Yves Faguy speaks with Joshua Sealy-Harrington, a lawyer at Power Law, whose practice centres on sexual, gender, and racial minorities. They talk about COVID-19, the racial protests and the challenges we face to make our justice system fairer for racialized groups.
Bonus Episode presented by CBA National and CBA Futures: After the pandemic: The future of justice, Ep 5:
In this fifth episode, Joshua Sealy-Harrington discusses COVID 19 and the impact it’s had on global protests calling for an end to systemic racism. He also shares his thoughts on how our justice system is embedded in a broader framework of capitalism that is deployed against marginalized people.
Joshua Sealy-Harrington is a lawyer at Power Law and a J.S.D. candidate at Columbia Law School. You can follow him on Twitter @JoshuaSealy. He’s also published articles for CBA National, the Globe and Mail and Ablawg, the Law Blog of University of Calgary Faculty of Law.
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After the pandemic: COVID-19 and racial justice
Yves Faguy: You are listening to the Canadian Bar Association National Magazine.
Hi. I’m Yves Faguy, the editor in chief of CBA National Magazine. Welcome to After the Pandemic: A Conversation About the Future of Justice produced with the support of CBA futures.
My guest today is Joshua Sealy-Harrington who’s a lawyer at Power Law, a firm based in Ottawa even though he’s based in Brooklyn, New York where he’s a doctoral student at Columbia Law School. I’ve asked Joshua to join me today to talk about the intersections of COVID-19, the racial protests and the challenges facing our justice system.
I’m very much looking forward to this talk because his expertise is so valuable in this area. His practice centres on marginalized communities, particularly sexual, gender, and racial minorities. Mostly it’s always worth listening to what he has to say because he’s clearly given these issues a lot of thought.
Joshua, it’s great to have you on the program.
Joshua Sealy-Harrington: Great to be here.
Yves Faguy: COVID has obviously highlighted many of the faults in our system and more recently another layer has come into focus which is the global protests over racial justice and this now has people calling for a review of the institutional racism and the – or the systemic racism that affects all people of colour in Canada. My first question to you is do the two events connect and how so?
Joshua Sealy-Harrington: Yeah. No, that’s a great question and I think they do. I think there’s an intimate relationship between COVID-19 and its impact and the global protests that are happening. You know, in my view COVID-19 has highlighted how various fault lines in our society are fundamentally racialized.
We can look at public health and how due to COVID-19 we have disproportionate death within black and Latinx communities. You look at employment. You know, black American unemployment was twice that of white Americans in the pandemic. It’s even worse for most marginalized people. Nearly 40 percent of Americans earning less than $40,000 experience job losses. We see it in housing.
So what COVID’s doing is it’s highlighting a lot of the already extant inequalities that existed in society and just shining a spotlight on them for those who didn’t see them before. And the global protests are simply related to yet another vector of racial oppression in the criminal justice system. So the response in terms of police brutality and mass incarceration, criminalization of the homeless, all of these things are related to different systems of power in society and the ways in which racial minorities and especially black people are oppressed.
Yves Faguy: And so what is at the root of the problem for you when you look at the justice system in particular?
Joshua Sealy-Harrington: There’s a number of different roots. I think a big part of it is the ways in which our justice system is embedded within a broader framework of capitalism, so. And there’s a number of ways that plays out. So we can talk criminal, we can talk civil. In terms of the criminal justice system, the relationship between money and the criminal justice system is foundational. We know what we identify as crime is ultimately socially constructed and what I mean by that is that what we punish and how we punish is ultimately a product of political choice. You can look at the comparison between things like theft and wage theft. You know, one is punished severely as a criminal offence and the other is kind of, you know, perceived as an inconvenience often not even reported or discovered. You can look at the difference between the punishment for minor drug crimes and major financial crimes. And you can look at obvious examples like how sodomy used to be like oh, you know.
So there is – and so when we look at – when we understand crime is socially constructed, we can also see how criminal law tracks racial capitalism, right? So we see over-policing within racialized communities. You see outrageous sentences for things like drug possession. We have things like money bail within the United States and at least in Canada with recent Supreme Court decisions money bail issues are getting a bit better. And we have things like sentencing. Like when you commit a crime the factors that are considered that give you a more lenient sentence undeniably overlap with privilege in terms of having a stable home, a stable job, a supportive community.
So all of these are different ways in which the monetization of our criminal justice system both in Canada and the United States makes it fundamentally unjust.
Yves Faguy: What about on the civil side? I think you’re answering mostly with criminal justice in mind. Are we also guilty of not paying enough attention to the role of law in civil matters being – or law also being among the economic institutions of capitalism?
Joshua Sealy-Harrington: Yeah. So the civil side is also very problematic and that’s – you know, I can put that in this way, you know. What is – we often say like what’s a right without a remedy and likewise, I think an analogy of that is what’s a right without access. So we look at things like family law. It’s just categorically inaccessible for a mass majority of Canadians. When you look at civil claims basic disputes also a mass majority of Canadians can’t access it. It’s just grotesquely expensive. You know, in the 2014 Supreme Court BC trial lawyers’ decision, that case involved a custody dispute where the hearing fee was going to be $3,600 in order to be able to decide where custody should go. And that was almost the net monthly family income for that family.
So we’re looking at a system both criminally and civilly that has a big money problem. And specifically, a problem that in which the system’s been designed for an elite subsection of society who can access it and manipulate it and exploit it for their own means, but where the vast majority of people that the system should be designed for simply can’t access it or worse, the system is designed to specifically oppress them.
Yves Faguy: I mean does this mean that capitalism itself is inherently a fundamental problem for the rule of law or is it that we need to reconnect the rule of law to, I don’t know, the welfare state which, you know, a lot of people would say has been chipped away at but was maybe once upon a time the main vehicle by which our societies would try to tamp down inequality for example? I mean I might be making a ton of assumptions here but I’ll let you at it.
