A blue digital illustration of two ambiguous books. One is open and laying on a pillow the other closed.

by Naomi Sayers

This piece was first written when Naomi was an articling student and under a good character investigation by the Law Society of Ontario (“LSO”) as a result of her self-disclosures to the LSO. The LSO does not investigate all lawyer-licensee candidates. During that time, Naomi felt isolated and alienated from the legal profession given her experiences. To date, she stills feel isolated and alienated given the conversations around self-care and mental health fail to interrogate the ways in which colonialism and all of its misogyny and racism (and other isms) impact Indigenous law students to date. Naomi kept this piece in its original format, but she is now a lawyer. She still believes that LSO still has a lot of work to do in order to truly practice inclusivity. This represents Naomi’s views only and is not legal advice.

Self-care. It is one of those terms that seems to have been taken up by everyone and anyone. Sometimes it is used by people, organizations and institutions in an unintended way. One such way includes avoiding responsibility of systemic and institutional neglect over many years, decades even.

At the time I first drafted this piece, I was in Ontario’s lawyer licensing process. This means that I have graduated law school, applied to become a lawyer in Ontario, passed the lawyer licensing examinations, or as some of my friends have done, deferred the lawyer licensing examinations until after their articles. Completing your articles is the process of learning through doing. In laymen terms, it is like a co-op placement.

Throughout law school, I struggled. I struggled in the sense that I felt alienated and isolated from the discussions that were taking place in the classroom. This is not to say, however, that I did not do well. I felt alienated and isolated from the structure of law school. I did not see or hear about similar experiences that I went through within the classrooms. In one experience, where I enrolled in a course dedicated to social justice advocacy, I thought I would excel. I heard about how you could write an op-ed (an opinion piece that is either solicited by the editor of a major media outlet or that is pitched to a major media outlet by an individual who is not a regular contributor) or, if I recall correctly, how you could learn how to make submissions to parliamentary committees. In any event, it was a class where I already had done all the things in my advocacy work seeking to decriminalize sex work. It was also work that I continued to do throughout law school. The unique thing about this disclosure is in the fact that I went to a law school where many professors supported the complete abolition of prostitution all in an effort to save women like me, poor little indigenous women. But, I didn’t and I, most certainly, don’t need saving.

When I was articling, I was living in Toronto, completing my articles on Bay Street (almost every little middle-class white boy’s wet dream, chasing after his daddy’s footsteps) in a space that prioritizes health care, especially mental health care. However, for the profession as a whole, this does not always mean that they prioritize health care, despite saying otherwise.

When I was in law school, I kept hearing or seeing these self-care narratives literally everywhere. What was missing from these messages was the trauma-informed approach where self-care originates. For example, trauma-informed approaches acknowledge that each individual responds to their own experiences, including traumatic experiences, in unique ways. This means that sometimes your friend may prefer to be alone after expending their energy in negotiating a difficult conversation or another friend may require immediate support in the way of bonding over your choice of substance to alleviate the anxiety from a traumatic experience (Note: I am not encouraging different kinds of substance use; rather, it is about supporting an individual’s choice). Now that I am in the articling process, I see these same messages, “Practice self-care”. What is missing from these conversations, again, is the trauma-informed approach. Yet, this begs the question, can a profession support individuals from a trauma-informed approach when it has historically excluded (and arguably, presently excludes) individuals who have been regulated and policed out of the legal profession bylaws?

During the 1950s, the laws that prevented Indigenous people from hiring lawyers were repealed. This means that, throughout the time of Canada’s colonization (and continued colonization), entire generations of Indigenous communities were left without legal representation—at a moment in time when colonial Canada was passing laws that infringe on their rights. Yes, the concept of justice and the nature of Indigenous law does not always align with those of Canada’s views or concepts. However, the effects of these laws mean that an entire generation of people were literally erased, silenced and ignored during a critical point in the making and shaping of colonial Canada. This is not unintentional. While this article is not about the colonial context of Canada, it is important to understand parts of this history when talking about trauma-informed approaches to mental health care.

Mental health care and self-care discussions in predominantly white spaces translate to discussions about how a bubble bath can make you feel safe and warm. These conversations do not mean that we have conversations about how institutional racism and everyday microaggressions impact your physical health.

Trauma-informed practice is about embodying a range of principles that centre the needs, experiences and expertise of individuals who have experienced or continued to experience trauma in their lives. Trauma can range from a single occurrence to intergenerational trauma. A trauma-informed practice, ultimately, centers an individual’s control, choice and safety. It means that the individual attends to what will make them safe in that moment, by making the choices they can and in a way that they can.

When it comes to self-care, most institutions that have taken up these narratives inadvertently appropriating these terms in a way that, as I mentioned, avoids responsibility. First, institutions, like law schools or institutions who have a history of excluding racialized or Indigenous folks, that adopt a self-care approach without a trauma-informed approach tend to cause more harm. When I was law school, I reached out to a professor in law school after another professor stated that there were only two kinds of laws in Canada. This idea that there are only two kinds of law in Canada means that Indigenous legal traditions are never acknowledged. This erasure, again, means that Indigenous law students are left arguing their own existence. Then, when you have certain experiences being policed and regulated out of the profession, we have a different kind of conversation happening altogether. The question is no longer how much needs to be done to improve the diversity and inclusion of certain kinds of people. Rather, the question becomes what needs to change at an institutional and systemic level in order to address the barriers created by having honest conversations about institutional and systemic discrimination in the legal profession.

