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.

Disability (IN)Justice

A Journey

By Naomi Sayers

 In April 2002, I was in a car accident, while walking or attempting to walk on the highway just in front of my house, located on Garden River First Nation. Garden River First Nation runs along the eastern shores of St. Marys River, on the east side of Sault Ste Marie, Ontario. The highway that runs through my community is known as the Trans-Canada Highway, whiruns through all ten provinces, from the Atlantic Ocean (east coast) to the Pacific Ocean (west coast). I am not the first young person to be hit by a car on the highway. I am one of few who survived. With that survival, however, I have learned a great deal about the troubling ways in which systems and institutions—and the people within those systems and institutions—alleged their accessibility policies as welcoming toward individuals with disabilities and complex histories, individuals like me.

You cannot see my disability. There is nothing that exists outside of my body that signals to others that I sometimes require additional support in ways that are, sometimes, hard to articulate for me. This is not to say that people who do have those items that you can see are any different or less than me, or even you. This is to highlight my own experiences with learning to live with a newly acquired disability following my car accident, the lessons I learned about (in)accessibility, and what disability justice means for me.

Immediately following the car accident, I spent approximately one month in the hospital. I spent a few days in Sault Ste Marie’s General Hospital, in the psychiatric wing, where my mother had to take care of me. I don’t know why I was placed in the psychiatric wing. While in that unit, I was in and out of consciousness and I was having seizures. I was also urinating the bed since I was in and out of consciousness and the hospital refused to move me to specialized care. Finally, the hospital transferred me to the Intensive Care Unit (ICU) and eventually, transferred me to a hospital in Sudbury, which is about three hours east from Sault Ste Marie. For about a week, I was in a coma and I was on a breathing ventilator. I spent about another couple of weeks in a special unit for people recovering after acquiring a brain injury. After being discharged, I recall being told that the accident caused my brain to swell, bleed and that I had “water on the brain.” I also had a skull fracture, but during the transfer from the psychiatric wing to the ICU, the hospital caused another skull fracture after hospital equipment fell on my head. So, during the time I was in the psychiatric wing, I had these internal injuries which the hospital refused to adequately provide proper care, forcing my mom to take care of me instead.

The months following my discharge from the hospital, I experienced double vision, daily headaches, drowsiness, ringing in the ears and oral injuries (i.e., loss of a frontal tooth which required specialized care). Over time, however, I realized how the brain injury would impact my relationships with other people including my family, impact my schooling, and impact my ability to work as a young person. I also have other long term injuries like vision, hearing, concentration and attention issues. The ringing in my ears has not gone away.

I returned to school expecting to graduate in another year from my friends. I soon realized, however, that I had to make new friends. The brain injury changed who I was as a person and I could not do the things that I used to do with my friends—even simple things like going to the movies or to the annual fair and get on some of the rides! Some of these friends eventually stopped inviting me out to do things I used to do with them. Specifically, at school, I had to undergo special testing to determine what kind of supports I needed to be successful in completing my high school graduation. I went through much of this testing before and I eventually learned the majority of the testing dealt with occupational therapy (or ways to find out what a person needs help with at school, at work, and at home following an injury, in my experience, of some sort). Some of the supports I required include breaks after sitting for long periods of time, assistance with taking notes (i.e., recording lectures), and other assistive devices like electronic calendars with alarms to help me remember due dates and appointments.

During my return to school, I also wanted to return to work. While attending high school full-time, I also wanted to work a part-time job. I did not know how difficult working part-time while attending high school full-time would be until I moved away from home.

I moved away from home after realizing how my brain injury would impact my relationships with my family. Sometimes brain injuries cause people to have angry bursts, at the seemingly smallest things. I was one of those people. I was also one of those people that experienced problems with recalling words. I do experience some problems with word recall but I have developed some techniques for myself to overcome this side effect, as well as the angry outbursts. Unfortunately, it was not until our community police removed me from the family home after I fought my family members that I realized my angry outbursts affected my relationship with them.

