‘My God, those things get hot’: Is it time for lawyers to ditch the black robes?

This article originally appeared in the Toronto Star. |

Should lawyers still be required to wear gowns to court in 2019?

It’s not as much of a burning issue within the Ontario legal community as say, the underfunding of the legal aid system, but it is a perennial topic of conversation that popped up again last month when lawyer Douglas Judson tweeted:

“Radical proposition: We should all ditch the gowns. You pay for the courts: wear whatever the hell you want (or what your client expects you to).”

That got other lawyers weighing in on whether it’s time to scrap the black gown, waistcoat and white tabs that are steeped in British legal tradition going back centuries.

Lawyers are required to wear the robes — which can make for especially unpleasant situations in summer, when working in humid courtrooms — in the Superior Court of Justice, Court of Appeal and Supreme Court. Not so in the lowest and busiest level of court, the Ontario Court of Justice, where business attire is just fine.

“Personally, I tend to find the robes are a bit anachronistic. I think that in 2019, we shouldn’t be looking for tools that set lawyers apart as somehow different than everyday citizens,” Judson, who is also running for a spot on the Law Society of Ontario’s board of directors, told the Star.

“I think it creates a distance between officers of the court and the people who use the court that doesn’t really reflect the openness and candour that I think lawyers want to have with their clients.”

He said the issue at least warrants a discussion. One argument in favour of keeping the gowns, Judson acknowledged, is that they make all lawyers appear equal in court, meaning the decision-maker may be more focused on their submissions.

But that doesn’t persuade him. “If a judge can wade through common law, they shouldn’t be persuaded by my shoes and tie,” he said.

Toronto criminal defence lawyer Stephanie DiGiuseppe said having lawyers appear equal is one of the reasons she wants the gowns to stay. The gown means a young lawyer doesn’t have to spend as much money on suits to be taken seriously by the court and clients, she said.

“There’s been quite some attention in the media about discrimination of racialized and young lawyers, in terms of people not really thinking they’re counsel. Gowns sort of take that away,” she said.

The Star recently published an article on female lawyers and lawyers of colour being regularly mistaken for assistants, interpreters and sometimes the accused person in provincial court, where gowns are not required.

DiGiuseppe also tweeted that her desire to keep the traditional robes is unshaken after conducting many long trials in both winter and summer, as well as during the mid- to late stages of pregnancy. (The Superior Court, for example, amended its practice direction in 2017, saying pregnant lawyers can modify their gowns as they see fit, such as not having to wear the waistcoat and tabs.)

Lawyer Alison Craig also supports keeping them, especially to appear equal before juries in Superior Court, but would also endorse modifications for particularly balmy days.

“I sure wish they’d come up with a summer version,” she said. “My God, those things get hot. When you’re on your feet for three hours in a tense cross-examination, it gets really hot.”

Elsa Ascencio, who is working toward being called to the bar this year — a ceremony where the graduates wear gowns — says some of the arguments in favour of the robes miss deeper prejudices in the system.

Some lawyers will still police their own bodies, even if wearing a gown, she said. “If not our attire, then it’s our hair. We see it with Black women, Afro-Latinas, and their natural hair. So I argue robes are really just a kind of a band-aid to the inherently racist, gendered attitudes that still exist in law.”

Wait, why do lawyers wear robes?

Wearing robes to court is just one of the centuries-old traditions Canada inherited from the United Kingdom — though wigs are not required in Canadian courtrooms, as they are in the British system.

The tradition may stretch back as far as the 1300s, when lawyers wore gowns as a symbol of being granted the privilege of appearing in court, according to a post on the British Columbia Provincial Court’s website.

The gowns were not always black but rather frilly and furry, according to a guide prepared by lawyers Jeremy Martin and Andrea Sanche on the Ontario Bar Association’s website. Junior barristers began to wear black gowns — which were actually pallbearers’ gowns — to court following the death of King Charles II in 1685.

Aside from the gown itself, lawyers must also wear a waistcoat, a winged collar and two white tabs at the neck, and either black or grey-striped pants or skirt. The origin of the tabs remains up for debate. “Some say they are meant to emulate the two tablets of Moses. Others say they were just a more modest way of tying a shirt together in an age obsessed with lace,” says the OBA guide.

The basic barrister’s gown is made out of either a black polyester and wool blend or 100 per cent tropical wool, said Brian Weese, vice-president of Toronto-based Harcourts, the oldest robe maker in North America, founded in 1842. Judges, he said, have the option of purchasing a gown made of silk.