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.

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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.

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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.

Elizabeth: Welcome to “Advancing justice,” a podcast that explores the interface between human rights, poverty, racism, and the criminal justice system. 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. So far in our series, we’ve heard from researchers and practitioners. Today, in keeping with Maytree’s tradition of ensuring that the voice of lived experience is heard and amplified, I will be talking to Tyrone.

I first met Tyrone a few weeks back after an introduction from Amadeusz, a community-based organization which supports young people who are incarcerated to create positive change in their lives through access to education, community programs, and supports.

Since our first meeting, Tyrone and I have had a couple of conversations. He’s a 25-year-old man who grew up and still lives in Scarborough, in Toronto’s east end. Tyrone’s interactions with the criminal justice system began at the age of 13 when he was stopped by the police in the community. And then again, at age 15, when he was charged, arrested, and held in remand because the police mistook him for another Black youth.

Tyrone, thank you for being with us today. It’s a real pleasure to be able to talk to you again to have this conversation.

Tyrone, can you tell us a little bit about what growing up as a Black youth in Scarborough was like, and what some of your experiences with police were like?

Tyrone: Growing up in Scarborough as a young Black youth, it was actually very multicultural, and there were a lot of activities to do in the community. So I would usually be going into the Boys and Girls Club, or I would be playing basketball downstairs. There was a gym inside my building.

It was very fun, but there was a lot of things happening in the community that was also negative. Sometimes you would get drawn into it and you would want to know what the older people were doing. But since we were young, we just stuck to doing kids stuff, but you always noticed that there was some stuff going on that wasn’t, I would say, productive. And it would catch your eye from a young age.

Elizabeth: Did you get involved in any of that stuff or did you stick to the community programs and hanging out with your friends?

Tyrone: I stuck to the community programs and chilling with my friends, but we would do little kid stuff like “nicky nine doors” and stuff like that, but nothing too crazy.

Elizabeth: Did you have any early experiences with police in that context?

Tyrone: Yes. I had a really early experience with police.

One time when I was going to go to the basketball court in a different community, it was me and three of my other friends, we were heading down the road. And two cruisers just rolled by us.

We were walking on Kingston and Morningside, and they just said that we fit the description for a crime that happened.

And we told them, “We don’t know what you’re talking about.”

We were very young, like 13 years old, and we were just trying to go play basketball. So we just tried to let them know that we’re not involved in none of that type of stuff.

They told us right away, we have the right to remain silent. And they’re going to search us.

We were kind of scared because we were so young. So we said, “Shouldn’t we call our parents and have them around?”

And then they just told us that it wouldn’t be necessary. “It’ll be a quick process. We’re just going to search you guys quick. And then if you guys have nothing on you, you’ll be free to go.”

But we were very, very shocked and scared at the same time.

Elizabeth: What do you think that meant – you “fit the description”? You were 13 years old.

Tyrone: To be honest now, at 25, I feel like “fit the description” is being a young Black youth and living in that area, Galloway, because the crime rate was so high and it’s still high up to this day.

It’s just so easy to fit in, as long as you’re in a group, anybody in a group. You’re Black and you live in an area with lots of poverty and crime. Right away, you fit the description.

Elizabeth: Did you and your friends talk about that incident afterward? How did you make sense of it?

Tyrone: We talked about the incident after, right away, and we were just shocked. We didn’t even want to play basketball no more.

We went home right away to let all of our parents know. And then our parents were shocked about what happened. And they called 43 Division to just figure out, “Why would you guys search a minor without a parent around?”

They said that nothing was even in the system. So they just blowed it off, like, it didn’t even happen. Just because we were so young and didn’t take down names, badge numbers. Basically, it just went out through the air, like it never happened.

Elizabeth: What advice did your mom give you?

Tyrone: My mom said we already had a recreation centre in our building. At least there’d be adults there, recreational staff to keep an eye on you. So you’d be more safe at such a young age.

So she said, from now on, I shouldn’t go out in the community. It was a 30-minute walk. She said, I shouldn’t go anywhere that far without adult supervision. That’s what I did for, I would say, the next year and a half up to when I was almost 15.

Elizabeth: So then what happened at 15?

Tyrone: I ended up moving from Galloway around 14, and we moved to Ajax. I was going to a public school. I was playing basketball. I made it on the team, and I was just focused on school. I had a couple of good friends there. We used to just do afterschool work. It was actually a really decent community.

What happened was my mom got a divorce. She couldn’t afford to pay the rent no more at that house. We had to move back to Scarborough and that’s when we moved to Markham and Ellesmere. And this area, it’s similar, like Galloway. There’s a lot of crime going on and poverty and just not a lot of opportunities for the youth.

I was out with my friends. This is when I’m 15 now, after a year of living in Ajax, and it’s me and four of my other friends. And we’re just coming from a recreational centre that’s in the area.

We just finished swimming that day. And we were heading over to the gas station to get some Tim Horton’s. A cruiser just pulled up and said we all “fit the description.” We had to remain silent and they just cuffed us right away and brought us right into the police station.

This was pretty devastating to me because I had already been through this situation when I was 13, but they let us go that day. So I never thought it was going to go this far.

That’s where it got all so complicated.

Elizabeth: What were you being charged with?

Tyrone: They charged us for an armed robbery that happened a week prior to our arrests. They said that there were five people that robbed some lady at an intersection.

But they had no physical evidence of the crime. We weren’t on camera. We had no prints. We had no weapons, nothing of that nature. And, actually, a couple of us even had an alibi where we were.

When you’re charged, they say you’re innocent until proven guilty. But you’re actually guilty until you’re proven innocent. Because when you get charged, you have to fight to get your way. If you don’t have an alibi or a good lawyer, a good support team, you could literally sit in jail for years before anything happens.

Elizabeth: You were arrested, you’re 15 years old. You’re told that you’re being charged with armed robbery. Do you get an opportunity to go to court where you can post for bail? Or what happened?

Tyrone: Right away, when I get arrested, they take me to Brookside and I had court the next day.

Elizabeth: Brookside is a youth detention centre. And to be clear, it’s in Cobourg, Ontario, which is about a hundred kilometers away from where you lived in Scarborough. So that’s where they’ve taken you.

Tyrone: I was very shocked because I never even been out that far myself. We always been living in the GTA area. So I was very shocked, and I was scared. I didn’t know what was going on. I almost had a panic attack, actually, but I just had to get myself together because I knew that would only make things worse for me.

I believe in God, so I was just praying that when I get to the Brookside Youth Detention Centre, hopefully I could just make a phone call, and my mom could get me out of this situation as soon as possible.

Elizabeth: At this point, you haven’t even talked to your mom. You’re being brought to Cobourg, to Brookside, and you haven’t spoken to your mom yet?

Tyrone: No, I never got to speak to my mom. They only gave me a call to speak to a legal aid lawyer. And after that, for some reason, that day there were so many other people that were arrested, they were only trying to do the mandatory legal aid calls. But they didn’t want nobody to even have a chance to call a surety, which didn’t make sense.

Elizabeth: You must’ve been scared.

Tyrone: Oh yeah. I was really scared because it’s my first time getting arrested, and you’re panicking because you didn’t do nothing. And then now you’re just getting treated like the worst of the worst.

I’m so young and four of my other friends are arrested. We were scared. We didn’t want to get a record or anything like that. We’re missing school. So it was all just a lot of pain.

Elizabeth: You were held at Brookside for a couple of weeks. Was it four weeks that you were there?

Tyrone: Yes, I was there for four weeks.

Elizabeth: So what was that like? Can you tell me a bit about what that experience was like?

Tyrone: That was a very frightening experience because there’s a lot of gang activity going on. So people are going to ask you, “Where are you from? Are you in a gang?” And then if you’re not in a gang, you almost become vulnerable because then they just look at you like an outsider.

So people were getting their food taken. Sometimes people were getting jumped. People were even getting extorted. It was just like so much going on that a lot of people were even hurting themselves because they couldn’t take all that was going on.

What helped me was talking to family, praying. And it just so happened, the range that I was on, the pod, that the people that were gang-affiliated used to live in my old area. So basically I got a pass. I got lucky in that aspect, because if it wasn’t for that, then I would have been getting extorted and jumped and all these not so good things, you know?

Elizabeth: Because they knew you from the neighbourhood, they said, We’re not going to touch you. We know that you’re a good kid, really leaving you alone. Was it that obvious?

Tyrone: Yeah, it was that obvious. And that was that quick of a process. I was very, very lucky because, you know, I’m seeing other things happen. Fights and stuff like that. It’s just like that easily could have been me if I went to a different pod or range. So I was happy for that, but I was very stressed out. I barely could sleep. I wasn’t really eating the food. The only thing that was keeping my head up was just my mom, because she even came, drove down there to visit me and told me, “Don’t worry, this is all going to get figured out and just stay strong.”

Elizabeth: So, four weeks. You’re 15 years old. It’s a youth detention centre. Was there programming? What kind of supports or programs were available to the young people being held there?

Tyrone: That was the most crazy thing, because there was actually no school programs going on. There was only a basketball court, and they had a small gym where you could exercise. There was only a program that you could do if you wanted to do substance abuse, anger management, and a couple other programs that I cannot recall at the moment, but they were more for self-awareness. You couldn’t continue in your education.

Elizabeth: You’re missing four weeks of school. So you’re completely out of the loop in your education at this point.

Tyrone: Exactly. And that’s why I feel people lost hope in there and started causing trouble. People were just all shoved into one small confinement with not a lot of stuff to do. So they start making up things to do themselves that is not necessarily peaceful and productive.

Elizabeth: At the end of four weeks, you’re released. What happened? What prompted that release? Why were you released?

Tyrone: I finally was released because when they checked out the camera information, there was a next robbery. I think that was about three weeks in, and it was the same exact people. It was about five of them, just so they arrested me and four of my other friends. And it was a similar thing. A guy went and robbed a couple – or, four of them went and robbed a couple. And this time it was very violent.

I guess the police were already in the area doing surveillance. So when it happened, they actually caught them on the scene. And that’s when it went on the news. Right away, our parents were on it to let the police know that these must be the real suspects because it’s kind of the same nature of what happened the last time. And our lawyers were on top of it. That’s when they figured out that, yes, it has to actually be these guys. They’re the real suspects.

At the end of the day, none of us had a record. A couple of us had an alibi, so they didn’t really have a strong case against us to hold us anymore. They had to let us go.

Elizabeth: As you’ve described your time in there, it sounds like it was traumatic. You’re 15 years old, you’re far away from home, and you’re being accused of something that you haven’t done, but you’re not seeing justice being done. How were you released? What was the process around being released?

Tyrone: The process of being released was actually pretty scary. Because when I got released, my mom’s car broke down. She was supposed to come and pick me up.

When they let me out, it was kind of random. I didn’t know that I was going to get out. They just gave me a token and told me that there’s a Via Rail train station just down the road. And if I go this way, make a right, make a left, I’ll find it.

And I’m not from the area. So I was just a little confused.

I was asking them, “Is it possible that you guys could call a taxi or something like that? There’s no way you guys could give me a little bit of cash?” And they just brushed me off and said, I should be happy that I’m even released.

And just kind of like: “Get outta here.”

So I was very disturbed. I started walking on this street. I didn’t really know where to go. I started making a couple lefts and rights. And then a lady saw me walking with like a couple of bags that had some of my school stuff that I had from the day that I got arrested.

So she saw I looked very disturbed and she just asked me, am I okay? And where am I going? And I just told her, “I’m just trying to find the train station. I don’t know where it is. I just got released out of the Brookside Youth Detention Centre.”

She just felt very sad for me and said the train station is a good 20 minutes away. So she just gave me $20. She called a cab and said the cabbie would take care of me from there and make sure I get to the Via Rail train station.

Elizabeth: So then you got on a train and came back to Toronto.

Tyrone: Yeah, I got on the train. I came back to Toronto and that’s when I was able to call my mom when I got to the GO station. And then she already had her friend ready that was driving to come and pick me up and just make sure I can get back home as soon as possible. So I could be back with my family.

Elizabeth: The system didn’t provide any programs or supports for your exit. I’m assuming there was no apology for the wrongful arrest.

Tyrone: No apology. No help whatsoever.

Elizabeth: So now you’re back in Scarborough. Do you go back to school? Does your life change now or is it like nothing ever happened?

Tyrone: I would say my life changed. I went back to school. At first I tried to just get my head right in the books, stay positive and try to let bygones be bygones. But the high school that I was going to was in my old neighbourhood, in Galloway.

