Ideas - PT 2 | An injustice system where 'you can buy your way out'

Episode Date: January 30, 2026

Our justice system was developed under the assumption that both parties in a dispute would each have a lawyer. But the reality is most Canadian's can't afford a lawyer — which makes negotiations unequal. In some jurisdictions as many as 80% of people in family court are self represented. What about legal aid? Very few people are eligible. Our series continues to explore how the justice system is designed to favour people with money. *This episode originally aired on April 26, 2023.

This program is brought to you in part by Specsavers. Every day, your eyes go through a lot. Squinting at screens, driving into the bright sun, reading in dim light, even late-night drives. That's why regular eye exams are so important. At Specsavers, every standard eye exam includes an advanced OCT 3D eye scan, technology that helps independent optometrists detect eye and health conditions at their earliest stages. Take care of your eyes. Book your eye exam at Specsavers today from just $99, including an OCT scan.

Book at Spexavers.cavers.cautors.com. I exams are provided by independent optometrists. Prices may vary by location. Visit specksavers.com to learn more. This is a CBC podcast. Before we start this idea's podcast, could you follow us on the app you're using? It's the easiest way to find out about new episodes as they drop. If you already follow us, thank you so much. Maybe you could give us a review or a rating. And if there is an episode you can't stop thinking about, please recommend it to a friend. Every little bit you do helps other listeners find ideas. Now on to today's podcast. We think, okay, well, the court, the judges, you present evidence and you present proof and you speak

the truth and justice will happen. That was back then. Welcome to ideas. I'm Nala Ayyad. As more and more people fall through the cracks, not a crack. Cracks the wrong way to describe it, fall through the chasms of lack of access to justice. Their eyes are opened and they realize this is crazy. This is not a healthy way to run a society. Legal experts across the country have been sounding the alarm for years now. This whole system, this 150-year-old system, was developed on the assumption that people would be represented by expert agents. And the system is now working in a way that was developed.

never anticipated. It may not be working as anticipated. But what if the justice system is working as designed? If we know that this is how this system works, if we have study after study after study, explaining that it is black, indigenous, low-income individuals who are surveilled, harassed, charged, killed, incarcerated, tortured, if we know that that is happening, then I think we know what this system is actually meant to be doing. And I think to think of that as accidental.

is profoundly naive. It would almost make you think they want it this way, right? Like what else is there to think? Ideas contributor, Mitchell Stewart, with the second and final part of our series, Injustice for All. Everyone that knows me, they just call me the real deal. I don't have pretenses.

I don't have Disney stories. My name is Edward Hertrick. I'm a published Canadian author of the book Wasted Time. I go to marginalized communities to speak with the young. Ed Hurtrick has seen more of the Canadian justice system than anyone would ever care to. I've spent 40 years of my life as a queer criminal. I spent 35 of those 40 years incarcerated behind concrete and steel. I should say up front that parts of Ed's story may be difficult to hear,

where you may think he's a monster. But my hope is that anyone here, hearing his story will understand why he ended up where he did, and why the criminal justice system may have actually made things worse. Ed Hurtrick's story begins in a public housing project in downtown Toronto. Regent Park was the only housing project in Canada at that time, and in their infinite wisdom, they moved to every poor family that they could find into that project. and it was, in my opinion, no conceived idea

because as much as people watch each other's kids and that they weren't in any position to help each other. It was a high crime area. It was a good place to stay away from. Our criminal justice system, I don't think, tries to obscure the fact that it targets, particular people. I mean, you only need to walk into a courtroom, any courtroom, pick a day, any day, and walk into a courtroom in downtown Toronto. And it could not be lost on you that this is

not a criminal justice system that is somehow responding to the need to keep all of us safe by actually applying the criminal code evenly or applying the criminal code in a neutral way. That's not what happens. My name is Donardo Jones. I'm an assistant professor of law. at the University of Windsor Faculty of Law. Donardo Jones is also a criminal defense lawyer who spent most of his career doing legal aid work, defending low-income, marginalized people. He's never met Ed Hurtrick,

but he understands Ed Hurtig's story because De Nardo has represented dozens of Ed Hurtricks. When we think about the steps that would have led that person to the criminal justice system, we can look at it, you know, to use that metaphor of the conveyor belt, right? When were they kind of on-ramped? And it starts long before any encounter with police, right?

