Judges pounding gavels in courtroom dramas, pictures of gavels illustrating news stories - you see them everywhere! But in Canada it’s “fake news” because our judges don’t use – and have never used - gavels.
This eNews attempts to unravel the gavel myth, its sources, and what we can do about it.
Gavels have never been used by Canadian judges - they control court proceedings with their voices and demeanour. Nor are they used by judges in Britain, the source of most of our legal traditions. If Wikipedia is correct, they’re not used by judges in any other Commonwealth or European Union countries either.
Where are they used? In American courts - although even there popular culture may exaggerate the frequency of judicial gavelling. In online discussion boards American lawyers report that although there may be gavels in courtrooms around the US, many judges rarely use them.
The reason American judges adopted gavels in the first place is not clear. The most likely explanation appears to be that they borrowed it from Freemasonry. George Washington and other revolutionary leaders were Masons who incorporated Masonic symbols in the new nation’s rites and symbols. Both the US Senate and Congress have official gavels, so perhaps it’s not surprising that the judicial branch of government adopted the gavel too.
While it’s easy to laugh about it, the gavel myth should not be dismissed as merely a pet peeve of persnickety judges and lawyers. In a 2009 column in the British newspaper The Guardian, Marcel Berlins pointed out the harm done by depictions of court procedure that give viewers inaccurate impressions of their own country’s legal system. His analysis applies to our country as well as his.
Canadians rarely get to see their own courts in action – most people can’t get to a courthouse to watch trials, and televising court proceedings is limited for reasons related to balancing public access with witness protection and trial fairness. So most people’s knowledge of what happens in our courts is based on media reports, television and movies. The problem is that Canadians see far more American legal dramas than Canadian ones, so their perceptions of court procedure are based on the American model – and it’s different from ours in some significant ways.
Canadian courts are generally conducted in a more respectful, dignified and formal way than what we see on television. Taken by itself, whether Canadians mistakenly believe their judges pound a gavel while shouting, “Order! Order in the Court!” may not be a big issue, but the serenity, patience and respect for others that we expect our judges to display is an important indication of the calm, impartial decision-making we demand from judges in the Canadian justice system.
So Canadian productions, media reports and advertising that provide realistic depictions of our court proceedings - without gavels - would serve an educational purpose. Misleading ones weaken public understanding of our courts and legal system.
What can be done about it?
In Britain, misused gavels have been brought to public attention by newspaper articles and columns – and not just in the legal news sections. The campaign to correct gavel misrepresentation there is robust enough that the Guardian printed a review in its tv and radio section panning a period drama for its wrongful gavel use.
English journalist Callum May launched ‘Inappropriate gavels’ as a Twitter account in 2014 and a blog in 2016. While the blog doesn’t currently contain much content, people continue to share examples of “erroneous gavellage in the media” on Twitter at @igavels.
In Canada, columnist Simon Chester has railed at the media’s gavel misuse in SLAW, “Canada’s Online Legal Magazine”. At one point SLAW even went so far as to invite readers to send examples of erroneous gavellage to ‘Gavel Busters’ so perpetrators could be shamed into corrective action by exposure, although there is currently no gavel busting activity on its website.
Perhaps the use of a gavel to symbolize judges and courts is so widespread there’s no point fighting it. The late Simon Fodden confessed that even though it was a pet peeve of his, he had resorted to using the gavel as a symbol for courts because he couldn’t come up with an alternative. Nevertheless, he encouraged readers who had not compromised themselves as he had to “go on a gavel hunt and hammer home the point that these are foreign objects whenever you see a transgression.”
Professor Fodden was right – even if we can’t stop mistaken use of gavels, when we see it we can point out that it’s not accurate. Individuals can do this through social media (including @BCProvCourt on Twitter). Members of the media can talk and write about it.
We can all take a stand for Canadian (legal) culture and spread the word – Canadian judges don’t use gavels!