Episode Transcript
Elizabeth: Welcome to “Advancing justice,” a podcast that explores the interface between human rights, poverty, racism, and the criminal justice system by inviting researchers and practitioners to deepen our understanding of these issues. My name is Elizabeth McIsaac. I’m the president of Maytree. We’re a Toronto-based organization exploring solutions to poverty in Canada using a human rights-based approach.
For this episode, I’m pleased to welcome Sabreena Delhon. Sabreena is the executive director of the Samara Centre for Democracy. She is an experienced public sector leader with a proven track record of directing multi-stakeholder research and outreach initiatives across justice, academic, and non-profit sectors.
Prior to joining Samara, Sabreena was the principal of Signal Strategies and held senior roles at the Law Society of Ontario. She is a Fellow with Simon Fraser University’s Morris J. Wosk Centre for Dialogue and Massey College.
In our conversation, Sabreena talks about the fact that there has never been a more crucial time to advocate for major overhauls to key components of the justice system. There’s a need to call for justice policies that are responsive to the public’s lived experience and to press for investment in justice reform. Yet, as she writes in her contribution to the series, the majority of mainstream efforts aiming to improve access to justice across Canada are stagnating because the organizations behind them suffer from an entrenched diversity problem.
Welcome Sabreena. It’s really great to have you on the “Advancing justice” podcast and thank you also for the article that you submitted to the series which can be found on the Maytree website. I think it really puts a spotlight on the fact that the issue of accessible and accountable justice is a complex one and we need to rethink it.
Let’s start by breaking it down a little bit and talk about this concept of access to justice. What does this term traditionally mean when it’s applied to the criminal justice system in Canada or more broadly?
Sabreena: Thanks so much for having me. It’s my pleasure. I’m really thrilled to be part of this series.
The label of access to justice is a big one. It can be applied to any effort that aims to improve the justice system. This can include court forms that are easier to complete, translating legal information into different languages, supporting a rising number of self-represented litigants, even exploring dispute resolution mechanisms that are community-based. It’s quite varied.
The access to justice community typically focuses its efforts on civil and family matters. So advocacy to improve criminal justice is generally separate from access to justice efforts, and that’s something worth examining. Particularly because race and the power of the state play a different role in the criminal justice space.
There are technical reasons for this circumstance, but there are also some coded or cultural ones. Civil and family matters for instance happened to quote “everyday people” who are navigating quote “everyday legal problems.” And that kind of language obscures the systemic issues in the access to justice space, and it results in a very narrow lens for a large and complex problem.
It’s also counter to what the average person thinks of when they think of the justice system. When they think of it, they often picture a criminal context because of what they’ve seen on TV and in movies. And then they are subsequently not very connected to the access to justice domain.
Elizabeth: That’s so interesting. And it’s true. So our everyday notions are not necessarily that accurate or informed. There’s been a lot of calls for improved access to justice in many government-announced initiatives over the years. But why isn’t this making a difference? Are we seeing any change happening or is it just that we’re tinkering and it’s not transformational?
Sabreena: One key thing is that the majority of access to justice advocates are lawyers. So the focus tends to be on increasing access to legal services. Research from the access to justice community, this is from the Canadian Bar Association and the Canadian Forum on Civil Justice, among others, confirms that the reason why people don’t access the justice system in Canada is because of the cost.
They feel a sense of confusion and then they also feel disengaged from it. And this is significant because the barriers that prevent people from resolving their legal problems can result in dire outcomes that reverberate for generations.
There’ve been many high-profile calls to action and projects aimed at improving the justice system. But you’re right to note that that change momentum is missing.
As a broad movement, access to justice remains at an impasse.
One reason for that is the entrenched diversity problem. The legal profession is historically white, male, elite, and privileged. And the most influential players on the access to justice landscape are drawn from this homogenous pool.
On the equity front, if you look at the legal profession, there’s a pretty serious retention issue. Lawyers that are Black, Indigenous, people of colour, women, which is a huge group if you combine all those groups together, they exit the profession because the burden of inequity pushes them out. So there’s an established pattern here of consistently privileging participants with the same background, perspective, knowledge, and experience.
This ensures that the access to justice conversation remains too distanced to sufficiently engage with those larger, structural intersecting forces that are exacerbating health, wealth, and justice disparities in our society. And we’ve really seen that born out over the pandemic where the mainstream public understanding of how these elements are connected and affect our quality of life has never been more clear.
So there’s a real opportunity here for the justice system to evolve and demonstrate an evolution.