We're talking about children, you know, being placed in rotten schools or living in rotten neighborhoods. We're talking about people just doing the best that they can in a structurally just rotten society. I'm the 10th of 11 children by a single parent. My father left home when I was very, very young. He was an alcoholic, an abusive alcoholic. So my mother raised the 11 children pretty much on her own. We really didn't know what we were missing, so we didn't miss that much.

We knew food was scarce. We knew our clothes were not that great. But it wasn't until I left Regent Park that I really felt the full brunt of how poor we were. When he was a teenager, Ed started selling drugs. I think in grade 10 I started to bring bags of marijuana to high school so that I could make the profits so that I could eat in the restaurants

instead of carrying a brown lunch bag with the sandwich in it. Well, my friend and I, we smoked a couple of marijuana cigarettes, and then we went to the Eaton Center because he wanted to show me something. So he would show me the jewelry case and he pulled out some jewelry and said, here, put this in your pocket, and I was like, no. And he was like, I don't have no pockets. I do this every day. And so, like an idiot, I listened to him.

And coming out of the eating center, I was accosted by security. And that was my first charge. How old were you? 16. When this person gets picked up by the police, chances are it's because of these structural forces, why the police even single them. out for, you know, for scrutiny. They had me in an interrogation room for a few hours and while I was there.

They brought in like 16 different people, older than I was, and they let them all go, telling them, you come back in the store, we got your picture, you're not allowed in the store for so many days and this and that. But for me, I was from Regent Park, so they charged me. And I took that very hard emotionally, psychologically, you know, that I would not get a fair shake in this world. And that fueled my anger towards society, I guess. Now, when this person's picked up, prosecutors have to vet whether or not, you know, this is something that is worth prosecuting. Again, the same stereotypes that would have led the police to investigate this person, arrest, and charge this person.

a lot of times drive prosecutorial discretion about who gets prosecuted and who does not get prosecuted. So now we're further along this belt, this conveyor belt, right? Now, moving down the belt, a defense lawyer may come on or may not come on, depending on whether or not this person is eligible for legal aid funding. Okay? Let's just say this person is eligible for legal aid funding. A defense lawyer comes on, but the defense lawyer is only going to do as much as legal aid will pay him or her to do. Okay? Now, in some situations, that may mean the furthest I'm able to go is a guilty plea.

If this case seems at first glance, like, well, you know what, this person may have a defense, but legal aid is only going to give me 12 hours to deal with this case. I may not be motivated to actually fight this thing, despite the fact that this person may have a defense. I just went to court and pled guilty, and it was the beginning of my criminal record. My oldest brother was respected in the community as a criminal. You know, he was your quintessential gangster. and I looked up to him for that.

My brother came home from the penitentiary one time and he was like, well, what are you doing for money? And he said, how would you like to come and work with me? And I couldn't say yes fast enough. And it was probably the biggest mistake of my life. It wasn't long before Ed got in trouble with the law again. And I was arrested for a pound of hash oil. in five grand vials.

And shortly after that, he was charged with conspiracy to traffic methamphetamines. And there was no bail. And I spent 23 months in the don jail at that time. Now this person ends up in an institution,

right? And this is the area that we don't talk a lot about when we think about access to justice. We make access to justice seem as if it's a court thing. But no, in a criminal context, it goes further. We're talking about people going into brick and mortar, essentially torture dens.

It was a violent atmosphere. There was a lot of people under pressure, under stress. They're facing serious charges. I think it was probably 600, 700 prisoners from across the city. There was a lot of different groups that didn't like each other. There was violence. There was fights all the time between criminals. I mean, if there was a coffee urn or, you know, a broomstick, or, you know, if there was any chance that somebody could seize a weapon, then that weapon would be seized.

They weren't someone punching you in the face and walking away. I mean, generally, 20 or 30 guards had to rush in and break it up, and, you know, usually one guy went to health care and the other guy went to the whole segregation. It's a finishing school, right? I mean, you have people going in that, you know, had a really rough background, had a brush with the law. And instead of addressing the root causes of, you know, that person's decision to perhaps take that path, you know, we choose the punitive option. Ed would be behind bars for 23 months. What was the ultimate verdict in the trial? I was found that guilty.

So you were acquitted. You're found not guilty, but you'd already spent two years in jail. Right. Well, at that point, I was already serving on the hash oil and the first conspiracy, two years less a day plus 12 months, a reformatory sentence. Granted, I could have got a parole out of there and been out a lot earlier, but at that time I was quite content. Just sit with my brother and play this out. Ed's decision to stay in jail and wait for trial was kind of unusual. Donardo Jones.