Joshua Sealy-Harrington: I would say that in – you know, across North America we’re numb to the condition that’s created by capitalism within our legal system. So you know, someone who’s playing Sim Nation and you know, building a country and someone was like OK, design the justice system. Do you think it should be unaffordable to 90 percent of society? People would be like what? That’s insane. And like we’re just used to that.
That is the status quo across North America is that the vast majority of people cannot afford to actually engage with that legal system. And that means that we don’t actually have a fundamentally equal legal system because those who can afford to manipulate and exploit it are the ones who could use it, so. And I think that capitalism is a part of why we’re conditioned and we’re numb to that unbelievable status quo because people – if you say that you want to create reforms that allow for accessibility, people will push back precisely because the cost implications are what make people really uncomfortable.
And so you know, you can see that divide between Canada and America too in terms of public health. And you know, public health is perfect in Canada but as a comparison, we’ve just accepted that health is something that is meant to actually be a right or approach a right and so it’s a cost that we bear. And we don’t have a similar outlook with respect to the legal system and I think that’s a problem.
I don’t know what the exact solution is but there’s just certain costs. You know, when there’s a cost that people think is important enough, they’ll pay for it. And we’re just used to a legal system that we can’t use. And I think a big part of that is that a lot of people who are doing policy and a lot of the people who are controlling the structure of the legal system are some of the few who can manipulate it and use it when they need to, but the average citizen can’t.
Yves Faguy: And it’s almost more sometimes than the average citizen. I think, you know, there … You know, you wrote yourself in an article recently for national magazine that you know, your average lawyer probably couldn’t afford the legal system.
Joshua Sealy-Harrington: Yeah. No, absolutely.
Yves Faguy: So how do we go about reforming our legal structures to make them serve all Canadians more effectively?
Joshua Sealy-Harrington: Yeah. I think we need to – like similar to the push and the conversation we’re having now with respect to defunding police and the response to rampant police brutality across North America, I think that there’s a question of posture. You know, we – when we look at these systems we’re often seeing a problem and then we do some pretty modest reforms to try and tweak the system and those tweaks don’t actually get to the root of the problem like I’m saying. The relationship with money, the relationship with capitalism.
So I think with respect to all of these systems that are really ineffective at doing what they’re meant to be doing, we need to fundamentally rethink these things and they need to redesign them for the masses as opposed to the elite. So in terms of different legal system things by broad brush, you know, we – I think we have to reconceptualize that many different legal services should be understood as something that people have a right to as opposed to a preference for. And that’s a foundational consideration which then has a lot of design implications.
I think it has – results in the need for a serious examination maybe even of the adversarial legal system because I think in many ways that contributes to really high cost. And while I’m very sympathetic to people’s concerns about, you know, tinkering with adversarial legal systems especially in the context of things like criminal justice, you see a big push towards things like collaborative family law precisely because there’s this need for some type of restructuring that can create greater access.
You know, we have other things like Pivot Legal Society last year called for banning discrimination based on social condition under the BC human rights code. And I’ve written about how things like homelessness should be considered an analogous ground of discrimination under the charter. I think those types of things are also really important. You know, where actually, again in large part, due to things like capitalism we’re numb to the fact that we actually allow for and sanction a bunch of blatant discrimination against homeless people because we’ve just always had these so-called vagrancy laws and we’ve just understood that it’s like of course there’s no loitering. Like that’s just something we’ve like come to understand and accept which is really just an indirect if not direct form of the criminalization of homelessness and poverty.
So there’s a lot of rethinking we have to do and it’s not going to be fixed by, you know, a modest by-law. It’s really about understanding that our legal system fundamentally does not work and is many ways deployed against the most marginalized people in our society.
Yves Faguy: This is really – what you’re saying here, I’m gathering, is that this is an opportunity to rethink how we deal with a lot of things particularly probably are criminal issues as it relates to poverty.
Joshua Sealy-Harrington: Definitely.
Yves Faguy: We do have a problem here. There have been more than a few studies on racism in the justice system in Canada and we have the stats to prove it. Probably top of mind is a fact that racialized people are overrepresented in the criminal justice system. I think the most damning stat is that indigenous people are the most overrepresented group. I think they make up just five percent of the country’s population but 30 percent of inmates.
Joshua Sealy-Harrington: Yeah. The stats are horrifying. They’re really bad. I’ll also say just on that point, you know, you said that we have the stats. We really don’t. You know, one of the ways in which Canada is worse than the United States is that it is loathe to do race-based data collection. Even in the midst of COVID-19 when multiple groups are calling for race-based data collection in relation to public health, a lot of public health officials were holding back on that whereas in the United States they’ve collected a lot of that kind of data for a long time. And we can’t – you know, any doctor would say they have to meet the patient before they can figure out what’s going on. You know, we can’t diagnose the racial disparities within the Canadian legal or public health or public housing system in the absence of basic data with respect to how those systems overlay with different communities.
So we do – I mean we obviously do have some statistics about, for example, indigenous overrepresentation within the criminal justice system. But we in many ways are lacking a lot of core race-based data with respect to housing, with respect to public health and with respect to components of criminal justice. So that’s yet another form of systemic racism in Canada that we have that’s actually worse than the United States.
Yves Faguy: It’s a good point and I guess attacking systemic racism is probably a pretty complex issue. I notice recently, you know, in recent decisions by the Supreme Court they’ve actually tried – there’s the recent one on bail conditions. That you know, it seems that the Supreme Court and some of our courts are trying to tackle some of these issues, you know, or are beginning to tackle some of the systemic racism in our justice system. It’s probably not enough. It probably has to play out on many different levels. What would you like to see addressed first and foremost?
