Ideas - Making Justice Imaginable: Lawyer Lex Gill

Episode Date: October 2, 2024

"We must mend what has been torn apart, make justice imaginable again in a world so obviously unjust," wrote Albert Camus. In a lecture delivered at Crow's Theatre, lawyer Lex Gill considers how social and cultural movements can nudge the evolution of law and explores how to keep working for justice, regardless of the odds. 

Hey there, I'm David Common. If you're like me, there are things you love about living in the GTA and things that drive you absolutely crazy. Every day on This Is Toronto, we connect you to what matters most about life in the GTA, the news you gotta know, and the conversations your friends will be talking about. Whether you listen on a run through your neighbourhood, or while sitting in the parking lot that is the 401, check out This Is Toronto, wherever you get your podcasts. This is a CBC Podcast. Welcome to Ideas. I'm Nala Ayed.

And welcome to a live taping of Ide ideas at Crow's Theatre in Toronto. If we can all believe in the idea of creating a more just society, how exactly might we go about that? Can justice, in fact, be delivered by the law? These are just some of the questions that our speaker, Lex Gill, is exploring in today's lecture. At a time of polarization and division, we at IDEAS are proud to help develop a space where meaningful conversation thrives and curiosity rules. And what better place to do that than on the stage? To all of us, the audience, the fictional lives played out on the stage are very much like our own.

They're urgent, oftentimes painful, and always unpredictable. The ideas that underpin a play are also more often than not some of the most pressing questions of our time. With that in mind, we have invited five thinkers to meditate on ideas raised by one of the plays in the Crow's Theatre season. Today we'll be hearing from lawyer and human rights activist Lex Gill, inspired by the play Rosmer's Home. Rosmer's Home is a political thriller that Norwegian playwright Henrik Ibsen wrote back in 1886, and yet the ideas within it are intensely resonant today. In short, what to do with ourselves when the world is collapsing

around us. Inspired by these ideas, Lex Gill wants us to think about both the expectations we have about the law and about who we are and how we actually function as individuals in society. She has titled her talk Making Justice Imaginable. Lex Gill is a lawyer practicing in the areas of human rights, state liability and corporate accountability based in Montreal. She is a fellow at the Citizen Lab, University of Toronto, and teaches at McGill University's Faculty of Law. Please join me in welcoming Lex Gill. Thank you so much to all of you, to CROWS, to the CBC team, and to Nala for being here.

It's really a gift to spend a Sunday morning with you. As Nala mentioned, this talk is being presented in a pair with the Ibsen Play Rosmers Home. The story is beautiful. It's haunting. It brings up such profound questions about how and whether we can live with each other, live with ourselves, live with the choices we've made, about what we should do with the power we have, and whether we have any power at all. Because Rosmer's home is full of both political change and suicide, it sent me back to essayists of the 20th century, writers like Camus, Orwell, and Baldwin.

Writers who, like Ibsen, were trying to figure out how to move forward in the 20th century, writers like Camus, Orwell, and Baldwin. Writers who, like Ibsen, were trying to figure out how to move forward in the face of injustice, the inevitability of moral compromise, the fear that things may be beyond repair, the fear of having no way out. These questions feel so urgent and unresolved to me, and they take on new significance in our current political moment, one in which it can feel hard to decide which of half a dozen emergencies most pressingly deserves our attention. Between unjustifiable economic inequality, an all-consuming climate apocalypse, and the rise of an authoritarian vanguard hell-bent on dismantling any institution that might otherwise do something about it, it's hard to know where to start. What does it even mean to think about the future in a world like this? Like most of us,

with some commitment to making the world a slightly more gentle or more just place, that question rests like a knot in my heart and a lump in my throat. I'm a lawyer. I speak publicly all the time. I'm not supposed to be afraid of all of you. But this is one of the first times I'm speaking publicly without a cause or a client to defend. It threatens my own sense of competence to show up in this room and talk about these issues without a perfectly satisfying narrative or a list of watertight exhibits, witnesses and authorities, without closing arguments or a grand unified theory of social change. And I'd be lying if I said that I didn't feel a little self-conscious too. I'm not immune

to cynicism but I don't really have it in me to leave you feeling jaded and demobilized. At the same time I'm really afraid of coming off like I'm trying to sell you some cheesy, one-dimensional, cringe narrative about idealism or hope or progress. We all know it's more complicated than that. So this morning, I'm not going to tell you how to change the world, but I want to try and make a case about how to think about our relationship to social change, especially when things feel hopeless or futile, about how to nurture and protect the parts of ourselves that feel compelled to act in the face of injustice, and about

why, despite the vulnerability required and the scale of the problems and the nearly impossible odds, it's worth waking up every morning and trying anyway. So, look, the first thing I know about making anything change, especially in powerful institutions, is that it's hard and incredibly frustrating, which is why I'm going to start by telling you about my day job. I work at a law firm that does plaintiff-side litigation in areas like human rights and environmental law, consumer protection, state accountability. We sue big companies and governments, you know, for the little guy. The nature of our work means that we're almost always in court because we're trying to change

the status quo. There's some injustice to correct. The law fails to solve a problem. Someone's been hurt. Maybe a lot of people have been hurt. The thing is that courts are inherently conservative institutions. Legal reasoning works by precedent, by adopting old principles to novel facts. And the result is that it's always harder to ask a judge to change things than it is to keep them the way they are. Legal rules protect a degree of predictability and

certainty in the system. They're supposed to be about fairness. They shield against arbitrariness. But they can also maintain and rationalize injustice. They can hold systems in place that no longer serve their purpose or that should have never been there to begin with. The model also makes our kind of work challenging because we're still forced to use the internal logic of the law to justify transforming it. We're always maneuvering against inertia, trying to make the law do something it wasn't really intended to do.