A lot of youth heard what happened and they heard that me and four of my other friends got arrested. They actually thought that we did it.

So when I was at the school, people were almost trying to glorify me about what happened. You almost started to get a glorified feeling. It was a feeling I never really felt at school before, because I was more like, I would say, an outsider. I would just do my schoolwork, sometimes hang with friends, but mostly stick to myself.

So now when I saw how people were treating me, it switched up my mind frame. And I would say also I was dealing with some mental health issues upon being released after just being in such a devastating situation.

One kid basically told me, “All these people that are attracted to you now, you can make some money off of them, if you want to sell a bit of weed.”

At first I was just like, I shouldn’t do it because it’s going to put me in the situation that I was just in. In my brain at the time I was already always getting pulled over and harassed for stuff I didn’t even do. At the time it was just like, I might as well actually do something so when I go to jail, it won’t be for nothing.

It’s very sad that I was thinking that way, but that was the reality of me being released.

Elizabeth: That you now have a reputation, and you’re living up to it.

Tyrone: Exactly.

And that’s why I just started selling a little bit of weed at the high school and stuff like that.

At first, it was all cool. I would say for almost a year and a half, and then just like anything, you know, things catch up to you when you’re doing wrong.

And then there’s a teacher one day. I’ll never forget that day. It was snowing. I wasn’t even supposed to necessarily go to school. But I just always went to school in general.

Not necessarily just to sell weed, but I actually did my schoolwork too, and I did sports. So I wasn’t just like in it for one thing, I was in it for kind of everything. It was just like a fun time, I would say, as a kid. So when I get to the school now I had the weed. I put the weed in my Dickies pockets, but it’s poking out at the side. Anybody could see it, if you just looked into my pocket. It was probably like seven grams at the time.

And so I go to class and I’m chillaxing and I’m doing my work.

I guess the weed must have smelled in the classroom. So the teacher called the vice-principal, and we always had a police officer in our school, too, and they came up right to my classroom door and they just called me out. As soon as I went out, the officer said, “I got suspicion that you have some marijuana on you. So I’m going to have to search you in the principal’s office and see what’s going on.”

Elizabeth: And so then what happened?

Tyrone: I had the weed right in my pocket. So right when we got to the office, I just took it out and gave it to him. And I just said, “I have some weed right here.” I tried to pull a fast one and say it was for personal use.

This is when reality was starting to sink in. It was very scary because I knew the repercussions of my acts.

But at the time I didn’t think I was going to get caught because I was getting in trouble for things that I didn’t do, but I didn’t think I would get in trouble for things that I actually would do, which was very gullible. So I showed the officer the marijuana, he cuffs me right away. He says, “You have the right to remain silent. We’re going to run a search warrant on your locker, also, just to make sure you don’t have anything else.”

And that’s where I was very dumb and naive.

Earlier that day one of my friends, he had a BB gun, and he told me just to hold it down for him until the end of the day of school, because he didn’t have a backpack. So I put that in my backpack prior to the first class in the morning. And so now when they issued a search warrant for my locker, they also found the BB gun and that’s when they put the school on the lockdown and they called a couple more officers. At the time, I guess they assumed that it was a real gun.

And this is when it really hit me that if you want to be in this lifestyle, you’re gonna get yourself into some really big trouble.

At first, I didn’t really care because I already got in trouble, as I said, for things that I didn’t do and they’re already labelling me. But now that I really got in trouble for something I did do, I was pretty discouraged with myself that I gave up so quick. I feel like I could have asked for help and try to do things differently.

But when I got out, I think I held a lot of things in. I didn’t necessarily let my mom know exactly how I felt. I just tried to brush it off, but I was holding in inner demons that I needed to let out, just so I could actually do good things with my life and not just reminisce on the past.

Elizabeth: So now you’re being charged for stuff you’ve done. And now you go to a different detention centre, this time the Roy McMurtry in the west end of the City of Brampton. Was that similar to the last experience? How long were you there for? And were there supports there this time?

You’re still a high school student. You’re still a youth. What was that experience like?

Tyrone: That experience was very different. They actually built a school on the property. They had an auto mechanic shop and they also had a woodshop. So there were activities for you to do. And you could get back and enroll in school. So the educational stuff and the same programs that were in Brookside, like the substance abuse, anger management, life skills, that was all there.

But once again, the gang affiliation was still at the Roy McMurtry and a lot of people were getting tested to see if you’re this type of person. Just a lot of misery and pain was still there just like Brookside.

But this time I had to accept it and take it for what it is because I actually made the mistake and I did something wrong. So I just tried to keep my head into school and actually told myself that I can’t live like this.

This is not a life for anybody. I let my mom down, my little brothers, because I don’t want to promote that lifestyle for them.

It’s not a game and it’s only going to drag you down. Getting a record could mess up your whole future. So this is when I was honest with myself and I just said, I’m going to have to do the time. But when I get out, I really need to make some changes in my life to be a decent human being in society.

Elizabeth: When you were at the Roy, what was the legal process?

Tyrone: It took up to two weeks after I got my lawyer on the first week. I took a plea deal because I knew I was guilty and I got caught right-handed. So there was no point on wasting the youth justice system’s time. They gave me a deal. It was six months for the seven grams of the marijuana and then the BB gun.

I felt it was a lot of time. At first I thought for my first charge maybe they would have given me two months and then tried to get me back into the community, maybe probation, or get me into community service work.

But they just gave me that little bit of a lengthy sentence right away.

Elizabeth: And then when you were released from the Roy, was it similar? They just sort of, “You’re done. Here you go. Go home.” Was there any programming, was there any supports, any follow-up? What was the exit from that experience like?

Tyrone: It was literally the same thing. They just give you a bus token. They tell you, “Here’s your property. You’re released.”

No follow-up, no opportunities for when you get back into the community to have a different lifestyle. Because after you are incarcerated for some time, I wouldn’t say you’re necessarily normal. You need certain things to help you stick on the right path, or you actually will make the same mistake again.

I was a little shocked on that. But this time in my brain, I knew if I wanted to do better than I would have to make the change, and I would have to be productive myself and believe in myself. I just tried to finish school, start to work, and build a name for myself in the right way.

Elizabeth: Is that what you did? You went back to school, and you found work, and you tried to build your life again.

Tyrone: I actually got expelled from my school. They put me into a safe school at Pharmacy. When I went to the safe school, a lot of teachers, they vouched for me because even though I got in trouble, they said I wasn’t actually a bad kid. I just made a bad choice. So they vouched for me.

If I go to the safe school, usually they try to give you just like a certificate instead of an actual diploma. So I was very honoured that they had my back and they knew that I had the potential to do something good. So I was able to finish at the safe school and get a real diploma and have a mini graduation with the people that were at that school.

It was a very small class. It was up to about 15 of us. So when we all graduated, then we had like a little ceremony within that little group.

Elizabeth: That must have felt good. Like you felt supported in beginning to set goals and achieving them.

Tyrone: Oh yes. That felt really, really good because I was able to have some family members come to the graduation. Just to see a smile on my mom’s face. And for my brothers to see that it’s possible. They’re in high school now. At the time they were young, so they were only in middle school. I just wanted to show them that, being positive, you could get things done.

Elizabeth: So when the supports were in place, you did better. And you got back on track.

Tyrone: Yes, most definitely. Also, I got into a basketball program because I showed my mom that when you got nothing to do after school, it’s probably easy to get in trouble. I got into the Scarborough Blues basketball team and I started playing for them, training at least three days a week. We usually had a tournament every week. So that gave me four days of something besides school and then also looking for work.

So I was just very busy. I was always trying find something to do that’s going to be productive. I started exercising a lot. That was something I started to do when I was at the Roy McMurtry. I was there for a little lengthy time, so I said, I should take care of my health and get healthy.

When I was joining the basketball team, I started to switch the way I eat. I was even vegan for a little while. So it was just a good feeling to know that if you put your mind to something, you can actually get it done. You just have to stay focused and don’t get distracted.

Elizabeth: When you were talking earlier, Tyrone, you talked about the neighborhoods where you grew up. Galloway and Kingston, and Markham and Ellesmere are two neighborhoods in Scarborough where there’s not a lot of money where there weren’t a lot of resources. Do you think it would’ve made a difference in your experience if your family had access to more money or resources in terms of your experience going through the system? Or if your experience with the system would have been different if you lived in a different neighborhood? What difference does money make?

Tyrone: I would say money makes a big difference because there’s certain communities that are in the GTA that already have a history of crime for decades. When you’re growing up in this area, at first you’re young, you don’t really know what’s going on. You go to school, you play basketball, you chill out with friends, you do nicky nine doors. Everything is just all fun and games.

But then when you start to get older, you start to know the worth of money.

There’s going to be people in the community that even push stuff on you, like, “Oh, take this bag of weed. And if you bring me back a hundred dollars, you can make the next $150.” And then you start to get peer pressure.

There’s just so much crime going on. The police are frustrated that they can’t necessarily sometimes find the right suspect so they just have to blame the crime on you because you live in this neighbourhood. Basically, it’s like you get labelled as a whole. It’s like a community, everybody that lives in certain communities all around the GTA that if it already has a stigma on the neighbourhood, then it almost like falls upon you.

And it’s hard because if you could live in a gated community, or even be homeschooled, I feel like you would have a different mindset and a different lifestyle. Because you would be dealing with people that have a business mind-state and they know how to come up in the world.

So when you’re growing up in poor communities, you’re seeing a lot of things going on that is necessarily not positive and productive. It kind of sucks you in for the most part. You have to be very, very strong-minded to live in a poor community and a community with a lot of crime to not actually get involved.

Elizabeth: If you think about the first time, when you were 15, and you were detained and sent to Cobourg to Brookside, do you think it would have made a difference if your family had more financial resources, if you had access to more legal representation? Would that have made a difference, do you think?

Tyrone: Most definitely that would’ve made a difference. When you use legal aid, it’s just a government-paid lawyer. There’s so much people in the justice system using legal aid, they don’t have enough time and enough resources to get your case dealt with. Instead, if you pay a lawyer, then they’re on top of your case right away.

Something I forgot to mention: one of my friends, when I got arrested as a youth and was at the Brookside Youth Detention Centre, his mom put up $5,000 and he was bailed within three days.

He got out and within three days. The next four of us, all of us had single mothers, we weren’t able to get out for the four weeks because we were using legal aid.

Elizabeth: So, Tyrone, you’ve talked about a lot of different things. You’re at a point in your life now where you’re starting a program at a college. You’ve had some supports from the organization Amadeusz, and you got a few things beginning to happen. How hopeful are you about your future? What do you want to see happen for you?

Tyrone: I want to finish school. I want to save money. And I want to have a career. I want to help the youth. I want to even help adults that are still lost and don’t necessarily know what to do in life.

I want to just preach that you can go through things in life and you don’t have to give up. There’s support teams that can help you. There’s positive things you could do. And you can take that pain that you went through, and you can make it turn into success just off of your story and offer the things that you’ve been through because not everyone could handle and necessarily deal with the things that a lot of people deal with in poor communities.

I just want to get a career that I can help people, possibly at CAMH. That’s why I’m going to school right now for Centennial College for addictions. I want to try to help people better themselves because there’s all different types of addictions.

We need to know that we could break ourselves of that mind-state if we just try to stay focused on the positive things and just don’t lose yourself and don’t give up.

Elizabeth: That’s a great way to finish: working in the community, strengthening the community. That’s just terrific. Tyrone, thank you for sharing your story. Thank you for sharing your experiences. And I think you’ve given everyone a lot to think about and to act on. So thank you.

Tyrone: No problem. Thank you, Elizabeth, for having me on the podcast.

Elizabeth: Thank you for listening to this episode of our podcast, “Advancing justice.” To hear all episodes in the series, please subscribe to this podcast on Apple Podcasts, Google Podcasts, Spotify, or Stitcher. You can find the full transcript of my conversation with Tyrone, links to resources, and other contributions to our series on the Maytree website at www.maytree.com.

Elizabeth: Welcome to “Advancing justice,” a podcast that explores the interface between human rights, poverty, racism, and the criminal justice system. 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.

In this episode, we will be discussing the issue of the lack of diversity in the criminal justice system. Joining me for this discussion are three individuals from the Lincoln Alexander School of Law in Toronto.

Harsimran Sidhu is a second-year student. She received her BA in political science from McMaster University. Joining Harsimran is Kaylee Rich. Kaylee is also a second-year student. She received her BA in psychology from the University of Ottawa.

