Breastfeeding as an access to justice issue?

Breastfeeding as an access to justice issue? It might not have seemed that way – until recently, that is.

Last month, controversy erupted with reports that a Provincial Court Judge in Nova Scotia had told a mother she could not breastfeed her baby in the courtroom. This mother was feeding her four-month-old baby while sitting in the public gallery waiting for court to open and her partner’s case to be called. (News stories about the incident can be found here and here.)

Prompted in part by this column, I’d like to offer some reasons why breastfeeding should be permitted in Canadian courtrooms, unless there is demonstrable disruption to the proceedings:

• The starting point has to be the open court principle – the presumption that members of the public are welcome in courtrooms and free to watch, discuss, and report on the proceedings that take place there, barring exceptional circumstances. This is also where the Guidelines for Media & Public Access to the Courts of Nova Scotia begin, quoting the Supreme Court of Canada’s decision in Edmonton Journal v Alberta (Attorney General) and setting out “the general rule in Canada … that trials are open to the public and may be reported in full.” Some members of the public will inevitably be mothers who are breastfeeding their children; they are presumptively welcome.

• The Guidelines go on to say that: “The presiding Judge, however, does have significant common law and statutory power to control Court proceedings to ensure a fair trial and to protect the integrity of the process.” Despite the “significant” nature of this power, however, it is unclear how breastfeeding in court could affect trial fairness or integrity.

• This leads to the second point, which is that the “power to control Court proceedings” should be informed by, and infused with, equity considerations. The Canadian Judicial Council’s Ethical Principles for Judges include a chapter on “Equality” that could provide guidance here. Also enlightening is the Nova Scotia Human Rights Commission’s Breastfeeding Policy, which provides that women have the right to breastfeed. This is a corollary of the right to protection from discrimination on the grounds of sex and / or family status.

• A courtroom should not necessarily or automatically be treated differently than other public spaces. Under the heading “Access to Services or Facilities” the Breastfeeding Policy states (at section 2.5.1): “Women have the right to breastfeed a child in public areas, including restaurants, retail stores and shopping centres, theatres and so forth. Women should not be prevented from nursing a child in a public area, nor asked to move to another area that is more ‘discreet.’”

• Even if a Breastfeeding Policy like Nova Scotia’s is not directly applicable, it could be extended by analogy. Of course, Charter rights are not necessarily being determined at a café or shopping mall, but it is difficult to see how the mere presence of a breastfeeding woman affects the in-court process in any detrimental way.

• Breastfeeding is not inherently disruptive. To return to the NS Courts’ Guidelines: “Spectators at a trial must act in such a way as not to disturb the Court process. Doors to the courtroom should be closed gently and completely if a trial is in progress. There should be silence in the courtroom, and after leaving, spectators should be careful not to start talking loudly in the hall outside.” The focus is on noise prevention. It is difficult to see how a quietly breastfeeding baby could interrupt proceedings.

• Likewise, breastfeeding does not harm “courtroom decorum.” Certainly it goes without saying that all justice system participants must respect the institution, each other, and the rights of the parties before the Court. Same with members of the public who are there to watch or members of the media there to report. Court is serious.

• But the fancy gowns worn and big words used in a courtroom do not change the fundamental presumption that it is, and will remain, a public space. And it is public so justice can not only be done, but can be seen to be done. Sometimes that will mean offering more freedom to women who have to feed their children at that time, in that place. In the meantime, we should be encouraging more members of the public to come to courtrooms, whether to support their family members or just to observe, not erecting roadblocks to access. The process should be demystified, not rarefied.

• Related: it is important to question the assumptions—and, perhaps, stereotypes— underlying restrictions on where breastfeeding is ‘permitted.’ These restrictions can reveal a misunderstanding and suspicion of women and their bodies, and may undermine women’s equal access to the courts. To state the obvious (but it needs to be said), it is not sexual when a woman exposes her breasts to feed her child. Furthermore, women should not be hidden away in private rooms or spaces to feed their babies, but should have the choice to do it publicly and openly if that is most convenient or desirable for them. To quote the NS Breastfeeding Policy again: “Women should not be prevented from nursing a child in a public area, nor asked to move to another area that is more ‘discreet.’” As in many areas of the law we should be thinking about the best interests of the child – and the dignity of the mother trying to feed that child.

• A breastfeeding baby is not the same as a lawyer eating a hamburger. The column mentioned above suggested that “eating and drinking of any kind are not tolerated in courtrooms. Never in my 30 years of practice have I ever seen a judge, clerk, lawyer or a witness break out so much as a candy bar.” However, babies cannot wait for food the same way most adults can. Sometimes they need to be fed at times that do not match the Court’s schedule. Courts should be able to accommodate that.

The situation that sparked this discussion involved a member of the public, attending court to support her partner. It did not involve a judge, lawyer, or witness who wanted to breastfeed in a courtroom. But what if it did? The above list of principles could inform that discussion as well.

Perhaps what happened to this mother in this Halifax courtroom could lead to positive change and increased access to justice in courtrooms across the country. A good starting place would be signs on courtroom doors stating that breastfeeding is welcome – the symbolism of explicit permission to breastfeed in court would do much to advance the cause of equitable access to the courts. After all, human rights don’t end at the courtroom door.