Photo: Supreme Court of Canada building from own website.
Ella Leishman-Cyr
July 15 2021
This paper will explore the Supreme Court of Canada by examining the building in which it is housed through a sensori-legal lens. It will also look at the Supreme Court Buildings of India, and South Africa in pursuit of insight about Canada. What do these buildings, their similarities, and their differences tell us about the constitutions of these three former British colonies? This paper will explore how the constitutions concerned are expressed in these Buildings, and beyond that, how the colonial history of Canada might be addressed and redressed architecturally.
Theoretical Groundwork
This paper looks at apex courts as a site of Constitution: the place where interpretation breathes life into them. All courts play a role in this magic, but the highest court of a country has the final say and responsibility. They decide how the laws, values, and culture of a nation – or indeed, nations – will come together as a Constitution. In Canada, the Supreme Court (the ‘SCC’) enjoys that authority and a “privileged status in the Canadian legal landscape”. Further, “[w]hile all administrative tribunals and courts of justice in Canada have jurisdiction to decide constitutional matters, the [SCC], sitting at the apex of the judicial hierarchy, is uniquely positioned to shape the development of constitutional law.”
Sensori-legal studies
Why look at the buildings and furnishings, rather than what the people inside are saying? The field of sensori-legal studies argues that justice and its trappings should be studied in more than the abstract. This is in recognition of the fact that as human agents interacting with the law and our world, we are feeling, sensing creatures rather than purely rational beings suspended in a vacuum. Instead of focussing solely on the language and ideas of law, the physical structures and manifestations of law and its actors need to be investigated if we are to see the full picture.
While all five senses are in some way involved in the justice system, in the west there is an emphasis on sight and sound. Howes and Classen explain,
“The senses of sight and hearing dominate Western perceptions of justice […] The performance of justice itself is often conceptualized as dependent on ‘seeing clearly’ and ‘hearing both sides’. The public acknowledgment of justice having been performed, in turn, is agreed to necessitate its audibility and visibility. ‘Not only must Justice be done, it must also be seen to be done,’ exclaims the modern aphorism.”
The figure of blind Lady Justice perfectly exemplifies the arguments of sensori-legal scholars. The connection between bias, or lack thereof, and blindness is implicitly understood in Canada: few would not appreciate the meaning of the phrase “justice is blind” as part of our cultural imaginary. However, this connection is indeed a cultural, imagined one, that does not resonate universally. In history and across cultures, Lady Justice is always depicted as blindfolded. The Romans found this notion unappealing, and Justitia’s eyes were wide open. Similarly, the associations of blindness in the Middle Ages were not to impartiality but to “lack of judgment and even sinfulness”; the blindfold did not appear until the Renaissance, and “coincided with the figure becoming a representation of human, rather than divine, justice, for the latter would presumably require no blindfold to be fair.”
Symbols of justice and law can therefore be understood as cultural constructions loaded with meaning. The messages they transmit to those sensing them are complex and operating on several levels. With sensori-legal theory, they can be interpreted beyond the surface meanings, and the “feeling” of law can be appreciated. This goes for not just symbolic depictions like Lady Justice, or her scales, but the embodiment of the system in physical things like buildings, decorations, and uniforms.
Sensori-legal courts
Courthouses are one such manifestation. Justice lives in these buildings, and they must look the part to tell that story. They serve as a message to the people who are governed by decisions made in them, and so are very deliberately crafted and perfected. Howes and Classen explain that “[c]ourt buildings must be visually prominent and appear accessible.” It is worth noting use of the word “appear” here – implying the courts were constructed more with the appearance of accessibility than actually being accessible. Considering the crisis in access to justice Canada is currently experiencing, art here is imitating life. Feelings are inspired in those who approach and enter courthouses “both visually and through the tactile/kinaesthetic experience” in order to convey values important to the system. “The conventional courtroom similarly shapes the experience of those who see and enter it.”