Joshua Sealy-Harrington: That’s a great question. I think that – I mean in the current moment, I think police defunding is a very important one and the reason why is that police defunding, I think a lot of the opposition thinks of it in terms of policing alone. And I think it's important to understand that what that means and police abolition which it moves towards is, you know, divesting from institutions that are ineffective. That are fundamentally racist and investing in the empowerment of communities in a way that’s going to be more effective from a standpoint of public safety which is the whole point of – you know, it’s not the point of policing actually.
The point of policing is just like a lot of racism, but if you have – you know, if you look at a lot. If you take your average wealthy white suburb, you know, there aren’t police everywhere and there’s great public safety and it’s because people have welfare and security. And you can do that for different communities without sending a bunch of police officers there. In fact, police officers are a really expensive and ineffective way of dealing with those problems.
So I think in terms of initial, you know, reforms or rethinking the system, we need to be putting a lot more money into communities as opposed to policing those communities because, with that type of welfare you’re going to see not only an increase in public safety but more importantly, you’re going to see an increase in security and thriving in those communities. And that cascades into everything. You know, that’s not just – you know, police defunding has police in the word but we’re talking about housing. We’re talking about health. We’re talking about welfare. All of these things are needed for just, you know, reasonable quality of life. And when you have that reasonable quality of life you’re going to see better public safety in addition to a lot of other indicators of welfare that will also be increased.
Yves Faguy: Is it a term that needs to be [laughs] I don’t know, rebranded because I think, you know, a – you know, you’re referring to wealthy, white, suburban communities? I think they – a lot of people there have a hard time with the actual – with the concept of police defunding. Perhaps it means different things to different people.
Joshua Sealy-Harrington: Yeah. So I mean I’ve – yeah, I’ve seen a lot of the debate around branding. Here’s the issue. So Al Vitale is like a – who wrote “The End of Policing” who’s kind of a leading policing scholar in the United States – actually also in Brooklyn, I believe. So he writes a lot about essentially the cyclic and systemic failure of reform of police. And that failure which always happens, right? Like we’ve – scholars and movements who have engaged with the issue of policing have time and time again seen incidences of visible and horrifying police brutality, minor reforms and the complete ineffectiveness of those reforms to bring about any change whatsoever. You know, in Minneapolis where George Floyd was lynched by Derek Chauvin was considered one of the posterchilds for, you know, diversity and implicit bias training and de-escalation and all of those things and so obviously is just not working.
So the reason why people talk about – and well, I shouldn’t say the reason why, but to me defunding is an important political stance in contrast with reform. One, because it’s just not – it’s a different term. When people are talking about defunding they do mean taking the money away and putting it elsewhere. So it’s just literally accurate. But they also don’t want to refer to police reform to the extent that could even be moderately accurate because reform has been the posture for the last century and hasn’t done anything.
So people feel uncomfortable from terms like police defunding and police abolition, but that discomfort is the point, right? It’s meant to really community a shift in – not a shift but an absolute rethinking of public safety within society. And different terms which make people feel uncomfortable about which also invite modest reforms aren’t going to be effective and that’s why this type of terminology is being brought to bear because we do need to be a bit uncomfortable. We need to really materially and significantly rethink how we approach public safety in society.
Yves Faguy: It’s hard to conceive of a state that would want – that would agree to the abolition of its police force though.
Joshua Sealy-Harrington: Yeah. And so another important thing too though, right, is when you read scholars and movement organizers who engage with things like police abolition. You know, Mariame Kaba in the United States is one of the leading kind of prison abolition thinkers who’s been working in this area for a long time. You know, the position isn’t that you don’t have any provision for public safety. It’s certainly that police aren’t going to exist anymore in the sense that this institution as it exists does not work. This institution is systemically racist. This institution is beyond reform. And we’ve seen that it’s beyond reform.
People can talk about – you know, people can respond with references to OK, but where do we send Ted Bundy and there’s two responses to that. One – well, there’s three responses to that, right? Where do we send Ted Bundy? One, the vast majority of violent criminals aren’t incarcerated under the status quo anyways. So if your argument is related to that constituency, the current system’s not working and so that’s not really an argument for the status quo. Two, that is an exception in the concept of mass incarceration. So the vast majority of people within our prison system aren’t Ted Bundy anyways and so why would you design the system with reference to the exception? That doesn’t make sense either. And third, if we’re concerned about Ted Bundys and preventing them, again why would you react with, you know, selective over-policing of minority communities rather than investing and empowering those communities which prevents the creation of those individuals, right?
So there is a number of reasons for why. I understand people’s apprehension about this vision of society that approaches public safety differently, but we’re already seeing the system that’s broken. I’ll give one more example, right? A lot of people will raise the spectre of OK, but what do you do about the serial rapist, you know. We need somewhere – we need some institution or infrastructure to deal with that. Yet under the status quo, there is countless complaints, valid ones, about the ineffectiveness of the criminal justice system in dealing with sexual violence.
So on what earth are we arguing against investing in and empowering communities on the basis of a concern for sexual violence when we know the current system is woefully ineffective at dealing with sexual violence? You can’t prop up the system you admit is broken on the pretense of addressing a harm you know we already don’t address. Whereas absolutely if we invested in those communities, if we had better education, if we had better mental health resources, all of those things would actually have a material impact on things like reducing sexual violence. And I think that that’s – that reframing is critical and that reframing is part of the conversation of defunding, part of the conversation of abolition.
Yves Faguy: Yeah. I mean I don’t mean to say that some of these parts of the system that you’re describing aren’t broken. I guess, you know, it’s funny. I guess my reaction to it is – my concern would be community vigilantism [laughs], you know, of all kinds. And I think – you know, I suspect that again that’s where probably the state would have some issues.