It's an insider's game, but it's also a little bit subversive. Lawyers who are really good at this tend to have a particular kind of aesthetic or moral sensibility, one that allows them to hone in on points of friction, uncertainty, or contradiction in the law. They know how to exploit this tension to force a debate into new territory or give a judge license to think about a problem in a different way. In this sense, they can make doing the right thing seem obvious, maybe even inevitable, even when the law itself is the source of the problem, which is often. When you do this kind of work, language is your medium. It's your currency. And the thing that

differentiates the language of the law from ordinary language, a poem or a eulogy or a stand-up act or the back of a cereal box, is that what the law decides a word really means will have material consequences. And those consequences will be enforced, sometimes violently, by the state, the police, the market, and the courts. When I talk to my students about this problem, I use the example of personhood. You don't need to be a lawyer to understand that the boundaries of inclusion in the legal category of personhood are far from fixed. We understand this intuitively when faced with the absurd and violent question of whether someone who is enslaved is a person, whether a woman is a person.

And it's, of course course just as true when a corporation asserts its personhood to fund a political campaign or a lobby group argues for the personhood of a fetus to deprive you of medical care. In this light we see how the boundaries of a legal rule are what determine who counts and what matters. And we can admit that these legal fictions are only creatures of their time and place. They're sites of contestation, not rules of nature, not math or gravity. This indeterminacy doesn't mean, by the way, that we should abandon the search for coherence or clarity in the law more generally. Words don't matter. It's just an acknowledgement that the rules are not

totally fixed or objective. It means that the debate over what the law means has an irreducible moral quality, and that as a result we have real choices to make together. All good lawyers know this, and it's the space in which they work. The problem is that grandstanding about right and wrong alone doesn't get us very far, so we make do with what we've got. Procedure and precedent, documents and testimony, motions and orders, and from all of that you try and squeeze out something that looks like justice. The great Canadian lawyer Joe Arbe supposedly described his work as being like a plumber with words. I think that's basically right. What I like about this analogy is it sucks out the

cinematic glamour that people associate with the courtroom, and it replaces it with something relentlessly practical and decent. We repair leaks. We unclog the drain. We will hold things together with chewing gum if we have to. That's the trade. The analogy is also right as a matter of scale, because the truth is there's no client, no date in court, no case that is going to change the world. is there's no client, no date in court, no case that is going to change the world. Instead, legal change often feels like a series of small skirmishes and battles, strategic retreats, concessions, and compromises. Even real victories, when we get them, can feel ambivalent, incremental, highly mitigated, years too late. So much depends on good luck and good timing. And even in the best

of cases, we're always working in this same bind. How do you anchor your position just deep enough in the architecture of an imperfect system to convince it to change? How do you accept the rules with enough integrity that you can argue them for a client, but without fully buying into their legitimacy, without being complicit in the injustices they sometimes yield. And while remembering that another world fully outside of this logic is possible, and it's that world you're really working for. So it's a methodology that's only ever about trying to get a little closer, trying to find the seed of something more honest and more real in what was there all along.

At its highest, at least, I think that's the craft. A few years ago, I did a six-week trial in a constitutional case called Luamba, which is now on appeal, so cross your fingers. My boss, Bruce Johnson, and I represented the Canadian Civil Liberties Association alongside a relentlessly charming young plaintiff named Joseph Christopher Luamba and his two brilliant lawyers, my friend Mike Simeon and Alexandre Guignyme, who was recently named to the bench. The short of it is that we were trying to invalidate the legal power that allowed police officers to stop otherwise law-abiding drivers at any time and any place for no reason at all on a supposedly random basis.

In the 90s, the Supreme Court had decided that this power was constitutional. It saw the stops as innocuous, unintrusive, as minor inconveniences to protect road safety. But it was a split decision built on a weak evidentiary record, and the driver in that case had been white. Thirty years later, we felt that both the law and the world had changed. What we knew now from the evidence and expert reports, but also from common sense and everyday experience, was that these jobs were not and had never been random and had rarely been about road safety.