Also with us today is Dr. Tanya De Mello. She is the Assistant Dean for Student Programming, Development and Equity. She has over 20 years of experience working in the post-secondary sector in governance, student affairs, and in human rights. She has experience creating curricula and advising on curriculum reform that embeds, equity, diversity, and inclusion in courses.

Hello everyone. And thank you for joining me on the “Advancing justice” podcast.

So let’s start with Dr. Tanya De Mello, who prefers to go by Toni. She’s the assistant Dean of Students at the Lincoln Alexander School of Law, which is the newest law school in Ontario.

But before the Lincoln Alexander School was created, there were already seven law schools in Ontario. What was the thinking behind establishing a new law school? Why did we need one?

Toni: You know, it’s funny because many people, Elizabeth, will say to us, we have enough lawyers. We don’t need more lawyers. We don’t need more law schools.

And my response: if we have so many lawyers, why are more than half of the people in civil courts self-represented? If you look at just family courts, it’s at least half of the people have to self-represent because they can’t afford a lawyer. In Toronto, it’s 80 per cent.

What you have is a phenomenon of not the fact that we have too many lawyers, but that legal services are inaccessible. They’re inaccessible to the poor. They’re inaccessible to people who aren’t in the know of how to navigate these extremely complex, dense, and unwelcoming systems. People are finding themselves in court or in disputes where they literally cannot afford a legal outcome.

And so the first thing I’d say is, it’s not that we have too many lawyers, it’s that we don’t have enough lawyers that people can afford. And we need to think about that very deeply. And the second is there was really a push, and I will say Dean Donna Young, who has been the founder of the law school, our founding Dean, her vision is something with which I’m extremely aligned.

And it’s that we need to push to think about, not just who’s in the legal profession, but what kinds of lawyers we’re producing in terms of their skillset and their capacities and appetites. So the first thing we’ve seen is the legal profession tends to be very White, very dominated at the highest levels by men, very of socioeconomic status is if we’re looking at that, we’re talking about the higher levels of socioeconomic status. So who is even getting into the pipeline is a challenge. And sometimes that can result in the legal industry being less accessible to folks that aren’t represented by these leaders.

We first wanted to have a law school that actually represented the population and the talent pool that was out there so that communities can be better served by people from their communities. We’re thinking of racialized folks, Indigenous, Black folks, folks from extended families and newcomers to Canada, first generation people whose families have never been to postgraduate education.

And then the second thing we were thinking about was: what does it look like to train lawyers to have different competencies and capacities when they get out there? We focused on really having diversity and inclusion be at the core of the delivery of our program.

We have an integrated practice curriculum, which basically gets students to learn the theories of law, but then also have practitioners teach them. “You learned about what a contract is, I’m going to show you how to write it.” So it’s a very hands-on practical program.

And we wanted to have a commitment to access to justice so that we would actually produce lawyers. Many lawyers come in saying in their admissions applications that they want to serve the poor, and they want to be vigilantes for justice.

And many of them end up in fields that have nothing to do with that. So what does it look like for folks to think about access to justice in their work?

And the last thing we really wanted to have is a commitment to innovation. Ryerson, which we’re now renaming, and I’m very proud to be part of the efforts to rename our university, is a university that really is committed to innovation.

We wanted technology to be at the heart of what our students will be learning. How can you leverage technology so it helps people that require it, and it makes legal access easier? But also how can you be at the forefront of technological innovation?

Elizabeth: So really access to justice underpinning all of that.

Toni: Absolutely!

Elizabeth: So let’s turn to the students, and I want to start with Harsimran.

I understand that there’s this term called a “Linc Lawyer” and that’s being used to describe a graduate or someone who has come from the Lincoln Alexander School of Law. And you’ve said that “a Linc Lawyer amplifies the voices of the unheard.”

How do you link this up to the school’s commitment to diversity and amplifying the voices of the unheard, especially in the context of the criminal justice system? How does that come together – the unheard and amplifying their voice in the system?

Harsimran: Just starting off with the term “Linc Lawyer.” We’re taking it from Lincoln Alexander, who our law school has been, amazingly, renamed after.

And if you follow Lincoln Alexander, his career and who he stood for as a person, he always stood for who he represented, but also the people around him. He created pathways for so many different individuals in ways that we see the impact now where I can enter a space. And even if I don’t see anyone that looks like me there, I know it’s not that I don’t belong, but I need to be in that space so that more individuals that look like me can be there.

I’m very much a visible minority. I tie a turban so you can tell, I’m from the community. And I carry my identity with pride. I know how heartwarming it is to then see individuals that look like you in a system that’s meant to represent them.

The reason why we have so much disenfranchisement, like disenfranchisement and disenfranchised individuals, is because the legal system is not a representation of them. It doesn’t look like them. How do you trust the system that’s been essentially made to uproot you and not to serve you?

You’re doing the exact opposite.

So when you have such different perspectives in the legal field itself, looking at my colleagues and looking at the faculty, there’s such a diversity, diverse perspectives and identity, that I’m getting to learn more by being around these individuals.

And I know that when we’re in the legal field, that’s what you’re going to need to actually bring, that innovation, that change, and bridge those gaps and actually amplify those voices of the unheard. Give that platform that you need because it’s been a long time coming. It’s the fact that this shouldn’t have been an issue from the get-go. But the fact that it is, it’s nice being a part of a school that is harboring that change, putting actions to those words, where you then actually end up amplifying those later.

Elizabeth: You’re amplifying the voices and you’re beginning to change what the pipeline looks like in that system in a very authentic and substantive way.

I’m going to turn to Kaylee now.

Kaylee, you’ve done some research along with Harsimran about diversity. Together, you found that negative experiences with authorities in the community early in life can deter individuals from pursuing professions that serve in the justice system.

And that it’s when Indigenous, Black, and other racialized communities experience this negativity, and they experience it consistently at higher rates than other groups, that this erodes trust. And Harsimran just talked a little bit about the erosion of trust when you don’t see yourself in a system. But can you expand a bit on this? When you’re experiencing this with authorities, what happens to the trust, and how do we maybe start thinking about repairing it?

Kaylee: We know from several sources, including the Ontario Human Rights Commission, that Indigenous and Black communities are consistently over-surveilled by the police. Being Indigenous or Black means that you’re much more likely to be arrested, taken to the police station, or held overnight, especially when you compare it to White members of the population.

Rather than feeling served and protected, the research shows that these communities developed negative associations towards the police and representatives of the criminal justice system. And these negative experiences often lead to real legal consequences.

We know that Black and Indigenous people are overrepresented in the prison system. The net effect is that the criminal justice system is experienced as discriminatory against Indigenous, Black, and other racialized communities.

When people feel oppressed by a system there’s often little incentive to want to be a part of that system. And that’s one of the contributing factors to this lack of diversity in the legal system and in other criminal justice professions. To a certain degree, there’s a cycle that’s created when there isn’t representation within the criminal justice professions. There’s no incentive or reason for change to occur.

But having said that, there’s also those who are affected by this discrimination and want to be part of the system in order to change it. In our research, we found that this was most common when youth have a positive connection to someone within the system. Being a mentor, or a friend, or a caseworker, that connection fosters empowerment rather than negative feelings.

And it helps break that cycle.

Elizabeth: It comes down to real relationships that can transform that sense of trust or a sense of being able to make change happen.

Harsimran, in your essay, you also speak about discriminatory practices in the public school system, which act as deterrents to wanting to pursue a profession in the criminal justice system. Or the discrimination in the school system is so deeply impactful for so many, in particular the Black community, Indigenous community. And we’ve seen that through decades of research there as well. In your opinion, what is the connection between discrimination in education and the lack of diversity in legal and other professions serving the justice system?

Harsimran: Like it’s been pointed it out, there have been so many studies over decades that Indigenous and Black youth are experiencing discrimination in the public education. And this discrimination manifests itself in so many different ways, including a higher rate of suspensions and expulsions for Indigenous and Black youth, leading to distrust in figures of authority, not just in the school system, but generally, including the justice system. And we see it in the way that Indigenous and Black youth are also streamed away from academic programs, which then they need to pursue post-secondary education.

In our paper, we refer to the recent study conducted at the Peel District School Board that identified these type of discriminatory practices. But this is just one of the recent ones, and a local example of systemic issues, that have been a part of the education system for decades. The fact that you have this report still identifying these same issues, clearly there hasn’t been a change there.

When you have young individuals lose that trust in their authority figures and when their educational future is guided by a discriminatory practice of streaming, suspensions, and expulsions, these are going to be significant deterrent to be choosing a career in the justice system itself. So you’re harbouring those feelings of mistrust from a young age, and it carries through. It’s really a matter of addressing that issue from the get-go, from the early years, when you’re in the education sector.

Elizabeth: More than 25 years ago, when I was doing my graduate studies, I focused on exactly that question, and the numbers haven’t changed in terms of the rate of Black students being pushed out of the school system, being streamed, and the resulting effects of that.

And it intersects with everything. It intersects with poverty. It intersects with criminal justice. And it’s frustrating because we’re not seeing change at any pace, that we’re still producing reports that show this kind of net effect.

Kaylee, back to you. One of the other contributing factors to the lack of diversity in the justice professions that you’ve looked at is the effect of poverty. What do you think the connection is between poverty and the lack of diversity? How did these come together?

Kaylee: First, it’s really important to acknowledge the fact that poverty is racialized in Canada. Indigenous and Black communities experience steep poverty at much higher rates than any other community.

Second, it’s really important to be aware of the pervasive effects that long-term and intergenerational poverty can have on the development of children. Studies have shown that cognitive and emotional development can be significantly impaired by poverty, which often impacts academic performance, social experiences, and social integration.

In addition, this can create psychological stress that’s often prolonged and chronic. Chronic stress can actually create physiological changes within the brain, which impact everything from emotional processing to reasoning.

This psychological stress can be due to a lot of reasons. Our research showed lack of funds, lack of nutritious food and housing precarity, lack of parental supervision if the child’s caregivers are frequently at work. In many communities, the types of supports and programming that can help mitigate the impact of poverty just aren’t there, they’re not available. And all of this means that for many Indigenous and Black youth, the challenges associated with growing up and doing well at school are much greater.

When you add this to the cost of post-secondary education and the academic requirements that are needed to pursue some of the careers in a criminal justice system, members of Indigenous and Black communities that experience deep and prolonged poverty are far less likely to pursue post-secondary education.

Like you said, Elizabeth, it’s important to note that these circumstances don’t occur in a vacuum. These all occur in tandem, and they’re not separate issues.

If we add the effects together, it creates circumstances that are not favourable to pursue criminal justice professions.

Elizabeth: This makes it all sound really difficult to change. Toni, you’re at a faculty of law, trying to change this. You’ve done your own research that shows some of the additional barriers that diverse candidates experience, whether when they’re looking for articling positions or longer-term positions in the legal profession, structural changes that make it really hard to be a sole practitioner.

How is the law school poised to be a disruptor to this? And how do we change this pipeline and, ultimately, change what the legal professions and the professions serving the justice system look like?

Toni: It’s a very loaded and important question.

I want to start by highlighting something Harsimran said that I think is really important as we think about this. She talked about what it feels like to not see yourself represented. So not just not see yourself represented in terms of racially or in terms of your gender, but in terms of how you identify, in terms of how you practice, what’s important to you.

We’re hearing from young lawyers entering the profession that the thing that they’re battling against the most is this concept of fit. That you have to be a certain fit to get into these law firms or legal practices.

You have to be like the people that are already in leadership. And when we look at who fits and who doesn’t, as you heard both Harsimran and Kaylee say, it tends to be disproportionally racialized people that aren’t integrated. And what I loved that Kaylee highlighted is, it’s not just an impact in terms of you’re literally getting excluded or you have to leave or asked to leave – you don’t get in.

The reason racialized people are going to sole practitioner mode is because they can’t often get jobs in the places for which they’ve applied. So they become sole practitioners. Now there’s many sole practitioners that want to be, but there’s a disproportionate number that have to go into their own practice and hang their own shingle because they’re not able to feel like they fit in these broader corporate and other legal industries.

What Kelly highlighted that I think is so important is the level of stress that this causes. So the discordance of what it feels like to just not fit, to not feel like you belong. And we’ve seen that sense of belonging is so integral to people’s ability to perform well, but also to feel that they’re valued at their work. It’s very definitive. And so to not feel like you belong causes a great deal of stress and pressure, and it can really affect your performance.

