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Beyond gatekeepers: Fostering accountable justice

Published on September 15, 2021
image: abstract painting (iStockphoto)

This article is part of the series, “Advancing justice,” which explores the relationship between human rights, poverty, racism, and the criminal justice system.

As the COVID-19 pandemic has underscored the life-and-death consequences of social inequity and systemic racism, there has never been a more crucial moment to advocate for major overhauls to key components of the justice system, to call for justice policies that are responsive to public need, and to press for investment in justice reform. Yet 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.

Addressing the language barrier

The label of “access to justice” can be applied to any effort that aims to improve the justice system for those seeking to assert or defend their rights within that system. It has become a broad and elastic category, which could reasonably include a wide range of initiatives — including creating court forms that are easier to complete, translating legal information into different languages, supporting a rising number of self-represented litigants, or exploring community-based dispute resolution mechanisms.

However, as the majority of access to justice advocates are lawyers, the focus tends toward increasing access to legal services. Research into legal needs, for example by the Canadian Bar Association’s Equal Justice Initiative and the Canadian Forum on Civil Justice, confirms that the primary barriers to accessing justice in Canada mainly relate to cost, confusion, and disengagement. These substantial and persistent barriers result in dire outcomes — particularly for citizens and communities living in poverty — that can reverberate for generations. Many high-profile calls to action, announcements, initiatives, and events have been launched in the name of improving the system. Yet, as a broad movement, access to justice remains at an impasse.

Charging lawyers with improving access to justice creates a problem: the profession cannot represent the issue’s diverse public interests. The legal profession is historically white, male, elite, and privileged. The most influential players on the access to justice landscape — the organizations and individuals that determine the discourse — are drawn from this homogenous pool. BIPOC (Black, Indigenous, and People of Colour) lawyers, and BIPOC women in particular, are underrepresented in leadership positions, paid less than their peers, and routinely exit the profession because the burden of inequity pushes them out.

This power dynamic within the legal profession ensures that most access to justice groups and initiatives are unable to secure and retain problem solvers with diverse backgrounds across demographics, disciplines, and professional training. It is common for conferences on the theme of access to justice to design programs featuring only white speakers, or for an access to justice organization to have an all-white board. Occasionally, someone outside of the legal profession with relevant expertise will make it to the table; but, over time, their contributions are typically obscured. Their outreach programs or effective public-facing collaborations will come to resemble existing, well-worn approaches focused more on problem-definition than problem-solving. The pattern is one that consistently privileges participants with the same background, perspective, knowledge, and experience. This ensures that the access to justice conversation remains too distanced to sufficiently engage with the larger, structural, intersecting forces that exacerbate health, wealth, and justice disparities in our society.

This lack of representation severely inhibits engagement with the public on key issues such as systemic racism and poverty — factors that underpin most justice challenges in our society. The current lens through which most projects are launched is predominantly narrow and largely white — this prevents access to justice efforts from resonating with the communities they are designed to reach.

This is exemplified in the very term “access to justice.” It does not inspire, galvanize, or compel — it is inaccessible. Such bland language skirts the essence of the access to justice problem — an abundance of status quo and an absence of urgency.

Fear of upsetting this balance and undermining the existing social order in a field that prizes status and tradition, engenders resistance to change. An aversion towards outsiders — “non-lawyers” — is legitimized through a sense of legal exceptionalism. Such gatekeeping prevents the inclusion of viewpoints that could help unpack a complex systemic problem. The result is a homogenous majority driving what is essentially an internal conversation. Legal organizations are aware of this problem and, while progress has remained limited, increased multi-disciplinary collaboration and improved public engagement have been identified as critical elements to making the justice system better.

Challenging the status quo

Over the course of the pandemic, justice problems such as wrongful evictions, family breakdown, domestic violence, and employment issues have surged. And long-standing injustices faced by Indigenous and Black communities related to child welfare, over-incarceration, and police brutality persist. The cascading effects of social inequality during this extended emergency have left both the marginalized and middle income individuals with little recourse. As Joshua Sealy-Harrington writes, “the COVID-19 pandemic did not make a just Canada unjust — rather, it aggravated the conditions of injustice which were already pervasive in Canada.”

