Jane Morley – The Justice Hack – Voices of Justice Magazine 2021

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Are there any particular B.C. initiatives you’re excited about that were created as a result of Access to Justice BC’s work or involvement? There are a lot of good things happening in B.C. and it’s really quite impressive. What is interesting is the response to COVID-19, which really has forced experiment where there were assumptions that things couldn’t be done. And they got done. There was a lot of experimentation going on just out of necessity. What I am encouraged by is that there’s a lot more talk about looking at it from the user perspective. I think that people are persuaded that that’s an important thing to do. What is a restorative approach to justice and how does it work? It’s something that was developed out of influence from my work with First Nations and Indigenous peoples, and that perspective – which is a more holistic perspective. The idea is to treat conflict not necessarily as a bad thing, but as something that needs to be managed. It’s really about managing it as a whole, as opposed to thinking of it as disputes between two people that need to be decided upon. We’re all individuals, we all think differently. We have different cultures, we have different values. So there’s going to be conflict. But the real question is, how does one deal with that conflict in a healthy way for the whole, the good of the whole? And I think that that’s a systemic kind of approach, which I’ve certainly taken over into my thinking about access to justice and how we should approach it. What are some examples of how a restorative approach might work differently than a more private model of dispute resolution? I’ve done a fair bit of work in workplace disputes, where there may be a complaint about harassment, for example. Going in and doing an investigation about facts and deciding whether there’s been harassment, and then recommending a penalty – that hasn’t worked with organizations. It usually leaves everybody unhappy. It interferes with the manager’s ability to manage. Even if someone is found not guilty, they’ve been hurt by having the allegation. For the people who are making the allegation, often it won’t be held up, and then they feel that they’ve been negated. Instead, you go into the workplace, and you say, “This dispute is the tip of the iceberg. We have to look underneath the surface for a lot of different causes in order to figure out how to move forward in a healthy way.” And usually, the answers are not just about resolving a dispute between two people. It may involve that, but it’s often the group dynamics. There may be a need to change some of the conditions of employment. There’s a lot of different ways that one can approach it. And if you take that more holistic approach that looks at the health of the organization, then you’re more likely to move forward in a positive way. The other approach is one of capacity building. Instead of going in as the expert that’s going to find out what the problem is, diagnose it and come up with the recommendation, you go in and say, “How can we increase the capacity of the organization to manage this conflict?” It raises different questions. You do a lot of work with leaders about how they will manage it, as opposed to going in and managing it. In terms of the individual people who feel they’ve been wronged, what is their outcome in a process like that? I think it does get you asking questions about what justice is. Lawyers tend to define it in terms of disputes, and fair resolution of disputes. I think that’s only an aspect of justice. When you ask regular folk about what a just life is, it’s a good life, it’s a good life where they can do what they want to do. They can look after their children, they can manage without conflict that gets in the way and prevents them from fulfilling themselves. I think it does lead to a different notion of what justice is. Can you tell us about your experience as a commissioner on the Truth and Reconciliation Commission, and how that might have shaped
your approach to access to justice issues? It had an enormous impact on my thinking. And in part, I think the reason that I went down this road of a restorative approach to conflict is because of what I learned in that situation. It also left me with a strong sense of the injustice that we as a country have done in terms of our relationship with Indigenous people. It left me feeling that that’s a really, really high priority to change that relationship. I think that’s part of the restorative approach – that the focus is on relationship. That notion that everything is about relationship is a characteristic of many, if not all, Indigenous worldviews. Our history as a country is one of colonialism, and we have a wrong relationship that needs to be righted. The point about truth and reconciliation is that we need to face the truth. And it’s only when we do that, that we can turn our relationship around and have a different relationship, which is not one of ‘power over.’ We have to face the truth first, before we can come to reconciliation. Is there any way to reconcile user-centred design and restorative approaches to justice with the justice system being, almost by definition, a system that exerts ‘power over’? I think there is, because I think the idea of a user perspective is to ask a power question like, “Who should be benefiting from the justice system?” And I think we all as lawyers would answer, “The people that the justice system is supposed to serve.” But the power in the setup does not necessarily reflect that. Central to the different approaches that Access to Justice BC has been promoting is the user perspective. With the user-centred approach, we turn everything upside down. The system is primarily designed to work for the service providers than for the people served. If we start looking at it from the point of view of the people served, we come to different conclusions about how it should be designed. We also stop being experts about how it should be designed. If we’re going to look at it from a user perspective, we need the users to help us know what that perspective is. We have to go outside the justice sector to other disciplines that have knowledge that is not legal knowledge, but is necessary in order to understand what a user perspective might mean. Do you think there is a difference between meeting the needs of justice system users and justice? It is a difficult question. I think they are different aspects of the same thing. If one just looks at justice as fulfilling the interests of the people served by the justice system, I think that’s too narrow a view. I do think the idea of rights and the rule of law are crucial, but they need to be looked at from the perspective of why they are important. In the case of family law, we put children and families at the centre, and work from there in order to get justice. I think there’s some real power issues there. I also am at heart a traditionalist and I really believe in the rule of law and in the principles of justice. So I don’t think it’s an either-or proposition. I am quite influenced by a book I read by Adam Kahane called Power and Love. Both of them are drives that we have as human beings, the power drive is the drive of self realization, and the love drive is the need we have to connect with other people. I’ve become convinced that it’s not an eitheror proposition with those. You need them together. To paraphrase Martin Luther King Jr., he said power on its own is abusive, and love on its own is anemic. If you want to have justice in the world, you need those two to be working together. That’s how you get from ‘power over.’ The power doesn’t disappear, but it’s a power that’s directed towards good and just things. #VOICESOFJUSTICE
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Jane Morley – The Justice Hack – Voices of Justice Magazine 2021

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