27 July 2018By Eden Kaill
If you watch American legal dramas and then find yourself observing a Canadian court proceeding, you might be understandably disappointed that instead of this:
You're likely to see a courtroom full of this:
Barrister’s Robes. Personally, I love the whole court regalia, but that may be because I’m not a lawyer and don’t have to wear it. I do sometimes wonder how people in American courtrooms know who the lawyers are. But why and under what circumstances do Canadian lawyers wear their robes?
What are Barrister’s Robes? In Canada, a robed lawyer wears black or grey pants or skirt, a white wingtip collared plain-front shirt, black waistcoat/vest, long black robe, and white collar tabs. Most lawyers wear robes, waistcoats, and tabs made by Harcourts. Many have a blue velvet bag they carry their robes to court in, because (1) it’s considered very bad form to wear them outside the courtroom and (2) everyone needs a little more blue velvet in their lives.
When must they be worn? I was going to list the robing rules province by province, but they change frequently and I wouldn’t want anyone relying on my word and getting called out by a judge! You are always better off checking the most up to date practice direction for your particular jurisdiction and level of court.
Generally in Ontario, if you are a lawyer in front of a judge in the Superior Court of Justice, you should be fully robed, with exceptions for chambers appointments, and scheduling and pre-trial conferences. Lawyers never gown to appear before a Master.
Thankfully, the Ontario practice direction allows pregnant lawyers some leniency:
Consolidated Provincial Practice Direction
Part V: General Practice Directions Applicable to all Proceedings
A. Gowning for Counsel
Counsel who are pregnant are free to modify their traditional court attire in order to accommodate their pregnancy as they see fit, including dispensing with a waistcoat and tabs.
Where does the tradition come from? Unsurprisingly, Canadian lawyers’ robes are a vestigial reminder of our British legacy, like the use of the letter “u” and enjoying soccer. If you ask any Canadian lawyer what they think of having to robe for court, chances are they will say some variation of “at least we don’t wear wigs!” referring to the fact that that lawyers in the UK are required in court to wear white powdered wigs (but only for criminal proceedings, as of 2007).
The robe and waistcoat have been worn in England since the publication of The Discourse on Robes and Apparel of 1625, and were meant to lend an air of solemnity to court proceedings, setting lawyers apart from the public and their clients. Tabs came a few years later, and are a reference to the Tablets of Law handed down to Moses and are supposed to serve as a reminder of a barrister’s obligation to the law.
Why is this tradition maintained? Freelance litigator Erin Cowling argues that robes are a “Courtroom equalizer”:
What I appreciate the most about my robe is that, as a woman, I feel like it helps level the playing field for me in the courtroom. Women are often judged on how we look and are dressed, and women lawyers in the courtroom are no exception. Judges judge us by appearance whether consciously or unconsciously - they are human. The robes act as a great equalizer. We all look equally ridiculous in them, whether we are hiding breasts or a pot belly underneath. When I am wearing the same Hogwarts outfit as counsel next to me, I know the judge is not judging me on my choice of dress.
Like school uniforms, robes place all lawyers on an equal, if equally uncomfortable, level.
The Takeaway: As with any tradition, and particularly Canadian tradition, change can be glacial and heavily resisted. The changes in Ontario robing practices, to limit robing to substantial argument before a judge and to allow accommodation for pregnancy, are practical and welcome. I suspect the tradition as a whole still has a long life ahead.