Advancing justice podcast

Welcome to “Advancing justice,” a podcast that explores the relationship between human rights, poverty, racism, and the criminal justice system. In each episode, we talk with researchers and practitioners to deepen our understanding of the issues and explore the historical roots of present-day realities, the challenges associated with the lack of race-based data, issues specific to Indigenous communities, lack of access to justice, as well as potential solutions and promising practices.

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The podcast is part of the “Advancing justice” series. Find articles, interviews, and resources on the series webpage.

Episode 3 – Transforming justice: Towards accessibility and accountability
In our third episode, Sabreena Delhon talks about why this is such a crucial time to advocate for major overhauls to key components of the justice system.

Read the episode 3 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.

Episode 2 – The complexity of collecting race-based data in the criminal justice system
In our second episode, Dr. Mai Phan talks about the importance of collecting race-based data to address systemic issues in the criminal justice system, and what we need to consider before we collect and use race-based data to inform the work to achieve public safety and justice.

Read the episode 2 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 the issues. My name is Elizabeth McIsaac, 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 Dr. Mai Phan. Mai is a data expert consultant who is passionate about data equity, social justice, equity, and human rights. She has over 20 years of experience teaching, researching, developing, and leading initiatives to address systemic barriers and promote inclusive practices and policies in public sector organizations.

Mai’s currently supporting the Toronto Police Service’s Race and Identity-Based Data Collection Strategy, an anti-racism data initiative. Previously, she was a senior research and policy advisor at the Anti-Racism Directorate at the province of Ontario, where she led the development of the Ontario Anti-Racism Data Standards and provided strategic advice to public sector organizations regulated to collect race-based data under the Anti-Racism Act.

In our conversation, Mai talks about the importance of collecting race-based data to address some of the systemic issues in the criminal justice system and what we need to consider before we proceed to collect and use race-based data to inform the way we achieve public safety and justice.

Welcome Mai, it’s so great to have you on the “Advancing justice” podcast. I want to in advance say thank you for the article that you submitted to the series that can be found on the Maytree website. It lays out such a great argument about the need for race-based data, in particular in the criminal justice system and how we think about it.

In the last 18 months, there’s been calls for race-based data in all kinds of areas: education, health, and most critically in the criminal justice system. Can you speak a little bit about how the collection of race-based data in the criminal justice system can address the over-representation of Black and Indigenous persons in that system?

Mai: We understand that over-representation in the criminal justice system is a complex thing. And it’s really just the tip of the iceberg that we see when it comes to systemic racial biases and racism in society. And it’s the result of so many interlocked processes that can lead to those outcomes as we heard Professor Owusu-Bempah explain in the first article for this series.

Data gives us the tools to see those broader patterns going beyond individual factors. We know there’s unique circumstances. Every family and individual face their unique strengths and abilities to overcome barriers.

But without data, it’s hard to identify the systemic issues so that we can make and drive structural changes in our systems and work together on solutions that can cut across those different systems. The way I see it is that in the criminal justice system, race-based data has the power to help us to uncover the portion of responsibility for those outcomes that lies within how we practice justice and apply the laws.

So, for example, how do we pick who sits on juries in ways that may contribute to unfair trials? Do judges on the whole tend to give different sentences in relation to similar cases when it involves black indigenous or racialized accused and / or victims? Data helps us to answer some of those really specific questions when it comes to how our justice system operates.

We know that oftentimes small differences in outcomes or in decisions along a justice pathway can lock someone into a trajectory that may be more negative than had a slight difference in decision gone the other way. And so disparities in one part of the justice system can really accumulate and reinforce biases that may occur in other parts.

And so we really need data to track all of these things, to really measure and understand what is happening in order to address this really complex phenomenon that is systemic racism in our society.

Elizabeth: Given its importance, and I think you’ve made an excellent case for how this can reshape outcomes and get at some of the systemic issues, why hasn’t race-based data been collected in a consistent manner up until now? What has stopped this from happening?

Mai: I think the answer is not that simple, and we can probably find different reasons and different responses that resonate in one period of time in a different way than in another period of time.

Some of these reasons really change as our country changes.

On the question of consistency, race as an idea is fluid. It’s a bit like trying to nail jello to a wall. Race is a social construction, meaning that people, often those with power to do so, have the ability and have been able to make up: what is race? Who fits into what categories? What does it mean? And it was perhaps at an earlier point in time and it’s evolved and it’s looked differently in different ways in different contexts, but overall it serves a particular function and that is to uphold power among groups interested in keeping and maintaining their power and taking power away from other groups.

And so some of these ideas can be repurposed for different things. And people as creative beings, we respond and we are reactive and we reject or oppose these different ideas. And so they can really change the shape that they take. And therefore trying to collect data – and what is race – will look very different depending on who’s collecting, why, and how it’s going to be used.

And so it’s my understanding of why we have not been able to collect race in a consistent way. We thought about it as ethnicity, there’s a period of time where religion was very racialized. And so it’s a really complex nebulous kind of concept.

On the question of why haven’t we been collecting race in whatever form it takes or however way we understand it, I think we haven’t always appreciated or invited the kinds of questions that race-based data could help us to uncover or reveal about ourselves.

When we think about race in an earlier period of time when colonies were first being settled in North America, our attitudes about race, particularly the colonial administrators, was really about who was not English or French or whoever was the colonial settlements, where they were from.

So those who were not that were racialized in a different way and understood in different ways. And we understood Indigenous people – those early set of settlers recognized the uniqueness of different Indigenous communities. Race was really much in flux at that time. But given that, the early settlements that France had established, a new France, had lumped them all together as Indians.