If you are denied bail and your trial date is in six months and the crown proposes, let's say, a two-month sentence, now you may feel as if I have a defense, I'm innocent, and indeed you have the presumption of innocence and you have the right to a fair trial. But you haven't been able to secure funding for a lawyer or even if you were able to secure were funding for a lawyer from legal aid, you have been denied bail. So it's either you spend six months in pre-trial custody in one of these, as I said, torture dens, waiting for that trial. And the crown, as I said, is offering you two months. You've already served two months waiting. What do you think? What do you think someone's going to do in that situation? They're going to

take the crown's offer and get out of jail. Despite the fact that. that they're innocent, despite the fact that they have a defense. Now, I've been put in that situation more times than I like. And what do you do as a defense lawyer in that situation? Well, I'm not allowed to lie for my client. So I have to essentially withdraw, take myself out of the situation and leave my client to enter his guilty plea on his own because I cannot wrongfully convict someone. And this is what I meant when I said, having access to courts does not necessarily lead to accessing justice. This is a perfect example. Ed Hurtrick's decision to take his chances at trial paid off. He was ultimately acquitted, but by the time the verdict was announced, he'd already

spent nearly two years behind bars. Is it fair to say that you came out a different person? Oh, absolutely. I never had very many physical confrontations in my life prior to going into the don jail at 23 months. I think when I came out, I had 10 fights my first month home, injecting myself in physical violent confrontations. Criminologists will say to you, well, you know, it's the recidivism. The belt actually goes around, you know, and you're back to the beginning and you just keep moving around and around and around and around. There's no off ramping. When I was released, most of my family, other than my older brother, are all hard work in law of Biden citizens. So they found me employment. However, the employers, once they recognized my criminal record, would let me go.

And again, you know, just like the shoplifted in charge, I fueled my anger that I wouldn't get a fair shake. And I retreated to my criminal subcultures where I was welcomed. Prisons is not about the Terrence. The Terrence is an objective of punishment. It's one of the objectives, but it's not an objective that we've been able to meet. And I think there's ample evidence out there to suggest that locking people up in cages have not actually made us any safer. It's not actually stopped anybody from engaging in criminal conduct.

I think criminologists have actually kind of debunked that kind of myth a long time ago. But we still hold on to it. We still tell ourselves that severe punitive policies is somehow going to deter prospective crimes. It doesn't. Three months after getting out of the dawn jail, Ed was arrested again. This time for car theft. I went to welfare formatory for six months, and I got out from there. And then three months after that, I was arrested for first-degree murder.

When he was 21 years old, Ed, who was high on speed, shot and killed a rival drug dealer. You know, I threatened him with physical harm, and he said that if that was to happen, then he would shoot me. And he had already shot some people I knew. And definitely he would come back. Ed was sentenced to life in prison but in 1982 the Ontario Court of Appeal quashed the conviction and ordered a new trial where Ed pled guilty to second degree murder

he ended up serving 12 years mostly at Millhaven a maximum security prison near Kingston, Ontario it was probably the most dangerous place in Canada there was murders happening every other if not every week did you feel like

12 years in Millhaven, in and out of Milhaven, did you feel rehabilitated after that? Oh, absolutely not. You know, I walked into Millhaven. I weighed 150 pounds and didn't even shave. By the time I left Millhaven, I was 235 pounds of muscle. I had a reputation as not an individual

to come into conflict with. And my reputation grew. After 12 years, Ed was released. How long before you were reincarcerated? Wasn't long. Probably three months again. This time, it was a fight.

Ed's friend had been arrested, and Ed thought he knew who tipped off the police. So he went to confront the guy. He tried to punch me in the face, and he missed. And then I didn't. Ed was charged with assault. So I went back to jail for that.

that and when I seen the parole board I presented them with the police notebooks that said they attacked me and I defended myself and the pro board told me when you learn to run

instead of fighting back then they will let me out and I stayed seven years in prison and like I mean living in a place like male even for 12 years I'm sure running wasn't really an option if you got into an altercation. Where do you run?

There's no where to run. Ed's now in his 60s. He's been out of prison and clean for eight years. On the day I met up with him, he was scheduled to give a talk where he grew up, Regent Park in downtown Toronto. I always brought up in Regent where university and college was never mentioned in the whole project. Everyone just wanted to get to be 16 to get a job and help support the family.