Joshua Sealy-Harrington: I mean like if we want to talk about vigilante justice let’s talk about Derek Chauvin calmly with his hand in his pocket lynching George Floyd in broad daylight with tons of public onlookers, right? Like I’d rather vigilantes to a state-funded, you know, occupying military force wandering around killing black people without – with impunity, right? The status quo that we’re used to is these police forces supported by these police unions who are killing tons of racialized people across Canada and the United States without any punishment whatsoever.
So again, the focus on reframing is that we’re numb to a lot of things that are already happening under the status quo that are entirely inappropriate. And I think that those are the things that need to drive our reflection on how we design our society. And I just don’t think – like I mean I take your point but I don’t think that investing in communities is going to generate a bunch of vigilante justice. I think if anything the opposite, right? Like we don’t see – there aren’t a lot of police in wealthy suburbs and we also don’t see a lot of people wandering around breaking in either.
I think what we need is more money invested in the welfare and the security of communities and I think you’re going to see a decrease in crime and an increase in public safety if we do that.
Yves Faguy: So you’re talking about a rethink, almost a redesign of how we approach essentially what are fundamentally social and community issues. How else – and beyond defunding, police defunding, how do we get racialized groups, black communities, indigenous people to see that the justice system belongs to them? And/or what must the legal industry do to help restore public confidence in the legal system? Presumably, a legal system would still exist in this world that you’re describing.
Joshua Sealy-Harrington: Yeah. So I want to challenge the framing of that question a bit because the way it’s framed right now is in terms of raising optics. Like how do we get certain communities to see that they own the justice system? I think the fundamental problem right now is that they don’t, right? So indigenous communities are subject to a colonial legal system that was in itself unlawfully imposed on them. And black communities are engaging in a legal system that was in many ways designed to oppress them, right? Designed to send back slaves to the United States.
So and again, in terms of the social construction of crime that has in many ways been designed to target black communities specifically. Not in terms of promoting public safety but to just target those communities specifically. You look at things like the war on drugs and Nixon. You know, one of his closest advisors I think in an interview last year was saying, “Yeah, we just did that because we wanted to destabilize black communities because they weren’t going to vote for us.” This is literally how these types of criminal law measures are deployed and conceptualized.
So do indigenous people, do black people think that the justice system belongs to them? They don’t because it doesn’t, right? If you look at the evolution within America and Canada, you know, as we transition from slavery to Jim Crow to mass incarceration what we’re seeing is not a resolution of the racial discriminatory apparatus, criminal justice, but an evolution of that apparatus to different forms that are palatable to the public consciousness but which are still doing the exact same thing. And so I would say we don’t have to make them see the justice system is for them. We have to make the justice system for them.
And that notion of actual ownership of the legal system requires some significant rethinking. You know, I have a friend Jeremy [Bonnell Boulanger 00:24:47] who is doing his doctorate at the University of Toronto and he’s exploring things like public participation and access to justice. You know, more community-based conceptions of justice systems that aren’t universal across the board which in many ways I think it’s convincing that that doesn’t work because different communities need different things and have different norms and values. He’s doing some really interesting research there which I think is going to be really generative and productive in terms of these types of systemic reforms.
Yves Faguy: Is he studying particular examples of alternative forms or …
Joshua Sealy-Harrington: Yeah, yeah. So I think he’s looking at a lot of different indigenous systems of – like broader legal systems but also systems of justice to see how different community-oriented forms and models can be implemented in a way that gets buy-in from the community and the implications of genuine buy-in from the community from the standpoint of administering the system, a legal system.
And Mariame Kaba who I mentioned earlier says the same thing. When she’s writing about prison abolition she talks about community-based structures that increase safety. And so I think that one, like I said before from the standpoint of prison abolition, you know, most people who commit violent crime are never imprisoned under the status quo anyways. So that’s not working. But two, many people who commit nonviolent crimes are in prison experiencing violence, right? They are being raped in prison. They’re experiencing death in custody. They’re in the torture of solitary confinement.
So you know, these are, you know, a couple of examples of researchers and thinkers and there’s many of them within maintenance who are looking at ways, you know, that – to use my phrasing, you know, are trying to – and in response to your question, trying to design a system where actual ownership of that system within communities is meaningful and is material as opposed to perceived.
So my research at Columbia doesn’t relate to that specific question but very smart people are doing – are exploring and interrogating those questions and I think that they’re going to produce some really important results in terms of how we design the systems.
Yves Faguy: Do you have a reasonable expectation that our elected lawmakers will – here in Canada perhaps specifically have the political will to redesign that system?
Joshua Sealy-Harrington: Zero chance, right? Like so I mean I think the vote was yesterday at Toronto City Hall in terms of defunding. I think they voted to increase funding to police despite a significant movement for police defunding. So I don’t have a lot of faith in elected officials. Similarly, with respect to – like I wrote that Globe piece on body cameras. There’s a big push now for just police body cameras which again likely increases as opposed to decreasing funding.
Yves Faguy: What’s your issue with body cameras very quickly?
Joshua Sealy-Harrington: The issue with body cameras is that as a systemic police reform they’re ineffective. So they – rather than defunding police which a lot of people are calling for which is, you know, rethinking public safety, they maintain police as the apparatus which is meant to provide public safety which it doesn’t but films them. And so the instinct of some peoples if they’re on film and they’ll be held accountable but that’s likely not true because one, we have lots of studies that show that it actually doesn’t work that well. And two, we see it every day, right? We’ve seen police in the –
Yves Faguy: Derek Chauvin was on camera.
