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

#VOICESOFJUSTICE 

JANE MORLEY, QC 

#VOICESOFJUSTICE

A2JBC’S JANE MORLEY, QC

WE HAVE TO FACE TRUTH FIRST, BEFORE 

WE CAN COME TO RECONCILIATION 

Jane Morley, Q.C., is the Strategic Coordinator for Access to Justice 

BC and a principal of Restorative Solutions. 

What is Access to Justice BC’s approach to accomplishing its goals? 

Access to Justice BC is all about action being done by organizations 

within the justice sector. It’s there to inspire action. What’s important is 

that it isn’t just any old action, it’s certain kinds of actions that are really 

going to change the situation for us in terms of access to justice. We 

developed what we call the Access to Justice Approach, which is really 

about a shift in the way that Access to Justice BC and the justice sector 

deals with access to justice and justice reform. The shifts are to become 

collaborative, to become user centred, to become experimental, and to 

become evidence based. Not that there’s none of that already there, but 

the tendency in the system has been to not be collaborative, but to act in 

silos, and to not be user-centred, but to focus on the courts, as opposed to 

the users of the system. 

We are all, as lawyers, somewhat risk averse. And we don’t really like 

to experiment because really good experiments will fail. You learn from 

failed experiences, often more than you learn from experiences that are 

successful. So that’s a big shift. And then evidence based – I think we can 

see when we watch the health system how much more evidence based 

it is than the justice sector, and that leaves us at a disadvantage, because 

we don’t have the evidence that shows that what we’re proposing to do 

actually makes a difference. 

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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. 

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

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