Principle to practice: Gluckstein's Jordan Assaraf on developing trauma-informed trial guidelines

This article was provided by Gluckstein Lawyers

Experiencing or even learning about a traumatic event can leave an indelible mark on a person’s psyche.

How each of us processes this trauma can differ considerably, but decades of research suggests that for some individuals, the effects will become chronic. The debilitating symptoms associated with this injury may wax or wane over time, but potential triggers can aggravate them, and a person may even be at risk of re-traumatization.

When Ukraine International Airlines Flight 752 from Tehran to Kyiv was shot down by the Islamic Revolutionary Guard Corps (IRGC) shortly after take-off on Jan. 8, 2020, people around the world were shocked and horrified. But for the loved ones of the 176 occupants on board who lost their lives, this traumatic event was felt acutely and very personally.

Legal action was necessary to access compensation for the loved ones of passengers aboard; but there was a real risk that observing and participating in a trial could trigger symptoms of post-traumatic stress or retraumatize them. Moreover, there was a secondary risk that court staff could experience vicarious trauma by hearing and seeing certain evidence and testimony while facilitating justice.

Fortunately, the Justice of the Superior Court of Ontario who was assigned to this case is a leading proponent of shifting to a trauma-informed legal system. Recognizing the risk that people could be traumatized or retraumatized during the trial, Justice Jasmine T. Akbarali used the trial management conference for S. v. Ukraine International Airlines JSC, 2024 ONSC 3303 to flag her concerns and encourage counsel to agree upon trauma-informed trial guidelines.

In this article, I’ll explain the concept behind this initiative, how these guidelines were developed in principle, how they worked in practice during this high-profile trial, and why lawyers and judges participating in cases involving traumatic events should consider adopting these types of guidelines.

Trauma and the legal system

As a personal injury lawyer, I often first meet potential clients in the aftermath of a traumatic, life-altering event. Showing compassion, empathy, and being supportive to these clients is important, of course; but these are reactive responses to a traumatic event that has already occurred. How often do we as lawyers (or other participants in the justice system) proactively think about the potential that a person could be retraumatized as a matter works its way through the courts?

Thankfully, some people in our profession are posing this question, including Justice Akbarali, who asked during the pre-trial management conference for the Ukraine International Airlines case if there was potential that the evidence presented at trial could retraumatize court observers. With counsel answering in the affirmative, she directed us to develop guidelines that would mitigate this possibility.

Having previously received trauma-informed training from Eden Dales Social Work at my firm, I volunteered to lead efforts on behalf of all counsel to prepare these guidelines. After speaking with Eden about the nature of the case and the anticipated evidence to be heard, she educated us on the guiding principles of trauma-informed lawyering. In addition to providing numerous resources and stress-relieving strategies in the form of guides for trial participants, Eden acted as a valuable expert in assisting counsel in drafting the proposed guidelines for trial.

Trauma informed trial guidelines: In principle

Based on our consultations with Eden, counsel collectively agreed to recommend five measures to minimize and mitigate the risk of retraumatization and vicarious trauma. The measures included:

• counsel preparing witnesses and observers in advance when there was the potential of re-traumatizing and vicarious trauma;
• encouraging witnesses and court observers to review several trauma-informed care guides prepared by a trauma specialist;
• counsel announcing what would be covered in court each day, and announcing immediately before commencing an examination or presenting evidence that could cause an emotional response. This permitted observers to make an informed decision whether to attend court, and allowed observers time to prepare themselves or leave if necessary;
• reminding witnesses and observers that they can take a break at any time; and,
• having a trauma specialist available via phone for support during the trial.

Much of the guidance for court staff was geared to learning ways they could be supportive of observers who had experienced trauma. This included educating/informing observers of the trial process, empowering them to take notes of their questions and thoughts during the trial which could be discussed outside the courtroom, and communicating in ways that showed empathy, compassion, and a validation of their input.

Trauma-informed trial guidelines: In practice

In her written decision, Justice Akbarali noted a variety of examples of how the trauma-informed trial guidelines had been employed. For example:

• One family member of a victim was able to offer evidence through an affidavit, and questioning of that family member was very limited so as to minimize difficult oral evidence that was not really in dispute. This accommodation also “shielded observers from evidence that might have been traumatic to hear.”
• Justice Akbarali reviewed with counsel where they were in the process in order to ensure that trial observers knew what to expect next. Not only was this helpful for trial management; it may have also demystified the process for observers and empowered them with information.
• Justice Akbarali addressed family members and participants directly both at the beginning and conclusion of the trial, during which she acknowledged their loss and their suffering, reminded them to take breaks whenever needed, indicated they should not be embarrassed if they cried in the courtroom, and assured them that a tragedy that had caused all of them immeasurable grief was underlying all evidence presented at trial.

What is and what is not a trauma-informed process?

The process Justice Akbarali envisioned for the trial was not one that aimed “to heal the trauma that participants in the process have experienced.” Not only are court staff not trained to provide this kind of therapy, but it would detract from the court’s prime objective – to facilitate the administration of justice based on our legal principles. In other words, a trauma-informed process should not influence the justice’s determination of the merits of the trial.

Rather, Justice Akbarali suggested a trauma-informed process “is about adapting our processes in a way that seeks to minimise the trauma that the legal process itself can create, and it is about understanding how a person’s trauma might inform or affect their interactions with the legal system.” By removing barriers to just outcomes, a trauma-informed process has the potential “to enhance public respect for, and the legitimacy of, the administration of justice.” 

As she noted in her decision that “the issues between the parties remained hotly contested and counsel were all able to advocate effectively for their clients,” and the guidelines did not alter the adversarial nature of the trial (nor was that their intention). “Rather, they allowed the contested trial to unfold without causing unnecessary trauma to the trial participants and observers.”

The path forward

While trauma-informed legal processes are not yet broadly understood or widely deployed, Justice Akbarali’s leadership in this trial may inspire other members of our profession to consider employing these guidelines in future trials, or adapting them to suit the needs of a particular matter.

I encourage you to read the guidelines created for this trial (added as an appendix to the trial decision) and reflect on whether they may be appropriate for any of your own upcoming trials. A systemic shift to a trauma-informed legal system will build momentum one hearing at a time.