The process begins before entering the courthouse. While there can be tremendous variety in design, the more traditional structures are recognizably related to a certain archetype. In order to impress on society that the justice system is not something to be taken lightly” they are “designed to look massive and heavy.” The materials used to build and decorate the building play into this as well, with stone lending its solidity and enduring quality to the metaphor. Wood “suggests dignity and tradition”, and so is often used generously in the courtroom to panel the walls and create the benches and boxes that separate out the roles.
Separation and separateness are common themes in the Canadian courthouse. “Courtroom design further functions to control sight, sound, touch and movement. Security screening, the use of bulletproof materials, and, in some courtrooms, the bolting of furniture to the floor, are aimed to reduce the dangers of physical assault. A railing customarily prevents spectators from interacting with the actors in courtroom proceedings.” Less obviously, the overall feeling of the courthouse is intended to deny familiarity and comfort. Court buildings often boast tall pillars and high ceilings, in echo of “the awe-inspiring forms of ancient temples.” Tall, imposing staircases must be ascended to reach courtrooms and “imply the need for elevating one’s thoughts to a higher plane and submitting one’s will to a higher authority.” People are small within these buildings.
This is true even in the more modern courthouses. In these halls of justice,
“[t]he furnishings resemble those of the modern office, with blond wood often preferred over the sombre dark woods of the traditional courtroom. Such ‘no fuss’ courtrooms suggest a justice system that will operate in a brisk, business-like fashion unimpeded by antiquated rites or regulations.”
Here again, there is a clear message being delivered to those who enter this space. Legal systems rely on the trust and obedience of those governed by their laws and decisions. Those who come into conflict with the law and each other must be convinced to abide by the will of the courts, through one feeling or another.
The Courts
The Judicial Committee of the Privy Council has long heard appeals from diverse countries and territories. (In 2018, it still sits in appeal on cases deriving from 30 different jurisdictions.) In the 1930s, however, the saying went that a quarter of the planet was judged by the Judicial Committee. This included Canada, India, and South Africa. As the decades passed, that number dwindled as nations sought their independence from Mother England. Patriation of a Constitution and the founding of an apex court are crucial steps in that journey.
Supreme Court of Canada Building
Unlike the other two courts explored in this paper, the Supreme Court of Canada Building (the ‘SCC Building’) was built before the authority of the Privy Council was removed in 1949. It was designed by Ernest Cormier, a “renowned Montreal architect,” and construction took place between 1938 and 1940. The cornerstone was laid by Queen Elizabeth “in the presence of her husband, King George VI, on May 20, 1939”. The building boasts a “large landscaped forecourt”, set back from the street, with “balanced approach roads,” “formal planters and urns” and a “circular plaza with fountain at the rear of the building.” It is distinctive, with a “severe classical granite-clad base” and a “borrowed “chateau” roof”; “[t]he carefully proportioned, symmetrical design both inside and out is enhanced by the use of elegant materials to create a dignified sense of occasion and presence.
Nothing was left to chance or pure artistic inspiration when creating the SCC Building. An ongoing conversation about authority, history, and power takes place in Ottawa and the Supreme Court needed to say its piece. The roof, for instance, was a special request, added by the architect at the government’s bidding, to “maintain a vocabulary established by the original Parliament buildings.” It is a statement of what Canadian justice is and is meant to be. Outside the entrance are statues of Veritas and Justitia in Classical garb; inside is a bust of the artist, who was also the creator and architect of the war memorial at Vimy. The bust is inside the high-ceilinged Grand Entrance Hall, which is made of a pale marble and very balanced. It is joined by busts of former Chief Justices.
The SCC Building’s Grand Entrance Hall. Source.
The Main Courtroom, where the SCC sits, is in the centre of the main floor of the SCC Building. It has “black walnut walls between fluted pilasters. Six tall windows open to the naturally lighted interior courtyards, which also serve as buffers to protect from outside noise.” At the front of the room, separated and raised slightly, the Justices’ nine red leather chairs face the rest of the room. The carpeting and other chairs are also red. Above the Justices, on the far wall, is the Royal Coat of Arms. When they sit, it is in traditional black robes, with the iconic red-trimmed-in-white-fur garments saved for more formal occasions.
