Labour Rights for Migrant Workers

A illustration of man holding his child on his shoulders. text reads "migrant hope"

By: Migrant Workers Alliance for Change

Illustration provided by 2019 Justseeds Artists’ Cooperative

Working for Cash? You Have Rights at Work!

It is legal to be paid in cash. Workers can get paid in cash for a variety of jobs, such as construction, cleaning, day labour, employment through temp agencies, work in the service industry and more. 

If you get paid in cash but don’t have a Social Insurance Number, valid Work Permit, or don’t have immigration status, you still have rights under basic labour laws. 

It is important to be prepared in case your rights are violated at work. Keeping detailed records about your work, pay, and employer will help you defend your rights, get the wages you are owed, or file a complaint. 

Protect yourself: 

Keep your own record of the number of hours, dates and location of where you worked, and any problems that happen. Keep this information at home or on your personal cell phone. 

Write down how much you have been paid. Keep copies of any email transfers, receipts from payday loan or cash stores, or other evidence that shows your employer pays you. If possible, deposit all your cash into a bank account so that you can use your bank statements as evidence. 

Write down any information about your boss and the company that you can find: name, title, work and home address, phone numbers, license plate number. 

Keep records of any communication you have with your employer: texts, emails, phone calls, letters. 

If you have been working for cash, you may still qualify for EI (Employment Insurance). It is very important to have your own record of your hours worked and wages paid. Apply for EI as soon as you stop working. 

Your employer does not need to know your address. You can give your employer another address if you do not feel safe providing your real one. You may want to use an address where you can collect your mail. 

Only share information about your immigration status with people you trust. 

If you think your rights have been violated, call the Workers’ Action Centre immediately to get help. All calls are free and confidential. 

Getting Paid 

It is legal to be paid in cash but you must still be paid at least the minimum wage. Your employer must give you a record or “pay slip” every time you are paid. It should say how many hours you have worked, your pay rate, overtime, public holiday pay, vacation, and deductions taken for taxes, Employment Insurance (EI) and the Canada Pension Plan (CPP).   

A boss who pays you in cash may not want to give you a payslip because they want to avoid paying their employer contributions, such as EI or taxes. Even if you don’t get a pay slip, you still have rights. It is important to have your own record of your hours worked and wages paid. 

No Status? Undocumented? No work permit? 

If you are working without a valid Social Insurance Number (SIN) or work permit, or you do not have any status, you still have rights under basic labour laws. This includes employment standards, health and safety, human rights and workers’ compensation for injured on the job. You can file a claim at the Ministry of Labour if your rights have been violated. Provincial Labour Ministries are not supposed to share immigration information with the federal government. The Ministry of Labour can get you the wages you are owed even if you have left the country. 

Many of us who are undocumented are afraid of losing our jobs or being deported if we speak out about problems at work. But there are ways to protect ourselves when we are fighting for our unpaid wages or defending our rights. 

Email us for help. All emails are confidential. Please let us know where you live and we will connect you to the closest support center. 


Migrant Workers Alliance for Change 

info@migrantworkersalliance.org 

If you are in Ontario, contact 

Workers’ Action Centre:          

416-531-0778     

Toll Free: 1-866-531-0778      

http://www.workersactioncentre.org

Creating a Press Release

black and white close up photo of man holding a dslr camera

This piece is a combination of work written by Ciaran Breen from No One Is Illegal and the media guide created by Solidarity Across Borders

Coordinating a media and communication strategy for a political purpose can appear daunting at first, especially if your cause has struggled to gain the attention and coverage you know it deserves. However, the good news is that there is a method to the madness and once you get the hang of it, you’ll be able to create materials with more flow and ultimately, with more success.

Media Advisory vs. Press Release

Giving the media a heads up: A Media Advisory

The goal with a media advisory is to inform the media of the details of your event but also tempt them to come to get the full story, the exclusive interview, the picture, the video. If there will be visuals, make that clear in the advisory.

Length: Ideally 1 page max

If the media doesn’t come: Do a Press release

The goal of the press release, also known as a media release is that after someone reads it, they have all the info. The story, the quotes, the pictures (if available). A journalist sitting at their desk who didn’t come to your event should have enough from a press release to be able to write a story. As such, a press release is as much like a news article than anything else. Think copy and paste. Write like a journalist. Make it as easy as possible for them to write a story about your event or cause.