In terms of how the law school responds to this, there’s two ways.

The first is: I heard all the time when I was working with law firms, they were like, thank you for your help on equity, diversity, and inclusion, Toni, we just want to also say, it’s not us. The lawyers aren’t coming through. We’re not seeing a ton of Black law students. We’re not seeing a ton of Indigenous students. We blame the law schools. We blame the high schools. It’s not us. The pipeline is the problem.

And I would always respond, who might have power and money that might be able to influence such a pipeline? Please stop naming, you know, boardrooms after yourselves. But rather, do events and initiatives that support underrepresented groups, bring them together, give them access to your firms, have them develop competencies and skills. What are you doing to change that pipeline?

And I would say that’s what we’re doing at Lincoln Alexander Law. We are trying to change the pipeline of who gets in. And we’re trying to produce more and more opportunities for folks that identify from underrepresented groups to come in and get that legal training that they need, as well as folks who might be from dominant groups, you may be straight, cis, male, White, that really care about access to justice innovation, working with communities and alongside not for them but with them.

And that’s so important for us that we wanted to make sure that that pipeline is changing.

And then the second thing is that we need to demonstrate that we want to be intentional. This stuff is not going to happen organically over time.

Dr. King wrote a great book called “Why We Can’t Wait.” Because people will often say, it’ll come with time; look, women have advanced over time. And I think, looking at how long it takes for those of us who are trying to get in, we don’t want to wait the next 50 years or a hundred years to see that advancement.

And so what you will see at Lincoln Alexander Law that I think is important to know is we have a very holistic admissions process. We read every file from back to front. It is extremely labour intensive, time intensive, and energy intensive. When we say holistic, we don’t mean we’re going to pick the people at the top GPAs and assets, and then look holistically, we look at every application holistically. And we’re looking for folks that show a strong aptitude, of course, in their learning, and also have shown commitments to their community, a passion for work in the legal sector.

And by the way, you can do a lot of stuff in law that isn’t practicing as a litigator or working in a law firm. And so there are many people that have done political work that is very adjacent to human rights or advancing certain causes. Many people that have worked in STEM that are interested in that intersection of science and the law.

So we look at how have you demonstrate that commitment? And we do everything that we can to really holistically think about what the person will bring to the school as well as what they’ll bring to the community.

And then the last thing I shared a little bit before, we really focus on an innovative curriculum where as they’re studying they’re practicing in every single course. Every single course has an academic whose focus is on the topic, if it’s tort law or constitutional, and they’re paired with a practitioner that is doing that work every day. So they’re learning how to write factums. You’re learning how to plead. We had a group of students last year do an Indigenous negotiation exercise with Indigenous members.

So we’re thinking about what it looks like to actually practice the work so that it’s not just something in a textbook. And we think that will also change the face of who we see in the legal profession.

Elizabeth: I think all three of you have made out just a really compelling case for the need to change the face of the legal profession. But not just the face. It’s the values. It’s the way we think about it. It’s the innovation in how we practice it.

Can you draw even a dotted line between changing that profession in the ways that you’ve described and how that will affect the experience of the criminal justice system by those who are most distant?

Toni: One of the things that is most resonant for me is the level of power, the amount of power you have when you can navigate legal resources. And I think what our students have shared today has been much more profound than anything I can share, which is this ability to see our systems as integrated. That we have to look at the educational system. We have to look at our healthcare systems. We have to look at stress, and what people experience and how that affects them. And I think the work that we have to do when we’re thinking about the criminal justice system specifically is understand how you can have rules and laws that when applied, first of all, the laws themselves, can disproportionately affect certain communities than others.

Anything from requiring ID, for example, or being asked for your ID, who does that affect disproportionally? Thinking about those people. And who gets asked? So first, how do the rules and laws themselves have a disproportionate effect on people.

And the second is to think about: how do we enforce these rules? Are they done consistently? As Kaylee was saying, these systems disproportionally represent racialized people, but specifically Black and Indigenous people. As we think and talk about the horror of residential schools, it’s been interesting to see that dialogue turn to the fact that many people believe that we still have residential schools, it’s just translated now into the foster care system where the vast majority of kids in foster care are Indigenous kids.

So you talk about criminal justice. But what is the link to the ways in which we treat people when they’re young kids, how they’re treated in schools, how they’re treated within their family structure, and how this all affects their abilities to thrive?

I think we need to look at the ways in which folks have a sense of belonging, not just in the work that they do in the schools, but what they feel in their society. Hearing racialized folks, Black and Indigenous folks, talk about being afraid sometimes to go out at night and not knowing how police interactions will go, being worried about which neighborhoods you go in, and if people will think you’re welcome when you belong there, I think we like to think of that as a U.S. problem. But we are seeing more and more data that these are things that are occurring in Canada, and they affect the way a person can integrate into society, but also how they’re treated when things go a difficult direction.

Elizabeth: Kaylee or Harsimran, do you have a final thought that you want to share?

Kaylee: I really appreciate being at a law school when our leadership is like Dean De Mello and has this perspective because I’m very confident that wouldn’t be the case at most schools. So I just feel fortunate that I’m included in this group of people who gets to do these cool things.

Elizabeth: Harsimran, do you want to add your last words?

Harsimran: Following what Kaylee just said, it’s amazing to be a part of a beautiful community that works together in such a unique way to foster that change. And we’re seeing it even so early on, I think, with just having two cohorts so far.

I’m excited to see what will happen next when we have initiatives like this and, like Kaylee said, we have leadership like this. And I think changing the name of our law school to Lincoln Alexander is not just for namesake or just for show, there’s a lot of meaning behind that, there’s a lot of work behind that. It will be exciting to see how it plays out in these next few years to come. Because that change has been a long time coming.

Elizabeth: So those are hopeful words for the up-and-coming lawyers that are going to change the face of justice, hopefully. Harsimran, I love that you have really highlighted the importance of a name. And I think Lincoln Alexander sets a tone. It sets a vision, and it sets values. And I think that I want to come back to the need to be impatient and let’s collapse those timeframes to see things change.

Thank you so much all three of you, a pleasure to talk to you today.

Toni: Thank you so much, Elizabeth. And thank you for all the work you’re doing every day at Maytree. I think it’s important to mention that it does not go unnoticed.

Thank you.

Elizabeth: Thank you for listening to this episode of our podcast, “Advancing justice.” To hear all episodes in this series, please subscribe to this podcast on Apple Podcasts, Google Podcasts, Spotify, or Stitcher. You can find the full transcript of my conversation with Harsimran, Kaylee, and Toni, links to resources, and other contributions to our series on the Maytree website at www.maytree.com.

Elizabeth: Welcome to “Advancing justice,” a podcast that explores the interface between human rights, poverty, racism, and the criminal justice system. 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.

Joining me today to discuss community alternatives to policing is a Akwatu Khenti. He’s an Assistant Professor with the Dalla Lana School of Public Health at the University of Toronto. Akwatu is also a member of the editorial board of the “Advancing justice” series.

He has over 25 years of experience in government and community settings. Akwatu formerly served as Assistant Deputy Minister for Ontario’s Anti-Racism Directorate, Cabinet Office, and Director of Transformative Global Health at the Centre for Addiction and Mental Health.

Welcome, Akwatu, and thank you for joining me on the “Advancing justice” podcast. I’d like to start our conversation today by situating the question of policing within the themes that we’ve been exploring in this series. So when it comes to the question of policing, how do you see the intersection of human rights, race, poverty, homelessness, and the criminal justice system?

Akwatu: I think the intersections happen in fatal encounters. But it also happens in DWB, WWB – “driving while Black,” “walking while Black” – where you have these huge disparities in fatal encounters: Indigenous people in particular, four per cent of the population, 16 per cent of the fatal encounters; Black people, three per cent of the population, and almost nine per cent of the fatal encounters.

And those rates also apply to “driving while Black,” “walking while Black,” and it’s in Toronto, it’s Montreal, it’s Halifax. It’s even in places where the population of Black people is small – so PEI, Newfoundland, Saskatchewan, Manitoba.

What’s also important is that mental health and substance abuse issues are involved in the majority of these situations, particularly the ones that lead to fatalities.

Often, “driving while Black” or “walking while Black” leads to arrest and detention for issues that nobody would have anticipated. They didn’t have insurance, had some cannabis under the car seat, things like that, that you had to actually be looking around to find it. And next thing you know, the person’s on a pathway to criminalization.

I also think in terms of these situations that policing depends on skillsets that are not really appropriate or necessarily relevant for mental health issues or substance abuse issues. Because policing is about authority, establishing control, whereas we know that mental health crisis is about listening, trying to reason with the person, de-escalating, respecting autonomy and decision-making, so that the outcome is satisfactory to all, as opposed to satisfactory to the one who’s charged with establishing law and order.

The police themselves say, “We can’t solve all the social problems of the country and it’s unrealistic to expect us to do so.” And I actually agree with them on that. But I also say, “Why is it so much easier to pull the trigger when the person on the receiving end is Indigenous or Black?” That’s also a problem that needs to be addressed.

That’s one component of the answer. The other part of the answer is the research that shows that people who are homeless have 42 interactions with the police a year compared to people who are not homeless, which is about four.

So ten times the interactions just by virtue of not having a home. In a city like Toronto, with 9,000 homeless on average, that’s like 360,000 interactions with the police. More than ten per cent of police interactions taken up by people who are not involved in any criminal activity, because homelessness is not a crime, it’s a socioeconomic reality, a problem that remains to be solved. And what amplifies the racialized risk, of course, is that Black people are disproportionately represented amongst the homeless, three to four times the rate of the population, and Indigenous people even more so, actually I would almost say obscenely so, 30 times the rate in the population.

Elizabeth: So the situation that you’ve described, particularly “Black while walking,” “Black while driving,” it has just become so stark in the public view and has led to movements around defund the police. I think the spirit behind that is some of what you talked about, that police aren’t necessarily the best positioned to do certain things.

Some in the community, and some advocacy groups, have called on governments to develop emergency systems of response to mental health, addictions, and homelessness, and to take this outside of the police purview, to take this outside of something that immediately feeds into the criminal justice system.

In the piece that you wrote for us, you talked about a model, called CAHOOTS from Eugene, Oregon. Can you tell us a bit about this model?

Akwatu: The White Bird Clinic came up with the idea. It comes from the idea, or the inspiration for the term – “in cahoots with the police.” It comes with the irony of the involvement with the police in order to solve a problem that the police actually amplify.

The reality is we have to work with our law enforcement officers. We don’t want to create a problem to solve a problem. We want to solve a problem with a solution, not with another problem.

It’s less expensive than a police model. It involves two-person teams: one for crisis intervention, psychiatric emergencies, de-escalation, counseling; another one for the medical emergency management when such issues emerge. Like, for instance, somebody is cutting themselves, you need somebody to deal with that, as well as talk to them because the crisis is both psychiatric and medical.

What’s important also is the mission. Their mission was to address substance abuse and mental health, and homelessness, and to arrive at problem solving.

The other thing I like about the CAHOOTS model is that it reduces stigma around mental health in a real way. You don’t need a doctor in an emergency vehicle to come to the house to deal with a minor medical emergency. You’ve got emergency medical teams, a nurse, or an EMT support worker.

Similarly with mental health, you don’t need a police officer. Having a police officer respond to mental health issues, someone in psychiatric crisis, adds stigma. So when you send people who are dressed casually, look like the person in crisis, it’s a different vibe and a different message about how to manage these things and how these things can be managed.

That’s another reason I like the model, especially given the issues that we have about trust, or lack of trust. The model really allows for trust-building, particularly because it recognizes the role of human contact, empathy, compassion, and de-escalation.

Elizabeth: So those are all critical principles. Does it work?

Is it effective? Can you tell us more about what we know with the evidence?

Akwatu: The record indicates that CAHOOTS has effectively managed conflicts and wellness checks. Less than one per cent of the calls in fact have required the CAHOOTS folks, the two-person teams, to call the police in because the individual was violent and out of control and they couldn’t handle it.

Instead of have people in uniform establishing authority, looking to control the situation, just having people who look like you ask you: “What’s going on? What help do you really need? What can we do?” has its different messaging around what safety actually means and what your relationship actually means.

Because the people who are doing it don’t have baggage. And if you’re homeless, you have baggage because, as I said, 42 contacts a year for no reason just because you’re homeless doesn’t incentivize you to call the police in the first place. In fact, you’re more than likely to be reluctant and respond positively to the messages of de-escalation.

