Lily Maya Wang
B.C.L./LL.B. III, Faculty of Law, McGill University
15 August 2019
Introduction
Does the shape of a courtroom matter? If a courtroom is shaped differently, will a different process take place inside it?
In “The Feel of Justice,” Howes and Classen argue that our perceptions of justice are shaped “through our experience of judicial settings.” The design of the courtroom plays a critical role in influencing our senses of sight, sound, smell, touch and movement. It follows, then, in an Indigenous courtroom, that sensory design will play a key role in the process of justice that takes place there.
The attention given to the senses in the design of the Tsuu T’ina Court shows how, if the justice system is going to make space for Indigenous legal practices, the creation of the right physical space is an integral part of that process.
1. Tsuu T’ina Peacemaking Court
Established in October 2000, the Tsuu T’ina First Nation Court is the first Aboriginal Court in Canada, with jurisdiction over criminal, youth, and bylaw offences committed on the Tsuu T’ina reserve. This court combines two separate systems – the Alberta Provincial Court and the Peacemaker process – into one in a unique way.
At its origin, the court was located on reserve. It was presided over by Judge L. S. Mandamin, an Ojibway Alberta Provincial Court judge. As Shelley Johnston writes,
Judge Mandamin fulfills the requirement of a judge who is a member of the First Nations Bar and bridges the Euro-Canadian legal system and First Nations communities. The court clerks were recruited from the community. Tsuu T’ina/Stoney Corrections Society provided the court worker and probation services. In addition, two Peacemakers, who were Elders, sat in court as community witnesses to the proceedings. The Peacemaker coordinator calls on Peacemakers from the community who hold the trust and respect of the community.
The circular courtroom uses the traditional symbols of the Tsuu T’ina Nation to echo the depth and breadth of its culture in the design. Karen Whonnock notes that, since the beaver is the totem of the Tsuu T’ina, the courtroom is shaped like a beaver den, housed within the band office which is shaped like a beaver lodge. The court uses smudging with sage or sweet grass and clerks wear embroidered eagle feathers.
The shape of the courtroom and its other sensory elements are an integral part of the process that takes place there. In his description of the court, Justice Mandamin writes:
Peacemaking circles work to resolve the conflict, heal the offender and the victim, and restore relationships. A peacemaking circle begins with a ceremony. It may be a traditional ceremony using sage or sweetgrass, a prayer, or just a simple statement that the circle is about to deal with an important matter. When a circle is held, each person speaks uninterrupted, while the others listen. The first time around the circle, people speak about what happened. The second time around, each person says how he or she was affected by what happened. The third time around, they speak about what should be done. In the fourth round of the circle, participants speak about what is agreed. Circles may take from two hours to two days, although most conclude within an afternoon.
Source: Canadian Museum of History
When designing the new Calgary Courts Centre’s Courtroom 1800, where the Tsuu T’ina court now sits, the architects took the Tsuu T’ina court’s experience into account. The creative design was born out of collaboration and consultation with First Nations and Métis communities, representatives from the Tsuu T’ina Peacemaker Centre, as well as elders from various communities. Incorporating Indigenous legal principles, the size and shape of Courtroom 1800 was intended to be “flexible enough to accommodate Aboriginal justice,” says architect Bill Chomik. The designers modelled the courtroom on a ceremonial teepee in a circular structure that allows the release of smoke from a smudging altar in the centre. Not only does the circular shape encourage healthy air circulation within the courtroom, it also allows all actors of the justice process, including judges, lawyers, victims, the accused, elders, families and their supporters, to sit in an open circle, to communicate face-to-face.
2. Aboriginal Courtroom vs. Conventional Western Courtroom
To what extent do Indigenous conceptions of law differ from Western conceptions? How would those differences need to be incorporated into the structure of a courtroom? One key distinction is the goal of the process. While a Western court proceeding may have as its goal truth-seeking and, ultimately, a certain conception of justice, the Indigenous processes may have other goals, like healing and restoring harmony.