Instead, this vast discretionary power created space to act on racist attitudes and stereotypes about the driver, sometimes entirely subconscious, about who is dangerous, who belongs, who's worthy of scrutiny. And so, to the surprise of absolutely no one, these stops happened in hugely disproportionate numbers to young black men, often as the first step in a chain of events leading to abusive fines and police violence and other constitutional violations. The practice is and was so notorious that in the academic literature, the basis for the stop was known as driving while black. And despite this notoriety, these kinds of low visibility stops were nearly impossible to prove or sanction individually because police

didn't have to justify them in the first place. This meant that it was only once you started to see the practice on a systemic level that you could prove its discriminatory character. In other words, the injustice is so big that it's invisible. Countless people told Mike that the case was unwinnable for this reason. But he took it anyway. The time felt right to try. So months before the trial, when we met with Christopher to prepare his testimony, we read him the opening parable from David Foster Wallace's commencement speech, This is Water. The story eventually becomes the first lines of Bruce's opening arguments.

It goes like this. There are these two young fish swimming along, and they happen to meet an older fish swimming the other way, who nods at them and says, Morning, boys. how's the water? And the two young fish swim on for a bit, and then eventually one of them looks over at the other and goes, what the hell is water? The story, Wallace explains, is about how the most obvious, important realities are often the ones that are hardest to see and talk about. So at trial we argued that the power to conduct these stops was discriminatory, arbitrary, unjustifiable. That whatever notional goal of road safety the law was intended to protect, the reality was that it made us all less safe.

But as a matter of evidence, Luwamba was really a case about the water, about trying to prove the effects of systemic racism and arbitrary state power as a question of fact. Things that were both blindingly obvious to the people actually affected by the law and nearly impossible for the justice system to see. In cases like this then the job of good lawyers is a kind of skillful illumination of something that was always there but invisible before. It's about making the scale of an injustice legible, undeniable to a system in which it was previously the water. Again, though, here we find ourselves in a bind.

When you see the water, it feels a little stupid to have to prove it in court. And it's hard to sit down a potential witness in good faith and ask them to come and tell their story to the court in a case like this when we know the odds. Like, hey, you know, you just met us, but please come risk a cross-examination, exposure, reprisal at your job. Tell us what

it was really like to be treated like a criminal, to be questioned, searched, and ticketed for no reason at all. Tell us what it was like to be pulled over with your two kids in the car or in front of the school where you teach by the cop who had been at your sister's wedding. Now trust these lawyers you've just met to extract this trauma from you gently in a series of strategically timed and carefully planned questions. Trust a system that has never once had your back to listen this time. In some moments it felt almost degrading, like asking someone to take a day off work to come

make a case for their own humanity. I think it's only because doing nothing is marginally worse that people take the risk. But once they do, there can also be a deep kind of intimacy, coordination, and solidarity in these moments. At its best, it's a shared project of collective storytelling. these moments. At its best, it's a shared project of collective storytelling. We can try and get it right, get closer to the truth together. And in either case, that's the system we've got. And we are lucky plumbers, since despite the odds, a lineup of very brave witnesses did show up. And they told their stories over the course of days in a windowless room with hideous carpets, high in a tower in downtown Montreal. And gradually, things began to shift. Because bit by bit, their stories unraveled the central myths about these stops,

showing that they were neither random nor innocuous, but instead an undeniable and violent hallmark of second-class citizenship, so that by the time their testimony was over, it was like everyone in the room knew something had to change. Together, we won that trial in a landmark judgment, almost 900 paragraphs long, departing from Supreme Court precedent and invalidating the police power entirely. In this sense, maybe the greatest achievement of good legal work is that it allows us to both tell the truth, as in to discern it from fiction, and to tell the truth, as in to speak it into existence.

But look, even if we went on appeal in the coming weeks, nobody, nobody is naive enough to believe that this case is going to put an end to racial profiling. And when I think about what it took from dozens of people over years of their lives for this big shift in the law, which is a tiny shift in the world, to be possible, the scale of what we might ever accomplish in our own lifetimes feels more marginal than ever. But I have to believe it's not nothing. It's a start.

It was worth fighting for. For me, this feeling calls to mind a passage in an essay that Albert Camus, a man who was full of shortcomings and contradictions in his own right, published and reworked over the course of the 40s and 50s. In the piece, it's obvious that he's trying to inspire, to mobilize people towards justice. But it also reads like he's trying to convince himself. He writes on social change, He writes on social change, the task is endless, it's true, but we are here to pursue it.

He goes on to say, we have not overcome our condition and yet we know it better. We know that we live in contradiction, but we also know that we must refuse this contradiction and do what is needed to reduce it. He writes that we must mend what has been torn apart, make justice imaginable again in a world so obviously unjust, give happiness and meaning once more to people poisoned by the misery of the century. Naturally, he says, it is a superhuman task. But superhuman is the term for tasks men take a long time to accomplish. That's all. Superhuman is the term for tasks men take a long time to accomplish. That's all. To make justice imaginable.

