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| Gabriel Latner |
Let’s dispense with conspiracy theories: I do not believe our judiciary is in the (undoubtedly voluminous and exquisitely lined) pocket of Big Gown.
However, that would be a better explanation for the decision to require gowning during virtual hearings, after two years of doing without, than any claim that gowns add value to the justice process.
There is absolutely no good reason for lawyers to wear gowns. This is not an opinion, it is a historical fact. The origin of legal robing is well documented, and rather ironically doesn’t make our profession look good. It’s a story that starts with the frailty of the human body.
In the beginning, scholars at the universities of Cambridge and Oxford were not exactly rich. Their students less so. While balmier than Toronto, Cambridge in December isn’t warm, they hadn’t discovered proper insulation, and firewood was expensive. Heating a drafty lecture room was not in the faculty budget. So everyone wore robes.
Soon, a particular style of black robe became associated with academia — hence “town and gown.”
After a few centuries of acquiring wealth and influence, Oxford and Cambridge became important, and important people sent their kids there. Degree holders with their fancy robes started filling all the key government posts.
Eventually, courtiers (the original influencers), decided that they could gain some advantage by wearing academic dress.
Other social climbers followed suit, specifically professional “new men” who wanted to appear “respectable.” Like surgeons (jumped up barbers), undertakers (glorified gravediggers), and us barristers (argumentative clerks with delusions of grandeur).
Lawyers in 2022 will once again be wearing gowns because our ambitious predecessors were trying to look cool by imitating the academics who were copying their predecessors, who just happened to be cold.
You can put whatever post hoc justifications onto these sartorial monstrosities you want, but it doesn’t change the facts. Gowns do not symbolize a “uniform” of court officers. They are not black to remind us of the seriousness of our profession. Black does not symbolize “dignity, honour, and wisdom.” They are a moribund marketing tool.
Gowns are a tradition without meaning, historical artifacts without context. They serve no purpose and are completely irrelevant to the court’s proper functioning.
This was recognized even before Confederation. Gowns were forced on the lawyers of Lower Canada in 1779. After rampant disobedience, a five-shilling fine was instituted in 1881. One stylish lawyer was repeatedly fined because he refused, in his words, to dress like a gravedigger. It’s hard to come up with an exact modern value for five shillings, but an educated guesstimate puts it at $100 — not insignificant, but affordable if barristers’ fees were in any way comparable to modern rates.
But the surest proof of gowns’ meaninglessness is the complete lack of any rules about them whatsoever — this from a court system that proscribes the fonts, margins, cover stock weight and spacing we must use on our filings.
There is no legal definition of “gown.” The Rules are silent on the subject, and the Practice Directions only state when gowns must be worn, and not what that actually entails. The Courts of Justice Act provides that regulations may be made concerning the gowns to be worn by judges but says nothing of gowns for lawyers.
As a result, there is no standardized court garb — in fact, there never has been. For a time, “tabs” (appropriated clerical bands) were only worn by QCs, now they are universal — but their width and length varies. It is unclear when exactly black became the only acceptable colour, with that change anecdotally and inconsistently linked to mourning periods for various monarchs or legal luminaries. Today, it is unclear if that “rule” applies to the pants one wears to court — need they be black, or is a very dark grey acceptable?
Looking at old court sketches shows that the cut of both gowns and vests has not been static, and today there is variance between the various robing companies.
Given the lack of formal regulation and a continuing history of variation, are those who insist that only plain front (i.e. pleatless) white shirts with winged collars may be worn to court correct? If so, what authority determines their correctness?
The questions continue: does the vest need to be sleeved? How high above the wrist should those sleeves end? How many buttons can it have? Do gowns need to have buttons on the sleeves, or can they be plain? How low should the gown itself hang?
What rule, exactly, would barristers be breaking if they appeared in court wearing bathrobes or ballgowns?
And while we’re asking questions (and putting the politics and practicalities of challenging a practice direction to one side) isn’t this a rather obvious and unjustifiable violation of freedom of expression?
At my next virtual hearing, I will wear my gown. I will even wear the matching pants (conservatively black), though those will be hidden off camera. I will wear my gown reluctantly, and solely because I can’t risk that the judge will take non-conformity with asinine tradition as a personal insult.
But all things considered, I’d rather pay five shillings.
Perhaps that is the solution. Let those who love their gowns keep wearing them. Let the rest of us make a per-hearing donation to Pro Bono Ontario, as a token gowning fee. The money will do more for the proper functioning of the justice system than any bolt of cloth.
Gabriel Latner is a litigator and partner at Advocan Law.
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