Recently, the regulator for Ontario’s lawyers mandated all lawyers to adopt a statement of principles. The statement of principles is one of many recommendations from the Racialized Licensees Report. This specific recommendation, along with the others named in the report, is meant to address the barriers faced by racialized licensees. However, the Report outlines that Indigenous licensees face “unique experiences” (The Racialized Licensees Report, p 8). The Law Society of Ontario (“Law Society”), as the Report states, “has a duty to maintain and advance the cause of justice and the rule of law, to facilitate access to justice for the people of Ontario and to protect the public interest” (The Racialized Licensees Report, p 11). In order to fulfill this duty, the Law Society must also ensure its policies, practices and programs live up to the values and principles of equality and diversity (The Racialized Licensees Report, p 11). One such policy and practice, however, includes their good character form.

While I agree with the rationale behind adhering to the good character standard, I question whether the Law Society’s policy and practice of adopting a form requirement across the board for all licensing candidates is truly an equality and diversity practice.

For example, when a licensing candidate applies to the Law Society, this candidate must disclose a range of things, including criminal convictions. However, question one on the good character form asks, whether the candidate has “been found guilty of, or convicted of, any offence under any statute” (Lawyer Licensing Process Policies, Part IV: Good Character). You must answer yes to question one if you have been found guilty or convicted under any statute. (Canadian Civil Liberties Association, p 1). The consequence of this question is that it has a wide reach for almost any person. For Indigenous people, this is troublesome.

Indigenous people who are convicted or found guilty of any offence under any statute (which does not seem to be slowing down at any rate) will have to answer yes to question one as outlined above, including those who have accessed the Gladue sentencing regime. The question, then, is not whether the Law Society is adopting equity and diversity principles in its policies, practices and programs. Rather, the question is whether the Law Society is engaging in systemic and/or institutional discrimination with its blanket form, applied across the board to anyone, especially regarding Indigenous people. Again, my issue is not the rationale behind the good character form; it is the practice of assuming that this form is applied equally in a fair manner. Sadly, the Law Society released a report on a review of its good character practices in early 2019 (Professional Regulation Committee, 2019). The facts for lawyer-licensee candidates from this report are as follows:

  1. Over a six-year period, the Law Society received 14,000+ applications from lawyer candidates with only two hundred candidates self-identifying as Indigenous.
  2. 10% of the non-Indigenous candidates answered yes to a good character question.
  3. 18% of the self-identified Indigenous candidates answered yes to a good character question.
  4. The report does not provide numbers for the Indigenous candidates who had their good character issues resolved at an initial step, at an investigation or at a hearing. The report does state that 80-90% candidates of those who did answer a good character question in the affirmative were resolved at the initial step and only 1-2% candidates went to a good character hearing.
  5. Presumably, 10-20% candidates went to a hearing.
  6. Since the number of self-identified Indigenous candidates who answer yes to a good character question is higher by 15-25% (5%-10% estimate based on item 3 above), it is safe to assume that 20-30% of self-identified Indigenous candidates went to a good character hearing.
  7. Based on the above assumption, it could be assumed that 40-60 self-identified Indigenous candidates out of 200 went to a good character hearing over a six-year period or approximately 10 self-identified Indigenous candidates went to a good character hearing each year over a six-year period.

With the conversation around the statement of principles taking place in Ontario, I cringe each time I hear or read about another lawyer impacted by racism trying to justify why this mandated recommendation is essential in ending barriers to racialized licensees. I also cringe when people assume that this is a free speech issue. Free speech for whom? It is most certainly not for the racialized or Indigenous licensees now almost being forced to write their stories, trying to convince everyone who doesn’t believe racism exists…. that racism exists!

It was only in the 1950s where laws that excluded Indigenous people from entering law school, practicing law or hiring lawyers were repealed (See Constance Backhouse, “Gender and Race in the Construction of ‘Legal Professionalism’: Historical Perspectives” in Adam Dodek & Alice Woolley, eds, In Search of the Ethical Lawyer (Vancouver: UBC Press, 2016) 126 at 133). Entire generations of Indigenous people were excluded from entering the profession. That is, people like my grandfathers and grandmothers prohibited from entering the profession—two generations ago. During that time, however, my community was surrounded by several residential schools. It is very unlikely that my ancestors would have even survived long enough, sadly, to enter law school. And, undoubtedly, Indigenous folks continue to be excluded from the profession for a range of other barriers.

But I survived and I am here.

I write this in the context of acknowledging this history of denying indigenous people the illusion of freedom to enter the profession. I also write to highlight the problems with the discussion around the statement of principles, as an alleged diversity and equity initiative.

These kinds of initiatives are a distraction from the issue of racism in the profession. Preventing people from having honest conversations about the real issue—racism—is how institutional and systemic discrimination works. They allow institutions and people to say, “Look at all the hard work we have done!” And, when you critique the initiative, you are the problem such as I have done in very public spaces and have been ostracized by more senior lawyers, including racialized lawyers.

As for the statement of principles, these initiatives are merely check box approaches to the problem. Perhaps, one day, we can all have a healthy conversation about institutional and systemic discrimination without racialized and Indigenous licensees and licensing candidates carrying the burden of retelling their stories.

Naomi Sayers is an Indigenous feminist and lawyer. She tweets under the moniker @kwetoday. Views are her own.

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