In the original French, It is slow. It is hard. But nobody promised us otherwise. A trial is far from the only space in which the power of seeing things clearly and naming things honestly might get us a little closer to a slightly better world. So I want to make a case for paying attention as being part of the way we keep ourselves whole in the face of injustice. But first I want to make a case for feeling. Because about two weeks after the trial in Luwamba, I had a kid. You know,

before this experience, I had always been pretty steady, pretty level. But for me, having a baby was a little bit like falling in love and a little bit like getting hit by a truck. Actually, neither of those are right. Instead, it's that becoming a parent cracked open my heart like a broken egg. With this little person in my arms, it was like everything that was inside of me was suddenly outside of me, spilling onto the pavement, vulnerable to the elements, no longer composed and impossible to reconstitute, easily cooked. Or maybe it's that becoming a parent cracked open my heart

like a rift in the ocean, like a great splitting chasm at the bottom of the sea. It was like holding my kid revealed some kind of new portal to the depths of human emotion. Immediate access to joy and comfort and love, sure, but also awe and grief and terror, like I could slip into the deep and never touch the bottom of the pool. So while it has not always made me happier, being a parent has changed my practice, and it connects me to others in a way I never really felt before having a kid.

Today I love every child because I love my child. I have to believe that every person is trying their best, is trying to be good, because I see it in him. I feel connected to the grief and suffering of other parents because I see how to love your child is necessarily to be on the nice edge of grief at all times. Suddenly you know what Maggie Smith is getting at when she writes that the world is at least 50% terrible and that's a conservative estimate though I keep this from my children. For every bird there is a stone thrown at a bird. For every loved child a child broken, bagged, sunk in a lake. And you read it knowing both children are yours. In this sense, I have found parenting politically transformative

because whatever I believed intellectually before, I can no longer accept on an emotional level that my child deserves more than other children, that he gets to be safe and fed and surrounded by possibility when others are not. At first, I was afraid that this new emotional landscape would make me a worse lawyer. But you know, the poet David White did an interview a few years ago where he says that even though we tend to think of vulnerability as a kind of weakness, if we look at the words Latin root, vulneris, it means wound. It's the place, he says, where you're open to the world, whether you want to be or not. What he's saying is an echo of Rumi, or better yet, Leonard Cohen. Cohen who sings, there's a crack, a crack in everything. That's how the light gets in. Through this lens, vulnerability is not a weakness, but instead,

he says, a faculty for understanding. It reminds me of James Baldwin, writing on the power of literature, who says you think your pain and your heartbreak are unprecedented in the history of the world. But then you read. It was books, he says, that taught me that the things that tormented me most were the very things that connected me with all the people who were alive or who had ever been alive. Connecting and loving deeply in this way gives me a clearer view of the world and new ways to talk to my students in the face of the futility and the grind and the perpetually unsatisfying compromise. Why still care so much? Why bother to fight for

such little things, for anything? the answer feels simple now we just do it for each other on ideas you've been listening to making justice imaginable by lawyer and human rights activist lex gill recorded at crow's theater in toronto you can hear ideas wherever you get your podcasts and on CBC Radio 1 in Canada, across North America on US Public Radio and Sirius XM, in Australia on ABC Radio National and around the world at cbc.ca slash ideas. I'm Nala Ayed. My name is Graham Isidore. I have a progressive eye disease called keratoconus.

Unmaying I'm losing my vision has been hard, but explaining it to other people has been harder. Lately, I've been trying to talk about it. Short Sighted is an attempt to explain what vision loss feels like by exploring how it sounds. By sharing my story, we get into all the things you don't see about hidden disabilities. Short Sighted, from CBC's Personally, available now.

Today's talk is part of a new series we've developed with Crow's Theatre in Toronto, an opportunity to explore some of the ideas that animate great theatre and shape our own lives today. The play at hand today is Rosmer's Home, a political thriller written in the late 19th century exploring political activism and how change is possible in times of turmoil. My best friend Laura is a social worker doing a PhD focused on youth and climate emotions. She recently taught me the word solastagia, the existential distress that comes with climate change, the way we feel despair and loss

when faced with the destruction of the natural world. This feeling really wasn't part of my early life, to be honest with you. I'm a Montrealer, but I spent a lot of my youth feral in the GTA suburbs. And by the time my family got there, the environment was already irreversibly transformed. Full of cheap pink brick buildings and strip malls and dying ravines,

ditches full of wildflowers on the side of the highways, lonely little trees growing in lonely little lines. And the streets there have names like Beaver Creek, Burr Oak, and Finch. They're named after every little thing that the developers raised. Some gardens hardly grew because they sold the topsoil too. It was only as I grew up that I really started to feel the emotional weight of the fact that there had been something wild there to mourn once, that there had been something wild everywhere to mourn once. But the problem is that if you let yourself really start to feel that kind of loss,

it can paralyze you. It can swallow you whole. Our culture just has no container for this kind of sadness. Could you imagine what it would look like if we did? If we took even a single step towards looking at the scale of this loss in the eye? I like to imagine the office autoresponder. Dear client, thank you for your email. I have taken the day off to mourn the loss of the Eastern Bank swallow,

a small and fragile songbird declared extinct this week. For immediate assistance, please contact my assistant, Linda. Obviously, its own kind of terror. But what I'm trying to say is that our culture resists seeing or granting space for the kind of grief that Laura studies. And I think that at least part of the reason for that is that we don't really know how to deal with our own complicity. In thinking about climate change, Kate Marble writes that to be a climate scientist is to be an active participant in a slow-motion horror story. These are scary tales to tell children around the campfire.