Length: Between 1 and 2 pages + photographs (if available)

Before you start writing a press advisory or release, you need to have a few things clear, including:

  • the situation (what are the facts? what is going on? who is involved?)
  • the message (what are you seeking to communicate?) 
  • the demand (what do you want people to do?).  

Headlines

The table below outlines various check marks you can refer to to ensure your headline messaging is on-point and effective. (The following examples draw on experience organizing around immigration detention).

KEYEXAMPLE
Specific event‘Immigration detainees demand a meeting with Minister of Public Safety’ 
Highlight conflict‘Minister refusing to speak to immigration detainees’
Timely‘Immigration detainees mark anniversary of hunger strike with 24-hr protest’
Firsts (superlatives)‘Landmark immigration case to be heard at supreme court’
Visuals that are strong and can be reported on briefly‘Families of immigration detainees will join supporters in a colourful march to CBSA offices’
Unusual so it actually gets picked up‘Canadian child spends second birthday locked in immigration detention’
Alarming‘17 people have died in immigration detention since 2000’
Pop appeal‘Family day rallies planned across Ontario’
Make sure it ties into a clear ask/into the issue

‘Supporters are demanding the introduction of a 90-day limit on immigration detention’

Format of a Media Advisory and Press Release

The table below outlines the different sections of both a media advisory and a press release. Use these sections as a guide if you are planning to do your own media advisory or press release.

SectionsMEDIA ADVISORYPRESS RELEASE
1Headline – Use active languageHeadline – Use active language
2Lead
– The most important info (1-2 small paragraphs)
– Remember the 5Ws (Who, What, Where, Why, When)
Lead
– The most important info (1-2 small paragraphs)
– Remember the 5Ws (Who, What, Where, Why, When)
3BODY
– Crucial info (argument, controversy, story, issue)
BODY
– Crucial info (argument, controversy, story, issue)
4CALL TO ACTION
– When, where, what, who
QUOTE #1
– A quote that invokes feelings and balances with story told so far
5FACTS
– Additional details & background (e.g. history of an issue, international context)
– This is the last section in a media advisory 
FACTS
– Additional details & background (e.g. history of an issue, international context)
6

QUOTE #2
– Second quote can provide a particular perspective, often from someone with social capital or expertise.
7

Tail
– Extra info, interesting or related
– Assume that most journalists will have stopped reading by this point.

Timeline to send Media Advisory and/or Press Release

The following timelines are a guideline only and you should plan according to your situation, context and media landscape.

5 days before Action/event/other: send Media Advisory

4 days before Action/event/other: pitch calls to friendly media

Day before: Re-send media advisory

Morning of: Re-send media advisory early morning (e.g. 7am). Call news desks (television & newspapers) around 8am.

Day of: Send press release, take photos

Day after: Send pictures, additional information etc.

Different types of Press 

Press Conference

A press conference is a sit-down media event. The classic formula is the following: 

  1. An MC briefly introduces the topic and each speaker in turn
  2. 2 or 3 spokespeople each give a 3-minute presentation
  3. Then there is an open question period, facilitated by the MC. All in one hour. 
  4. After the formal press conference, journalists might ask for one-on-one interviews with some of the speakers.

Press Conference Tips:

  • Don’t forget television and cameras: make sure the conference or event has a visual dimension. An attractive background (eg. a poster, written slogans, photos, banner) helps to get the message out. Also, make sure the light is not behind the speakers.
  • Cards with the name of each speaker to put on the table in front of them can help media identify who is speaking.
  • When you are setting up, leave a central aisle with lots of space so that cameras have room to manoeuver.

