By Elizabeth Tuck
Last year I was lucky enough to take a course called ‘State Accountability and Social Change’ with professor Meghan Daniels at McGill Law. One of my biggest takeaways from that class was around the concept of a ‘non-reformist reform’ (NRR). Simply put, an NRR seeks to change the essential character of a system, rather than work to uphold and entrench that system further.[1] They aim at undermining existing political, economic, and social order; constructing new orders; and ultimately redistributing democratic power with the end goal of emancipation.[2] Learning about this concept, especially in the context of criminal justice, was a catalyst for me in beginning to more deeply analyse litigation and social justice strategy. I began to ask: does this proposed change try to get at the root of the systemic issue, or is it a band aid solution?
The question of if and in what ways a proposed challenge reinforces systems of power or seeks to change them was at the forefront of my mind throughout the entirety of my internship with the Canadian Civil Liberties Association (CCLA). My first rotation was with the criminal justice team where each of the topics I worked on concerned deep rooted and systemic issues, like prison conditions and prison overcrowding. I was consistently struggling with the reality that working on something like prison overcrowding was on the one hand incredibly important work, and on the other hand not something that was aiming to change the system. In other words, it is important that incarcerated people live with dignity, and it is also true that this work does not meaningfully support the effort of lowering rates of incarceration itself.
One example of work within the criminal justice field that the CCLA is currently advancing that looks to fundamentally shift power is their recently launched Charter challenge to systemic underfunding of criminal legal aid in Manitoba. Filed on August 20th, 2026 at the Court of King’s Bench in Winnipeg, this challenge asserts that Governments of Canada and Manitoba have, for decades, underfunded criminal legal aid to such a degree that it violates Sections 7 (the right to life, liberty, and security of the person), 11(d) (the right to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal); and 15 (the right to equal protection under the law without discrimination).
Specifically, the CCLA is claiming that in Manitoba the “longstanding extreme underfunding” of legal aid results in accused persons being unrepresented or underrepresented (in violation of section 7 & 11(d)) and, critically, that Indigenous people are disproportionately impacted by legal aid underfunding (in violation of section 15).[3] The legal aid funding available in Manitoba has consistently not provided funding in line with the ever-increasing cost and complexity of criminal trials. Accused persons who are in need of legal aid are some of the most vulnerable in Canada, often facing physical and mental health challenges in addition to financial and legal challenges.[4] Accused persons who are Indigenous face additional barriers, including language, geographic location, increased likelihood of living in poverty and substance use dependency, proof of income requirements, lower education levels, and are overall more likely to have had previous negative contact with the criminal justice system.[5] In 2024/2025, 75% of the criminal legal aid adult clients were Indigenous.[6]
As currently conceptualized, the challenge to the underfunding of legal criminal justice acts as an NRR because, if successful, it can work to fundamentally alter the criminal justice system in Manitoba and Canada. Right now, many accused persons are left to navigate the criminal legal system themselves, which lowers their chances of receiving a fair or just outcome. Likewise, as a result of the insufficient funding scheme, lawyers are financially incentivised to encourage accused persons to take plea bargains, resulting in criminal charges and penalties where, if properly resourced, an accused person may walk free.[7]
I do not believe that criminalization is a fair, effective, or sustainable way by which to address the behaviours or harms targeted by it. This application from the CCLA works to address this concern as it is a non-reformist reform that ultimately advocates for changes that will result in less criminalization overall, therefore weakening the strength of the carceral system.
You can read the CCLA’s press release on this issue here and the Notice of Application here.
[1] Amna A. Akbar, “Non-Reformist Reforms and Struggles over Life, Death, and Democracy” (2023) 132:8 Yale L J 2497 at 21.
[2] Ibid at 12.
[3] Notice of Application, CCLA and Attorney General Of Canada and the Government of Manitoba CI26-01-58589 (2026) at para 34.
[4] Ibid at para 8.
[5] Ibid at para 59.
[6] Ibid at para 64.
[7] Ibid at para 67.