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Expanding the talent pool: Why the criminal justice system needs more diversity and inclusion
Published on 22/11/2021
This conversation is part of our series, “Advancing justice,” which explores the relationship between human rights, poverty, racism, and the criminal justice system.
Infusing inclusion and diversity into the legal ranks can help build underrepresented groups’ trust in the system. In this month’s contribution to “Advancing justice,” Maytree president Elizabeth McIsaac speaks to Dr. Tanya (Toni) De Mello, Assistant Dean for Student Programming, Development and Equity at the Lincoln Alexander Law School at Ryerson University, and Harsimran Sidhu and Kaylee Rich, both students at the law school.
They discuss how the barriers obstructing access to justice for Indigenous, Black, and racialized people are found not only in the legal profession itself, but in the academic pipeline that produces its practitioners.
In preparation for the interview, we asked Harsimran and Kaylee to reflect on the issues associated with the lack of diversity in the professions that serve within the criminal justice system. In their essay, they consider how various and often overlapping negative experiences in the lives of youth from Black, Indigenous, and racialized communities can act as barriers to pursuing careers in the criminal justice system. You can read their essay, “Exclusion: A reflection on the contributing factors to the lack of diversity in criminal justice professions,” here.
Listen to the podcast
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.
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.