Joshua Sealy-Harrington: There was like five cameras just like recording. Like he knew he was being recorded. They had body cameras on. He just lynched George Floyd with absolute – like not with impunity necessarily. He’s been charged. But he certainly didn’t look like he was concerned about being charged. And yeah. So we have studies saying that they don’t work. We have – there’s lots of practical concerns with them in terms of police taking them off, plainclothes officers who don’t actually have to wear them in any event. But the more fundamental thing that I want to point out is that there’s a philosophical tension between the notion of police body cameras and the push for defunding. Like body cameras cost money. Sometimes a lot of money. And if you’re looking to decrease like blatantly bloated police budgets across North America – the police budget in Toronto anyway is over a billion dollars.
So if you – I think it’s $3 million a day is spent on policing. So if you spent $3 million a day on public housing, on health, on education, on mental health, these are – this is why there’s a significant concern about body cameras. The concern is that like I referred to earlier, that cycle of ineffective reforms. We’re going to have body cameras as a palliative. People will back off and say look, we did something. We’ll have another 20 years of racial terrorism. And then again, we’ll come back to the table and say well, that didn’t work. What else are we going to do?
That’s why people are pushing for more systemic reform because these – well, not systemic reform. Fundamental rethinking of the system because these modest reforms have ultimately been ineffective. And one other point I’ll add, a police body camera is only effective insofar as the accountability systems that they are subject to are effective, right? That doesn’t work as well.
So you know, Pantaleo who’s the officer who killed Eric Garner, that entire encounter was filmed and he wasn’t even charged let alone convicted. So recording police brutality doesn’t get you anywhere if you don’t have police accountability systems in the first place. In Canada, multiple provinces don’t even have basic civilian oversight of police officers. When they’re investigated for their, you know, misconduct which usually [unintelligible 00:30:11] another police officer just investigates them and you can see the conflict there both practically and you know, philosophically, morally.
So that’s another problem with body cameras. If we are filming a bunch of police brutality against racialized communities and then they’re sent to some board which ultimately doesn’t hold them accountable anyways, then that’s not going to do anything. You’re just going to be filming us dying as opposed to preventing us from dying.
Yves Faguy: I want to turn back a little bit to the justice system and by this I mean, you know, the whole justice apparatus, the courts and all that. And I think, you know, this might be – I hear what you’re saying about a complete rethink of how justice works. I think a lot of people out there in the legal community are saying well, like clearly what COVID has shown generally and maybe they’re not just being – maybe they’re not being mindful of the racial component or the component that deals with marginalized communities but generally they would say obviously, money has to flow into the system to work better. And how would you respond to them in terms – if I were to ask you like where should we be allocating our public funds to justice specifically?
Joshua Sealy-Harrington: Yeah. So two things. I think that on the framing again, you know, the system’s reliance on private money is a big part of the problem. And I know you’re asking about public money but I just want to stress that in many ways the privatization of these systems is related to their malfunctioning and to the harms that they cause.
So we can look at an analogy between Canada and the United States with respect to money they owe as an example. You know, we do have some relatively progressive reasons in court decisions really limiting the scope of money they owe and that’s good. And it’s important to understand that it’s possible to just not totally rely on money they owe in terms of people’s freedom before they even have been convicted of a crime.
In the United States, we don’t have that. We have money bail all over. We have bail bonds all over where people can only get their freedom in advance of conviction if they have enough money to pay for it and where predatory organizations take a bunch of their money at horrible interest rates in order to capitalize on their lack of freedom.
So America’s still kind of operating in that status quo. It doesn’t have to. We could just say, you know, we just don’t want money bail anymore and we really should let everyone out, you know, unless they’re an immediate threat to public safety. Even just that rethinking is dramatically more just racially and economically. In Canada, we’re moving towards that but that’s one problem.
Yves Faguy: Or we don’t want civil forfeiture anymore. That would be another one perhaps.
Joshua Sealy-Harrington: Yeah, yeah. I mean yeah, there’s myriad ways that we criminalize poverty.
Yves Faguy: What are some of the others?
Joshua Sealy-Harrington: In Canada and in the United States it’s an accepted norm that various forms of survival are effectively criminalized, right? So like loitering is just standing around and you’re not allowed to do that, right? There are bylaws that prevent you from lying down, from eating in public. You know, when they excavate these tent communities in Toronto and in Victoria these are people just surviving, right? Like they create – they live in a tent and they live in a community because it’s what they understand to be the most effective way to protect themselves from the elements and to build community and welfare. And we use bylaws to remove them from those communities.
So there’s many ways in which just existing as a homeless person is targeted by the state and is a means of harassment and in some ways is a means of criminal law enforcement. You know, some studies show that some like 82 percent of homeless people are experiencing harassment or criminal charges in relation to just standing around, in relation to sleeping in public. You know, and what does it mean for sleeping in public to be something that can be sanctioned for people who are homeless? It’s an incoherence. It’s a fundamental incoherence within a society that allows for homelessness to exist to not allow those people to sleep, to not let those people stand, to not let those people eat in public, right?
So again, we need rethinking. It’s not a modest reform of maybe we don’t incarcerate them for a fine. Like obviously yes, we should not incarcerate people for fines ever. That’s insane. But also, we should be – rather than focusing on the punishment of homelessness, we should be addressing homelessness.
How much money is wasted on police officers walking around harassing and ticketing homeless people as opposed to investing in public housing? As opposed to investing in mental health services which are often related to the cycle that results in homelessness. These are the things that we should be spending money on. You know, proactive things that relate to the root cause and the social determinants of crime or the things that are perceived to be crime like homelessness rather than reacting to them with harsh punishment which is not really meant to address the problem of homelessness whatsoever.