Checklist for press conference:

  • Book appropriate location
  • Speakers (prepare, coordinate, inform of location and time)
  • Media Advisory (write, send)
  • Phone calls to journalists and news desks
  • MC (briefed and prepared to give introductions, manage question period and end the press conference)
  • Media kit (prepared and copied) – see below!
  • Attractive visuals (banners, photos, etc.)
  • Set up the location (leave yourself plenty of time), including water and kleenex for speakers, and name cards on the table.
  • Sign up sheet for journalists (you can leave it at the door, and ask journalists to ‘register’ so you can follow up with them afterwards)

Press Briefing or Scrum

A press briefing or scrum is like an informal press conference, with more energy. In general, it takes place outside a symbolic venue or at an event (eg. before a court hearing) or as part of an event you are organizing (e.g. during a demonstration). 

Classic formula : an MC, followed by two or three spokespeople who give key messages in 5 minutes (total), followed by questions.

Tip: It is important to have a poster or banner behind the people talking.

Exclusive Interviews

An exclusive interview is an interview offered to a single media outlet or journalist. There must be a commitment to respect exclusivity: if you have an agreement with one journalist, you can’t give an interview to another on the same topic. 

Op-Ed

An op-ed is an opinion text that you write and have published in the opinion pages of a newspaper. It normally has to have some link to current events or symbolic date, and express a strong opinion eloquently. There are strict limits of length. The editors usually reserve the right to edit your piece.

Sometimes you can write a piece and ask a well-known person to put their name to it, to attract more attention.

Best Time to do Media 

Tuesday, Wednesday and Thursday are usually the best days for media events and press releases. Sunday afternoons also work if they are promoted well in advance because there is often no other news at that time.

Although it is impossible to predict what may happen, try not issue a press release or hold a press conference during major news stories (unless it is about that topic). Conversely, aim for symbolic dates that work with your story.

The cut-off time (time that journalists must have their report completed) is usually 4pm for TV and 6pm for newspapers. Radio journalists may conduct interviews in the early evening.

Ideally, press conferences are held between 9 am and 2pm. If possible, you should avoid having one after 4pm.

For a special event in the evening, you must notify the media well in advance.

Preparing to Speak to the Media

1) Prepare Yourself

Decide in advance which information to disclose or not to disclose about your personal life. You can control the information you share. You can set limits and decide not to talk about certain things.

Decide whether to go with your heart and tell your story as it comes to you on the spot or prepare a statement in advance.

Decide whether to show or hide your face, whether to ask for your voice to be altered, to use your real name, etc.

Emotional preparation: an interview/press conference can make us emotional or even make us cry. That’s fine. At the same time it is important to keep your goals in mind: the message you want to get across; the personal information you don’t want to talk about.

Link to a broader analysis / similar situations: prepare facts, examples, sentences to connect your situation to broader problems.

Some journalists insist on having the full immigration file. Most journalists will ask for some documents. Decide in advance which documents you will give and which you will not give.

2)  Preparing a Spokesperson

The spokesperson needs to understand the case, and be prepared for any questions. If there are difficult parts of the file (e.g. a criminal record, irregularities in the file), it is important that the spokesperson knows about them in advance and knows how to respond.

Ensure that the spokesperson understands and is prepared to respect the message the family/individual has decided upon and what information the family/individual does not want to disclose.

The spokesperson needs to be prepared to present the specific case, responding to its urgency and immediate needs, while raising similar situations and speaking about the system that produces such situations.

3)  Preparing for a Press Conference or Press Scrum/Briefing

Choose two or three points you would like to make and write them out. Practice saying them. At a press conference or press scrum, this will be the basis for your initial speech. Emphasize these messages and repeat them in different words whenever possible during the question period: “If I only have one thing to tell people, it is that …” or ” My main message is that …”.. Don’t let the journalist divert your attention and make you deviate from the points you want to make.

Try to guess the journalists’ questions and criticisms and be prepared accordingly.

4)  Preparing for an interview

All previous points and:

Ask the journalist about the topics s/he wishes to cover to help you prepare. Ask them to send you the questions in advance by email if possible. You may in some circumstances be able to respond by email. Remember that you have more control over what you write than what you say.

Ask if there will be other interviewees and find out about their positions.

5)  Coordinating among Different Speakers

It is very important to ensure basic coherence between messages by the different speakers and especially to avoid contradictions and too much repetition. Here are some tools that can help coordinate messages:

Prepare a “talking points” document and share it with all speakers well in advance of the event. Talking points consist of key questions that you are sure will be asked and suggested response or responses for each.