We are the perfect, willfully naive victims. We were warned, and we did it anyway. Dark fairy tales, she writes, of course, are as old as human history, and we tell them for a reason. But here the culprit is the teller, both victim and villain. What do I tell my son, she writes. A monster awaits in the deep and someday it will come for you. We know this because we put it there. There are some questions still too political, too complicated for the courts to deal with. The injustice is too big for the law to see. So back to the grief. I think another challenge of climate justice is too big for the law to see. So back to the grief.

I think another challenge of climate justice is that we have no easy cultural script for the kind of loss that is truly permanent, irreparable. That bird is just dead. The forest is gone. We don't really know how to talk about it honestly. How do we heal or repair when there's no going back? I think about this a lot working on a class action that insiders call BRG, Brasso Redoc Galum.

Those are three people. And I'm only the smallest of bit players, really a tourist in this file. But to make a long story short, they're class actions in which the court ordered damages for people who experienced the horror that the state called administrative segregation in Canadian prisons, but that you know likely is solitary confinement. The process of keeping a person alone in a small cage for upwards of 22 hours a day for an indefinite period of time, absent meaningful review. It took decades of work. Decades of work.

Innumerable hours of innumerable prisoners, advocates and lawyers working in innumerable ways across the country to force a modest reform in the law. Whether today's practice is any less cruel is a debate that's still before the courts. But an individual claims process is now underway for those victimized by the old regime, and many of the people who suffered in solitary are finally getting financial compensation. Sometimes we ask what money can do, though. There are class members who spent months or even years cumulatively, sometimes continuously, in these conditions. Think back. What would you do with three or four extra years on planet Earth? do with three or four extra years on planet Earth? What did you do, for example, between the ages of 18 and 22? Did you go to school? See Europe? Maybe you had a kid or played too many video games? Because there are class members who did nothing. Nothing at all. Since they were sitting in a six-by-six cage alone. I had a call with an older class member once who told me that the greatest indignity of his time in segregation

wasn't the isolation or arbitrariness or boredom, but a moment when a guard killed a small spider that had been his only companion during months of confinement. He said something like, and that's when I knew that I was finally alone in the world. My lawyer brain tells me to tune out this story. We can't claim for this. The law doesn't afford damages for the loss of a spider. But my mother brain quiets.

She sees the man as a little boy instead, curled up, without a blanket, in a a room without a window, alone and lost and afraid. The injustice is too big and too small all at once. I think about it for weeks. How much is a day of your life worth? How much would I have to pay you to suffer this? Because the court can't give them their time back after all. Our government took it from them. We took it from them. Forever. The harm is done. The best anyone gets is a little bit of vindication and a check at the end. We have such shallow and inadequate ways of making things right. But here's the same contradiction again. Even if the money is nothing in the face of an injustice like this, what people will do with it still matters.

In December, I argued a Supreme Court appeal with my friend Louis-Alexandre Bergeslin about what it means to meaningfully repair a violation of someone's constitutional rights. Ironically, central to our position in that case was the view that these kinds of damages do matter. And in preparing for our oral arguments, I thought a lot about what class members tell us they plan to spend their money on. Rent on their first apartment since the night of their arrest. Piano lessons for their kid. Tattoo removal. Counseling. Bitcoin and night classes. A plane ticket for their mom. A date with their

ex. a new guitar better noodles from the canteen a chance to see the ocean I want every inch of this for them so maybe there's a lesson here about how something can be profoundly and almost violently inadequate and still matter

that a tiny shift can count how even in the face of permanent loss, it isn't nothing to try and repair or name what happened. We digest our grief and turn it into action when we insist that the noodles in the ocean matter, that the future matters. And in this way, maybe the years in the spider can matter too. I've been thinking a lot about the importance of looking clearly,

of naming things for the larger project of social change. And recently I went with a friend for a walk in the forest who grew up unlike me, in the wild. It reminded me that there's something about the emotional discipline of looking carefully. Look,

he goes, I'm going to show you the difference between a sugar maple, a red maple, a silver maple tree. He holds a leaf up. You know, you can tell, he says, pointing by looking at the sinus. By the way, did you know that that little indent, the dip between two lobes of a leaf, that's called the sinus? I'm 33 years old. Does everyone know this? I didn't. So anyway, we walk and we talk about the difference between the needles of a pine, a spruce, a fir tree. About all the different types of oak, how hard the wood is, how it dries, and what it might build.

Touch the ridges of this chanterelle, he says. Hold a bouquet of them in your hands. Feel the moss and drying sheets of paper birch. Fill your pockets with wildflowers. Hold up a blue jay feather to the light of the sun. You're going to learn something this way. I think about this walk days later when I'm out in our neighborhood with my kid. He is already so much better at this kind of seeing than I am.