Elizabeth: Even I would imagine that the physical representation of a uniform would be a trigger for many people.

Akwatu: And that’s what a uniform does. We wear uniforms to convey authority, establish control, message out: “We’re in charge.” It’s a power thing.

Elizabeth: This is about taking that right out of the equation. It’s about relationship. So often, it’s how it gets implemented. Are there lessons to be learned about implementation here?

Akwatu: Yeah, there’s a lot of lessons to be learned. It’s about walking the talk. At the point of contact or the frontline, so to speak, it’s really a different collaborative venture. It’s not a hierarchical experience or interaction in the way that it would be – because that’s what police are trained to do. They’re trained to establish control, take charge, reduce this “quote, unquote” safety threat.

The collaborative output or outcome is a reflection of the collaboration that’s required at the back end. In order to work, it needs to be a true collaboration between community, police, fire, EMT, emergency housing and other social supports.

The model says: interfere within a crisis, control, reduce the crisis, but begin to look for long-term solutions immediately.

What does the individual really need?

A lot of times, it’s just a home. And once you establish a home, the road to recovery begins. But a lot of times, it’s more than the home. They need counseling, contact. A lot of times people may be socially distanced already, and that social distance translates into mental health problems, into depression, into anxiety, in some cases even into the psychosis. And so collaboration is required in the relationship-building between the people intervening in the emergency.

What I like about the CAHOOTS model is that collaboration isn’t just at the end. It’s in the development of the initiative from the back end to the front end. So you’re walking the talk with community. You’re building trust with the community because they are gaining confidence that if they call 9 1 1 for this situation, people they know and practices that they themselves have had a hand in crafting will be the results. And no one will be dead as a result. No one will be further stigmatized as a result.

It will be handled with sensitivity and care; and really with an understanding of mental illness that this person will be stable one day if you work with him or her.

Elizabeth: Has it spread? When you see something successful like this, the question is, so who else has taken this and run with it? And are they seeing the same success or was it just unique to what they were able to do in the first site?

Akwatu: It’s had similar types of success. I was reviewing a couple of places where the program was set up. Sometimes, you have different issues because it’s different management styles. And in some cases, they don’t have the same amount of resources. But I haven’t read any negative reviews of the program.

In terms of sort of warnings, I guess, the program must be trauma-informed. That’s key.

The survivor is at the centre. The person in crisis has to be. When we talk about client-centred, that’s what client-centred means.

The other issue is, it has to be civilian management or community management. Because otherwise, if it’s perceived as being too close to the police, it’s hard to gain the confidence and trust of marginalized members of the community, who wonder, will they be snitched upon, will they end up with more likelihood of being arrested for things they did or didn’t do than would otherwise be the case?

So community management is a key piece, and sometimes it hasn’t happened in the way that it’s required. And so the perception of the project has been tainted. So that’s very important, that hands-off civilian management piece, very important for community perception.

Thirdly, the connection to the resources in the community are critical.

You could actually use people in the community in the delivery of the program, the delivery of the service. Having the housing, having the counseling, having whatever the needs are that people have for schooling, for rent, for immediate financial relief, whatever it is, in place before you actually start sending people out is very important.

And, finally, training is very important. Empathy-building, understanding how to read situations, how to identify what’s the problem here, and be intuitive, that doesn’t [snaps finger] happen like that. Long-standing training programs, hundreds of hours of field training, supporting the individuals adds to the proficiency of the program.

Elizabeth: From what you’re saying, it’s really where you see fidelity to the principles and the elements of what works, then you see success. Where you have the wraparound services built in, thought through the relationships, then you begin to see the results that the model can offer.

You and I are in Toronto and we’re in a city that has had too many of these crisis moments of people’s lives that have been lost because of the wrong response to a particular moment in someone’s life.

That’s tragic every time it happens and there’s many more that we’re likely not aware of that maybe not resulted in a fatality but certainly damaging to individuals and families and communities. I understand that there’s a series of pilots that are going to be starting in the next year, perhaps similar to the CAHOOTS model. What are you hoping for in our city?

Akwatu: I’m hoping for a demonstration of how cost-effective, as well as how effective generally in terms of recovery, the program is. And I’m hoping that tons of data will be collected and there’ll be sufficient analysis of the data to demonstrate really the power of health interventions .

So I’d like to see data. I’d like to see different types of models so that we can actually compare, not just the cost-effectiveness of different models, but the associated recovery rates of the different models.

And then we get to see what the results are from the different approaches. We may end up merging the two and creating a new model, the Toronto model, which brings together different set of resources to tackle some of these problems.

The most innovation is in the long-term advocacy around homelessness. Not only do we find these individuals a home, but we use each individual incident to sort of advocate for real-time solutions now that we can see the immediacy of the need and translate into a reality show for everybody, including our decision-makers to be constantly reminded that it’s not going away. And actually the pressure is on them to do what their power allows them to do.

And I also want to see in the analysis, by comparison with the status quo, the reduction in criminalization, arrests, the sort of escalation from minor offenses to serious offenses.

I would like to see this program contribute and demonstrate that long-term problems can be solved, that the long-term homeless problem can be solved because communities will be empowered in the problem-solving, in the construction of the crisis management, as well as the evaluation of the crisis management.

And the communication of the progress that they have observed, what are the people who recover as well as the costs that’s saved for the system. The cost in terms of arrest reduction, incarceration reduction, and just the cost of issuing all those thousands of tickets that will never be paid.

I’d also like to see growing awareness of social problems and the possibilities of solving these problems. Because oftentimes people see the problems and think they cannot be stopped because they seem so huge. But I actually believe, and historical records should back me on this, that when people get a sense of empowerment and begin to see small gains, that also paves the way for bigger gains. Because they then become more confident and enthusiastic about going harder and longer upstream where problems have to be solved.

I’m looking for unique sets of skills and training in the teams, the Toronto model, which I hope will involve the usual stuff, de-escalation, harm reduction, restorative justice, but also uniquely to Toronto, cultural components of Indigenous health leaders, African elders, getting everybody involved in finding a solution to this homeless problem, but also to the crises that unfold on a day-to-day basis.

Elizabeth: I think that’s a final word of hope. I think I hear hope in your voice.

Akwatu: James Baldwin said in response to an interviewer who was asking him why so cynical and pessimistic? He said, Cynical and pessimistic? This is the author, James Baldwin, he said, I’m an optimist. And the reason I’m an optimist, I know where Black people have come from. I look back and I have to look back five, 10 years ago. And what I see, really, is that is remarkable in terms of how far we’ve come. It’s just that we have so far to go. And I sort of learned from that approach that, yes, we’ve come a long way, but we still have a long way to go.

Elizabeth: Well, let’s push for that Toronto model that you talked about. Thank you so much, Akwatu.

Akwatu: My pleasure. Thank you so much.

Elizabeth: Thank you for listening to this episode of our podcast, “Advancing justice,” with Akwatu Khenti. To hear all episodes in this series, please subscribe to this podcast on Apple Podcasts, Google Podcasts, Spotify, or Stitcher. You can find the full transcript of this conversation, Akwatu’s article, links to resources, and other contributions to our series on the Maytree website at www.maytree.com.

Elizabeth: Welcome to “Advancing justice,” a podcast that explores the interface between human rights, poverty, racism, and the criminal justice system. 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.

Joining me today to talk about the issue of anti-Black racism in the criminal justice system in Canada and the role of municipalities in confronting anti-Black racism is Anthony Morgan. Anthony is a human rights lawyer and the manager of the City of Toronto’s Confronting Anti-Black Racism unit.

Anthony has appeared at various levels of court, including the Supreme Court of Canada. He has also appeared before two United Nations human rights committees in Geneva, Switzerland. Anthony graduated from McGill University’s Faculty of Law, where he earned degrees in both civil law and common law. He’s also a graduate from the University of Toronto and is currently completing a Masters of Studies in International Human Rights Law at the University of Oxford.

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Elizabeth: Anthony, thank you for joining us here today. As I mentioned, you’re the manager of the City of Toronto’s Confronting Anti-Black Racism unit. I wonder if we can start with you telling us a little bit about the work that your unit is doing at the City.

Anthony: Sure. As the manager the Confronting Anti-Black Racism unit, I work with a group of bright, committed, talented, and hardworking folks who are focused on supporting the City’s agencies, boards, and divisions and implementing the Toronto Action Plan to Confront Anti-Black Racism. This is an action plan that was adopted by Toronto city council in December 2017. It has 80 actions and 22 recommendations. The recommendations are high-level commitments articulated from Black communities. And then through a process of ongoing community consultations, the City was able to identify 80 different actions to fulfill those specific recommendations that came out of the voice of Black communities.

For added context, the City adopted the Toronto Action Plan to Confront Anti-Black Racism directly in response to what we informally refer to as the first wave of Black Lives Matter, which happened in the Toronto context specifically in 2016 when Black Lives Matter Toronto was raising awareness and leading advocacy in our communities around addressing systemic anti-Black racism and policing and justice issues, but also, more generally, on issues of social belonging for Black communities. And so it was after their particular protest in March 2016, where they led a protest outside of the Toronto police headquarters for two weeks, that caused Toronto Mayor Tory, chief of police Mark Saunders, and other city leaders to pause and say, “We’ve been around for some time, and so we know that Black communities have called for change for a long time, and there have been protests before, but we haven’t seen protests like this.”

One of the things that was particularly of note is that yes, it was led by Black young people, specifically, and especially Black queer and trans folks who were calling for change in the areas of policing, but that also hundreds of allies who were not Black-identified came forward to support and hold that space for two weeks. Which was a direct sign that this was not an isolated issue that Black communities were simply lamenting or what some critics said was just this very small sub-sub-subset of Black young people who in pejorative term, people said, had nothing to do, were just upset, and decided to do this.

But Black Lives Matter Toronto was able to demonstrate that there was so much more that was happening. It was not only Black communities that were facing this, but Torontonians from various walks of life were also recognizing that there is a level of wellbeing and belonging and outright service delivery and experience that Black Torontonians were not being properly afforded and getting to enjoy in the city.

That led to an extensive process of several months of community consultation that culminated in the adoption of the Toronto Action Plan to Confront Anti-Black Racism in December 2017.

Elizabeth: So a very serious City response to a deep community outreach to what was going on.

Anthony: Yeah, absolutely.

And building on what was decades of organizing and advocacy from predecessor organizations like the Black Action Defence Committee, which many folks will be familiar with led by Charles Roach, Lennox Farrell, Dudley Laws, and Sherona Hall in decades previous. And so it wasn’t entirely new, but it was a catalytic moment for the City of Toronto.

Elizabeth: None of this was overnight, and the leadership was certainly not overnight.

Speaking of leadership, you wear different hats. You’re at the City leading this important work and set of actions. But you’re also the co-founder of something called the Sentencing and Parole Project. I wonder if you can tell me a little bit about that initiative.

Anthony: Outside of my role at the City of Toronto, I’d like to remain committed to supporting our communities in various ways. And it’s actually, I would say, my interest in supporting communities that was where I had done a lot more of the work that I’ve been focused on in terms of addressing anti-Black racism.

It was all the way back in 2014, when I was co-counsel with Faisal Mirza. I’m a human rights lawyer by training – human rights and civil litigation lawyer by training. At that time I was working for a legal clinic, the African Canadian Legal Clinic, and we had gained intervener status in a case that went up to the Supreme Court of Canada called R. v. Nur.

That case was focused on addressing mandatory minimum sentences and specifically sought to strike down mandatory minimum sentences for first-time gun offenses. So an individual who’d been charged and convicted for the first offense of having a gun.

Now, this is not because we’re particularly happy to see guns in our communities. But what we were recognizing was that overwhelmingly these mandatory minimums in this area was disproportionately impacting Black people, particularly Black young people.

And it was accelerating the incarceration of Black communities at astronomical rates or rates we hadn’t seen before.

When Faisal and I worked on this case, we started really thinking strategically about how do we create ways to support the justice system, to be more responsive to the specific unique needs of Black communities so that we’re not just throwing the book at folks with tough-on-crime approaches to addressing challenges.

Through those years of conversation, after we argued that case, which did successfully strike down the mandatory minimum for a first-time possession, we said we didn’t want it to be just a one-off because there were so many other mandatory minimums on the books.