For example, in Courtroom 1800’s circle, instead of having an impartial judge simply issue a verdict, participants can work towards consensus in their discussions and decision-making procedures. Moreover, participants – judges, prosecutors, judicial clerks and peacemakers – are predominantly Indigenous. Other Indigenous courts operating in Canada today include the Cree-speaking Court and Dene-speaking Court in Saskatchewan, the Gladue (Aboriginal Persons) Court in Ontario, and the First Nations Court in British Columbia. Each seeks, in its own way, to reflect the unique local Indigenous culture.
If the Calgary courtroom is designed to break down barriers between those who judge and those who are judged, in contrast, write Howes and Classen, a Western courtroom is designed to
convey a sense of solemnity and authority to inculcate feelings of respect in the people who view and enter it. In order to impress on society that the justice system is not something to be taken lightly, court buildings are usually designed to look massive and heavy. Employing stone as a building material conveys notions of the social weight of the edifice and the enduring nature of the principles upheld within. Tall pillars suggest both moral rectitude and the awe-inspiring forms of ancient temples. Ascending stairs imply the need for elevating one’s thoughts to a higher plane and submitting one’s will to a higher authority. All of these values are conveyed both visually and through the tactile/kinaesthetic experience of approaching and entering the building.
The conventional courtroom similarly shapes the experience of those who see and enter it. The abundance of wood suggests dignity and tradition. The benches and boxes convey a sense of order and separation of roles. Courtroom design further functions to control sight, sound, touch and movement.
The imposing atmosphere can, indeed, be quite stressful and intimidating for those who face the justice system. The wigs, robes, and business suits offer a further visual cue to the seriousness of the judicial proceedings.
The architecture of a courtroom can make a difference in other ways. For example, in an English study on the experience of witnesses, a witness named Julia recounted her experience in the courtroom: “It’s just very frightening, very daunting when you walk in and you see all the chairs and the benches and everything set out and then you see all these people with their wigs on and the gowns. It’s just very, very frightening.” An Australian study found that juries are more than twice as likely to convict a person seated inside a glass cage rather than behind a table. To the jury, the accused in the cage simply looks guilty.
3. Law, Senses and Spirituality
What can the attention to the senses in the design of the Tsuu T’ina court and Courtroom 1800 teach us about the sensations that Indigenous practices can evoke in legal actors? Perhaps, as legal actors get more exposure to the Indigenous legal sensorium, they will begin to gain a better understanding of the meaning of Indigenous law. One promising example of this is how the McGill Faculty of Law welcomes its first-year cohort with both smudging and drumming.
Indigenous law, and the spirituality that is inherent to it, are owed a larger role in the justice system. The United Nations Declaration on the Rights of Indigenous Peoples addresses the spiritual element of law for Indigenous peoples in several provisions. For instance, Article 34 states that
Indigenous peoples have the right to promote, develop and maintain their institutional structures and their distinctive customs, spirituality, traditions, procedures, practices and, in the cases where they exist, juridical systems or customs, in accordance with international human rights standards.
The Supreme Court case, Ktunaxa Nation v. British Columbia shows just how far the Canadian justice system has to go to understand Indigenous legal traditions.
Conclusion
While the jurisdiction of the Tsuu T’ina court has its limitations – at the end of the day, it is an Alberta provincial court, dealing with offenses under Canadian law – it is an important first step in addressing the ways in which the Canadian justice system has oppressed Indigenous people and suppressed Indigenous legal traditions. It is promising that the design showed such attentiveness to the sensory elements of law. After all, we will not be able to fully make sense(s) of the Indigenous Courtroom, nor can we truly understand its spirit until we experience it from within.
All links accessed August 13, 2019
Further Readings:
Special Courts at the Provincial Court of Alberta
Keywords: Courtroom design, Indigenous restorative justice, First Nations, peace and reconciliation, law and the senses, spirituality of the law.
You must be logged in to post a comment.