Nobody ever talked about going to college or university. Success would have looked like? Not getting busted, yes. You know, that was success. No kid wants to be a career criminal. No kid wants to be a drug addict. But, you know, you learn what you live at home, you know. Like, you know, and I was always taught in my community.

You just got to take what you can get. And if you mean stealing, if it means, you know, doing what you got to do, do what you got to do because it's the only way you're going to get by. And I believe that. Because the older kids told me that. Now that I'm old, I'm looking. I'm saying, you know, I was foolish to listen to them. But I was a kid. I was a good kid, you know. I enjoyed school. I enjoyed doing good things.

I went to church and had a deep belief in God. This is Marcel Wilson. In some ways, his story is a lot like Ed Hertricks. Marcel's always on the move, so I met him in his SUV in a part. parking lot in the north end of Toronto. You know, I got relentlessly bullied in my neighborhood for being smart, for being articulate. These were not cool things. So the culture of my neighborhood was one of the main driving forces in the beginning stages of my life. I was forced to fight. And then once, you know, you win one, you're like, oh, this works. You know, people respond to this violence.

So I got to get good at this. I got to put these books down. and I got to survive in this environment that I'm in, or I won't, you know, the books mean nothing. Like Ed, Marcel had a rocky upbringing. There were issues in my home that I don't speak on too deeply, but which forced me out of the home by the time I was 13. I was on my own in the streets until about 15. And then it was kind of like back and forth in and out of the home

until I left permanently at about 17. When he wasn't living on the street, Marcel lived in a public housing development in Toronto called Swansea Muse. They cut all the programs in my neighborhood. There were tons of after-school programs and rec center, basketball courts, all these kind of things going on that were just cut. Private corporation, Toronto Community Housing took over. All that stuff ended. So the guys in my area, we were bored every day, you know, and it started with like literally petty things. fast breaking into cars, homes, seeing some results happen for that. Now, instead of getting made

fun of at school because my shoes were destroyed, I could now go out and buy a pair of shoes. And girls start to notice you. And again, the culture was that, you know, it's not about who you are here. It's about what you look like out here. So I started studying the older guys around me. You know, I seen them with their big rope chains and their gold teeth. And I'm like, that's what I, you know, I want to be that. I want to feel. safe. I want to provide. And no one came in and showed us that you can do those things this way. You know, so I went with what I saw in front of me. I was a big kid. So because I was good with my hands and I was very hungry and I was willing to do things that others weren't, I started to get

noticed by people outside of my neighborhood, which led to, hey, you know, Would you take this package over here for us? Would you do? And then I just started making what I thought was good money and being able to provide for myself, you know, buy food when I wanted to. You know, maybe I get to sleep in a bed tonight. Got good at that.

So then I elevated into the drug-dealing world. And then that is where I started to see or an experience like extreme violence, witnessing back. assaults and even murder in some cases. And the real truth, not a lot of formers will admit this, but fear was the driving force at that point. I didn't ever want to be a victim. So the only way to not become a victim is to become an animal.

So I started collecting for larger organizations. And how can I word this? I was a strong arm for larger groups, and it just escalated and escalated to the point where, you know, you keep meeting new and larger, more important people. And the one key in that world is being a man of your word. So if you told somebody something, you got that done, and I always got it done. Marcel says that he had a talent for violence, and that his work took him to places like Peru and Columbia. You can probably fill in the blanks. But the reason he isn't being more forthright

is that he doesn't want to incriminate himself. Because Marcel's never actually been convicted for anything he's done. I don't have an adult criminal record to this day. But the courts, the police, the intelligence agencies know me very well. And how many times were you charged? Man, it's really offhand, really off the head. But I was, you know, in the 20s. And if you had the YO stuff, over 30.

And not a single conviction? No. Well, one. But it was conditional discharge. So you don't get in trouble for X amount of years. The charge goes away. And what kind of stuff were you getting charged for? They're mostly violent crimes. I'd say that. You're listening to Ideas.

