law. She'll walk us through how restorative justice works and its potential to address cultural issues like the ones raised by the Hockey Canada case. I'm Laura Stone, guest hosting the decibel from the Globe and Mail. Professor Jennifer Llewellyn, thank you so much for joining us today. Oh, it's my pleasure. Thanks for inviting me. First, can you describe exactly what restorative justice is? Yeah, restorative justice is at its core, kind of a vision or an idea of justice.

Kind of switches the way that we think about what justice is from just what the last, what the law says it is, so it's not just about breaking the law when something goes wrong, but thinks about justice really in terms of sort of just relations. What does it mean to live right or do right by one another? What does it mean to treat one another justly with care, with concern, with dignity and respect? So what exactly could that process look like? And I understand it might be different in different cases, but generally speaking, what would that involve? So if we start thinking about justice differently as sort of just relations, then we start thinking about the work that needs to be done when something goes wrong or to make sure things

go right that has us have to pay attention to what do we need to know about how people are treating one another, both at individual levels, at group levels, in institutions and organizations. And so it really turns our mind to different kinds of questions we'd have to ask to design a process or bring a process together that can address the issues that matter, address the needs of the people who've been directly affected, and then bring the right people into a process who can, once they understand that, support a plan for a way forward that creates those conditions for just and right relations in the future. And so that's why it's tricky.

I know why people want to have a sense of what exactly does this look like. And it's really unsatisfying to say, well, it depends. But actually, that's where the satisfaction lies in restorative processes because we do design them to bring the right people together. So to answer you more precisely, that can look like bringing direct parties together who need to share with one another, what happened, what matters about what happened, what do they need to be able to go forward in a different way. But particularly in situations and cases where it's not a simple story or a simple harm, they have to identify who else needs to come, who else needs to help us understand the situation, who else needs to be part of making that plan. And so we can imagine a process that can be designed to include a range of gatherings, a range of ways of bringing people together targeted around the right conversations and the right work that they need to do together.

that could be just those individuals directly affected in one part of the process and then expanding the process or it can be bringing a larger group of people together in just one process. So it sounds like in some cases you might actually be facing or sitting across from the person who has harmed you. I think sometimes that's an important part of what a victim or someone who's been harmed wants and needs, but that's not always the case. And it's certainly different than a courtroom in the way in which people never talk to one another. But it's also different than some of the understandings people might have of mediation,

where you have a mediator come and say, let's bring these two parties together and have them make a deal or make a settlement. We really work with the parties to bring them together in ways that are appropriate and helpful to this idea of learning and understanding what happened, what matters about it, how people were harmed and affected and what we need. And so that kind of facilitated way of bringing people together means they're not just left to face one side or the other side, like in court. Usually there are others involved and we pay a lot of attention to how people want to share and address what happened. Right. So it sounds like a large part of the restorative justice process is on determining harm and addressing how that harm has impacted people. So does that mean these processes don't start with the presumption of innocence? Yeah, I think it's important to acknowledge that restorative processes are very good at helping people better understand the truth of what happened, particularly when those truths are complicated.

So they're not just about, we already know what happened, and this is about settling it or deciding on the sentence or the outcome. But they are presuming that the people who are coming to that process have acknowledged some role, some connection, and some responsibility if that's the way in which they're coming to the processes. So they don't work well if we're bringing people who say, wasn't me. I wasn't involved at all. But there's a significant difference from I was involved in this. I have some responsibility. I have some role in this. And I want to be part of a process that can.

explore and explain that role and what my responsibilities are and then be part of making it right. There's a large difference between that, which is required for restorative justice, and thinking that that's the same as pleading guilty and accepting all of what the law says and legal guilt implies. Restorative processes allow for much more nuance. That's really interesting because when we often think about the criminal process, we obviously think of people pleading guilty or being found guilty and being sent to jail. as a result. So does restorative justice take something like jail time out of the equation, even if someone admits responsibility or fault? So it's an interesting question. I mean,

certainly the way in which restorative justice has been developed and where there's space for it now in the criminal process, it's not the case that it always happens in a way that is an alternative to the current criminal justice path. So there are lots of circumstances where restorative processes have been used and sort of implemented as part of our current criminal justice process. So, you know, the factual answer to your question is, no, there's lots of ways in which people participate in restorative processes after sentencing, after a custodial sentence, part of a custodial sentence, or where it is part of determining a sentence that could include those elements. What I think is really important about your question, though, is to signal

the ways in which if we think differently about justice, we don't make the same kind of assumptions that our current criminal justice system does, where our criminal justice system, sort of the math is, you know, do the crime, do the time, that's how you pay back, that's what satisfies justice. Restorative processes don't assume that custodial sentences and isolation and punishment in that way will actually meet the needs or help us move forward in a good way for victims. for those who've offended and harmed or for others who are connected to the incident. So while it doesn't take it off the table,

it's not the default for what an adequate and satisfying response actually looks like. All right. So far we've been talking about restorative justice in the abstract. But of course, this process was brought up after the verdict in the Hockey Canada trial by a defense lawyer.