The Supreme Court of India Building
The Supreme Court of India came into being on the 28th January, 1950, two days after the Indian Constitution and three years after independence. The brevity of that delay signals the importance of this Court in the eyes and minds of fledgling India. The Supreme Court of India Building (the ‘SCI Building’), unlike the SCC Building, was built after the Indian Constitution was written. The Court moved into it in 1958. The importance of the Court is clear, so the building needed to reflect and honour it. Once again, the architect hailed from the country under the Court’s jurisdiction: Ganesh Bhikaji Deolalikar designed it in an “Indo-British architectural style”. The building thus borrowed from both the colonial past and Indian tradition. The foundation stone, however, was not laid by a British monarch, but by the first President of India Dr. Rajendra Prasad in 1954.
The Supreme Court of India Building. Source.
The SCI Building was designed to look like the scales of justice and has expanded as India and its justice system has grown and evolved. The middle section has the largest, central courtrooms while the wings contain smaller rooms and offices. This middle represents the Centre Beam of the Scales and is part of the original construction. The Chief Justice’s Court is the largest in the Central Wing and is used for the most complex cases, requiring the most judges. Interestingly, the Supreme Court of India sits with different numbers of justices from case to case as needed, with minimum quorum of 3. This is in deference to the fact that the original nine judges have grown to thirty-one; it would not be workable or efficient to have all thirty-one, or even a majority thereof, weigh in on a case. Five or more will meet when “required to do so or to settle a difference of opinion or controversy” in one of the fifteen courtrooms.
There are several touches to the building that are uniquely Indian. Outside, in front of the Central Beam, is the much loved Mother and Child statue. The Indian artist Shri Chintamoni Kar designed the airy, open metal piece, which is composed of two abstract female figures. The larger is Mother India, who is “sheltering the young Republic of India represented by the symbol of a child” in her arms. The Republic is holding a book with scales on the front, to symbolize the laws of the country and “dispensation of equal justice to all.” As well, the Supreme Court of India is represented by the Dharma Chakra logo. This symbol features three lions sitting below the Wheel, also known as the wheel of righteousness “encompassing truth, goodness and equity.” Written in Sanskrit are the words “yatodharmastato jayah” or “[t]ruth alone I uphold.” Clearly, a great deal of thought and effort was put into making this space an Indian one. However, remnants of the colonial past remain. For example, the Constitution provides that English is the official language of the courts. A state governor can authorize use of the state’s official language, but the default remains the language of the former colonial government.
The Constitutional Court of South Africa building
The Constitutional Court of South Africa Building (the ‘CCSA Building’) was built on the site of an infamous prison. The location has been renamed Constitution Hill, and sits on a border between a high-density lower-income area, a more affluent and “leafy” neighborhood, and a “bureaucratic” district. “The prison was closed in 1983, leaving a scar on Johannesburg’s metropolis – a bleak reminder of our painful past,” the CCSA explains. Gandhi, Albert Luthuli, and Nelson Mandela were all imprisoned in here, making it an internationally recognizable symbol of Apartheid. Rather than rejecting that history, South Africa decided to make it part of its rebirth: “the Constitutional Court’s judges deliberately chose the Old Fort – for the very reason of its history.”
The prison was torn down and the bricks used to build the inner chamber of the Constitutional Court of South Africa. The Constitutional Court was initially only the court of final jurisdiction on constitutional matters, but became the highest court on all matters in 2000. It was established several decades after the Indian and Canadian Courts, in 1994, and only moved into the CCSA Building in 2004. The building was designed and built with great care, as the first major post-apartheid government building. A symbol of the new regime, it was designed to embody the openness and transparency called for by the Constitution.
