Far from being considered anachronistic, the hundreds-year-old practice of lawyers wearing robes to court is in modern times seen to be a great equalizer, forcing the attention to what lawyers are saying in court rather than what they’re wearing. But the current rules make some more equal than others.
For those who are unable to don the prescribed mantle of equality – for reasons of pregnancy or other personal circumstances such as a disability or medical condition – there is a lot of confusion about what they can or can’t do, or when and to whom they must explain why modifications to their attire is necessary.
Depending on the court’s directives on this matter (if, indeed, there is a directive), they may not be able to do so discreetly. And for some, a lack of flexibility in gowning directives could be a barrier to appearing in court at all.
In 2016 the CBA passed a resolution urging all Canadian courts to adopt practice directives permitting counsel to modify their court attire as necessary when pregnant, and offer an appropriate process for counsel to inform the court that they’ve done so. Since then, may courts across Canada have amended their gowning rules.
With recent letters to the Supreme Court of Canada, Federal Court, Federal Court of Appeal and the Tax Court of Canada, the CBA Women Lawyers Forum is renewing its push for clarity and flexibility in court gowning directives, and broadening it to include personal circumstances other than pregnancy.
Both the Federal Court and the Federal Court of Appeal have policies on gowning that allow accommodations for pregnancy, as long as the modified clothing is dark and maintains court decorum. The guidelines direct counsel to advise the Registrar before the opening of the court if they will be wearing modified attire. The Federal Court has a broader exemption that covers other personal circumstances. The WLF and the Federal Courts Bench and Bar Liaison Committee suggest the Federal Court of Appeal add “greater flexibility for personal circumstances, such as medical conditions or disabilities.” It adds that the courts’ policies should explicitly state that counsel will not need to discuss their attire or the reasons for it in open court.
The Tax Court, meanwhile, does not make any accommodations for circumstances that may prevent counsel from wearing appropriate robes.
“This excludes lawyers who do not have trusted mentors with relevant experience to ask about appropriate attire when pregnant, experiencing a medical condition, or living with a disability,” the Women Lawyers and the Tax Court Bench and Bar Committee write. “A clear exemption for counsel who may need additional flexibility to appear sends a clear message of inclusion. Counsel who need to depart from traditional gowning requirements would know that the court welcomes their appearance.”
The WLF has drafted a model gowning directive for the courts, saying any directive on the issue should have four elements:
- An explicit exemption for personal circumstances
- A requirement that modified attire be in keeping with court decorum
- A requirement for counsel to advise the court of the modifications
- A procedure that allows counsel to advise the court privately – that is, not in open court and not on the record
“We believe that gowning directives with these elements will be clear, inclusive and instructive. With this guidance, both courts and counsel will know how to proceed when counsel need to modify their attire due to personal circumstances,” the WLF and Bench and Bar Committees write.
“The proposed changes will also enhance the accessibility of courts and send an important message that the profession and justice system can be proactively inclusive.”