Column

Against Tradition

In a recent column in Canadian Lawyer, Ian Holloway, my Dean and friend, wrote in defence of lawyerly traditions, such as calling Ontario’s law society the Law Society of Upper Canada, and barrister’s robes. At the same time he emphasized the importance of professional innovation, particularly in legal education. He concluded that the ambition of lawyers should be “Change in substance, tradition in form”.

I have some serious reservations with Ian’s position. I agree that some of our traditions have modern advantages (e.g., robes neutralizing class and gender-based judgments of lawyers based on their clothes). But when we weigh the retention of any practice I can’t think the argument “we’ve always done it that way” adds much to the scale. And – more – I worry that the claim of tradition blinds us to some of the serious issues with the way we do things.

When I read the transcripts of the preliminary inquiry in the Angela Cardinal case – the incarcerated victim – one of the things that struck me was that she was standing when she testified. As a witness in the preliminary inquiry our traditions, at least in Alberta’s Provincial Court, required her to stand. That strikes me as both ridiculous and counter-productive. Do we think that a witness will speak more honestly if physically uncomfortable? Surely not. That argument would support trial by ordeal. And isn’t it possible – even probable – that part of the difficulties Ms. Cardinal had on that first day of testimony – where she was exhausted and appears not to have slept most of the night – arose from the fact that she was forced to stand? She may even have felt more vulnerable in relation to the accused because she was standing, and was therefore less shielded by the witness box. In that case the disadvantages of standing seem overwhelming relative to the advantages (which I actually cannot even identify).

Elaine Craig has written a persuasive paper on this point, The Inhospitable Court, in which she details the ways in which we create barriers to vulnerable victims from the formalities of our courtrooms, and noting in particular the problems of requiring them to stand to testify.

I agree that a level of formality may be appropriate to communicate the seriousness of judicial proceedings. But I also think that we need to be thoughtful and careful about the formalities and practices we use. Specifically, I think a) a practice has to have a current justification; and b) there needs to be an analysis of the costs it imposes. I simply cannot see any benefit to having a witness stand to testify, and I see significant costs. In my view the practice ought to be abandoned. And that it is a tradition we have followed, even for centuries, carries no water in the analysis.

I would add to that list more trivial restrictions like the prohibition of coffee in the courtroom (even libraries allow coffee!), and the absence of modern conveniences such as microphones and effective sound-systems (Christie Blatchford is eloquent on this point).

Don’t get me wrong. I understand the aesthetics and charm of tradition. But I think too many of our legal traditions do harm for us to embrace them purely on the grounds of tradition alone.

Comments

  1. One of my relevant favorites is a picture I have in my office of the running of the bulls with the heading Tradition with the tag line Just because we have always done it this way doesn’t mean it isn’t incredibly stupid

  2. As Edmund Burke said, we need “a disposition to preserve, and an ability to improve, taken together.” When it comes to the formal justice system, I think the Cardinal case is one of many signs that our disposition to preserve has been allowed to dominate our ability to improve.

  3. Noel,

    As I Tweeted in reply to support the “Ian Holloway” position, the Cardinal case, IMHO, owes more to a failure to adopt “tradition” that from it’s preservation.

    The Crown, traditionally, owes a duty – not to “convict” – but to present their case, as it is, to the best of their ability – and to allow the trier of fact to make an appropriate determination. See S.C.C. decision in Boucher (1954):

    “It cannot be over-emphasized that the purpose of a criminal prosecution is not to obtain a conviction; it is to lay before a jury what the Crown considers to be credible evidence relevant to what is alleged to be a crime. Counsel have a duty to see that all available legal proof of the facts is presented: it should be done so firmly and pressed to its legitimate strength, but it must also be done fairly. The role of the prosecutor excludes any notion of winning or losing; his function is a matter of public duty than which in civil life there can be none charged with a greater personal responsibility. It is to be efficiently performed with an ingrained sense of the dignity, the seriousness and the justness of judicial proceedings.”

    Our Crown, IMHO, has become so politically infected that the need to convict a sexual assault perpetrator has caused them to lose sight of their traditional role, in favor of a more “modern” perspective of assuring conviction, regardless of the loss of “dignity” in the proceedings.

    It’s truly a tragic case of Crown and Judicial loss of perspective and appreciation for “tradition”, again, in my opinion.

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