We're a podcast, which you can find on the CBC Listen app or wherever you get your podcasts. We're also a broadcast. heard on CBC Radio 1 in Canada, across North America, on Sirius XM, in Australia, on ABC Radio National, and around the world at cBC.ca.ca slash ideas. I'm Nala Ayed. This program is brought to you in part by Specsavers. Every day, your eyes go through a lot, squinting at screens, driving into the bright sun, reading in dim light, even late-night drives. That's why regular eye exams are so. important. At Specsavers, every standard eye exam includes an advanced OCT 3D eye scan, technology that

helps independent optometrists detect eye and health conditions at their earliest stages. Take care of your eyes. Book your eye exam at Specsavers today from just $99, including an OCT scan. Book at Spexsavers.cavers.cai, eye exams are provided by independent optometrists. Prices may vary by location. Visit Spexsavers. com to learn more. This ascent isn't for everyone. You need grit to climb this high this often. You've got to be an underdog that always overdelivers. You've got to be 6,500 hospital staff, 1,000 doctors, all doing so much with so little. You've got to be Scarborough. Defined by our uphill battle and always striving towards new heights.

And you can help us keep climbing. Donate at lovescarbro.cairbo.ca. This is the second of our two-part series, Injustice for All, by contributor Mitchell Stewart. Even though they grew up more than 20 years apart, Ed Hurtrick and Marcel Wilson share remarkably similar beginnings. I was about 12 or 13. A friend, he had come down to my area, he was like my age, and he had a vehicle. Keys and everything, and I was like, wow, like, you know, how'd you pull this off? He's like, you know, it's my uncle's car.

So I said, oh, okay, cool. and about a week later, a few detectives came to my home and told my mother that I was being charged with Grand Theft Auto. But here's where Marcel's story starts to diverge from Ed's, because Marcel had something that Ed didn't. I was lucky to have access to a good lawyer who, because of my family connections, took legal aid at that time. and I ended up beating the charge. That same lawyer would represent Marcel time and time again as he fell deeper and deeper into the world of organized crime.

A serious criminal charge like that, what would the defense cost? Then? He'd be paying 30 grand, 50 grand, easy. And how consistently were you getting off? Every time. Marcel, in a kind of paradoxical way, is actually privileged, despite the fact that, you know, he's had so many brushes with the criminal justice system. That's not the case for most black criminally accused people. They do not have access to essentially a defense lawyer on speed dial.

At least if they have one on speed dial, that lawyer wants to be paid. But even though Marcel was able to make the system work for him, that's not exactly justice. How fair can something be where you can, sidestep accountability by simply buying your way out. Punishment has never been a detourant because you can simply buy your way out of it. And I mean, I don't know what the fix is there. And to me, there really is none because it's a broken system. So let's fix the things that lead people into that system.

And that's exactly what Marcel is trying to do. He started a grassroots organization called One By One, whose mission is to steer people away from lives of violence and crime. They have a pretty deep roster of very high profile, formers, the spectrum being from leaders of neo-Nazi organizations down to foot soldier gangbanger and everything in between. Marcel calls these people ambassadors of change, and Ed Hurtrick was one of the first people to join the organization.

I reached to Marcel and tell them anything you need. Just let me know. Their methods are deceptively sensitively sensitively. simple. Let's say there's a particular guy in a neighborhood that we want to talk to. I'll use my old street connections to get to the influential person in that community and say, hey, I want to talk to so-and-so. And we provide opportunities for them.

So you find out what their interests are and we massage that. We give them access to resources. And then in some cases, we got young hardhead guys who won't talk to us at all. So we'll help out the whole community that that guy's in to get that guy. And we've had some time doing this, so we've collected the data on it, and it's working for us. It's just we'd love to be able to do this on a much larger scale. There's a good deal of research showing that investing in communities makes them safer than policing them. But if that's the case, why do we keep pouring money into policing and incarcerating people?

It would almost make you think they want it this way, right? like what else is there to think like we know what needs to be done the data's out there I ask the same question every day why why do we keep doing things we know don't work why do we keep focusing on things that will make no sense or have zeroed a little impact on on preventing violence or you know helping people who need the help so it's like we know how have fixed this problem. Why are we doing? So if you have a bunch of people who are disenfranchised and who the state neglects, who are then left in a condition in which criminality is more likely to arise, there's two responses, right? You could address the root causes or you could put that person

in prison. And prison's not necessarily even the cheaper option. It's an option that allows you to maintain certain forms of racial inequity without ever addressing those root causes. causes. My name is Joshua O'Eley Harrington. I'm an assistant professor at the Lincoln Alexander School of Law at Toronto Metropolitan University, the longest law school name in history. Nearly everybody I spoke to for this documentary thinks that there's some really profound deficiencies within our criminal justice system. But most of them think that while the system may well be broken, it's still at its core a system that's designed and intended to facilitate justice. Joshua Sealy Harrington isn't so sure. If you think of a legal system,