It’s just meant to make it disappear so we don’t think about it as much. That’s the problem with – that’s the perceived problem with tent cities, right? They’re set up in public parks because that’s a comfortable place and they’re highly visible. And so wealthy people don’t like to see homelessness because they don’t want a reminder of the fact that their society is fundamentally unjust. But responding to homelessness through erasing it superficially isn’t actually a solution at all and that’s – yeah, that’s the problem. We need to be responding to the root causes, not reacting to it. And especially not reacting to it with criminal punishment.
Yves Faguy: That’s a good segue for my next question because I want to talk a little bit about the role of the legal establishment and the legal community. There’s – you know, I think there’s a critique out there that the legal establishment has an economically driven focus.
Joshua Sealy-Harrington: I don’t think that’s a critique. I think that is a description. That is absolutely true, yeah.
Yves Faguy: [Laughs] A description that of a legal – so of a legal establishment that is increasingly out of touch with maybe a rapidly changing, polarizing – polarized society that’s getting angry at elites, that is increasingly skeptical for many of the reasons you’ve just described of a legal system that marginalizes people and that is built for the rich. I guess the question is what’s the role of the legal profession of lawyers in particular, legal professionals of all kinds in promoting and advancing change? And I guess the sub-question to that is given its composition is it capable of doing that?
Joshua Sealy-Harrington: Yeah. So I think that in terms of – there’s two questions there. I think that in terms of the, you know, lawyer’s role in promoting change, we again operate in a system that was designed for the elite as opposed to the masses and lawyers in some ways have a unique literacy in relation to how the legal system functions. So I think in my view that creates a certain moral responsibility to assist in, you know, mobilizing that literacy towards its reform.
There’s many ways in which lawyers have a unique understanding of the legal system. Maybe not all the ways we think we do because there’s lots of very smart people who critique the legal system who don’t have law degrees. But in terms of how to use and deploy the legal system for change lawyers are situated in a somewhat unique way. And I think because of that positioning it’s imperative on lawyers to be using that literacy to not only use the system as it currently exists to promote social change and I try to do that in many ways in my own practice, but also to speak to reform, right?
We, as lawyers, because we understand the system, we have a greater proximity to how it is unjust, right? We know that there are many ways in which the system is ineffective for a majority of people because we use the system every day. That’s why you see a lot of op-eds and outreach and, you know, messages from people like criminal defence lawyers who – you know, the competent ones are aware of the fact the system is fundamentally racist and they talk about that on Twitter and in their writing and they’re aware of that because of that proximity.
So I think it’s imperative on lawyers to use that proximity to communicate to the public about the fundamental problems with our legal system because I do think a lot of people who are less close to that system are less aware of that. You also see this divide between some conscious, thoughtful, you know, judges who are in the trenches every day dealing with largely racialized people, often black and indigenous, who understand the story that these people bring to court and understand the need for sympathy and empathy in terms of how we sentence those people. And then you have political backlash where people think well, why did that person get such a small sentence for this crime? That’s not a deterrent. And when you have scholars saying, you know, the deterrence theory of criminal justice actually just empirically doesn’t work when you have judges who deal with these people all the time who are saying this doesn’t work. We need to, you know, approach it more empathetically.
That proximity needs to be used. We need more people talking to the general public, communicating to the general public about how the system doesn’t work and how it needs a lot of significant change. And you have some people doing that for sure. There’s some very outspoken criminal defence lawyers as one example who often speak about these systemic injustices, but we need more because there’s a small minority of society who’s actually kind of trained in law and who are exposed to the law every day and that lack of exposure creates the mythologies around which people have their understanding of the legal system.
If you’ve never spent a day in court, if you’ve never been to a juvenile detention centre, if you’ve never been to the, you know, downtown east side. You know, people who are within those spaces, they are seeing the Canada that exists and the dissemination of that Canada to the rest of society is critical for creating the moral impetus for change.
Yves Faguy: The legal industry doesn’t – I mean it’s changed, but the legal industry doesn’t always get high, high marks on diversity. And there’s some – there are probably many, many reasons for this. I know there have been efforts to address the issue in recent years as CBA’s made it an important issue to pursue, but we talk a lot about the importance of a legal profession that reflects the makeup of the country. And we’ve seen that in some cases it yields dividends because you know, we’ve seen indigenous people advance many of their causes through the courts and obviously, there’s a benefit to a more diverse legal profession in that sense. But what – you know, what will it take to accelerate that change in your view?
Joshua Sealy-Harrington: Yeah. So there’s two ways I want to respond to this. The first in terms of diversity. I think we need to unpack what diversity can do and what diversity can’t do. And then we can talk about how to address diversity issues. So what can diversity do? I do think that there is – that it is important to have a diverse legal profession. I think diverse lawyers result in diverse mentors, result in diverse judges, result in diverse policymakers and on a population level this can be relevant in terms of how certain issues are approached, you know.
I don’t think it’s irrelevant that you know, having more women judges has an impact on how we legally and normatively respond to things like sexual violence. Not because women are guaranteed to have a position, but there’s lots of psychological research on how people live within society and the impacts that has on their perception of society. And so on a systems level, I do think a more diverse legal system where lawyers, you know, use a lot of the levers of power within society is a good thing. But there are some cons to a big focus on diversity and one is distraction, right?
So if we say that we’re going to have more black lawyers or something – no. A better example actually is in context of policing. Some of the response against defunding is saying well, let’s just have more local police officers. And if police are still just over-policing and criminalizing homeless people and racialized people, I don’t consider it all that relevant if, you know, my head’s being bashed in by a black or Latinx police officer. That’s still a problem.