Rather than hiring a firm or architect, South Africa initiated a contest open to submissions from around the world. The international panel of judges selected a South African firm’s design, themed “justice under a tree.” This is a nod to the traditional site of justice in South Africa and is just the beginning of the unusual features of the Building. “In contrast to most courts, it is welcoming rather than forbidding, filled with sparkle and warmth. It has no marble cladding or wood panelling but has come to be admired for its graceful proportions. And the principal materials – timber, concrete, steel, glass and black slate – infuse the court with an African feel.” Outside the building, the name of the Court is written in large, colourful letters in each of the eleven official languages of South Africa. Unlike in Canada and to a lesser degree India, the power of the common law and Commonwealth are not the dominant source of authority here.
Foyer of the CCSA Building. Source.
The foyer of the CCSA Building features slanting columns, and dappled sunlight shines throughout, an architectural metaphor for the dispute-resolution trees. This and other features were intended to ensure that this Court would feel familiar to South Africans, especially from far-flung and rural areas. This desire for a feeling of closeness between the court and the people is also manifested in their commitment to accessibility: the Court established
“a media committee, the work of which was to assist journalists in gaining effective access to the work of the Court, its decisions and documents. We also agreed to prepare a media release to accompany all opinions, explaining, in lay terms, the gist of the decisions. We were also determined to have a user-friendly website.”
Other symbolic choices include an overall design “that was fragmented rather than monolithic and comprised a series of pavilions subtly linked by internal and perimeter pathways and public plazas.” Moving into the modern court room, the action takes place on a level playing field. The justices are not raised up on a stage, but make “comfortable eye contact with counsel — both for their benefit and to avoid the appearance of our being perceived to be remote from the people who visited court.” The justices’ chairs are covered by “hide from the hardy indigenous Nguni cows – each one is different, symbolising the different characteristics that each judge brings to the bench.”
The first justices of this court had a unique relationship with both the Building and their Constitution. They were key in the creation of both: “It was decided that [deciding] that the final constitution complied with the 34 constitutional principles] should be the task of the Constitutional Court. This was a huge responsibility and in effect meant the 11 unelected justices would have to determine the constitutionality of the constitution!” To commemorate this special bond, “[t]he roof’s concrete beams are inscribed with the words ‘human dignity, equality and freedom’ in samples of the handwriting of each of the judges incumbent during the building of the court.”
A view of the main courtroom in he CCSA Building. Source.
These touches were necessary because of the tensions and negotiations of rebuilding after Apartheid, as the white and black populations found a new balance. Other changes further distanced this new Constitutional Court from the colonial power of Apartheid: the titles of Milord and Milady were dropped, and old hierarchy was rejected. The seniority of judges appointed during Apartheid could not be recognized in this space, so the justices draw lots for seating and enter in that order. The power of the visual message is also respected in the robes the Justices wear:
“We did not wish to look like the existing judges who were identified by the majority of South Africans with the discredited Apartheid judicial system. South African judges had always worn black robes in the tradition we inherited from England. We decided that we would wear green gowns with the colours of our new flag on the sleeves of unisex robes.”
In other cases, evidence of the past was deliberately preserved. Four of the central stairwells from the prison were preserved. On one of them, “A luta continua”, Portuguese for ‘the struggle continues’, is written in red neon lights at the top of one of the stairwells.
Exploration
The preambles to the Constitutions of these three former colonies foreshadow the aesthetics of the courts in which they live. The 1867 Constitution Act centres and defers to the power and authority of the Crown of the United Kingdom. This paper draws its title from the definition of the Constitution it provides: “similar in Principle to that of the United Kingdom.” The 1949 Constitution of India is also of its time, and contains no overt references to the Crown. Instead, the new India is proudly identified as “a SOVEREIGN SOCIALIST SECULAR DEMOCRATIC REPUBLIC” and promises to secure justice, liberty, equality, and fraternity for its citizens. The “dignity of the individual and the unity and integrity of the Nation” are important here, not the interests of the British Empire. Half a century later, the 1996 South African Constitution’s preamble contains both references to the past and promises for the future. The people of South Africa “[r]ecognise the injustices of our past; [h]onour those who suffered for justice and freedom in our land; [r]espect those who have worked to build and develop our country; and [b]elieve that South Africa belongs to all who live in it, united in our diversity” within this document. They adopted the Constitution to improve lives, lay foundations, and “[h]eal the divisions of the past and establish a society based on democratic values, social justice and fundamental human rights.” Mostly in English, five other languages ask God to bless South Africa at the end of the preamble.