as something that's just intrinsically justice-oriented, you miss how actually the thing that it's doing is organizing, and then it can organize in justice or non-justice-oriented ways, right? A lot of things that are unambiguously harmful were sanctioned through law, right? Apartheid was sanctioned through law. It continues to be sanctioned through law. And so it's important to know that a legal system itself is not necessarily doing justice. So some of those things aren't necessarily perversions of the law. the purpose of a legal system, but a legal system could inherently be used to those ends. Right. Perversion does a lot of work there, right? So I think perversion seems to imply that it is

overturning what the legal system was otherwise meant to do. The history of law tells us that oppression or injustice is definitely not an exception, right? Like colonialism, imperialism, slavery, were all legally mediated. I agree with Joshua, right? Donardo Jones. Our justice system is not, it's not just at all. Some people go as far as to just call it a criminal system or just it's a criminal legal system.

They don't even use the word justice. That's not what we do in a criminal system. We don't try to achieve justice. We try to achieve financial. We bring matters to an end and doesn't matter what that end looks like if it's a dignified end or an undignified end. So, no, I'm not going to call it a system that produces just outcomes. That's not been my experience. I think if you look at the amount of public money that is invested in the securing of convictions versus

resisting convictions, that asymmetry will tell you everything that you need to know about the state's priorities with respect to criminal punishment, right? Legal aid funding is like a tiny fraction of public investment in the broader infrastructure of criminal punishment. And so, yeah, if you give a paltry percentage of state resources to representing people who are confronting perhaps the most significant threat to liberty imaginable, meanwhile give massive investments to the broader infrastructure of policing and caging those individuals. I think that tells you everything you need to know.

I wanted to ask Joshua about some of the research I'd come across that says that for every dollar the government invest in legal aid, it saves between $9 and $16 in other places, like health care. It struck me that even from a fiscally conservative point of view, the implication from the research is that we should want more investment in legal aid, not less. Right, so you're crawling towards a kind of another core critical legal insight into what legal institutions are actually designed to do. There is often a business case to be made for certain forms of public policy, and despite that business case, that policy is not implemented.

And I think from a critical race standpoint, this is not a contradiction. This makes sense, because this institution is not for cost-saving. This institution is built to maintain certain forms of inequality and hierarchy within society. So, for example, one figure that you can look at is the astronomical cost of keeping people in prison in the first place. It's very expensive to keep people in prison. I think one figure says around $100,000 a year or something like that. Actually, it's higher than that.

A 2018 report from the federal parliamentary budget officer put that figure at just under $15,000 a year. What would that individual's life look like if you just gave them $100,000, right? Like if you actually just provided them with the support they need. You also see this argument in the context of abolition and child apprehension politics, right? If you have often low-income indigenous people who have their children taken away from them, the amount of money invested in surveilling, monitoring, policing, and apprehending indigenous children if that money was instead invested in supporting indigenous communities, you'd probably see dramatically improved outcomes.

And then the question you have to ask yourself is, do we have this apparatus because we're trying to protect children? Or do we have this apparatus because it is a continuation of Canada's colonial relationship with indigenous communities? It's clear that the legal system disproportionately targets and impacts black and indigenous people. But in the first part of this series, I also spoke with a number of relatively affluent white people who'd been failed by the system. I'm not trying to draw an equivalency between their experiences and the ones that Joshua Silly Harrington is talking about. But it does seem as though our system isn't necessarily working for anyone. So I agree, for example, that law and order policy is not good for the vast majority of Canadians.

but I wouldn't go so far as to say that no one's winning. There is an elite group of people who definitely win when you implement policies like that, which is why those policies are implemented that way. You know, when you say something like, it's odd that law and order policy is being implemented because it doesn't seem to serve many people's interests, I turn back and I say it's actually not odd because that type of policy is meant to serve a very particular set of interests.