These things take shape and are influenced by official administrative tools and they change over time. And then when we introduced in Canada the policy of multiculturalism as the official policy to promote our national identity as one that embraced many different cultures, I think we came to be much more comfortable believing that we lived in a mosaic that respected differences and appreciated the cultural richness that came with all of that and less comfortable with acknowledging the fact that systemic racism does exist in Canada and that racism seriously impact people’s life chances, depending on where you are, where you’re from. And so people were afraid, I think, to be called racist or just really didn’t have to think about it because for the vast majority of Canadians who are not racialized or not Indigenous, it was easy to ignore something that didn’t affect our daily life.

And so it meant being colourblind seemed like a good idea. By extension, we don’t see race or colour. Collecting that information seemed to be a very wrong thing to do because it made us think about race. So acknowledging big systemic racism, seeing colour for what it is – a manifestation of racism and its complex legacy rooted in power dynamics – required us to understand and think about structural inequities that are built into our way of life, which meant we had to question our way of life. It’s not as easy as just celebrating differences and goodwill towards others.

Elizabeth: So in each of those, it’s very clear that how we think about race, the extent to which we collect data on it, has always served a political agenda of sorts of where we’re at. And we’re in a particular moment now. As we think about going forward on the collection of race-based data, do you see further barriers in our current moment as we look forward to the solutions?

Mai: Definitely, there’s growing pains, and there’s a lot of uncertainty with whenever dynamics shift.

There’s a broad questioning of the status quo. Some people will become more entrenched in their denial, or wish to deny, that systemic racism is a thing. Many people are still very uncomfortable talking about race and racism, and to reflect on our collective roles in upholding systems of power and disadvantage centred around race.

And, you know, I understand that and it’s very relatable. We are being asked to question what we know, how we do things, what we’re used to, and so it’s uncomfortable. This extends to leaders of institutions who have to make those decisions around direction, resources, organizational goals.

We’re being asked to change the direction of the ship, we’re at being asked to abandon the ship, in some cases. It’s just not serving everyone. And so that’s a hard thing to grasp.

Getting people to understand, what is systemic racism versus feeling like they’re being attacked, being called racist, I think that’s one of the things I’ve seen people really struggle with.

When you’re not a racialized person, you don’t go through and have experienced systemic barriers. You tend to see your successes and failures as something that was a result of your hard work, and privilege is very hard thing to see. We take it for granted.

We all have privilege in different ways, and so trying to reflect on the struggles that some people face, and the sometimes daily indignities that people face and the toll that it takes, it’s hard to imagine.

When we talk about systemic racism, people see it as an attack on their personal integrity, or their morality, when really it’s not about the individuals, it’s about the system. It’s about the water we all swim in, regardless of who we are. If we grew up and live in this society, we’re all touched by it in one way or another, we’re just touched differently.

On the one hand you want to change the way we think about race so that it has to neutralize its impact. And yet, by collecting data, by defining concepts in a certain way, are we entrenching it further in our system?

That’s a risk. And so we really have to think thoughtfully about, how are we collecting, what are we using it? How are we using it for and how are we interpreting these trends in a way that can move us towards change and move us towards a future where those categories no longer have any meaning or impact, and neutralizing their effects?

Elizabeth: We’re in a moment where systemic racism has never been so much a part of the public discourse. It’s surfacing, there’s more discussion than ever. So where are the opportunities as we go forward to actually seeing race-based data making a difference in policy?

Mai: I think the conversation we’re having right now is wonderful and I hope it’s sustained.

I hope, it starts to evolve and move us in a positive direction together. That means we all have skin in the game. When we all recognize that, I think there’s a lot of hope in this present moment

I see a lot of opportunities: with race-based data, the conversations that are happening, and with the enhanced and increased understanding, and vulnerability that people are showing.

When we talk about organizations starting to collect and use race-based data to surface where there may be barriers or room for improvement or / and change, I think, one of the things that this presents us in terms of opportunities is this is a great time to use data, to help us to better understand people and communities.

We’ve become so much more sophisticated in terms of our use of data, including its limitations. There is greater literacy, there’s greater involvement and engagement with data than ever before. And so this openness today will really enhance and advance the conversation that we have together in an informed way.

It’s also an opportunity to build stronger, meaningful relationships between stakeholders and partners and connecting with communities, so that we can work together towards more holistic solutions, not isolated efforts here and there.

For real sustainable change, it’s also an opportunity to embed greater accountability to the public, especially when the data’s being collected by governments and public sector organizations. It’s an opportunity for greater transparency on how the system functions overall, so that we can focus on big meaningful changes. If we can make change and drive change and hold people accountable and systems accountable on a wider scale, then we can have impact for whole communities.

I’m super excited about where we are right now. I’m also a little bit cautious about how this all goes, but the conversations and the series that Maytree is putting out, I think is a beacon of hope.

I look forward to continued conversations.

Elizabeth: So optimism – grounded in the reality of there’s still a lot of work to be done. And a lot of good values to guide that and principles around accountability, transparency, and really relentlessly looking at why we’re collecting, what we’re collecting, and how we’re using that.

Mai, thank you so very much.

Mai: Thank you.

Elizabeth: Thank you for listening to the second episode of our podcast, “Advancing justice,” with Dr. Mai Phan. 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, Mai’s article, links to resources, and other contributions to our series on the Maytree website at www.maytree.com.

Episode 1 – Understanding the impact of racism, colonialism, and poverty on Canada’s criminal justice system
Professor Akwasi Owusu-Bempah explores how racism and colonialism have contributed to the social and economic inequalities and discrimination experienced by Indigenous, Black, and racialized communities in Canada, and in turn shaped their interactions with the criminal justice system.

Episode 0 – Trailer: Advancing justice
Welcome to “Advancing justice,” a podcast about human rights, poverty, racism, and the criminal justice system.