The Buildings-that-would-be are manifestations of the values presented in these preambles. The cornerstone in Canada, for instance, was laid by the Queen Mother; the foundation of the building was British colonial. Meanwhile in India, the first Prime Minister was given that privilege. At the time of design of the SCC Building, Canada was not interested in distancing itself from the Britishness expressed in the preamble so much as desirous of establishing a uniquely Canadian identity on its foundations. In India, the power and authority of the common law and former government are relied on in the English language of the Constitution and partial inspiration in the architecture of the SCI Building. The CCSA Building, on the other hand, makes reference to its painful colonial past in recognition of suffering and the need for healing; these desires are readily apparent in the memorials and South African cultural references of the CSSA Building.
‘Feeling’ of law
The SCC Building was clearly designed with a different feeling in mind than the Indian or South African Buildings. The Supreme Court describes it as follows:
“Situated just west of the Parliament Buildings on a bluff high above the Ottawa River, and set back from busy Wellington Street by an expanse of lawn, the building provides a dignified setting worthy of the country’s highest tribunal.”
Dignity and worthiness are thus the themes the Court is proud of embodying in this Building. As well, a display of wealth and power is being made in taking up so much real estate and leaving much of it empty, filled only with grass, thereby distancing the Court from its environs. Another opportunity to be above the viewer and thus the people was taken here, as it sits on top of the bluff. This building is strong enough to hold the weight of the years and tradition of the common law, and a fitting bearer for that authority. Standing before it is inspiring for this author, and likely others.
However, not all Canadians feel this symbol in a positive manner. Elaine Craig’s critique of the Canadian justice system’s handling of sexual assault identifies a number of arenas where the wrong values have been prioritized. Awe and fear walk hand in hand, and messages of authority that involve symbols of the Crown also tell the story of British Imperialism. These include in the Royal Coat of Arms and the presence of the Crown in criminal matters (and relevant civil matters) through its Attorney, and Regina as the complainant. Many racialized and minority groups are affected by these choices, but perhaps none more so than the overrepresented Indigenous Canadians:
“[t]he hierarchized spatial and aesthetic organization of the courtroom is compounded by the representations of imperialism and colonial power present in every criminal trial proceeding in Canada. […] Picture the aesthetic created each month in remote northern communities when the circuit court (composed of almost exclusively non-Indigenous lawyers and judges) flies in and plants a federal or territorial flag outside the building that will serve as courthouse for the day.”
Craig believes these “conspicuous articulations of colonialism are both undesirable and unnecessary” and advocates for a decolonization of Canadian courts. Steps would include removal of judicial portraiture “[u]ntil the composition of the judiciary in Canada is empirically reflective of the diversity of our citizenry, its gender composition, and the constitutional status of Indigenous peoples” and the aforementioned symbols of colonial power that contribute to “a non-inclusive courtroom aesthetic.”
The Court’s failure to uphold the rights and protect the lives of Indigenous peoples is noted by Poirier. “While the Court – and its judges – enjoy a very high degree of legitimacy and respect, observers have deplored the centralising and uniformizing impact of some of its case law, the ambivalence of its approach to certain collective rights, notably the rights of Indigenous peoples.” This failure is not an aberration in the Canadian landscape. Canada has an image problem, in that the vision it has of itself ignores, buries, and at times denies the reality of its own atrocities. Sherene Razack explains:
“In the Canadian context, the imperialist as saviour of Third World peoples is an important construct in nation building. Canadians define themselves as unimplicated in the genocide of Native peoples or the enslavement of African peoples, a position of innocence that is especially appealing because it enables Canadians to imagine themselves as distinct from Americans.”