The police removed me from my home. They told me I could not come back unless the police were present and only to grab clothes. I was only 17 years-old and at the moment, I moved out. I moved into a house with four other young adults. They were in university and I was still in high school. To help pay for rent, I realized I had to work several part-time jobs. I struggled to keep some jobs for longer periods over others. For instance, I was not the best waitress in an Italian restaurant. I could not remember orders and I could not pronounce most of the plates. After spending a year struggling through a few jobs, I eventually turned 18 and discovered the world of escorting.

Escorting is not for everyone. Sometimes, people refer to escorting as sex work. However, sex work is an umbrella term which refers to many different kinds of people who sell or trade sexual labour. Sex work includes web-caming, phone sex, and stripping. I started with escorting.

Being a young Indigenous woman, living and working in northern Ontario, the job possibilities were and continue to be very limiting. At the time, there were options to work in call centres (which require long sitting periods) or retail (which require standing for long periods). Earlier on, I had trouble doing both. For me, escorting provided a new way to achieve my educational goals: To eventually attend post-secondary education (something that seemed very out of reach at the time).

While I left escorting and entered into other forms of sex work (stripping), I did make it to law school and I am currently in my final term, expected to graduate in May 2017. I can confidently say that sex work helped with my journey. But, my journey to this point has not been easy and barriers have been put in front of me, every step of the way.

I learned that when it comes to (in)accessibility policies within systems and institutions (i.e., education), these policies presume that people with disabilities (in this case students) lie about the extent of their disability, and if they are believed, only receive help  when they communicate their needs (i.e.,the policies presume adequate and competent communication skills). On the former, this is a dangerous assumption because it believes only certain bodies and experiences as normal. And, on the latter, it presumes that students will communicate everything they need in one in-take appointment and that those needs will not change throughout their schooling experience. It also presumes the entire process to acquire accommodations through (in)accessibility policies is neither intimidating nor labour-intensive (i.e., requiring a lot of time and energy on top of everything else, like part-time jobs and/or full-time schooling). These processes are nothing but intimidating and labour-intensive.

For each new institution I attended, I had to learn about their (in)accessibility policies and corresponding process for accessing accommodations. I had to do this while living away from home and with very little support from friends and only the support provided by family when I lived closer to home.

When I think back to these educational experiences, I realize that these (in)accessibility policies erase the way in which systems and institutions either aggravate or exacerbate manifest or latent disabilities. For example, the racist and colonial approaches to teaching law in many law schools across Canada sometimes aggravate such disabilities.

During my third year of law school, I almost filed a human rights complaint against my law school but I missed the deadline by one month and I missed the deadline because of the school’s delay in releasing a decision to me, for my review (I challenged a professor’s comments in class that there existed only two kinds of law, which ignored Indigenous law and I was treated horribly by another professor who I sought help with these comments). This incident began in my second year. So, I spent over twelve months advocating on behalf of myself, as well as studying full time courses. However, during the time I experienced this discrimination, my anxiety was further exacerbated and I missed classes and some assignment dates. The process to challenge these comments and treatment by professors, and to receive accommodation also compounded my anxiety.

What I learned from living with a disability is that I am my own best advocate. Nevertheless, this should not be the case. If systems and institutions paid attention to the dangerous assumptions within their (in)accessibility policies, they would understand that people with disabilities do not lie about the extent of their experiences. The process set up by these policies may also be intimidating and people who participate in the processes may not be given the tools, time, and space to communicate their needs. For law school, in particular, I am always taught the importance to always practice self-reflexivity. However, it is important that these systems and institutions also do the same. The burdens placed on people with disabilities through policies and process create inaccessible spaces, as opposed to accessible spaces. Disability justice, for me, is then having the space, time, and tools available for me to communicate my needs in a way that ensures I am heard and my experiences validated. Disability justice is that simple, if only everyone else listened.


Naomi Sayers
Naomi Sayers is a fierce Indigenous feminist, influencer, writer, and educator. She is passionate about working with Indigenous communities or organizations with an Indigenous focus. With her life experiences, Naomi enjoys inspiring others to make the change possible in their world. She is a co-creator of Between The Lines (www.btllaw21.com), a public legal education initiative, and she was named an Every Day Political Citizen by Samara Canada. Naomi is the Kwe behind Kwe Today (www.kwetoday.com). Kwe Today is a blog that is regularly cited around the world. Her work is also used by national and international organizations to influence policy and law reform.