Come up with a game plan about who covers what points, what points you will avoid, who will repeat the main demand, etc. (this can be worked out in a meeting or teleconference or in an email sent to all speakers).

You need to check in with each speaker to make sure they know the time, the place, have read the talking points, and are clear on how long they have to talk and which points they are supposed to cover.

6)  Media Kit

It is usually a good idea to prepare a media kit (in french and in english) to give to journalists at your press event. A media kit typically includes the following:

  • press release for the event (or minimally the press advisory);
  • list of speakers, a short biography for each and, sometimes, their contact information;
  • fact sheet(s): depending on the topic, this can provide details of a specific case and relevant background information; information can also be presented in the form of question / answer or a chronology;
  • Previously published media articles;
  • Experts reports or other documents that provide the context or documentary evidence to back up your assertions;
  • More creatively, you can include video clips, quotes from your speakers, statements of support from groups that are not present, SAB flyers, even stickers, buttons, etc.

Habeas Corpus

8 black abstract drawings of people and 1 greyish abstract drawing

How Understanding This Legal Term Can Help You Avoid Immigration Detention 

By: Macdonald Scott 

I am a licensed immigration consultant with Carranza LLP, a multiethnic lovely law firm. I have been honoured to provide legal support to many of the people whose cases are discussed below. I am also a member of No One Is Illegal (NOII) and the End Immigration Detention Network (EIDN). NOII is a migrant justice group, EIDN is a group of detainees, ex-detainees and supporters working to end immigration detention. 

What the heck is Habeas Corpus? 

A writ of Habeas Corpus (which means to “produce the body”) is a court order demanding that a public official (such as a warden) deliver an imprisoned individual to the court and show a valid reason for that person’s detention. 

What does it have to do with immigration detention? 

So in the “olde” days (that’s how they spelled it back then) in England (back even before the Magna Carta, so before 1215), the government and lords often detained people without any notice to their families or communities and without showing justification for the detention. Habeas became a legal instrument whereby the state or lord had to produce the person (or their body) and justify why they were detained. 

In the landmark case Chaudhary v Canada Ont. CA 2015 we were able to get the courts to acknowledge that this right should be extended to migrants without status in detention. This was the case of Amina Chaudhary, a mother of three disabled children, who is free right now and taking care of her sick spouse. 

Ok, so what does it mean to file a Habeas? 

Filing a “Habeas” means that the onus is put on the government to prove that the actual detention is lawful. This is different than most cases, where the onus is on the detainee to show “clear and compelling reasons” why they should be released. 

How does immigration detention work? 

What is immigration detention? 

It’s detaining people without full immigration status, or who are having their status revoked (including permanent residents) to make sure that Canada can remove them. It is separate from deciding if they should be removed but is a tool to make sure they cooperate with removal efforts. Let’s look at how it works in brief. 

Why are people detained? 

As above, for removal. In theory, it is also because of the following: The person is considered a flight risk (they won’t show up for removal), they are a danger to the public (criminal record anywhere, resistance on arrest) or immigration enforcement needs to hold the person to identify them. 

Who is detained? 

In reality, people detained are mostly black, the others are almost all brown. Women are detained who fought back against their spouse’s abuse. I had a black client who does hip-hop work with at-risk youth. Some transit cops stopped him for smoking on the bus platform, and he ended up getting detained because he swore when immigration enforcement arrested him. 

How can people challenge their detention? 

After 48 hours of detention, a detainee is given a detention review. At this review, a board member (pseudo-judge) will decide if they are a flight risk, danger to the public, and/or need to be detained to prove their identity. The board member will also look (very briefly) at how long the detainee will be detained (i.e when removal might occur), whether there is an alternative to detention (i.e. Someone can post bail and make sure they show up for removal), community connections, and whether the person is cooperating with their removal. 

After this, the person detained has a detention review 7 days later and then every 28 days. BUT at these reviews, normally the pressure is on the person detained to prove that they should be released. This gets harder and harder for each hearing. As well, though the length of detention ought to be considered, it is only one small factor to be considered. 