Elizabeth: There is, but sometimes the change and the evolution is going to come from outside. You’re saying if we wait for it to come from inside, we may wait a lot longer. There have been community-led initiatives that work with individuals and families, and some of these are making inroads.
Can you give us an example? What are the lessons learned from those kinds of initiatives?
Sabreena: There are many lawyer advocates in legal clinics, non-profits, community, and academic spaces that are actively engaged in developing justice solutions that are multi-disciplinary and aimed at being responsive to lived experience.
Their motivation is to critique that more access-to-legal-services approach by going upstream and challenging the status quo. Those efforts are often focused on identifying ways to increase the quality of justice – and not just access to something that isn’t working, but access to something of quality that is worthy of the public’s trust. These are groups that are focused in particular on marginalized groups.
In Ontario, there’s been really important and considerable racial justice advancements led by the South Asian Legal Clinic of Ontario, the Chinese and Southeast Asian Legal Clinic, the Black Legal Action Centre, the Council of Agencies Serving South Asians.
These organizations have advocated for the collection of race-based data and the use of an equity lens across policy, budget, and program development. So this is really substantive, structural, and cultural change efforts that they’ve been leading; and they’ve also incorporated authentic allyship into their efforts.
In Nova Scotia, we’ve seen the Nova Scotia Legal Aid pioneer the use of “impact of race and culture assessments” – and those have been getting some media attention recently, which has been really great. These assessments look at someone’s background and how systemic racism and poverty have shaped their lives. And this is examined in order to arrive at a just sentence.
In my paper, I also note work from academics like Koren Lightning-Earle, Hadley Friedland, and Sarah Buhler. They’re looking at how marginalized communities associate the justice system with harm. And they’re taking cues from those communities to make or develop and explore meaningful changes that have elements of self-determination for those communities. It’s really centering the person who is seeking the justice.
This is really innovative and inspired work. But it often sidesteps the access to justice establishment, or perhaps isn’t sufficiently acknowledged by it. And that’s how a homogenous group can persist unchallenged and continue to advance a very narrow approach to justice reform.
I just wanted to add something to my previous comment about if there have been all these high profile calls for change, why isn’t it resonating?
If you can’t secure and retain problem-solvers with diverse backgrounds, whether that’s based on demographic or discipline or professional training, you’re not going to develop solutions that pack a punch. And the result is a homogenous majority driving what is essentially an internal conversation.
Senior justice leaders have called for the bold, immediate, and innovative action from the people and groups that I’ve just described here. But the audience for those senior justice leaders are typically the most privileged within the legal profession and therefore a group that’s deeply invested in the status quo. So that really limits innovation and just practical approaches to change making.
Elizabeth: I think the examples you’ve given are really important and they’re helpful. But how do we take this now and begin to apply this to a systems level change in order that we see the kind of transformation that I think you’re envisioning and wanting to lay the track for? How do we make that?
Sabreena: I think the way forward demands reckoning with the public’s lack of trust in the justice system. In 2016, I directed a study that found four out of 10 Ontarians see the justice system as unfair, regardless of their race, gender, age, or income. That’s a pretty striking result.
Elizabeth: That’s large.
Sabreena: That’s large. And I don’t think the results would be very different today five years later if we were to do that study.
So there’s an opportunity here to build the public’s capacity to hold the justice system to account. And there’s an opportunity for the justice sector to demonstrate a responsive evolution, because that would help them manage their relationship with the public in a more respectful manner.
One thing that I suggest in the paper is drawing from the world of deliberative democracy which is aimed at strengthening the civic capacity of the public. It’s also aimed at enhancing trusted democratic institutions and producing informed solutions to complex problems.
Elizabeth: That’s a term of art.
What is deliberative democracy for those of us who are new to this?
Sabreena: It’s a relatively new area for me as well. And in researching for this paper, it was something I was drawn to because it is a practice and it is validated by the OECD (Organization for Economic Co-operation and Development). It actually has strong roots here in Canada and is commonly drawn upon in a lot of OECD countries.
It’s basically aimed at framing the public as a resource rather than a risk. And drawing public opinion, public input, not in an isolated kind of brand and fashion, but in a cohesive, inclusive, and carefully considered way.
One thing that I suggest is a creation of a deliberative structure with a justice mandate that could serve as a public authority. It could provide guidance to decision-makers, build knowledge, set standards for how public input on justice issues is collected. Right now that’s a bit fragmented and there’s not as much follow-up and connection with the public. There’s a lack of accountability or an opportunity to increase accountability there.