So Jennifer, I want to do a little thought experiment here. What could it have looked like if the Hockey Canada case went through this restorative justice process instead of a trial? Yeah, I mean, certainly the possibilities for a restorative response in this case would have been determined by a facilitator meeting with those who are involved in those who wanted to participate. So, you know, it's not possible for me to say, you know, this is the Adwater and stir version of what that would have looked like. But certainly it would have entailed providing a place and a space for EM if that's what she wanted and was willing to participate in to share her experience and the harm she experienced in all of their complexity

and also to allow the players who were involved to be able to describe as they did the incident and their participation in it and not only what were they thinking at the time but what they're thinking about since and how they've come to understand the larger significant impact of what they participated in and what they did. And it would have created a space and a place for those who surround it. EM in terms of supporting the significance of this in our time and also for those surrounding those players in the NHL, in hockey Canada, to really be able to step in to think long and hard about what happened here and what their responsibilities are going forward to ensure that these sorts of incidences and behaviors and harms are not replicated over and over again

as part of what happens in hockey, elite sport, or Canadian society. And how important is that for these organizations to be brought into the process, that it's not involving just those who are directly impacted, but you mentioned potentially hockey Canada could have been involved or the NHL. Why is that crucial to the restorative justice process? I think restorative justice invites us to think about justice in a forward-focused way. And I don't mean that by saying we don't care about what happened. But when we care about what happened, we have to be committed to ensuring that take it seriously

and make it matter so it doesn't happen again. And doing that requires us to include those who have responsibilities, not only for the individual behaviors, but for the context and the causes and the circumstances that facilitate it and led to those behaviors. This isn't about excusing the behavior of the individual men who are involved. But if we are serious about understanding those behaviors and offering explanations, we have to hold a mirror up to the context in which they happened, which is Hockey Canada here. I think it's vital if we want to take seriously the circumstances surrounding the nature of this epidemic-level problem of

sexual harm, that we have to start to involve more than only the individuals who are victims and who are offenders, because otherwise we don't create the conditions for progress and change so that others are not similarly vulnerable or don't similarly cause harm. And so real justice requires us to have processes that are capable of dealing with these kinds of nuanced, layered complex problems if we really want to see a difference. Right. And would everyone involved in this incident have had to participate in this process if restorative justice were an option? No. I mean, certainly it creates some complexities given the sort of adversarial nature of our current criminal justice process. So we'd have to create sort of the conditions so that

a restorative process could go forward for some and not all. And that includes ensuring that things that are shared in the context of a less adversarial and a more sort of truth-seeking problem-solving process like restorative justice aren't then weaponized and used against others in an adversarial process. So it's not that there wouldn't be anything to consider, but there would be no reason, as long as those issues were attended to, that a restorative process couldn't have gone forward if that was the desire of EM with some of the players and not all. I mean, it would create some significant additional burdens to EM to participate in both, but that would be for her to choose if this additional opportunity would have been more healing,

more empowering, more helpful, more meaningful, or less harmful. Yes, and on that point, of course, we don't know if EM or the remaining players would have participated in this instead of dealing with it through the courts. But would they have had the option to pursue restorative justice if they wanted to? They wouldn't have, in this case, in Ontario, not because there's a legal bar, but because the instructions to crowns in Ontario now indicate that crowns cannot use the discretion that they usually exercise. So crowns have a responsibility, in fact, to be thinking about which cases to prosecute, which cases to carry to trial, why and how they might settle or move in

an alternative path for cases. They have an obligation to use their discretion to do that in the public interest, but they also have a manual that tells them the scope within which they can exercise that discretion. And there's a part of the manual that indicates that they are not permitted to refer sexual violence cases to restorative justice. I understand on the thinking that they're too serious. We'll be right back. Jennifer, is this more on restorative justice for cases involving sexual assault only in Ontario? So administration of justice is a provincial responsibility. So all of the provinces have different kinds of approaches to this.

