Law Times

Law Times • sepTember 24, 2018 Page 7 www.lawtimesnews.com History of our constitutions BY PHILIP GIRARD A ll the hoopla about Canada 150 is over now, but I am going to go back to the history of our Con- stitution anyway. Or, rather, our "constitutions" in the plural. Indigenous people were right: Canada 150 wasn't really about them. The Brit- ish North America Act 1867 was a "set- tler" constitution, in which Indigenous people had not participated and in which they were virtually invisible aside from s. 91(24). Yet there had been more than 200 years of constitutional arrangements between Europeans and Indigenous peoples. An "Indigenous constitution" existed paral- lel to the settler constitutions of the vari- ous colonies. Its genesis is associated with the Great Peace of Montreal of 1701, the Nanfan Treaty of the same year between the lieutenant governor of New York and the Haudenosaunee and the Treaty of Ni- agara 1764. All of these featured the enthusiastic participation of large numbers of Indig- enous representatives, drawn from vast areas of the northeast. All aimed to es- tablish a relationship between settler and Indigenous societies allowing both to live in peace and mutual respect for the future — represented visually by "two-row wam- pum" or parallel spheres of governance. And all were examples of inter-cultural law that drew on concepts, practices and modes of representation of both settlers and Indigenous peoples. For example, pacts in writing rath- er than purely oral agreements came from settler practice, but all were signed by chiefs with their "doodems" or pictograph signatures, an Indigenous practice. Why do we hear so little of these constitutional arrange- ments today? The only con- stitutional document from this period that most lawyers are familiar with is the Royal Proclamation of 1763, which purports to be a unilateral act by the British Crown and not an agreement between it and In- digenous peoples. The waning of the In- digenous constitution has to do both with contingent events of the time and longer- term changes in ideas about law. The form of the Royal Proclamation is a unilateral act, but it was presented to Indigenous peoples by Sir William John- son, the Crown's representative in north- eastern North America, as an "offer" that could be accepted by them, and it was, in the Treaty of Niagara of the next year. By this means, the British wanted to bring the former allies of the French into their existing alliance system. The terms were those of two-row wampum: Each would govern its own people and inter-societal conf licts would be dealt with on a case- by-case basis. Taken together, the Royal Proclamation and the Treaty of Niagara represented a constitutional pact between two peoples. In 1764, the British gov- ernment was planning to completely revamp the ad- ministration of Indian affairs in North America. It wanted to remove jurisdiction from the colonial governments and centralize it by means of a lo- cal bureaucracy responsible to London, which would admin- ister native trade and land is- sues in a fairer way and reduce exploitation by settlers. The plan would be funded by a tax on the fur trade and would be enshrined in a parliamentary statute. A bill to this effect was drafted. Unfortunately, the timing was off. Par- liament passed the Stamp Act in 1765, im- posing a tax on the colonies against which they rebelled (a prelude to the Boston Tea Party a few years later). The tax was with- drawn and, with it, the chances for pas- sage of the tax-funded "plan of 1764" for native peoples declined to nil. There is an interesting "might have been" here: While the proposed statute would not have enshrined the Indigenous constitution as such, it would have kept alive the idea that constitutional arrange- ments with native peoples were real and necessary. After this, no imperial stat- ute ever referred to native peoples and the constitutional relationship remained housed under the royal prerogative. Meanwhile, the settler constitutions were based in statute: the Constitutional Act of 1791, creating new governments for Upper and Lower Canada; the Act of Union of 1840; and the BNA Act 1867. The 1791 and 1840 acts were totally silent on native peoples. This was a debased form of two-row wampum — statutory constitutions for settlers and prerogative arrangements for native peoples. Statutes were powerful and public instruments. Prerogative arrangements, aside from the Royal Proclamation, were not well known, could be altered by the practice of colonial governors and con- tained few mechanisms of accountabil- ity. Even the Royal Proclamation's land- related provisions were only irregularly observed outside Upper Canada. The fact that the imperial Parliament left Indige- nous peoples to the mysterious workings of Crown prerogative had long-lasting effects. Many factors besides legal ones combined to diminish the role of Indig- enous peoples after 1815, but the fact that they could point to no statute securing their rights made an Indigenous consti- tution seem more and more implausible to the black-letter lawyers of the 19th cen- tury. LT uPhilip Girard is a legal historian and pro- fessor at Osgoode Hall Law School. He is also associate editor at the Osgoode Society for Canadian Legal History. His email address is pgirard@osgoode.yorku.ca. How to address mental illness and lawyers BY THERESA E. MIEDEMA I n a pair of recent decisions — Law Society of On- tario v. Burtt, 2018 ONLSTH 63 and Law Society of Ontario v. Yantha, 2018 ONLSTH 94 — the Law Society Tribunal grappled with what accom- modation for mental illness is required in terms of disci- pline imposed by the Law Society of Ontario. The Burtt decision makes clear that disciplinary proceedings — in- cluding investigations into professional misconduct — themselves must take into account the particular nature of a lawyer's disability; the LSO's awareness of a lawyer's limitations will require the law society to consider and to implement