Eventually, as his litigation practice advanced and I continued on in my career, he connected with Emily Lam, another lawyer. And they determined that we collectively could envision a process of developing – there’s different names for them, but we call them enhanced pre-sentencing reports. Enhanced pre-sentencing reports are used to offset some of the limitations of the standard pre-sentence reports that are given to judges to make decisions on sentencing.

We have to acknowledge being inspired by the ways in which Indigenous organizers and community members, and of course lawyers and advocates, have developed the Gladue approach to provide a more fulsome understanding of the experiences of Indigenous folks.

We took that in principle and said, “How can we support judges and decision-makers to have a fuller picture of Black communities?” And so we came up with enhanced pre-sentencing reports that go beyond the typical pre-sentence reports and provide those to individuals who are to be sentenced before the justice system, but also folks who are coming up for parole so that parole boards can make decisions on the basis of more accurate, fulsome, complete information.

Elizabeth: What goes into an enhanced pre-sentencing report? And what makes it different from just a pre-sentencing report?

Anthony: A typical pre-sentence report looks like a typical government document: name, age, just the charges, and it could be a three-page government form, whereas an enhanced pre-sentencing report can be anywhere from 20 to 50 pages.

And what goes into it?

Well, we start with a social context history on the ways in which anti-Black racism manifests in Canadian society. So looking at the ways, policies, and practices that are embedded within our institutions, reflect or reinforce biases, attitudes, stereotypes, and prejudice that are directed towards people of African descent, and rooted in our unique histories of enslavement and colonization here in Canada. We use that as a framework of understanding anti-Black racism and then point to the ways in which anti-Black racism has manifested in education, employment, housing, health care, child welfare systems, immigration and detention, and the like.

So we take that social context information that’s relevant to that specific individual coming before the justice system. That’s the first part of the report.

The second part of the report then looks at the biographical history of that individual and where we see the linkages between that social history of Black experiences, of disadvantage or disproportionate negative outcome for Black folks. Where that individual might have, for instance, been in the child welfare system, or been pushed out of school, or experienced dropout, or was streamed into less academically rigorous areas within school, or experienced carding or racial profiling. We look at those different things and say, “Oh, wait, there’s these connections here. They’re not to be seen as just a part of this individual’s poor life choices, but circumstances that go beyond that individual.”

The enhanced pre-sentence reports provide those connections to help judges understand that when we’re seeing this person, we can’t just see them as somebody who is a child welfare survivor, who then made bad decisions in school and then got involved in some negative outcome. That might be a part of their story, but there’s so much more that was beyond their control.

And so when issuing a sentence, the judge needs to consider that.

The last part, I should say, what’s in those enhanced pre-sentence reports is also an identification of specific organizations in communities that are culturally specific and culturally responsive to be able to support Black community members in the particular ways that that individual needs support. It could be mental health support. It could be around job training and education. It could be support to be a stronger, more present parent.

We provide that specific information to the court so that they can also make informed decisions to make it clear that incarceration wouldn’t actually bring this person closer to the services that they need to be able to be a better contributing member of society.

We’ve been successful to some degree. We as a team are really proud of to help judges make those decisions and connect folks to services and community that would actually help them contribute more effectively.

Elizabeth: So connecting the individual experience into the systemic issues and then offering a pathway to effective support and resolution.

This has been, I’m assuming this is a bit of a trial, a pilot? How does this get embedded more widely? And maybe first of all, have you seen success? And where you haven’t seen success, what happens?

Anthony: We are still in the early stages.

The idea has been in the making for some years, as I mentioned. But crystallized in the Sentencing and Parole Project, officially it came together in 2020 just before the racial reckoning as an uprising. But I would say about a year before that, Faisal, Emily, and myself had been thinking about this.

And there’s a parallel process we were also informed by. Nova Scotia has developed a process led by professor Robert Wright, who’s a leader in social work. It’s called Impact of Race and Culture Assessments, so IRCAs, I-R-C-As. They’re a very similar process and approach. Ultimately, they’ve been able to intervene in cases to provide reports to folks to help judges make decisions that are less harsh.

The landmark decision in the Nova Scotia context is referred to as Anderson, which was really significant, where the Court of Appeal in Nova Scotia said very clearly that it is incumbent upon the justice system to be responsive to specific needs of the Black communities because of their unique histories of enslavement and colonization here on these lands that we now call Canada.

And now a parallel, but not exactly the same decision, happens in Ontario, and it’s called Morris.

In the Morris case, the unanimous decision of the Ontario Court of Appeal was released in December of 2021, where the courts made really strong findings on the existence and presence of anti-Black racism and that judges should be thinking about this when they’re making their sentencing decisions.

And so we have at the level of the Ontario Court of Appeal been able to make serious headway. But before we could get that important recognition, there were several first-instance decisions that have come through the courts that ended up informing how the unanimous bench of the Ontario Court of Appeal ruled.

I will say that there have been folks who’ve criticized the decision and saying that it didn’t go far enough in the Morris case. I value and I understand those criticisms. What I would say, though, if you look at where we started, if you look at how unfortunately little recognition there has been from the bench, very specifically, on the ways in which anti-Black racism manifests within all of our lives, but has a very particular impact on Black folks, this is actually quite a dramatic victory for Black communities if you think about what we’ve been fighting for over several decades for the mere recognition that anti-Blackness, and anti-Black racism is a part of the fabric of Canadian society, as uncomfortable as it is.

You have this strong decision from the Ontario Court of Appeal saying, you know what, there’s evidence that demonstrates this. And this is not a direct quote, I should be clear. My interpretation is the court is saying, we would not be responsible as a justice system if we were not at least thinking about how this could have impacted the individual offenders’ decisions when they participate in this series of events that brought them before the courts.

Elizabeth: And as the justice system works, you build on that to make it stronger and build and continue to build and evolve it. So it’s the first big step for the Ontario Court of Appeal.

Congratulations.

Anthony: Well, thank you. I don’t want to take full credit for that though. Of course, it’s amazing advocacy because that case had a number of interveners.

It’s also not just Black community lawyers or organizers who wanted to see that move forward. There are folks who just saw the value in making sure that we have a justice system that is actually serving the people. And so there are a lot of interveners.

Faisal and Emily were the lead lawyers arguing the case but without the strong contributions from other interveners to say, “Oh, this is serious, this is real. And this will benefit. Actually, it looks like it’s about Black communities and in many ways it is, but it’s actually about all of us and what we want our justice system to look like. Do we want to continue to move in a direction that brings us too close to the disparities that we’ve seen in the United States of America? And that’s exactly where we’re heading.” And so with those other intervening parties, we were able to slow the course and, I would argue, change course.

Elizabeth: Well, and as with your description of how the City began its Confronting Anti-Black Racism unit, it’s about communities working together and pushing uphill to make the change and to get institutions, be they the courts or the municipalities, to act differently. And to begin to take action and new directions.

Anthony: Yes. And I could say arguably, there probably is no sustainable long-term change that doesn’t start or have tremendous beginnings with the people who are actually suffering the injustices the most. And so it’s after ongoing work in agitation at that level that often these systems end up recognizing the importance of making the changes needed to create better outcomes.

Elizabeth: When you describe the content of what’s in an enhanced pre-sentencing report, and you described the description of the context, and the social systems that Black youth may experience that leads up to their moment in court, many of these systems interface with municipalities. It comes back to your day job, right?

You talked about carding, you talked about educational systems, child welfare, treatment in recreational facilities, or housing access, or any one of the systems that the City has some ownership over.

Let’s connect up municipalities with the criminal justice system. What are the levers that they have, and that you’re working with perhaps in your role, to address the intersections of poverty and racism in our city?

Anthony: In my role at the City of Toronto, part of our activities focus on policing in the justice system. And one of the key spaces in which we are in ongoing conversation and working to make changes through what is referred to as the Anti-Racism Advisory Panel of the Toronto Police Services Board. And so the Anti-Racism Advisory Panel provides advice to the Toronto Police Services Board for them to consider. And when they adopt, they give direction to the Toronto chief of police for implementation.

Now the Anti-Racism Advisory Panel just got an expanded mandate that was adopted early in 2021. So we’re essentially the version two. There was a version one of the Anti-Racism Advisory Panel that emerged out of the Andrew Loku inquest.

Andrew Loku was a Black man who in midtown Toronto was killed in his home by a Toronto police officer, after the officer appeared at the home because of a neighbour complaint about noise that he was making.

Mr. Loku was in the hallway of his home. It was actually an apartment complex that was being rented to individuals living with mental health challenges. So the officers many say, should have, could have known that it was a mental health call that they’re actually responding to not a typical call where what you see should be interpreted as near violence or something else happening. Or at least they should have been prepared for that.

But ultimately what happens is the officer shows up on scene, sees Mr. Loku. And he was carrying a hammer when he was seen and within seconds of laying eyes on him, Mr. Loku was killed. And so out of that, there was a lot of the agitations and organizing by Black Lives Matter Toronto, so this kind of comes full circle.

So this happens in the summer of 2015, and Black Lives Matter Toronto picks up their advocacy around that time that ends up culminating in the protests of 2016. One of the major triggers was that the then attorney general had not read the SIU report after it had been released for some time about what led to the killing of Andrew Loku.

That was a kind of a last straw because it was such a painful moment for Black communities. For the attorney general to have that report for some time and not have read it by that point, led to the protests that we saw.

There was an inquest into the circumstances, and it was determined that it was a homicide. There were several recommendations that came out of that inquest. One of the significant ones was developing a community advisory body to the Toronto Police Services Board to ensure the establishment of an advisory panel to advise the Board on issues of racism and ensure that it’s not just anti-Black racism that Toronto police services understands, but the intersection between mental wellness and anti-Black racism.

The data shows that there is an alarmingly high rate of use of violence against civilians when they live at that intersection of being racialized as Black and living with a mental health challenge or presenting with a mental challenge. Similar for Indigenous communities.

Unfortunately, in terms of the data, we see that the rates of civilians being killed or being shot are the highest when a person is Black and living with a mental illness. And so the anti Anti-Racism Advisory Panel was struck to help address this. And one of their major intervention was to lead the Toronto Police Services Board to adopt a policy on collecting and reporting race-based desegregated data in relation to the use of lethal force.

Fast forward to Anti-Racism Advisory Panel 2.0 because the first panel served its term of two years. Now we have a new panel that has been established, and I co-chair that panel with a member of the Toronto Police Services Board, Ainsworth Morgan, no relation, just another community leader who also happens to sit on the Toronto Police Services Board.

Now we have an expanded mandate to address issues of racism, not just as it relates to anti-Black racism, but anti-Indigenous racism as well, and the intersections of mental illness, gender, religion, sexuality, however disadvantage should appear and be experienced within society and intersect with policing.

Elizabeth: So that’s a theme that has come up in a number of the contributions to this series: the need to decouple mental health intervention from police and the policing function. Obviously that has escalated and become more urgent as there’ve been several subsequent tragedies in our city related to that.

Is that a particular focus of this advisory or a much broader view of anti-racism, anti-Black racism, anti-Indigenous racism and the police services?

Anthony: It’s an important part, recognizing that the police aren’t always well serving. And, frankly, the data shows they’re rarely the best place to be intervening in those circumstances.

And so finding ways to get social workers, community workers, community elders, sometimes even our space healers who have a more meaningful relationships with folks in communities. And sometimes even family members, once properly supported and trained, can help intervene or calm an individual down.

There are options that exist within our society professionally and socially that haven’t been adequately leveraged. Also social service organizations, of course, that can be present and support. So our work in the Anti-Racism Advisory Panel is to help advance those conversations around, how do we make sure that the police, if our society insists that there’s a necessity for them to be called in certain circumstances, how do we make sure that they’re not being overly relied on? And that we’re not ending up with outcomes that we’ve seen of disproportionate shooting and killing of folks who sometimes just needed some time and space to express their frustrations and go through what could be a mental health episode, calm down, and then find a warm meal or warm place to sleep, go back to their families, or go back to a place where they can be safe, and folks around them can be safe.

Elizabeth: And to be able to get the mental health services that they may need. All of these issues are so complex. And as a result in your description, there’s a role for civil society players, some of the social community actors. There’s a role for municipalities, some of these are municipal services that we’re talking about. And some of these are provincially funded. Other orders of government have something to do with this. It may also have to do with our federal government. It’s complex in that way.

How do we coordinate that effort? Because that’s a lot of different players. And sometimes it’s jurisdictional football, it gets passed from one to the other, and we don’t see the coming together that’s needed in order to serve the individual.