So the justice system, the police system, these things need fundamental restructuring that’s going to have a material impact on the lives of poor and racialized people. And having more racialized people functioning within the existing system isn’t the systemic change that we actually need. So in one sense diversity can be a distraction. Another problem is that diversity like I said, can be a blunt proxy, right? So Clarence Thomas who’s the only black justice in the United States Supreme is the most conservative and least racially progressive justice of all of nine justices. In contrast, you know, David Paciocco, a justice on the Ontario Court of Appeal is a white guy who’s one of the most progressive justices in the Ontario Court of Appeal.
So it’s not – there’s no guarantee that if you just throw some minorities within certain spaces that it will ultimately be a more progressive institution. If anything, it might operate as a palliative against systemic reform and therefore entrench the ideology of those systems. That’s a problem. And so in broad brush, I think we – it’s more – it’s important to weigh ideology over identity. I do think that diversity on a population level’s important but I don’t think it can displace the significant ideological changes that we need. And we’ve seen that within the Law Society of Ontario. You know, identity can be too easily co-opted to regress events.
There’s this StopSop slate. Stop the statement of principles slate at the Law Society of Ontario who ran a racialized woman to head the Law Society of Ontario as a treasurer and she had regressive politics. And so what they were doing was they were trying to coop the push for diversity as against entrenched and regressive politics within the Law Society of Ontario. We saw through that and didn’t support that candidate despite being a racialized woman because fundamentally while diversity is important, it’s in my view less important than the politics of these institutions.
So that’s pros and cons of diversity. In terms of remedying diversity to the extent we do value it, one of the problems like I said earlier is data, right? Canada is worse than the United States on data collection across the board and this relates to our legal institutions as well. So the first thing that we need to do if we want a more diverse legal profession is figure how diverse it is and how diverse different sub-portions of it are. You know, the pretty modest equity diversity and inclusion reforms that have tried to be brought in at the Law Society of Ontario include basic things like reporting on diversity metrics within firms. So we can’t know not only the composition of those firms but how different communities advance in those firms if we don’t collect data on it. And that’s the first thing we can do. Again, diagnose the problem.
In terms of reform, you know, ubiquitous throughout the – you know, the stages of entering the legal system. We need to change law school admissions. We need to change the law school metrics in terms of advancing. We need to change law firm recruitment. All of these things map onto dominant communities, right? If we’re looking at things like, you know, blunt grade criteria, that has an impact on different communities. If we’re looking at the metrics like one test right at the end that’s 100 percent of your grades that’s a problem, right? One, it doesn’t map onto actual legal competence at all but two, it also again has a different – has a racially disparate impact. That’s the manifestation of systemic racism within law schools.
And then law firm recruitment, right? Like I went to law school. I was recruited at firms. The recruitment kind of thing within most firms is this kind of cocktail hour of chatting with people and the problem with that is that you have these firms which are dominated by mostly white men who have a particular – again, not a guaranteed disposition. I worked with many white male lawyers who were quite different. But on a population level, you have people who have certain interests, certain politics. And when people are attracted to hiring people who they see themselves in that has an impact, right?
That’s going to have an impact on who gets hired because you’re either going to hire more people who are just like you or you’re going to see respectability politics play out which is you might have a minority hired but it’s going to be the minority who still plays towards the norm, right? So they may be – may have attribute X or Y, but they still come from an upper-class background. They still speak the same way you do. They still have the same politics as you. They love chatting about hockey. Like these are – you know, they’ll be a minority but they’re still – you know, the systems in play are still going to be pushing towards a particular type of minority and that’s going to have an impact on the representation of the legal system.
So I think, you know, across the board we need to think about systemic reforms because those are the things that are making law school retention and admission systemically racist.
Yves Faguy: You know, let’s go to law schools. You know, you’ve written for us again about high law school tuition. How does that play in?
Joshua Sealy-Harrington: So relevant. So when I was saying law school admissions before that was kind of a gesture at that. You know, high – we have very high tuition especially in Ontario and that has an impact. I’ve talked to friends and people I’ve met who are poor who wanted to go to law school but didn’t and it’s because they just couldn’t swallow the debt. And a lot of – like a lot of people who come from upper-class backgrounds saying well, no. I mean it’s a long term investment. It’s effective. So you should do it. Take the loan and then you’ll pay it off within five years, blah, blah, blah. Like that posture towards debt is one that itself comes from privilege.
People who come from lower-class backgrounds don’t think that swallowing 200k of debt is just a reasonable concession to enter the legal community. And so that has an impact on who enters the legal profession. That has an impact on a population level on the politics of those who operate within the legal profession.
So yeah. No, admissions and in particular cost of tuition is a really significant barrier and that’s a problem. That’s a huge problem for diversity because race and class in many ways app onto each other and so when you have extremely expensive tuition and then law school where a lot of people – you know, if you want to do well in law school it’s hard to work a fulltime job while you’re in law school.
We’re talking about a really significant financial cost in Canada to be able to go to law school. So yes, that’s one of several barriers that make it really difficult. And again, this is the public health thing that I was – analogy I was saying before. You know, how do we conceptualize these different institutions. If we think it’s something that’s important why are we distributing lawyers the way we do now? I’m not saying that we need the match like we have for med students like we do for law students necessarily. But if we think that legal services are a need and are important with our society why is it that lawyers go to school, they get a bunch of wine and dine events from large commercial firms, a bunch of them just go to work for large commercial firms?
You know, if we have an access to justice issue why aren’t we being more thoughtful in terms of education and in terms of recruitment and in terms of design to have lawyers do that kind of work because again when it’s so expensive everyone has to go to these firms. They’re the ones that have the salaries that can allow people to pay off their debt. If law school were free in Canada – you know, most of my friends when I started in first-year law were excited to do crim defence, were so excited to do poverty law and then after three years and with a crippling debt they all went to big firms.