possible accommodations in the investiga- tory phase of disciplinary matters. In the Yantha decision, the law tribunal accepted that mental illness, including depression and addic- tion, could constitute mitigating circumstances that would justify allowing a lawyer to surrender their li- cence rather than having the licence revoked. At the same time, the tribunal held that the public interest dictated that the lawyer's licence should be perma- nently terminated, notwithstanding Darwin Anthony Yantha's request for a length suspension, followed by restrictions and supervision. Yantha's apparent failure to grapple with the seriousness of his condition and his failure to pursue proper psychiatric treatment for his depression indicated that there was a real risk that he would continue to engage in ongoing professional misconduct. Thus, under the circumstances, it was not appropriate to depart from the presumptive penalty of a permanent suspension of licence. In both cases, the law tribunal's reasoning ref lects care and attention to the particular nature of men- tal illness and addiction, including how illnesses can manifest, how mental illness can cripple a lawyer in some aspects of life while leaving that same lawyer able to function at a high level in other parts of life and even the particular challenges that a lack of insight into one's own illness can cause. That the law society has an obligation to accommo- date lawyers with disabilities, including mental health issues, in its disciplinary proceedings is not a surprise. A few people may have been surprised that the LSO was not given a wide berth to do what it considers necessary where the public interest is concerned, but they would be in the minoity. There is a general recognition that mental illnesses such as depression and addiction are "real" illnesses and that human rights law requires ac- commodation of these illnesses. The legal profession as a whole understands, I think, that it has a human rights obligation to accommodate mental illnesses and ad- diction. We all know this and accept this obligation, at least in theory. But what does it mean in practice? What might a genuine commitment to accommodation in our profession look like? Before I answer that question, let's be clear that lawyers are not at all immune to addiction and men- tal illness. In fact, some research suggests that we are more prone to these impairments than the population at large. A 2016 study published in Addiction Health found that there were "substantial rates of behavioural health problems" among U.S. lawyers. This study, which was funded by the American Bar Association and the Hazelden Betty Ford Foundation, found high levels of hazardous, harmful and potentially dependent consumption of alcohol, especially among younger at- torneys, and high levels of lawyers experiencing symp- toms of depression and anxiety. Lawyers experienced these problems at higher rates than the general popula- tion and at higher rates than other professionals such as doctors. Although this study focused on U.S. lawyers, the parallels between Canadian and American culture are such that we assume, at minimum, that lawyers are far from immune to addiction and mental health issues. Canadian research on addiction and mental ill- ness among lawyers is fairly scarce, but what does exist confirms that, if anything, lawyers experience mental health crises related to addiction and illnesses such as depression at higher rates than the general public. We are a community at risk. It might be difficult to understand that. We have so many advantages. We are smart and ambitious. We defend other people at risk. Hell, we slay risk for a living. We manage it, we fix it, we box it up. We do it for others, that is. We slay risk for other people. But where our own well-being is concerned, as a profession, we have structured things in ways that dial up risk where mental health is concerned. Let's start with the booze. So much of legal culture revolves around the consumption of alcohol. It begins in law school with wine and cheese receptions and con- tinues through the recruitment phases of our careers. Some firms structure social events around open bars. Client meetings occur over cocktails. Informal men- toring happens over drinks after work. I dare say that some law firms have only paused to ref lect about the role of alcohol in their firms' cultures when they were concerned about potential liability. Having open and frank discussions about how the centrality of alcohol enables addictive behaviour is rare. We don't accom- modate people with addiction. Then there's the predominant structure of legal prac- tice, with its emphasis on the billable hour. We reward extreme behaviour in law by using the billable hour as one of the central metrics for success. Any firm that uses the billable hour as one of the principal ways to deter- mine compensation and reward cannot authentically claim that it truly values "work-life balance." There is no work-life balance when the prevailing incentive struc- ture sends the message that work must always come first. Sometimes, I think that mental illness and the practice of law are simply incompatible. Can a lawyer with a mental illness really attend to the management of that illness while also managing a legal practice, where certain dates are very inf lexible, pressure is high and the public interest is at stake? I don't know the an- swer to this question. Legal culture and the nature of legal training and practice include stumbling blocks to people dealing with mental health issues. We have to do better. There are more than legal careers at stake: People's lives hang in the balance. LT uDr. Theresa E. Miedema is a lawyer and an assistant teaching professor and co-ordinator of student affairs for the Faculty of Business and Information Technology, University of Ontario Institute of Technology. u SPEAKER'S CORNER COMMENT That's History Philip Girard

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