Anthony: I really wish I had the answer for that. I think it’s something that we’re all working through to really be able to figure out, because there’s a lot of coordination. Our Canadian constitution, 1867, and of course repatriated in 1982. Even then, 1982, our society was very different. And so the distinction and divisions between the province and the feds, and even having the municipality as a creature of the province. Some would say that there’s levels at which it’s outdated, is not consistent with, for instance, how significant a role cities play in the everyday lives of individuals and the delivery of services and the closeness of which they operate.

There are a lot of hiccups that still need to be worked out. So how do we coordinate? I think open dialogue, creating active spaces where those institutions, the province, the federal government, and the municipality, public servants and politicians talk more openly about where there are challenges and where they need support from each other.

But then also find ways to more effectively communicate that out to community organizations, to individuals in community, so that there are not misaligned expectations. Because sometimes folks will go to cities with expectations about what they can and should be doing. And then the city might say, “Well, that’s the province, that’s the feds.”

That’s what’s very frustrating for folks because they don’t care. Often they just need or want the service, their families, their communities just need or want the service. I think it is definitely incumbent on all the public servants, on the politicians, for us to work out our differences.

But just make sure the services are being delivered.

And here’s where I turned to some of my learnings of working for and serving some Indigenous communities. When I was in private practice, there is what’s referred to as Jordan’s Principle in the child welfare context. Jordan’s Principle can be complex, I don’t want to give a full-blown lecture on it, but essentially the idea is because Indigenous folks fall primarily under federal, almost exclusively under federal jurisdiction in terms of Indigenous services, but when it comes to health care services, that’s primarily provincial.

What had been happening for decades was that children, in particular, had been underserved, not served, or very poorly served. What would happen as a child would present themselves for healthcare services, then the province would squabble with the feds around who’s going to pay for it.

Is it going to be the feds? Because the young person is Indigenous, and so they fall under federal funding.

Or because they’ve shown up at a hospital, and hospitals and healthcare are covered under provincial services, is it going to be the province?

And so while this battle was happening, children and whole communities were being terribly served.

But Jordan’s Principle was eventually acknowledged and recognized as law. And Jordan’s Principle says: “You know what, government, just provide the service. Figure out who’s going to pay for it after. Do not let the squabble around not knowing who’s going to pay stop or slow your ability to provide the service. Just immediately, it’s a young person from an Indigenous community. Serve them, give them what they need. Give them what all Canadians are entitled to, or all folks within this jurisdiction are entitled to. And you’ll figure out the pieces after.”

I think there’s some value in thinking about how Jordan’s Principle could and should inform other jurisdictional squabbles, frankly, that we get into when it comes to serving broader population.

Now I want to be careful in saying that I don’t think that every community’s relationship to the government is the same as Indigenous communities and therefore we all should get the same treatment. That’s not what I’m saying. I’m just saying that there are principles there that show that we can find ways to resolve some of these constitutional challenges and ways that ultimately help the well-being of vulnerable people.

How do we build on that knowledge and expand it so more vulnerable communities, more folks who are experiencing disadvantage can be properly served?

Elizabeth: The constitutional “Do not prevent an individual’s human rights from being realized.”

That’s the work that we’re trying to push forward. How do we bring a human rights’ approach to thinking about these things? And I think it’s things like Jordan’s Principle, it’s things like Gladue, it’s things like an enhanced pre-sentence report, where you’re bringing the individual’s lived experience to the centre of the decision, of the action to be taken. And that puts the dignity of the person in the centre. And that’s where we have to be.

Anthony: And that’s critically important. And not asking for this sort of artificial splicing of the individual.

There are people who are Black and Indigenous, right? And so we find where these challenges exist, where you hear some unreasonable conversation about who’s going to serve this person.

Well, you can’t say they’re more Indigenous than they are Black. If you ask them, they’re as much Indigenous as they are Black. Or you can’t say, “Oh, this person. Do we serve them as a woman or do we serve them as an Indigenous person?” They are an Indigenous woman.

We can’t splice things the way in which our systems often require folks to contort themselves in inhumane ways to get services that they deserve.

We have to build past these limitations in the way in which we function through government to make sure that people are being served in their full self. So they do not have to cut off parts of themselves to get service. And that goes to the full spectrum. Queer and trans folk will also have lived at different intersections of identities.

We have to be building systems that are adequately responsive and supportive of these individuals and their wholeness. And that, like you said, goes to the core of their dignity.

Elizabeth: I think that’s a perfect final word. Anthony, I’m so grateful for your time this afternoon. I think you’ve shed a lot of light on some of the questions we’ve been coming to and trying to think through as we look at the “Advancing justice” series.

I’m grateful for your time this afternoon, and for the experience you brought to the conversation.

Thank you.

Anthony: I really appreciate the opportunity to share with you, Elizabeth. And it’s always a great opportunity to chat.

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Elizabeth: Thank you for listening to this episode of our podcast, “Advancing justice,” with Anthony Morgan. To hear all episodes in this series, please subscribe to this podcast on Apple Podcasts, Google Podcasts, Spotify, or Stitcher. You can find the full transcript of this conversation, links to resources and other contributions to our series on the Maytree website at www.maytree.com.

Elizabeth: Welcome to “Advancing justice,” a podcast that explores the interface between human rights, poverty, racism, and the criminal justice system. 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.

Joining me today to discuss the criminal justice system from the perspective of Indigenous people is Laura Arndt.

Laura is the former Director of Strategic Development at the Office of the Ontario Provincial Advocate for Children and Youth and is currently completing her PhD in Cultural Studies at Queen’s University.

She is the Chair of Indigenous Studies at Centennial College but has taken a secondment from that role to be the Chief Operating Officer of the Survivor’s Secretariat which is investigating the unmarked graves associated with the Mohawk Institute Indian Residential School near Brantford Ontario.

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Elizabeth: Laura, thank you for joining me today for this conversation. As we begin, I do want to acknowledge the time that we’re in. 2021 was a difficult year of revelation in Canada, and an emotionally weighty year for Indigenous individuals, families, and communities, and for Canada coming to terms with all that has transpired with the revelation of the graves of children in residential schools.

I also want to start by saying thank you to you for your contribution to the “Advancing justice” series. I strongly recommend to our listeners to read your essay, “Indigenous Peoples and the Injustice of Justice.”

At the very beginning of the essay, you quote from the 1996 report: “Bridging the Cultural Divide: A Report on Aboriginal People and Criminal Justice in Canada.”

Here’s what the quote says:

“The Canadian criminal justice system has failed the Aboriginal peoples of Canada — First Nations, Inuit and Métis people, on-reserve and off-reserve, urban and rural — in all territorial and governmental jurisdictions. The principal reason for this crushing failure is the fundamentally different world views of Aboriginal and non-Aboriginal people with respect to such elemental issues as the substantive content of justice and the process of achieving justice.”

That’s a big statement. I wonder if you could elaborate on what this divide in world views is. What does it mean?

Laura: I think I need to start by qualifying my voice in answering the question. I’m not a legal scholar. I’m the daughter of a survivor, and I’m an Indigenous woman. When I speak to it, I start from that place of, what I call, those deep constitutional roots. Fundamentally, if we go back to how the relationship between Indigenous people in Canada, and that which became Canada, played out, we started with a treaty mechanism that talks about relationships. And we then became part of a process that was done to us versus being part of a relationship.

The understanding of Indigenous people, as people, as equal, as self-determining, has been a fundamental failure of how Canada has engaged with Indigenous people. We are now so far into this 150-plus years of being Canada, and as a woman who is Indigenous and Status Indian under the Act, I have fewer rights than anyone else in this country because my reality is still governed by the fact that I’m a ward of the state.

And so when you then become part of a conversation around justice, how can we talk about a country that is a beacon on human rights and justice when the original peoples who were on these lands are not even equal citizens or equal voices in conversations about this country? For me, that’s the heart of the injustice: the fact that we don’t enter any conversation where our voice is equal to that of the state or any other citizen in it. And it’s not equal because the law says so. The legislation says so. And how do you move beyond that when you’ve got an Act that is older than this country still governing how I exist in this country?

Elizabeth: It’s a profound difference.

When we begin to look at the criminal justice system, which is the focus of this series, we know that Indigenous people are overrepresented in the justice system, in   incarceration. We began to see some changes of how to approach that. So by the mid-90s, the Criminal Code itself was amended to require courts to consider incarceration as a last resort when sentencing people, and especially when sentencing Indigenous people for whom systemic failures may have contributed to bringing that person in front of the court. How significant is this? What difference did that make?

Laura: If you were to solely look at outcomes, the outcome is actually the reverse of the intent. There is in fact more Indigenous people incarcerated now than before the revisions to the Criminal Code. I think there has been an ongoing struggle to ensure that the courts truly apply Gladue as intended. Where Gladue was supposed to anchor the context and understanding of legacy, it’s actually become an extremely powerful tool to support the risk factors that keep Indigenous people in jail. So, I think the intent was there, the outcome has not come anywhere near what people had hoped we would see come from Gladue.

I have been working with youth in Northern Ontario for a better part of 11 years. And in a lot of the conversations the young people were having, it’s interesting how little Indigenous people know what Gladue was about, what the provisions of Gladue and the creation of the Indigenous courts were intended to do because they’re not seeing the benefits. In fact, I think it’s just deepened the mistrust between the justice system and Indigenous people.

When I say the justice system, I’m not just talking about the courts. I’m talking from the first moments of contact with policing through the courts to sentencing, and then into jails. I think the Gladue writers, and the process of ensuring that the truth and the experiences and the factors that contribute before somebody being in the court are powerful, but they’re not being used in the way that it was intended to support alternatives and strengthening of community-based resources and alternatives.

Given the rate of incarceration, there is nowhere near the resources and services in place that would be needed to ensure that Gladue is richly implemented, and that people get the alternatives that they need towards their healing work.

Elizabeth: Not everyone may be familiar with what Gladue is. So Gladue reflects a Supreme Court decision in 1999 that led to a set of principles, a certain type of court, and certain kinds of reports. Can you tell us a little bit about what the origin of that was? And I think really important also is the real-life experience of the person for whom this was named, Jamie Tanis Gladue. And I think that’s the story part of it we need to hear.

Laura: The reality is that this was an Indigenous woman who was charged with the murder of her common-law partner. And in the course of her trial, part of the decision in her sentencing was that the Gladue principles that were in place at the time, so that you would look at all other alternatives, you would look at the history and the factors, systemic racism in the sentencing of a person.

Elizabeth: The life experience.

Laura: Yeah. And you would factor all of those things into the alternatives. So it isn’t a Get Out of Jail Free card. Because when making these considerations, it’s at the time of sentencing. So at the time of sentencing for her, the initial judge made the decision that because she was living off reserve, she did not meet the provisions. And so it became a Supreme Court challenge that then, over the course of time, became the basis for seriously taking a look at being Indigenous is being Indigenous whether you’re on reserve or off reserve. And judges’ ability to make decisions to whom the principles would apply to became central.

And I think the thing that became important in Jamie’s case is the fact that, at the end of it, it played minimal impact on the overarching sentence that she received. I think the bigger conversation is the applicability and the importance of looking at the legacy and the understanding of a history, and that you don’t have to be living on reserve to be part of that long legacy associated with being Indigenous and being part of that intergenerational trauma that comes from colonialism, racism, the Indian residential school system.

And so she became one of those groundbreaking decisions, and I wish I could say transformed how Gladue was applied. But the reality is it continues to be a struggle around consistency of it being applied, how courts and how lawyers and judges understand the principles.

Part of the struggle in this conversation is that when you think of what lawyers bring to their practices and judges bring to their practices, in most law schools, when we talk about civil rights, even today, for the most part, when we talk about civil rights, we talk in law school about the civil rights movement in the United States.

We don’t talk about Canada’s struggles around human and civil rights. So many lawyers who are trained in this country don’t know the history of the Indian residential schools. They don’t understand how that legacy puts somebody before the courts.

Elizabeth: You’ve touched on some really key factors in the question of why it is that we’re not seeing a change in the numbers, in the number of people in the courts, the number of people incarcerated all the way through the system. Are we seeing any movement? Or are the numbers going in the same direction? Are we still seeing more numbers? Are we not seeing any improvement?

Laura: Even during COVID, the rates of incarceration for Indigenous people are going up. So where in most of through this pandemic, what we’ve seen is people being released, trying to decrease the numbers in both provincial and federal systems wherever possible, the numbers have not gone down as substantively for Indigenous people. I think the numbers are running between 33 and 38 or 39% for Indigenous people in jails, in federal and provincial jails. That’s 33 to 39% of the total population.