So there’s a lot of again systemic reform. There’s a lot of design elements in our legal institutions that push people towards certain environments. And that’s not an accident, right? Firms know that they have the ability to poach talent precisely because of how expensive law schools are. So this is a structural issue that has to be really thoughtfully engaged with if we want to meaningfully address things like access to justice.
Yves Faguy: And whose responsibility is that?
Joshua Sealy-Harrington: I think every player, right? Like I think that lawyers in the profession need to be speaking about this because they’ve gone through it. I think that deans and law school administration have a lot of responsibility for that. I think the government has a lot of responsibility for that because ultimately, the government – you know, a relationship between schools and government and a partnership between them is likely required in order to coordinate a significant reduction in things like law school tuition. Especially now during COVID, right? If anything, law school tuitions are going to go up again and perpetuate all of these problems.
So I think that every player in the system has a role because it’s going to likely need a multivariant coalition of different constituencies who are able to respond to the need for change. I don’t think anyone is going to be able to do it.
Yves Faguy: This is a great conversation. I want to end on this question which is, you know, we’ve talked a lot about – it’s somewhere lurking beneath the surface of this conversation is sort of this notion about like can we reform incrementally or must it be more wholesale systemic change and rethinking entirely of the system of justice. I want to get a sense from you and I know predictions are a mug’s game, but try to cast your eye forward a few years and tell me where does this – where do these events in history go from here? How much will they upset the existing system and the existing situation or will they – as we’ve seen in the past, will things ebb back to the mean or do you – are you hopeful and optimistic that there is a realizable chance that we can affect a profound transformation out of these protests?
Joshua Sealy-Harrington: Yeah. I think it’s – I’m not hopeful which is why I think that it’s so critical to keep the pressure on. And that’s why, you know, we see movement organizers in Canada and the US, you know, out still marching, still tweeting, still writing because we’ve had this active conversation for example on defunding police and then we have Toronto city council I believe yesterday voting to increase funding. So the political will for change is clearly lagging and – or at least the political response.
Yves Faguy: However, we have seen other – we have seen other cities at least entertain the notion of defunding. So there’s been some progress on that actual front.
Joshua Sealy-Harrington: Well, so but here’s what I want to say. So we haven’t seen progress yet. We’ve seen –
Yves Faguy: Right.
Joshua Sealy-Harrington: – we’ve seen gestures at progress. I want to know what actually happens in Minneapolis after they disband the police force. I want to see – and here’s what I mean. I think what’s really important is for us to keep our metrics in line, right? So if we think – you know, everyone knows that the legal system is just inaccessible. So let’s keep in mind that we have an inaccessible legal system. Let’s keep in mind that we know that most people can’t afford it. If we want to keep track of how changes happen in five years, you know, is it still inaccessible? It’s still going to be inaccessible, right? It’s still going to be too expensive. We’re all just numb to that.
I think we need to keep these metrics in mind to avoid the use of mild reforms as a distraction from the need for material change. So you know, in five years are we still over-policing racialized communities? Are indigenous people still overrepresented? Yeah. We still need systemic change. It still needs to happen. You know, we pass criminal code provisions related to sentencing for indigenous Canadians that was meant to counteract the overrepresentation of indigenous Canadians. Nothing’s happened. So we pass that reform and people are like this is good or some people were like this is good and ultimately it just hasn’t been effective at all. And that’s because the system is against indigenous people in Canada.
So we need to keep those metrics in mind to recognize that a lot of these modest reforms aren’t doing the things we pretend they’re doing in the cycle of ineffective reform. So I’m not hopeful. What I want people to do is I want people to keep the pressure on institutions for actual change and I want people to monitor that change because in the absence of that pressure and in the absence of that monitoring I do think that the political will is going to go to the mean and they’re going to do as little as possible.
This is why there’s so many really critical historical pieces exploring racial injustice in Canada and the United States and trying to teach people about how we’ve been here before. You know, Nikole Hannah-Jones had a New York Times op-ed come out a couple days ago on reparations which is another thing that we need. And if you read that piece she goes through the long history of modest reforms and evolution within the United States of racial oppression coming from the state and coming from private actors and people need to become more aware of how this is not a new event.
This is a repetition of the entire history of Canada and the United States. This isn’t new and until people get that into their head and understand that these systems have continued and have always been directed at maintaining racial hierarchy they’re not going to have the impetus for the change that we need.
Yves Faguy: Is there anything particularly unique about this particular series of events? Has their attention at least been grabbed enough so that you can have some hope that protest groups will be able to grab on somehow to something?
Joshua Sealy-Harrington: What’s unique about this moment is its concentration, right? Or its perception of concentration. So like you had a series of black lynching, a ton of black people who were dying disproportionately from COVID, a ton of black people who are unemployed in the recession due to COVID. You had a series of things that were just like wow, our system is racist and then people got really mad which is good that people were mad. But I do not have confidence in the establishment responding to that in the absence of persisting pressure, right?
The leading – the presumptive Democratic nominee, Biden in the US, is calling for more funding of police as is Toronto city council. So you know, we still have people who are saying wow, we agree the system is broken, let’s fund it more. And so I don’t think that we’re going to see change without some pain, right? Like I think people need to keep the pressure on because they need to communicate through the power they have in society which is very little to let people know that change is required and that the problems are systemic and not isolated.
Yves Faguy: And that concludes our interview. I’ve been speaking with Joshua Sealy-Harrington, a lawyer at Power Law. If you want to follow him you can find him on Twitter @Joshua Sealy. He’s also written for CBA National, the Globe and Mail and ABlawg which is the law blog of the University of Calgary Faculty of Law. I recommend you go seek out his writings there. Thank you for joining us, Joshua. And to our listeners, please join us for our next episode of After the Pandemic: A Conversation About the Future of Justice.