This kind of body would also have the potential to not only gather community input that guides justice policy, but it could also collect and share data from within the justice sector, which is limited in terms of how it standardized and openly available to the public right now. And that availability of data, having that available in a standardized way, would ensure consistent access to journalists, academics, community organizers, and others in our society that can help to hold the justice system to account.
So this isn’t a perfect solution. This is very much a broad notion here, but that’s the kind of thing that’s needed to make a big step forward and get out of this entrenched space that the access to justice conversation is currently in.
And this kind of structure would also help to build on and support the culture change that has already been brought forth by the restorative justice practices. That’s a practice that applies a decolonial and holistic lens to resolving disputes in criminal contexts. There’s been a lot of encouraging developments on this front, such as the creation of the Restorative Research Innovation and Education Lab at Dalhousie University.
What I’m getting at here, there are lots of different pieces, elements, expertise, knowledge that are readily available to us. These aren’t new ideas. In my paper, I referenced work from the Law Commission of Canada and legal academic Constance Backhouse. I’m referring to studies from 20 years ago.
So harnessing input from the public and mobilizing a range of empowered experts is a key piece to addressing the entrenched diversity problem within the access to justice sphere. And that can spark a movement that leads to meaningful progress.
Elizabeth: It also evokes a human rights-based approach and it’s centering accountability. In my mind it’s exciting because that has a much deeper set of meanings attached to it, which can be transformational. Does it mean that we’re creating a new institution in order to do that? Or do we have to see where it takes us? Do you have a sense of what that would look like?
Sabreena: I think there’s opportunities for the access to justice conversation to pin itself or build on bigger frameworks, like a human rights approach to something. We need a bigger picture to move around and to have more space, to explore and create it. And maybe that involves creating a brand new agency, maybe it’s a merging of existing entities. I’m not sure, but the exploratory space to have those kinds of conversations is sorely needed.
But I see meaningful change as within reach. The raw materials and the refined ones are very much within our grasp. A key element here is cultivating a vibrant and diverse community of problem solvers. So essential voices have been excluded from the access to justice dialogue. When they are incorporated, sometimes it’s in the surface kind of way, it’s lacking a level of inclusion or respect or accountability. And there needs to be a focus on encouraging those currently outside of the justice domain to apply their much needed skills and simply take up space. Because the legal profession and the justice system is really good at being both intimidating and boring, and that keeps people away.
Elizabeth: I think the point that you made around the lack of trust is hugely important because everything else begins to fall away if a majority of the community, of the society, doesn’t have faith in the system.
Sabreena: And the legitimacy of the justice system is at risk. And I don’t understand why that isn’t what’s centered in access to justice efforts in a more concerted way.
It’s really taken for granted that the public is just going to be there. And the public understands when it’s not being treated with respect, they’re going to put their trust in something that they have a true connection with.
Right now that relationship is damaged. It needs a lot of repair. So a way to turn the page here and reframe is to do two things. It involves prioritizing impact above the status quo above the culture of the legal profession. And it also involves positioning the public as a resource rather than a risk.
As I said, these are not new ideas, but the pandemic circumstances certainly are. So perhaps now that Canada’s justice crisis has been enveloped by this pervasive state of emergency, we’ve arrived at the right time to evolve how we approach creating justice solutions. And also maybe the public is ready to take up that space and get the accountability that has been missing.
We’ve seen an activation in terms of civic engagement over the course of the pandemic that’s been unprecedented. Expectations of our institutions have been changed and we can’t take that for granted. There’s a broader mainstream understanding of systemic racism, colonial history in Canada, all of this is related to our justice system and how it functions today.
There’s a major opportunity here for the public, for the justice system and broadly for our democracy. Fostering this evolution will require imagination, but also common sense. And we certainly have access to that.
Elizabeth: So many important and big ideas in there, Sabreena. Thank you. We can’t do all of them justice on a short podcast, but I would, encourage people to take a look at your paper.
Because I think that you flesh it out so nicely and in such a compelling manner that it’s really important to read and have a conversation with each other about how we begin to engage around these ideas. Thank you so much, Sabreena.
Sabreena: My pleasure
Elizabeth: In order to take a look at Sabreena’s paper, please take a look at the section on advancing justice on the Maytree website at www.maytree.com.
Thank you for listening to the third episode of our podcast, Advancing justice with Sabreena Delhon. To hear all episodes in this series, please subscribe to this podcast on Apple Podcast, Google Podcasts, Spotify, or Stitcher. You can find the full transcript of this conversation, Sabreena’s article, links to resources, and other contributions to our series on the Maytree website at www.maytree.com.