He finds the best acorns and pine cones, the smoothest little rocks. He insists on holding court with the beetles and snails and bumblebees. I think about Simone Weil, who writes that attention taken to its highest degree is the same thing as prayer. It presupposes faith and love. My kid demands to lie in wet grass and marvel at the dirt we've got stuck in our nails. I don't know if it's prayer, but that kind of seeing is the opposite of grief. Back again to the forest, where my friend and I sit on a lake and look at the vast expanse of woods beyond us. To me, it all still blends together from this distance. Just forest,

it all still blends together from this distance. Just forest. No trees. But then the wind blows and he points. Just like I told you, he says. You can tell which ones are poplars. They're the only ones that shimmer. And he's right.

There they are. A few trees high in the forest, sparkling in the breeze. And in this anonymous sea of green, it's like all of a sudden I know someone. I recognize a familiar face. And in that way, I can know both the forest and the poplars a little more clearly. It's a reminder that attention, justice, and love are all found in the particular, and that you can better fight for something once you know its name. Of course, plants and politics are always teaching

each other something, and that lesson is often about the mobilizing force of beauty and how it can serve as a guiding light in the struggles ahead. You know that Camus essay I mentioned earlier? It's called Les Amandes, the almond trees. It ends with the hope of flowers in the spring. Wendell Berry's beloved manifesto implores us in a similar spirit. Invest in the millennium, he writes. Plant sequoias. Say that your main crop is the forest that you did not plant, that you will not live to harvest.

Rebecca Solnit, too, wrote a whole book about Orwell's relationship to flowers. In my favorite passage, she leans on a famous labor slogan, rejecting the insufferable leftist reflex to act as though the enormity of human tragedy makes it almost like immoral or taboo to still seek pleasure and beauty in the world. It's a puritanical position, she writes, implying that what one has to offer them is our own austerity or joylessness, rather than some practical contribution towards their liberation. Bread, we insist, but always roses too. There just wouldn't be a point without them. And maybe this is the last thought I'll leave you with. It's not a solitary kind of beauty or joy

that matters for our purposes. Instead, it's the shared experience that transforms, that matters for our purposes. Instead, it's the shared experience that transforms, that calls us to act. I came of age during the 2012 student strike in Quebec, a moment in which hundreds of thousands of young people took a year to fight for something they cared about and remarkably won, toppling a provincial government in the process.

I was young and my politics weren't perfect then, but based largely on Joan Didion's advice, I try and stay on good terms with that version of myself. Because for all my rough edges, I knew things about changing the world that are easy to forget if you spend too much time practicing law. The most important of which is that even when it sometimes ends there, real change never starts in a courtroom.

People with jobs like mine are late to the party. The courts catch up to the streets. Montreal is a particularly good place to learn these lessons. It's a city that feels physically shaped by its young, notorious for the ways in which they cannot be contained. They take bolt cutters to metal, clearing pathways through rail yards and below highways. They bleed into the streets, overflowing into festivals, riots and parades at the first sign of spring.

They make tracks in the snow so that others will follow. I learned a lot from this culture. And even though I'm a member of the Bar now, I may be secretly one of them still at heart. What I hold on to most from these experiences and the work I've done alongside social movements since is that there are just no singular heroes of social change. It takes so many more people than you'd expect doing everything they can in every way possible for way longer than you'd think normally at enormous personal cost to

make powerful institutions budge at all. It's a bit of a grind. It's plumbers all the way down. Second, it's doubtlessly true that the people who built the legal victories that we celebrate in polite liberal circles today were largely criminals in their own time. Criminals or artists, often both.

And that relatedly, great change can come from small and unexpected places. Because history teaches us that there are grand marches on the Capitol, sure. But there are also quietly forged papers, machines that stop working, hot meals and bail funds, pots and pans in the streets. This kind of resistance is harder to memorialize. It's often anonymous and disavowed. But it's the stuff that justice is made from. Third, that kind of defiance, when rooted in love for each other, comes with profound intimacy and creative force. And that force, that unruly energy that demands to believe that better things are possible,

it can light us right up. I think about the spark in our witnesses at trial, in prisoners who fought segregation, in young people who refused to give up on the future. And about how it plays out in my friendships, in the forests and trenches and courts, in my kid and in my students. And I think that even when the odds aren't great,

it's ultimately this connection that even when the odds aren't great, it's ultimately this connection that gives us the courage to fight an unjust rule, to speak invisible truths, to imagine a better world. But also, as Arundhati Roy writes, to never get used to the unspeakable violence and the vulgar disparity of life around you, to never simplify what is complicated or complicate what is simple, to never look away. Most of all though, to just do what we can with what we have for each other and maybe even to be joyful, to quote Wendell Berry, that we have considered all the facts. Thank you so much Lex for starting us all on exploration of these questions there are so many questions I'd like to ask but the first thing I have to say is that it's so hard for me to imagine you

as a plumber. It's never just one thing, is it? Maybe you're a plumber. Maybe you're a bit of an artist. Maybe you're a theater director. Maybe you're a teacher. Good legal work looks like lots of different things depending on the context. Good lawyers Good legal work looks like lots of different things depending on the context. Good lawyers improvise. They know when to call it, too. But I think that this, what I like about the plumber, Joe Arvey's plumber, is that it is a humble idea in a world where lawyers want to make themselves the center of the story about legal change. And I think that one, it's an exact. Two, humility is good for all of us. Three, it's a metaphor that re-centers what we're doing as a kind of craft, a trade, and I think that's really helpful and gives us space

