Failures of Institutionalized Justice

Our legal justice system has a habit of failing to protect the people most in need of justice.

As mixed as I feel about the fundamental philosophies of countries and patriotism, I also (perhaps hypocritically) love Canada and feel lucky to have been born here. I really want to have faith in the political process and the judicial system that upholds the laws created by our (theoretically fairly) elected representatives. However, just as a downside to democracy is tyranny of the majority, so to a failure of the judicial system is potential tyranny of a certain group of  “elite”.

My honest desire to believe in these processes is probably one of the biggest reasons I get so disappointed when I feel let down and unprotected by those systems. As someone who has been sort of falling through the cracks in systems (education, social support, child welfare, health care, etc.) my entire life, sometimes I feel like that desire is naïve and idealistic to even attempt to nurture and keep alive. The alternative to fighting to keep my idealism  is not a sort of person I want to be (I’m jaded enough, thank you), however, and I continue to make the choice to keep fighting for it.

Our systems are not perfect and one of the freedoms I may exercise as a citizen of Canada is criticism of my government and judiciary without fear of reprisal in the forms of imprisonment or even death. And criticize I do. I also write letters/emails to my representatives, protest, sign petitions, vote, and actively take part in workings.

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Graffiti showing some love for local law enforcement. (Originally posted on my Instagram.)

According to the Canadian Superior Courts Judges Association, the role of the courts is:

The justice system is the mechanism that upholds the rule of law. Our courts provide a forum to resolve disputes and to test and enforce laws in a fair and rational manner. The courts are an impartial forum, and judges are free to apply the law without regard to the government’s wishes or the weight of public opinion. Court decisions are based on what the law says and what the evidence proves; there is no place in the courts for suspicion, bias or favouritism. This is why justice is often symbolized as a blindfolded figure balancing a set of scales, oblivious to anything that could detract from the pursuit of an outcome that is just and fair.

A common public misperception of criminal defence lawyers is that their job is to get the accused acquitted. Their original and honourable purpose is to advocate for the accused to prevent the accused’s right to a fair trial from being hindered by a layperson’s ignorance of the finer points of the law. The protection of an accused’s rights is a fantastic thing because it is meant to prevent false charges, partiality and political or public influence from wrongfully imprisoning citizens and allowing for an equal application of legal protection against wrongdoing.

Theoretically.

This system breaks down, of course, for the same reason that all theoretically viable and Utopian seeking systems break down (I’m looking at you, Marxism): people. In this case, we continue to have institutionalized biases against people of colour, women, the mentally ill, the disabled, the poor, and immigrants at least. Shockingly, this might be because few of the people appointed to serve as judges fall into those categories, and even fewer are more than one of those things at once. Personal bias will creep into decisions, despite the best of intentions (when those intentions exist at all). This leaves some of our most vulnerable populations without protection and at risk of persecution.

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Judges are appointed from lawyers and many lawyers come from positions of privilege that allowed them to become lawyers in the first place. Law school is prohibitively expensive, especially when even an undergrad degree might be out of reach for many due to social or economic reasons. There will be some people that read that last sentence and thought “But they worked hard to get where they are, and law school isn’t easy!” and they would be right. But the person who worked two part time jobs to put themselves through an undergrad are a lot more common than those that do the same through law school. My understanding is that it is actively discouraged to do so. This requires a certain amount of economic and social support and stability that is unavailable to many people. The point is that the overwhelming number of lawyers are middle to upper class when they start out and by the time they might be appointed as judges, they are most certainly so (I have met lawyers who complained when their take home pay was only a measly 2.5 times what mine was. They make such a pittance.).

This sort of socioeconomic division is likely one of the reasons for harsher sentences, some of the unrealistic standards imposed on certain witnesses or victims, and plainly ignorant and insensitive things said from the bench. Judges – and often the lawyers they are appointed from – are simply out of touch with many of the people that they must pass judgment on.

Fixing this disconnect is not and will not be easy. Striking balance between listening to the wisdom of age and experience and changing a flawed and biased institution might seem as unattainable as sliding down a rainbow. Accepting the status quo and leaving marginalized peoples at risk, however, is something that should be unacceptable to everyone with a social conscience.