Because when you put people in a condition of, precarity. Your ability to exploit them is enhanced. And so the ostensible contradictions of capitalism or the ostensible contradictions of law and order policies are actually the intention of those systems, right? Because they aren't meant to actually do law and order, right? They're not actually meant to generate wealth for everyone. These are elitist systems that are working precisely as they're meant to. And we know that because we can look at them. If you just look at the figures, this is exactly what's happening. I think in Saskatchewan, in women's custody, 98% of the women in custody are indigenous. That is the point. That's the point of that, right? Because

you have a bunch of dispossessed indigenous communities and you could provide them with resources for flourishing, or you can cage them. And caging is an option that's not actually good for broader society, but is good for the continuation of elite colonial rule. And that's why we see that happening. I'm Tom Scottowen, Krista Lehman, Sigasun. I'm Saga, and I'm Krista Laman, member of the Beaver Lake Creanation, Treaty number six. And I'm the government relations advisor and treaty coordinator.

for the Beaver Lake Cree Nation. The Beaver Lake Cree Nation is about two hours north of Edmonton. In 2008, they sued Alberta and Canada for the, quote, cumulative effects of industrial development on their land. So we are speaking about the development of municipalities, the development of towns, tourism and agriculture, it's oil and gas, it's timber mining, it's all of it. Crystal Lehman says that the provincial and federal governments

violated the nation's treaty rights by approving most of the development without properly consulting Beaver Lake. What do you do in a situation when Big Oil comes to the table and says we want to develop this parcel of land and it's in your territory. We have the due process to follow

and our duty to consult. And Beaver Lake says no. No, because there is a plant there that we rely on for medicines. And if you look at the current consultation process, if we say no, that doesn't mean no, that's it. Okay, we won't develop here. It's no and you won't receive any type of agreement.

We're still going to do it. In their lawsuit, Beaver Lake claims that this development, which includes more than 21,000 fossil fuel permits, has been catastrophic. They say it's, quote, poisoned their water, eliminated whole forests, and decimated their traditional food sources. How long has this been going on for, the development piece of it? Well, development started the minute that the first settlers arrived to farm. That's when it started. Up till now, we've been looking at how the legal system affects individuals. People who are forced to spend exorbitant amounts of money on custody litigation.

People who spend much of their lives in prison because they didn't have resources. And people who avoided convictions because they did. But the legal system also shapes our collective rights. Everything from religious freedom in schools to same-sex marriage to medically assisted dying have all been shaped by the courts. And Beaver Lake's case could prove just as crucial. It would mean that the generations to come might have a chance at exercising and practicing their inherent in treaty rights. It would mean that a livable planet might be. And it would mean that the rights and sovereignty of First Nations peoples would be fully implemented

and it would mean that our right to free prior and informed consent be upheld. A people's right, a human being's right to say yes or no. Crystal left home to go to university in 2002. Then in 2008, she heard that her uncle Al Lehman had decided to sue the government. I started to read up more on our litigation and just really felt that pull. I felt that pull toward participation and being a part of the solution. And so it was that thought of, well, what do I have to bring to this discussion? And why am I wanting to do this?

And the immediate response, my immediate response was my children. And will they be able to harvest and, exercise and practice the way that I did when I was a child. Will they get to have those same experiences? And what was your answer to that question? Did you think that that was going to be a possibility when you looked around and saw what was happening to the land and the community? Sorry.

You would think after all these years talking about it, that it wouldn't get emotional. No. No, and that's why I knew I had to do something. I knew, like, big oil, big industry, colonial governments, they have the resources to fight little nations like Beaver Lake. And I knew it was not going to be easy, but I also knew that I didn't want my children in the future, to look back and say, well, mom, you knew this was happening.

You knew that there was opportunities to intervene. And you didn't do anything. Why? I didn't want my children to have to question why I didn't do anything. So Crystal has thrown herself into the litigation. but suing the government is expensive, really expensive. We have contributed like millions of dollars into this treaty rights case. That's a huge amount of money for a small nation of people.

We are not a poor nation in relation to culture, spirituality, our knowledge systems, language, but when it comes to financial resources, we do struggle. And we are an impoverished nation. The nation's reserves and donations from third parties could take the lawsuit only so far. So in 2018, Beaver Lake applied for something called advanced costs. Essentially, they would argue that the government should pay a portion of their legal fees.

Advanced cost test includes three points. So point one, the case has to be publicly important. Number two, the case has merit. We've proved that time and time again. And three, the applicant cannot afford the litigation. So the Crown admitted that the case is publicly important and that the case has merit. What they argued is whether Beaver Lake was poor enough

to be awarded advanced costs. Beaver Lake actually won their advanced cost case in the lower court. But the governments of both Canada and Alberta appealed that decision. They argued that Beaver Lake wasn't technically poor enough to be awarded advanced costs because they had some money set aside for emergencies. What they're asking or demanding is that the nation go broke with the already small amount of money that we have in our reserve, so in trust, for things like repairing our water truck.