to consider who else might be doing that work with us. And so I think that when I think about our practice, for example, we're only one little part of the story. We have class members, we have witnesses, we have experts, we obviously have the judge and the court. Sometimes we have opposing counsel who are kind of decent and do us a solid. And that's just in the courtroom. And what's in the courtroom is such a tiny part of how social change takes place so you say it comes late it always comes late it always comes late and in some ways you know the legal change only happens once the groundwork has been done in the press in culture in art in politics um the nature of the courts, but also the courts are so inherently conservative in their approach, structurally so, that it almost has to be that way. And so when you're trying to do this

kind of law reform work, you're always begging the court to catch up to what people are already saying. I was almost in high school by the time gay marriage became legal. That's in my lifetime. almost in high school by the time gay marriage became legal. That's in my lifetime. That's in all of our lifetimes. And I don't think any of us could imagine now living in a world where two people who love each other couldn't get married, but that was the case. And it took decades of work.

It took bricks through windows. It took protests and mass arrests and policy reform and scandal and subterfuge and all the rest for the courts to finally move on that issue. And that's the nature of the game. So on that point, to read back your own words to yourself, you say that legal change, say in the case that you just mentioned, is a series of small skirmishes and battles, strategic retreats,

concessions and compromises that it's incremental and i understand that you do a course on law and disruption is that the right description uh yeah i taught a course called disobedience disobedience in the rule of law so i think you're well placed to answer this you know we could argue as you say that the greatest change the greatest social change actually comes through disruption through disobedience through revolution you know people rising up and asking demanding for certain things can you talk some more about where that leaves the law as a as a as a motor of social change yeah look um i'm an officer of the court you know i swear an oath to uphold the rule of law. But I pitched this course a couple years ago to McGill because I thought it was just,

it was like, it was the negative space that nobody was talking about in a law faculty. This reality that, you know, if you teach social progress as a series of landmark Supreme Court cases, you miss the institutions and movements that put pressure on those courts to change at all. The people who were the clients, the people who took risks, like, I mean, look, every law student learns in their first year, they read like a series of decisions from the Supreme Court about Henry Morgenthaler, right? Yeah. But nobody talks about the fact that, you know, he spent time in prison. Nobody talks about the fact that you know he spent time in prison nobody talks about the fact that you know people received death threats bomb threats that all of this you know legal reasoning was happening at a time where uh abortion providers were being murdered

where where nurses and clinicians were under constant threat where people fought despite absolutely terrible odds to protect people accessing that kind of care and so it's a false and legitimizing story about how legal change works if all you do is read the precedent and don't look outside and so I think that's the story I want to tell there. I want to push back a little bit I mean you're the expert here but I want to push back a little bit about the idea of whether courts and the law could be world-changing. You make a strong case that courts are by nature conservative, ill-suited as a tool for social change, that there's no day in court that is going to change the world. And yet, we've seen in recent years some pretty big questions, like large, large questions being brought to courts.

The first thing that comes to mind is the International Court of Justice and, you know, the case for Ukraine, Russia, or against Russia on behalf of Ukraine, or the Rohingya, or the Gaza situation. Could those present maybe a turning point in how we see the law's ability or inability, but in this case, ability to change the world? Yeah. I think two things can be true at once. I think that first, things can feel impossibly hard and incremental and rife with compromise and loss loss and also that this is what we've got and we have to demand better of our institutions I mean like I still go to work every day I'm doing this you know there's there's people in the room who are doing this too and you know so I think that part of the sort of the the storytelling the paradigm shifting the power rearranging work of good legal advocacy is insisting on things that seemed impossible to insist on before in these institutions.

Institutions that are often the primary vehicle. You know, the law is a thing that, you know, I do it, but the law happens to most people. It's always the case that it feels impossible before it happens, but that's no reason not to show up and insist that things ought to be better on an end to racial injustice, on the return of land to indigenous people, on the freedom and dignity and justice of Palestinians. It is essential. If these institutions mean anything at all, they're going to have to figure out these questions. Is there any sense in which that you

see how the law is being used in more recent years as maybe running out of options, that there aren't a lot of avenues, as you say, for world changing, so to speak? So I think that in the Canadian context, I think part of that problem is because our political institutions are, you know, that it's very hard to get things done on Parliament Hill, right? a bad rule, fixing up the criminal code, that kind of stuff is very hard to convince politicians to do. And that's partly because we treat electoral politics like a spectator sport. And that's partly because the incentives are very poor indeed to do that work for politicians because it means sticking your neck out for people

who are marginalized, who are vulnerable, who are criminalized, who don't have wealth or money. And so I think that the turn towards the courts is in part a reaction to that in the Canadian legal tradition. But we can see the kind of trouble that that gets us into when we look south of the border. We realize that the appeal to our justice system is ultimately only as good as the people who are running it. And so I think that we have, the only answer to that is just to fight on all fronts all the time, right? I want to go back to a point you made earlier about whether the law is doing what it should