Recently, this revisionist instinct was visible in the news based on comments made about Residential Schools. The leader of the federal Conservative Party, Erin O’Toole, was forced to walk back a claim that the residential school system, a tool of deliberate genocide, was initially created “to try and provide education.”
Would changing the “feeling” of law in the SCC Building be a step towards reconciliation? Before considering this question, it is important to problematize reconciliation itself. Reconciliation has become an important mission for politicians to align themselves with, but not all Indigenous peoples support it. Garneau criticizes what he calls the “reconciliatory gaze” as another imperialist weapon, rewriting history:
“The problem with the choice of the word “reconciliation” over “conciliation” is that it presses into our minds a false understanding of our past and constricts our collective sense of the future. The word suggests that there was a time of general conciliation between First Nations, Inuit, and Métis people and Canada, and that this peace was tragically disrupted by Indian residential schools and will be painfully restored through the current process of Re-conciliation.”
Further, he decries the “sanctioned performance” of Reconciliation as “foundationally distorted” due to its bases in Western religious ideology of forgiveness. It also emphasizes the individual over the communal, requires public displays by “victims but not perpetrators”, and degrades and corrupts with “cash-for-testimony” schemes. To Garneau, reconciliation is not the way forward but an “often humiliating theatre.”
Conclusion, or the New Beginning
An original stairwell preserved in the CCSA building. The text translates to “the struggle continues”. Source.
Sensori-legal studies describe how the aesthetic and architectural choices of a courthouse determine the “feeling” of law experienced by those who walk through its doors and enter its confines. The Supreme Court Buildings of Canada and India, and the Constitutional Court of South Africa Building, all communicate distinct messages through the feelings they inspire: awe, fear, dignity, separation, familiarity, dignity, respect for the law, respect for the people, authority. In the case of South Africa, the symbols deployed were carefully selected to memorialize and recognize the sins of the past, build a strong foundation for the future, and embody the Constitution’s message of conciliation and healing.
The choices India and South Africa have made in designing and outfitting their Courts offer interesting comparisons for Canada to examine. There is a movement in Canada to acknowledge the pain of our own victims of imperialism and colonialism, both historical and continuing, that calls out for changes to the feeling of justice in Canada. For this change to be meaningful, it must go beyond being skin deep and penetrate to the heart of our justice system; to do otherwise would merely paper over the horrors of our past. Making the necessary symbolic gestures would be to embrace performative reconciliation, rather than conciliation. The experience of the Constitutional Court of South Africa demonstrates that this is a crucial discourse not unique to white settler-Indigenous relations, but one that should seek to build bridges across many communities.
However, change at the apex of the structure is not sufficient. In South Africa, many of the visual and tactile elements of the former colonial power remain in the lower courts. For the radical vision of the CCSA Building to become reality in South Africa as well as Canada, change would need to occur at all levels of the justice system – a complete reorientation of aesthetics. This is important in the Canadian context because of the diffuse nature of constitutional review in this country, and the lower courts’ proximity to the people. The heart of the Constitution may live in Ottawa, but few Canadians move beyond their local courthouse.
The only way for justice to be seen to be done is to commit to change that is palpable to all of our senses. One such project has taken place already in Calgary, in the form of the Tsuu T’ina Court. This first Indigenous-settler collaborative court uses traditional symbols of the Tsuu T’ina Nation and was designed through collaboration with Indigenous communities, groups, and elders. The courtroom is circular, like a ceremonial teepee, so as to allow smoke from a smudging altar in the centre to be released; this shape also encourages “healthy air circulation within the courtroom.” This affects the sensory and emotional experiences of all visitors to the space, but particularly the Indigenous persons who will, like the South Africans under their pillar-trees, see their traditional justice reflected. The sights and sounds in this courtroom would be different, as “it allows all actors of the justice process […] to sit in an open circle, to communicate face-to-face.” The Tsuu T’ina Court thus demonstrates, as do the SCI and CCSA Buildings, the possibilities for growth and conciliation that become available when those oppressed and excluded by the system are recognized and empowered as equals.
Ella Leishman-Cyr
All weblinks accessed 15 June 2021.
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