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Detraumatizing court

Tuesday, November 24, 2020 @ 8:48 AM | By Dana Shamlawi

Dana Shamlawi %>
Dana Shamlawi
The legal industry lacks diversity. The Canadian Centre for Diversity and Inclusion has indicated that since 2014, the number of women and racialized lawyers becomes greatly reduced in partner and senior leader roles in our industry. Yet in many instances it is senior members of the legal profession who act as advocates and ultimate decision makers for the lives of a very diverse populace. The legal profession may thus be incapable of accounting for post-colonial trauma that emerges for many individuals by virtue of merely being in a courtroom.

Let us consider the way a traditional courtroom is arranged. First and foremost, we have a person dressed in robes who is seated in the middle of an elevated platform in the back centre of a room. Counsel will be on different sides of the room, standing or seated behind a table of some kind. There may be a podium situated between counsel tables which may be used by an accused, counsel, or related individual. There is a barrier, whether physical, implicit, or both between (a) judge and counsel, and (b) members of the court, including judge and counsel, and the individuals seated in the gallery, who may be involved in the case at hand, waiting for their own matter, or are otherwise observing.

The dichotomy between the different people encountering the justice system is highlighted by the physical arrangement of a courtroom. For many minority individuals there is an inherent and evident “us versus them” dynamic in the physical space of a courtroom which promotes feelings of “otherness.”

Notions of us versus them stem from the aftermath of western colonization and the glorification of westernization. If a minority person is unable to see themselves as ultimate decision makers in their legal system, then the system may implicitly mimic the traumatic framework established through colonization.

Any person involved in court processes may be made to feel “other.” Among counsel, notions of gender, age, experience, race and educational background may create feelings of otherness. A lawyer who is a racial minority raised in a post-colonial country which glorifies western legal institutions may need to overcome feelings of automatic submission towards a judge enforced by that judge’s physical location in a courtroom. Further, we must consider the evident and continued systemic stigma and discrimination faced by Indigenous peoples, people with a mental illness, racial minorities and people from lower socioeconomic backgrounds as prompting otherness.

When we consider Canada’s history of colonization, the continued over-representation of Indigenous peoples in the criminal justice system, and the continued under-representation of minorities in the legal profession, it becomes easier to understand how trauma occurs from the moment a person who is “other” sets foot in a courtroom. The culmination of the us versus them dynamic is then most evident in criminal sentencing, particularly when the judge speaks from his or her literal pedestal to persons of a minority status, whether racial or otherwise, about what they need to do to make their lives better.

Our justice system is adversarial. Some of the notions above are reflective of a process built on finding resolution through two opposing sides presenting contrasting perspectives. However, the issue is to what extent the nature of the adversarial process extends far beyond counsel on opposing sides and whether notions of adversary become unjust when there is inadequate representation in the system. If an accused individual does not have access to counsel, a judge and a courtroom which can otherwise understand and relate to the experiences in his or her life which led to their presence in that room, then the system may be incapable of creating a lasting resolution. If trauma occurs for an individual by virtue of being in a room which inherently invokes feelings of otherness, then we may not be able to find a means of addressing institutionalization of an individual once sentenced.

Remote courtrooms, arguably, are more than just convenient and may be providing part of the solution.

On a computer screen, every person is in the same square. It becomes easier to see how everyone is there for the purpose of reaching a sound, reasonable conclusion. Without the visual dynamics of a courtroom, a judge becomes only a person who is knowledgeable and experienced enough to make carefully weighed determinations. Counsel on both sides may collaborate even more, both with each other and accused individuals, as remote communication becomes the norm.

Most importantly, an individual, whether accused or otherwise, is not a spectacle of otherness sensationalized by the very act of standing behind a podium or barrier. Conducting court remotely does not solve all the us versus them issues which exist in the system; however, it is certainly a step in the right direction towards creating a safer space for anyone encountering the justice system.

Dana Shamlawi is a Palestinian-Canadian legal writer and researcher. She has a JD from the University of Alberta and a MA in international relations, with a focus on post-colonial Western-Middle Eastern relations. Her interests are in legal education and criminal justice reform, legal writing and exploring non-traditional sources of law. E-mail her at Find her on LinkedIn.

Photo credit / artisticco ISTOCKPHOTO.COM

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