In response to current social movements such as Black Lives Matter, senior justice leaders have called for bold, immediate, and innovative action explicitly aimed at addressing the complicity of the justice sector in upholding and perpetuating systemic racism. But who can respond? The audiences for such messages are typically the most privileged within the legal profession and a group deeply invested in the status quo.

It should be noted that the pandemic has brought forth some modest but significant modernization efforts, particularly in courts. Ontario’s Ministry of the Attorney General, for example, was able to quickly advance a digital transformation in a paper-based system because staff were no longer under pressure to “over-invite” meeting attendees as a matter of courtesy. Instead, they were liberated to coordinate with individuals based on their relevant problem-solving skills which enabled prioritization of impact. This shift resulted in many wins, including new digital opportunities for public access to court proceedings. The unprecedented uptake is best illustrated by the 20,000-plus viewers who tuned in for the judgement of a high-profile case of a police officer on trial for blinding a Black teenager from Whitby, Ontario. The live stream was praised as a “breakthrough for court openness.”

It is also important to recognize that many legal professionals, particularly those at legal clinics, have provided essential services during this extended emergency, all too aware that they are only able to help a small fraction of those who need it. There are also many lawyer advocates in legal clinics, non-profits, and academic spaces who are actively engaged in developing justice solutions that are multi-disciplinary, community-based, and responsive to lived experience.

For example:

This is a small sample of the work that critiques the “more access to legal services” approach by going upstream. They are challenging the status quo by identifying ways to increase the quality of justice that is available to marginalized groups.

There is an abundance of innovative and inspired work aimed at improving justice outcomes in our society; however, it often quietly sidesteps the access to justice establishment or is not sufficiently acknowledged by it. And so, a homogeneous group persists unchallenged, occupying space, and maintaining its hold on a narrow narrative of justice reform.

Fostering accountable justice

The pandemic has provided an opportunity to advance long-overdue justice improvements. How can this moment be seized to advance change on a meaningful scale? The way forward demands reckoning with the public’s lack of trust in the justice system.

The recent Race and Criminal Injustice report prepared by the Canadian Association of Black Lawyers and published by the Ryerson University Faculty of Law found a perception of bias in the criminal court system among a significant proportion of respondents, with Black and Asian participants most likely to hold this view. A 2016 study measuring how Ontarians perceived the justice system found that the majority of respondents described it as oppressive (54%), not representative of all Ontarians (63%), and intimidating (71%). Four out of 10 Ontarians saw the justice system as unfair, regardless of their race, gender, age, or income. This study was the first of its kind because it asked a representative sample of the public — not a lawyer or a judge — about their justice system.

In other sectors, such results might establish a baseline against which to measure improvements or kick-start urgent action with substantive impact. While these studies garnered considerable media coverage (for example, the Toronto Star and Global News), some access to justice leaders can be dismissive of such results — their attitude remains: what does the public know?

The public knows that they do not want access to something that is broken and unworthy of their trust. The justice system acts in service to the public. As Roderick MacDonald noted, if the confidence in the system, lawyers, and judges is absent, marginalized citizens “simply won’t use it.” Moreover, members of the public are key to manifesting change in a meaningful and effective way. The authority and motivation to act need to be brought into alignment: this entails building the public’s capacity to hold the justice system to account. For Hahrie Han, a professor with expertise in political participation and civic engagement, “the challenge of democracy in the 21st century comes from a society that has neglected the challenge of enabling people’s power.”

Change through deliberative democracy

The pandemic has underscored how critical it is to view the public as a resource rather than a risk. The justice sector has an opportunity to harness this moment and demonstrate a responsive evolution. Innovative forms of public participation such as citizen assemblies or reference panels can help to guide this shift. These approaches fall under the broader practice of deliberative democracy which, when properly implemented, can strengthen the civic capacity of the public, enhance trust of democratic institutions, and produce informed solutions to complex problems. The Organization for Economic Co-operation and Development (OECD) has championed the merits of deliberative democracy as a sensible approach to considering the “complexities and compromises required for solving multifaceted public issues.”

The goal of citizen participation is not to collect many individual views but to obtain a collective, representative, and considered one. Community input is obtained in an inclusive, thorough, and supported way with random selection and stratified sampling to ensure the engagement of typically excluded groups. The OECD recommends that, for integrity purposes, deliberative processes be run by an arm’s length organization with relevant expertise. It also advises that participants have adequate time for the necessary learning and reflection that leads to informed recommendations — deliberative processes can often run for several days.