Repairing our water truck, which brings clean, drinking water, a basic human right to the nation where over 85% of our homes are not connected to the main water line. So in the height of this, we had to actually take some of that money and we had to fix a broken water truck. So the money that we have in reserve is set aside for emergencies like any other normal government. And so if a First Nations cannot afford to bring these claims because they have to repair water systems or build houses or fix a flooded school so our children can go to school in a safe, secure place, they have no access to the courts and no way to uphold and defend their treaty rights. And so when we are going to the colonial governments and we're met with dehumanizing experiences where you have to. to prove. Are you poor enough? You have to prove your poverty. You have to prove the ongoing experiences of your people as a result of colonial laws that were grounded in racism, grounded in

apartheid. That's pretty violent. The forced removal of our people from our lands, That's the whole foundation of Beaver Lake's treaty comprehensive claim. We're fighting for the very little bit that we have left. In 2020, the Alberta Court of Appeal sided with the federal government. In the case of Germain Anderson, on her own behalf and on behalf of all other Beaver Lake Cree Nation, beneficiaries of 32 number six. So Beaver Lake decided to appeal to the Supreme Court of Canada. The realities are, why shouldn't they be able to have some sort of a fund available for emergencies and so on? What's so terrible about that, you know, for purposes of fighting a litigant that has, theoretically, all the funds in the world?

The Supreme Court ruled unanimously in favor of Beaver Lake. But they didn't actually award them advanced costs. The court decided that. Beaver Lake needed to start the process again and make the case that they deserved an advanced cost ruling. In August 2024, the Alberta Provincial Court granted the nation's request for advanced costs. The government of Alberta would pay $1.5 million a year towards the treaty rights litigation. But remember, this case is just to try and cover their legal costs. If Beaver Lake does end up winning their original treaty rights litigation case, it will be precedent setting.

And the impact will be significant for indigenous people, for the environmental movement, and ultimately for Canada. But if that happens, and that's still a big if, would that really be justice? I don't think that Beaver Lake ever planned to, wanted to, expected to, go through a colonial court system. The Beaver Lake Cree Nation, as a sovereign people, have their own governing structures, have their own political and judicial systems. And so that's not our system. It's not the system where we should go to argue our rights.

If there was another system, if our governing systems and our understandings of justice, were implemented and abided by and followed, we absolutely would not be using a colonial court system, but this is what we have right now. And I get it. I get it. I understand, you know, the long, ongoing violent history of the militarization of our people,

the way in which this system has been built to break down. and assimilate my people, I get it. However, until our systems are fully implemented and abided by, this is what we have right now as a means to accessing, hopefully, justice for not only the Beaver Lake Cree Nation, but all First Nations and Indigenous peoples. You've seen a lot of Canada's judicial, colonial judicial system. You've seen all three levels of court.

How just does the system seem to you? It's not fair to call it a justice system because it's not just. In a lot of ways, Beaver Lake's plight is a microcosm of the broader crisis within our justice system. Whether it's funding public interest litigation through advanced costs or putting more money into legal aid, there are things that could be done to make the current system fairer. But real justice, the kind that dismantles colonialism and institutional racism, that might not be possible without more radical reforms. The current justice system is built on colonization.

It's built on colonial laws and policies, right? And so those colonial laws and policies have nothing to do with our people in a positive way. We have our own justice systems. We have our own laws and governance. And until those are implemented and respected in an unqualified way, it is impossible to say that this justice system is just for all peoples that live on this land. We hold ourselves out as a nation that is cosmopolitan, a nation that is multicultural, a nation that is tolerant, and so on.

but we are anything but tolerant, anything but equal. So I think that strikes at the heart of, you know, this project that we call Canada. I think that's what's at stake is the very soul of our country. You know, when you get, you know, when you get folks to start saying, hey, listen, this is messed up and it's messed up not because it's affecting me, but because it's affecting people. It's affecting Canadians. The soul of our nation is essentially on the line here.

And I believe in this project called Canada. And I will be damned if I allow you to destroy that. You were listening to the second and final part of our series, Injustice for All by contributor Mitchell Stewart. Lisa Ayuso is the web producer for ideas. Technical production, Danielle Duval. Nicola Luxchich is the senior producer. The executive producer of ideas is Greg Kelly, and I'm Nala Ayy.

For more CBC podcasts, go to cbc.ca.ca.com.