Some haven't turned their mind to it at all, which means de facto there is no active restriction or moratorium on it. Nova Scotia, who has one of the most developed and longstanding restorative justice programs alongside the criminal justice program available across the spectrum. available across the spectrum for youth and for adults has had a moratorium in place for a really long time sort of since the early days of the program, which made sense in those early days because it was essentially a hold. We should figure this out in ways that make us feel comfortable that we can do it and do it well. That hold has stayed in place far longer than I think people

expected. There is significant calls in Nova Scotia, including through the Mass Casualty Commission to rethink the moratorium and to lift it. And now really important voices from women's advocates and women's equality seeking groups to lift that moratorium and to think about real and meaningful justice pathways for women who are experiencing sexual violence in the province. And so work is underway to rethink that, to lift the moratorium and to figure out what's a good pathway forward. But it certainly the time has come. And I'll just note that Ontario Attorney General Doug Downey's office did not respond to a request for comment that we submitted for the story we wrote about this issue. So Jennifer, can you walk us through an example of when

restorative justice has been used successfully just to give our listeners a sense of how this process can proceed in a real life example? Sure. In the context of Ontario, actually, one need look no further than Marley Liss, uh, who has spoken out in response to the Hockey Canada decision about her own experience. She was involved in a criminal proceeding with an individual who had assaulted her. And she advocated for herself for a process that would undertake a more interpersonal restorative process with that individual who had harmed her. That was in Ontario. That was allowed because the instructions in the manual hadn't yet limited the discretion. And so there was a crown in that case.

who agreed to that and a community agency that supported her in doing that, and it was very important and effective for her. That was a smaller process, right, that was addressing the direct impacts and events that happened in her case and where she really sought to ensure that the individual was receiving the therapy and support that they would need to ensure that they didn't cause further harm to others, and that was meaningful and important to her, and she's spoken about that. Okay, so we've seen this done well before. Traditionally, criminalization isn't a result of a restorative justice process.

Is there a sense that this lack of consequence for people who potentially did harm could downplay the impact and criminality of sexual assault? Yeah, so I think this is a serious worry, right? I think some of the reactions that you see instinctively when people talk about restorative justice in the context of sexual assault is a real worry that we might lose ground that. has been hard fought for to take sexual assault seriously and not to privatize it. So do not to make it a matter of just between those who've harmed one another, but to really recognize it as a profound, systemic, cultural, and societal issue. I think that that worry comes through clearly when people want to ensure that it's still prosecuted, punished, that there are consequences.

we look to the existing system and we say, well, let's look at what the most serious reaction that system has and let's make sure that we get that. I think part of the problem with that logic is that what that system has on offer, even at its best, isn't enough to take this problem seriously as a public societal, cultural issue. And so I think we do have to be careful that restorative justice isn't used as a way to just do victim offender mediation. And and take it out of the public eye and not treat it like a public problem. But I think actually done well, restorative justice is better able to take it seriously to ensure there are responses that happen at individual levels and collective levels

than our current criminal justice system is able to. And so I think the math on punishment as feeling like a satisfying consequence when we realize that it is not working, it has not worked, It is not making us safer. It is not leading to an end to this epidemic. It means that we have to take seriously these other pathways for justice that might actually work.

You know, that's such an interesting point because for some, the result of the Hawkey Canada trial proves that the court system works. But others view this trial as unsatisfactory for everyone involved. So why do you think some people feel that the criminal system

can't handle the complexity of sexual assault cases, especially when it comes to prove criminality beyond a reasonable doubt? Well, I think what the Hockey Canada case shows us is that the criminal justice system is simply not, it's not designed to deal with complex social and cultural issues. So it actually is designed to say, who broke the law? What was there? Did they have the requisite intention to do that?

And can we lay blame on them an exact punishment that will even the scales? And we think that that will work for individual behavioral modifications. So it'll make us all safer because those people will stop doing this in future. And then that's its job. But if that's not the nature of the problem, if that's not why and how people are harming each other, if that's not what it will take for them to stop harming each other, if there's a larger context that needs to be addressed, then we need different processes that are designed to include and involve those people,

groups and institutions that need to be involved and have responsibility for changing the circumstances that keep leading to this. And we need to move beyond a system that tells such a simple story. You're guilty or you're not. You broke the law or you didn't. You were harmed and you're completely sort of a good victim. You can tell the story the way that the current system wants you to tell it or you weren't harmed at all. These are not choices that we can make anymore. if we're actually going to respond to the impacts and the harms and the nature of sexual violence. Jennifer, such an interesting conversation with you today.

Thank you so much for speaking with us. Oh, thanks very much for the opportunity. That was Professor Jennifer Llewellyn, the chair in Restortive Justice at Dalhousie's Shulik School of Law. That's it for today. I'm Laura Stone. Our producers are Madeline White, Mikhail Stein, and Ali Graham.

David Crosby edits the show. Adrian Chung is our senior producer, and Angela Pichenza is our executive editor. Thank you for listening.