Empowering members of the public to contribute in this way signals civic respect which enriches democracy and results in sound policy. These benefits, however, can only be secured with strong and authentic institutional commitment. Input cannot merely be collected — it must also be put into action with an equity lens and handled with transparency. Participation by members of the public in deliberative processes is a civic act — like voting or serving on a jury. Therefore, to be effective, it must provide members of the public with access to supports that facilitate their involvement such as paid leave and childcare. In addition, it would benefit from coordination and engagement with other institutions, particularly across health and social service systems that are frequently accessed in the process of resolving a legal problem.

Canada has been a pioneer of deliberative approaches that foster democratic inclusion. The creation of a deliberative structure with a justice mandate could serve as a public authority. Functioning as an institution, it could provide guidance to decision-makers, build knowledge, and set standards for how public input is collected. In addition, it could have the potential to not only gather community input to guide policy development, but also collect and share justice sector data, ensuring consistent access to journalists, academics, community organizers, and others that help to hold the justice system to account.

Deliberative processes are not a magic bullet for justice challenges. However, they do provide readily available tools and approaches that can be leveraged to make the system more equitable and aligned with the public interest. In addition, they can build on and help accelerate the culture change that has been brought forth by the practice of restorative justice which applies a decolonial and holistic lens to resolving disputes in criminal contexts. Recent commitments by the Government of Canada to restorative justice initiatives, the development of Justice Centres in Ontario, and the creation of the Restorative Research, Innovation & Education Lab at Dalhousie University make for encouraging developments.

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. It offers an important avenue to ensuring that the historically excluded are not merely consulted but actively driving the solutions that will address the systemic justice inequities in their communities.

Nearly 20 years ago, the Law Commission of Canada released a report about participatory justice which highlighted consensus-based justice, community boards, or panels as appropriate for a wide range of conflicts and communities. In 2005, legal academic Constance Backhouse provided an examination of access to justice with the following call to action: “We need to rethink how we engage with the media. We need to utilize our ideas and resources more effectively than we have in the past. We need to create functioning coalitions of individuals and groups who can work together to demand progressive reform.”

The ideas are not new but the pandemic circumstances are. Perhaps now that Canada’s justice crisis has been enveloped by a pervasive state of emergency, we have arrived at the right time to adopt such approaches in a broader and more transformational way.

Moving forward

As this article has illustrated, deep-rooted resistance is holding the access to justice movement back. However, there are practical and theoretical lessons readily available from other sectors that can help propel a long overdue culture change in how the justice system addresses systemic racism and poverty. There are also compelling, innovative, and effective examples of justice initiatives that can be scaled for meaningful impact. Fostering this evolution will require imagination along with common sense.

To summarize, some suggested ways to move forward include:

  • Diversifying problem solvers in the access to justice sphere across demographics, disciplines, and professional training. This will require developing strategies to retain BIPOC representation in the legal profession and ensuring that experts from other sectors are engaged as collaborators.
  • Amplifying the lessons learned from the changemakers that are actively testing and refining inspired efforts aimed at improving justice outcomes. Sharing insights will encourage and motivate others, which is key to cultivating a vibrant community of problem solvers.
  • Encouraging those currently outside of the access to justice domain to explore avenues to apply their much-needed skills. Taking up space by finding or creating opportunities will help advance a sensibility that reframes the access to justice problem by prioritizing impact above the status quo.
  • Creating a body that collects input from the public and engages diverse stakeholders in holding the justice system to account. To avoid being subsumed by the power structure of the legal profession, this body must hold sufficient authority to deliver on its mandate.

Essential voices have been excluded from the access to justice dialogue. As Avnish Nanda writes, “the legitimacy of our legal order depends on it reflecting the people, experiences, and aspirations of those who make up this country.” The pandemic provides an opportunity for transformation. Let’s seize it to enhance not only the quality of justice, but also how it is perceived, engaged, and secured in our society.

Advancing justice podcast: Interview with Sabreena Delhon

For the transcript of the conversation, visit the podcast page.

I would like to thank Alex Bezzina, Elizabeth McIsaac, Karin Galdin, Avery Au, and Peter McLeod for their thoughtful comments and critical suggestions.

Read all articles in the “Advancing justice” series