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
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.
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.
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
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:
- Over a six-year period, the Law Society received 14,000+ applications from lawyer candidates with only two hundred candidates self-identifying as Indigenous.
- 10% of the non-Indigenous candidates answered yes to a good character question.
- 18% of the self-identified Indigenous candidates answered yes to a good character question.
- 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.
- Presumably, 10-20% candidates went to a hearing.
- 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.
- 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
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.