be doing. And you said at one point, we have such shallow and inadequate ways of making things right. You're pointing out, of course, that there are many things that can never really be made right. You're pointing out, of course, that there are many things that can never really be made right. I wonder if that doesn't suggest the inadequacy of the law of doing what it's supposed to do, which is preventing wrongs from happening in the first place. So maybe it's like worth a sort of precision here to say, we're talking about the inadequacy of the law, but it's not like the law is one thing. We're talking about the inadequacy of the law, the Western white settler legal tradition

in our current political moment, right? It's not that it's impossible to imagine legal systems, plenty of them exist and have, that have better answers to these kinds of problems. And I'm not an expert at all in this area, so I'm not going to pontificate on it at length, but we can look at indigenous legal traditions as better ways of answering these questions, where we see justice as something

inherently iterative and relational, something that isn't about having an institution of power come and enforce consequences on you, but of making things right between people and the land. I think that there's so much more possibility there than in our current system. And then you can also think about justice processes that take people outside of legal institutions. You know, one thing that we're doing better and better in Canada is restorative or rehabilitative justice programs, diversion programs. These are fraught and complicated in their own ways, of course, but programs that essentially, you know, in the criminal justice system, take people out of a sort of punitive model, move them into social organizations where there's some possibility that they'll do something useful for themselves in the community rather than

sit around in a cage. And, you know, we have abolitionist linkers to thank for those projects. You know, and then, of course, if we look internationally, there are truth and reconciliation processes, there are peace processes, there are truth and reconciliation processes. There are peace processes. There are a million different ways that people use art and music and literature to heal communities after unspeakable violence and harm. So I think that in some ways, the law is the institution that I work in every day. But justice is so much bigger than that. Yeah. Can you expand on that just a little bit?

Because of course you focus on the law. That is what you do. But you do nod very clearly and unambiguously to the importance of art and the writers and the authors. And you quote Camus and Baldwin and Arundhati Roy. Could you talk some more about how that world intersects with what you do in the incremental process of making a better world? Yeah, the great science fiction writer Ursula K. Le Guin talks about this a lot, about how good fiction allows us to imagine other worlds,

how good fiction allows us to imagine other worlds, teaches us that the way things are is not inevitable, that there are completely different ways of seeing and relating to each other. And I think, to me, that is where poetry and art and music and great literature come into my work. It's the stuff that makes it worthwhile. It's stuff that preserves the possibility of imagining things to be different.

And it's also the answer to just like the absurdity and scale of some of the tragedy that we have to live with, you know? Yeah. I try to imagine you arguing a case, you know, Supreme Court or wherever, all these places that you go. And how much of these questions are percolating

in the back of your mind as you're sitting there making very logical arguments? How much do you think about those big questions as you're standing there making your case? Well, I think when I'm standing there making my case, I'm in a fully altered state of consciousness. I don't know that I'm thinking anything at all. But how much do you...

I mean I think about it when you're arguing a case you care about it has to be the only thing you think about you have to I think that to be a good advocate on cases that really matter that really matter to you that matter to your client you have to root yourself in like a kind of fundamental respect for the human condition and um a feeling that uh know, as advocates coming before these institutions, you know, it reflects well on all of us in the justice system when we have high expectations of them. You don't go into court thinking, well, here's another day where my client's going to get screwed, and you're going to ignore this grave injustice, and we all might give up.

You can't. You have to believe it can be better. And interestingly, that sincere belief often makes it so. You have to insist that institutions can be better than they are, that people will be better than they are. And in some ways, that belief is going to make it so. One last thing is you make the case beautifully, I thought, of paying attention as being part of the way that we keep ourselves whole in the face of injustice. And you talk about how having a child really kind of crystallize the way you see the world and feel the world what would you say we need since we're not all mothers to take from that experience to help sharpen what should be paid attention to yeah um we don't need to be a parent to love. And so I think that that's, like, that is the universal dimension of that experience, right? It's the feeling that we owe each neighbor, you know, and it's a practice.

It's a muscle, not a reflex, you know, that kind of paying attention, that tuning into your emotional connection to the world because it can be painful and it's easier to sort of dissociate. But I think it's from there that, you know, good work happens. Really wonderful listening to you. Thank you. APPLAUSE ends. Really wonderful listening to you. Thank you. On Ideas, you've been listening to Making Justice Imaginable by lawyer and human rights advocate Lex Gill. The first in a series of five

talks this season inspired by great plays produced in association with Crow's Theatre in Toronto. produced in association with Crow's Theatre in Toronto. Ideas at Crow's Theatre is produced by Philip Coulter and Pauline Holsworth. Special thanks to Paolo Santalucia, Chris Abram, Carrie Sager, and the entire Crow's Theatre team. For Ideas, our technical producer is Danielle Duval.

Our web producer is Lisa Ayuso. Our senior producer is Nikola Lukšić. Greg Kelly is the executive producer of Ideas. And I'm Nala Ayyad.