Elizabeth: And the actual population is closer to 4%?

Laura: Yeah. And on top of that, I think the hard thing for me in the equation is, when all of this started, I think the numbers were running between 18 and 24%. They were much lower, a minimal of 10 to 14% lower than they are today.

Elizabeth: So how do you make sense of that?

Laura: Part of the dilemma in this is that the very factors that are considered in the writing of those Gladue reports are all the factors that put somebody before the court. And once they’re sentenced, and if they’re incarcerated, those very same factors become considerations around parole. The reality is the factors that Gladue highlights are also the high-risk factors that say you should keep someone incarcerated.

The dilemma is that Indigenous people are often in this double bind of doing the Gladue report, and then the Gladue report becoming implicated in sentencing. And it’s a point that was raised by the former federal ombudsman for corrections. He was clear that the struggle around what the role the Gladue reports play in perpetuating people before the courts and lengthy sentencing is unmistakable.

Part of the reason I really wanted to do the piece is I used to work in the youth justice sector. And on top of working in the youth justice sector, I’m also the mother of two kids. My son’s a rather large Indigenous man. He stands about 6’2″. And it was interesting because the number of times my son has had run-ins with the police. And it’s been insane to the point that my son has a phone number for a lawyer because of the fact that he knows he’s going to get stopped. And the first thing he says is, “I have a lawyer. What am I being stopped for?”

My son has a target on him. And I’ve had a target on me. I mean, I literally, I spent nine years working in Northern Ontario where I can’t dress down. The idea that I would walk around in a sweatshirt and be casual doesn’t happen because all I do is you get harassed, you get called “Bogan.” I’ve had police not want to deal with matters. I’ve had security threatening and intimidating me simply because, in those spaces, it’s okay to treat Indians badly.

I think the nature of the social stereotypes and the social othering that still exists for Indigenous people in urban centres, and especially in Northern communities, puts us before the courts all the time. Because if we look at people the wrong way, or they think we look like we’re intoxicated, or they think we look like we’ve committed a crime, it’s as good as done.

I think the unfortunate reality is we’ve got a justice system that still sees us as the Indian problem. And because we’re still the Indian problem, the combination of the social and justice and media relationships that exist perpetuate keeping us locked in stereotypes that support the fact that we are more suited to an incarceration setting than we are suited to being part of the social and inclusive communities that are the province of Ontario.

Elizabeth: In all of that, where’s the way forward? Where do we begin?

Laura: I think if you really want the technical richness of who you should talk to about how you change the court systems, there are amazing minds out there. There’s the Jonathan Rudins of the world, the Kim Murrays of the world, the Christa Big Canoes, and folks who are working in Northern communities through NAN Legal Services. They’re doing great work to try and figure out where we go from here.

I think the other parts of what they’re doing is placing increased focus on Indigenous justice models and reclaiming them. And finding ways that communities can use their own court systems and their own justice models, restore them so that as part of this healing journey of reconciliation you start re-establishing that which was the strongest part of our communities. And it was the way we monitored and held ourselves accountable.

This is not our justice system. These tools of punishment are not how justice models for Indigenous people are anchored. It doesn’t mean that Indigenous restorative justice models aren’t about dealing with people’s behaviour, but it’s about restoring balance to the relationship.

When you start looking at restorative justice frameworks and Indigenous restorative models that are anchored in understanding your relationship to the community, what needs to be done to restore that relationship and balance, and how the actions you take moving forward play a role in that, I think those are really important things.

I’ve worked in community where I’ve seen young people part of a restorative process, and where things have happened. And as a result of meeting with the community, meeting with the elders in the community and conversations, there’s a mapping of a path forward. And it’s a very different thing because the community’s part of the conversation. It isn’t like you make somebody invisible. But I think for that to happen, there has to be investments, that support that Indigenous models of justice are valued, central, and critical in a relationship that sees Canada’s ways of justice can co-exist with an Indigenous justice model.

I don’t think I’ve ever heard an Indigenous person say to the Eurocentric models that we want our model applied to them. On the other hand, the exact opposite is being said to Indigenous people, it’s a one model fits all. But it’s a model that has continued to be part of a system that has been focused on, and there’s no other word to say, killing the Indian and the child. But when you do the restorative frames of an Indigenous framework, it’s about restoring balance in the Indigenous community, and you’re part of that community. So I think there are great things that can be done.

And there are programs that exist. I know Aboriginal Legal Services in Toronto has wonderful programs. I know that the province has supported programs that are focused on Indigenous models and Indigenous community supports. The problem is they’re generally small. And I think often communities find themselves trying to find the resources and build capacity at the same time that people are in need of the resource. And I think that there just isn’t enough happening fast enough to meet the need that exists, if that makes sense.

Elizabeth: It does. The answers lie in reaching into Indigenous culture models, knowledge, communities, and resourcing it. And that may not happen overnight.

It’s hopeful to hear that it’s being tried. There are successes being seen. Are there things that need to also happen in the existing criminal justice system? Do we give up on that and just focus on the Indigenous model? Or are there things that still have to be pushed so that it doesn’t continue to lock up so many people?

Laura: Again, I’m not talking as a lawyer. I’m talking as a community person. I think the things that need to happen is you do need to expand the Indigenous people’s courts. We need to have more of them, and we need all lawyers to be trained. We need them to be trained in understanding the legacy of colonialism and the impact it’s had on Indigenous people, and the impact of the Indian residential school system. I think if we can get lawyers, those lawyers become judges. If they have an understanding, then there is a greater capacity to engage in understanding that something other than locking someone away needs to be the answer.

By expanding the courts, you have to also expand the alternative resources for sentencing. And ensure that when they’re expanded, people are getting the resources they need closer to home.

I don’t think anyone will ever deny that the greatest source of strength when you’re going through the most difficult time in your life is often your community and your family. And if that’s true, we shouldn’t be sending people to other provinces because the resources do not exist. And that means we need to have land-based programming. We need to have cultural programming and elders available to people within proximity of their communities. We need to be creative around how those resources are available.

I think COVID has torn some of the anxiety away from some things we can do online that we didn’t want to agree that we could do before. We see increasingly some wellness resources, some counseling services being provided in an online format. So going to where people need support. And if we can’t get to them, making sure that technology is used to close the bridge and close the gap.

When we talk about reclaiming Indigenous ways of knowing, it means we need to get curriculum in classrooms, so people begin to know what that was and what that is. Then they can begin to understand where do we go from here? So I think providing opportunities for students to understand how communities and cultures and justice models existed. And instead of noting them as primitive, and noting them and dismissing them, what we need to do is start understanding how they worked so that Indigenous students can then understand that if they want to be a lawyer, how can some of the things they know about their culture become part of the way they practice as lawyers? And if they’re social workers and social services people, how can their work and skills be targeted to working within their own communities, supporting their own people? Because right now there isn’t the funding or the resources for people to return home to get the jobs that are needed to support communities.

I think the justice system is a huge part of the problem, but structurally the relationship between Indigenous people and Canada needs to change. I think how we return to the original relationship has to be central. And I think that’s what the work of the Truth and Reconciliation Commission says in the Calls to Action.

There are calls that are very specific to the justice system. There are very specific calls to the professions of social services. And there are calls for training for lawyers in law school. There’s also ongoing calls for how curriculum is developed and the way Indigenous people are part of the broader conversations in this country.

And it’s really hard for me to say that you just change the justice system. You can’t. Because I think one of the hardest problems that we all have to navigate in all of this is that when we even talk about the Gladue principles, when people who are non-Indigenous talk about it, the first thing many people say, “It’s a get out of jail free card.” So there’s this perception that we’re getting a break, we’re getting a deal. The fact is people in this country, not just Indigenous people, non-Indigenous people need to know the truth. And the truth is the provisions that we now call Gladue are about understanding the life circumstances of people, the impact of structural racism on the reason they’re before the court, and that you look for all possible alternatives other than incarceration.

On the other side of the equation is when we’re the victims of crime, those who’ve committed the crimes against us often get a less significant sentence than we do. And because there isn’t something that talks to the way their history is portrayed, their previous life experiences, it’s often saying you need to give them a break. You need to consider it. But why is it that giving someone a break only really applies when they’re non-Indigenous. Because when they’re Indigenous, we don’t give them a break. We hold it against them when they’re incarcerated, when they come up for parole, when they’re in community sentencing. And at the end of the day, there isn’t justice.

The inequity in the sentencing is a reflection of the inequity that’s been put in place. That no matter whether you’re on the sentencing side or the victim side, you’re not going to see justice.

Elizabeth: So it goes back to the point that you made earlier around implementation. The idea of Gladue, the idea of Gladue principles, the idea of Gladue courts, the idea of Gladue reports make complete sense, provide context, assess what has happened in light of that person’s life and experience. And yet when it’s not properly implemented, it comes back to actually have an adverse effect. And when, as you mentioned, parole, that it comes back there, and it becomes an excuse not to be released. So the danger of what happens when we don’t implement properly.

Laura: It comes down to context. Context is everything. You need to understand the landscape in which the experience of the person who’s before the courts lives. And if you cannot move beyond simple words on paper to take in exactly what it means, you never fully have the richness of understanding. And I think that’s where the educational piece comes for lawyers. So lawyers can say, yes, that’s right. I remember hearing about the Indian residential school system. Yes, I remember hearing there was more than 100 of them in the country. And that generation after generation of children were ripped away from their parents, that they were exposed to violence, physical violence, sexual violence, psychological violence. That they were malnourished. They weren’t properly fed. They weren’t parented. They weren’t loved. And they got angry.

And that anger often was directed at their families, their communities, and to the world around them, which put them before the courts. And then we put them in jail because they committed a crime, and they committed the crime in the context of a fact that they were so damaged as a result of a system we created, that when we put them in jail, we didn’t help them. We just fueled the anger. And when they came out, the cycle of abuse continued. And then the next generation of children went into the Indian residential school system. Came out angry, came out disengaged, came out fractured and damaged and traumatized. They hurt people. They committed crimes. And then the cycle continues.

Then what happens is you have people who are observing it who are not Indigenous saying, yeah, those Indigenous people are really violent and they’re really out of control. But they don’t know that those children were part of a system this country created, that this justice system perpetuated. And that in fact, they aren’t violent. They’re a product of a system that was created to kill them.

I think if we could get lawyers understanding the viciousness of the cycle, and judges understanding that this cycle has proven the courts aren’t the way to go, that’s your entry point. And I think that’s why some of the recommendations Justice Sinclair talked about in TRC, when you intersect them with some of the recommendations that came out of Murdered and Missing, and then you intersect them with the original intent of what Gladue should be, maybe it’s time for a national summit. Bringing it all together and say, okay, what are we going to do? And Canada has to work hard with the bodies that represent the incarcerated people to create a mechanism to move this forward. I mean, Gladue, the intent was ideal. It’s not working the way they intended. So how do we go back to the conversation and start again?

Elizabeth: So the ideas are there. That’s where the hope is. There are ideas. There are examples. We know that, as you’ve pointed out, where it’s rooted in Indigenous models and knowledge in communities, you see success, but it’s about figuring out the path forward and how to make that come together. I think that’s a hopeful end.

Laura: I think so too. And I think the other thing that’s really important for me is I do believe in hope. I don’t want to be the person who says, and I know this because I’m an Indigenous woman who lives in a home with a survivor who says, “Don’t put your head out there because nothing’s going to change.” Everything’s got to change. And it’s got to change because our kids need it to change, because they’re the next generation of people that will be incarcerated.

I don’t want the next generation of moms to be nervous like I was. I now have a 29- and a 37-year-old. Being the mom of a racialized kid is a hard thing. And I live in an area called Malvern in Scarborough. Both had licenses as soon as we could get them because we were terrified of them being on transit. We were terrified of them being out at night waiting because we didn’t know what would happen. I don’t want that to be the next generation of parents. We need to fix the justice system. And we need to fix it because all kids deserve to feel the system works for them and that justice can be found and can be delivered for them.

Elizabeth: I think that’s a wonderful note to finish on. Thank you.

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Elizabeth: Thank you for listening to this episode of our podcast, “Advancing justice,” with Laura Arndt. To hear all episodes in this series, please subscribe to this podcast on Apple Podcasts, Google Podcasts, Spotify, or Stitcher. You can find the full transcript of this conversation, links to resources and other contributions to our series on the Maytree website at www.maytree.com.