By Ian Mackenzie for Slaw
There’s a movement underway in the legal community to focus attention on the proper pronunciation of names in legal settings. There is a growing recognition that the proper pronunciation of names shows respect and is more inclusive. The minimal effort involved in promoting the proper pronunciation of names can result in a more welcoming and respectful hearing room.
In 2022, the Law Society of Ontario recommended the use of a professional name reader for the call to the bar ceremony for new lawyers. A motion opposing the recommendation because it represented “whacky wokeism” was defeated. In a letter to the LSO opposing the motion, the South Asian Bar Association (SABA) noted that some of their members found that the mispronunciation of their name can often evoke feelings of anger, awkwardness, and shame:
Many studies have shown how name mispronunciation can be considered a behavioural aggression, defined by researchers at Columbia University as brief and commonplace, daily verbal, behavioural or environmental indignities, whether intentional or unintentional that communicate hostile, derogatory, or negative racial slights and insults towards people of colour.
SABA stated that the use of professional name readers would ensure that licensing candidates would feel equally valued and represented during the call to the bar ceremony.
In the debate on the LSO motion, Bencher Cecil Lyon said that an expectation that names should be pronounced correctly was “wholly unrealistic”. He continued, ““People are going to mispronounce your names. If you want to take offence, that’s your business. That’s a decision you make.”
However, it is not the single incident of mispronunciation that is harmful, but the consistent or habitual mispronunciation coupled with a lack of willingness to learn the proper pronunciation that is the source of harm. Xian Zhao, a post-doctoral fellow at the University of Toronto with a research focus on ethnic name pronunciation, says that habitually pronouncing an unfamiliar name incorrectly is a form of implicit discrimination, sending a message that “you are not important in this environment, so why should I take time and my effort to learn it?”. Myles Durkee, a psychology professor at the University of Michigan has noted that what makes consistent mispronunciation detrimental “is the chronic pattern of doing this consistent mispronunciation. And the ripple effects from that are much more adverse, signalling to the individual that they’re less important, that they’re less valued.”
Mispronunciation of names is not limited to racialized communities, but it does have a significant impact on those communities. In a 2023 letter to the Federal Court and the Federal Court of Appeal, the Canadian Bar Association (CBA) noted that the mispronunciation of names remained a common occurrence in courtrooms across Canada. I suspect it is also a common occurrence in tribunal hearing rooms as well. In their letter, the CBA set out some of the consequences of systemic mispronunciation in the court room for both participants and lawyers:
When mispronunciation happens in court, it becomes a barrier to equal access to justice and reinforces harmful beliefs that marginalized communities are not seen as equal by the justice system. The cumulative effects of systemic racism and discrimination, when coupled with having one’s name mispronounced during a court proceeding, may take a heavy toll.
Mispronunciation of names in a courtroom results in difficulty engaging in focused thinking and engagement. The person questions whether they have equal standing before the court, whether to make a correction, and whether a judge is biased against them. It is a distraction and adds to the burden and stress of appearing in court. These consequences are magnified when the mispronunciation comes from a person in authority, such as a judge, and in front of lawyers and members of the public in the courtroom. The result is a message to racialized minorities that they are “others” in society and in the courtroom.
In contrast, having one’s name pronounced correctly fosters a culture of respect and a sense of belonging. Developing ways of treating names to better accommodate the diversity of Canada helps us move toward a more inclusive society, by setting an example within the justice system.
The British Columbia Branch of the CBA wrote a similar letter to the BC courts and the Circle of Chairs of BC Administrative Tribunals in February of this year. It expanded the focus to include Indigenous communities. It too noted that mispronunciation was common in courtrooms in the province.
Both CBA letters made suggestions for best practices. The BC Branch suggestions were directed at courts and tribunals but were largely identical with the suggestions made to the federal courts. The suggested best practices are simple:
- The court/tribunal should amend practice directions on the form of address for parties and lawyers to outline how they can advise the court/tribunal of the pronunciation of their name.
- The court/tribunal should update standard practices to include a request for pronunciation, using the phonetic or syllabic method, of all names when participants are introduced.
- When in doubt, the presiding officer should be encouraged to request a confirmation of pronunciation.
- Correct pronunciation for all parties and lawyers should also be verified by the court clerk prior to the hearing.
In response to the CBA letter in 2023, the Federal Court of Appeal did include a direction in its 2023 Consolidated Practice Direction:
46.1 The Court invites counsel and parties to provide information about the correct pronunciation of their names (phonetic or syllabic spelling), titles (Dr., Mrs., Mr., Ms., Miss, Mx., etc.) and pronouns (she, he, they, etc.) during the course of proceedings. This information should be included in the requisition for hearing and updated as necessary so as to allow the Registry to supply the information to the Court when preparing the counsel slip.
It is too soon to tell if there will be a similar response from the BC courts and administrative tribunals.
In my view, “inviting” counsel and parties to provide information about the correct pronunciation of their names, although a good first step, does not go far enough to address the harm of mispronunciation. It puts the burden on the participant in the proceeding to identify that their name is difficult to pronounce. In its letter, the BC Branch of the CBA stated:
- Introducing changes that apply to all participants helps reduce barriers and makes the justice system more inclusive. If Indigenous and racialized people are the vast majority of those confirming the pronunciation of their names, they are still singled out and the burden of ensuring proper pronunciation disproportionately falls on those who are marginalized.
- Asking everyone to communicate the pronunciation of their names is a simple way to avoid errors, treat everyone equally, and signal that it is important to avoid mispronunciation of all names.
The suggested best practices put forward by the CBA are good first steps in making hearing rooms more inclusive and welcoming to all participants. What is missing from the best practices, however, is a recognition that the community of adjudicators is, like the Canadian community, a diverse one. Tribunals, and adjudicators, need to ensure that the participants in a hearing know how to properly pronounce the name of the adjudicator. This may not have been the focus of the CBA in its letters, since the last name of a judge is rarely spoken in the courtroom. Tribunal hearings are less formal, and it is not uncommon for tribunal members to be referred to by their last name.
Getting names right is a small step in making hearing rooms more inclusive and welcoming to all participants. It is also consistent with an adjudicator’s ethical obligations. The Canadian Judicial Council’s Ethical Principles for Judges includes the principles that “Judges treat everyone with civility and respect in the performance of their judicial duties” (Principle 2C). In the commentary on this principle, the Ethical Principles document states:
2.C.1 A hallmark of judicial proceedings is that all participants, including judges, will conduct themselves in a manner that preserves the honour and dignity of both the individual proceedings and the administration of justice more generally. Judges should endeavor to treat all participants in the judicial process with civility and respect.
No one expects perfection in the pronunciation of names –but civility and respect require that an adjudicator try to get the pronunciation right. Tribunals can make that process easier by building steps in the process leading to a hearing that requires participants to provide a phonetic spelling of their name.