In many ways, beyond the fact that black people and brown people are specifically targeted, this is similar to the criminal bail system. Detention in the criminal justice system is used to pressure people into pleading guilty to get out of jail. Immigration detention is used as a way to pressure migrants into agreeing to their removal. 

What is the political agenda? 

Canada has a long history of excluding certain people from helping settle stolen indigenous lands, including People of Colour, Black people, LGBTIQA+ people, single women, disabled people. Immigration detention (even under the very handsome Mr.Trudeau) continues to be a tool for excluding those our system either prefers would not come in the first place, or would not be compliant workers with or without status. 

How does Habeas change things? 

Until Chaudhary, Habeas was not allowed for detained migrants. While it may not be as effective as organizing to get rid of detention of migrants (or jails in total), it is a tool that our people can use to get free. It also seems to upset the state given that they have committed considerable resources to try and stop it. Recently the government attempted to challenge the right to Habeas for migrant detainees in the Supreme Court of Canada. EIDN was an intervenor and on May 10th, 2019, the Supreme Court ruled in favour of migrants having access to the Habeas!! 

Chaudhary 

Chaudhary was a decision by the Ontario Court of Appeal. Historically immigrant detainees could not file a Habeas either in the Federal Courts, since the Federal Courts Act does not allow it, or in the provincial courts. However, the Supreme Court Judgment in a case where a man held in federal prison was allowed to challenge his transfer to a different prison by way of Habeas, opened the door for people to challenge federal detentions by way of Habeas. Chaudhary then filed for a Habeas in the Ontario Superior Court where it was turned down. We then appealed it to the Ontario Court of Appeal which granted that a Habeas could and should be allowed to be heard in migrant detention matters as it was more advantageous or equally advantageous to the detention review process (and subsequent federal court review). Recently the Alberta Court of Appeal agreed in the Chhina case which the government appealed to the Supreme Court, it is being heard in November and EIDN is attempting to intervene. 

How does one file a Habeas? 

Get a lawyer! 

One should hire counsel. Organizations like NOII can help find a good lawyer who will take legal aid. If you or the person you are working with wants to do it on their own, it can be done (and has been done successfully before) and a lawyer can apply to be an amicus – a friend of the court – and help out without representing the detainee. 

What will happen? 

First a Notice is filed. Then a record must be made which includes all the evidence. This record must be entered as an affidavit which is a sworn statement. After this, a factum must be completed which is the document that makes the legal arguments based on the facts. Then there is a hearing. This all happens at the Superior Court nearest to the place where the person is detained. If the detainee loses, then the appeal goes to the Ontario Court of Appeal. 

The Struggle – how did it happen? 

In 2013, 191 detainees went on hunger strike, the largest migrant hunger strike in Canadian history. Activists in the prisoner rights/prison abolitionist movement and migrant justice movement joined together to support them. The activists first focused on conditions of detention but the detainees said, “no, what we want is to be released after 90 days if they can’t deport us.” The movement went forward and EIDN was formed. EIDN held demonstrations at jails (with fireworks, the guards were very upset), press conferences, filing paperwork with the United Nations, assisting lawyers doing court work. 

What has happened since? 

The number of detainees has dropped dramatically, the Toronto Holding Centre used to be full (around 110) and now holds on average 60 detainees. Provincial prisons across Canada held 400 or more, they now have about 150. The releases to Toronto Bail Program (a non-governmental program that supervises released detainees) tripled last year. Children are rarely detained now, and fewer detainees are held in Provincial prisons (maximum security jails). A recent audit of the detention review system tore into the system recommending heavy and deep changes. 

Why go forward? 

Our lovely Prime Minister has decided to expand the immigration holding centers in Laval, Quebec and Surrey, BC. Once these are expanded they will be filled. Though they are minimum security, they are still jails. Immigration detention is not going away, the liberals have just put a smiley face on it. Families will still be separated, people will still be jailed. 

What do we do next? 

Support No One Is Illegal’s ongoing struggle to end immigration detention nooneisillegal.org, find local detained migrants, visit them, ask them what they need (talk to NOII first to find out good sustainable ways to do this), support your local migrant justice organization. 

Tear down walls, build bridges. 

Mental Health in the Legal Profession

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.