Are We Seeing a Positive Paradigm Shift in Our Justice System? Trauma-Informed Trial Guidelines for Ukraine International Airlines Flight 752

On January 8, 2020, Ukraine International Airlines Flight 752 from Tehran to Kyiv was shot down by the Islamic Revolutionary Guard Corps (IRGC) shortly after takeoff. All 176 occupants on board, including 167 passengers, were killed.   

The incident shocked people around the world, and none more so than the families and friends of the people who were on board.

Losing a loved one in a tragedy can leave a lasting imprint on a person's psyche and the resulting trauma is sometimes felt acutely within the body. When a tragedy is highly publicized, the potential to experience triggers that activate post-traumatic stress disorder symptoms is high. And, when the tragedy becomes the subject of a court case, participation in a trial can present a veritable minefield of these triggers.

As a personal injury lawyer, I have seen first-hand how people seeking justice for what has been done to them can be retraumatized during the legal process. Sadly, some of these people will decide to end their participation (or opt not to participate in the first place) as an act of self-preservation.   

Proponents of fair and equitable justice seek to remove these types of barriers or, at the very least, minimize the potential for re-traumatization as much as possible. The growth of trauma-informed lawyering is one important part of this equation. But beyond a client's interactions with their own legal representative, there are many other aspects of the justice system where unintentional collateral damage and harm can occur too.   

It is incredibly heartening to witness other participants in the justice system (including police, and judges) recognize their own ability to facilitate justice fairly while adapting processes to limit re-traumatization.   

In this blog post, I will discuss how, in my role as counsel for a number of plaintiffs in S. v. Ukraine International Airlines JSC, 2024 ONSC 3303, I worked on developing the trauma-informed guidelines that were used to manage this trial.

Sensitivity of the Subject Matter.

With great foresight, Justice J.T. Akbarali of the Superior Court of Justice recognized how the traumatic event at the centre of this trial could not only retraumatize the parties and observers who lost loved ones and witnesses to the events, but also potentially result in vicarious traumatization of others involved in the trial process, including counsel and counsel staff, court staff, other observers, and herself.   

For these reasons, at the trial management conference, Justice Akbarali asked counsel to consider the nature of the evidence, and orders or directions that could assist in minimizing the potential for re-traumatization or vicarious traumatization during the trial.   

Acknowledging that trauma-informed legal processes are not yet broadly understood or widely deployed, Justice Akbarali expressed hope that the processes followed in this case could help to inspire a "systemic shift to a trauma-informed legal system" that builds momentum one hearing at a time.

What Is and What Is Not a Trauma-Informed Process?

Justice Akbarali rightly explained that the process she envisioned for the trial was "not one that aims to heal the trauma that participants in the process have experienced. It is not about manners or kindness. It is about adapting our processes in a way that seeks to minimize 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."   

A trauma-informed approach should not be and was not relevant to the justice's determination of the merits of the trial. Rather, it operates as a way to "remove barriers to just outcomes, and enhance public respect for, and the legitimacy of, the administration of justice."   

My colleagues at Jellinek Ellis Gluckstein Lawyers who work on civil lawsuits involving sexual assault and sexual abuse survivors have written and spoken eloquently about how the intensely personal nature of these offences can lead to PTSD among survivors. In these cases, the impact of the trauma can be a barrier in itself that may prevent just outcomes by reducing the likelihood that a survivor will feel secure enough to come forward or provide evidence at trial.   

As Justice Akbarali explained, in the Ukraine Airlines case, "most of the evidence given focused on aviation security and safety assessments, and much of it was given by experts. Thus, the most important focus of a trauma-informed process in this trial was to minimize the potential that the trial itself could lead to re-traumatization, or vicarious traumatization."

Developing Trauma-Informed Trial Guidelines.

Prior to the trial, I worked with Eden Dales Social Work to create Trauma Informed Trial Guidelines which were reviewed by other plaintiff and defence counsel and then entered as a lettered exhibit at trial.

The guidelines included:

• Requiring participants in the process be given ample advance and immediate advance notice before any evidence expected to be traumatic was discussed. This enabled observers, and certain non-essential participants in the trial, to absent themselves if they wished.
• Information for claimants, counsel and court staff to guide self-care when preparing for the trial and when participating in the trial. Information included how to recognize trauma, how to cope with and process trauma during the trial process, and how to process trauma after the conclusion of the trial.

The Guidelines in Practice.

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

• One family member of a victim was able to offer evidence through an affidavit, and questioning of the family member was very limited 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."
• The trauma-informed guidelines were available to all those participating in the trial whether in-person or virtual.
• Counsel arranged to have trauma specialists available by phone during the trial to provide support to anyone experiencing trauma in both English and Farsi.
• Justice Akbarali reviewed with counsel where they were in the process to ensure that the observers to the trial knew what to expect next. She explained that not only was this helpful in terms of trial management, but it may have demystified the process for observers and empowered them with information.
• Justice Akbarali addressed family members and participants directly 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 a tragedy that had caused all of them immeasurable grief was underlying all evidence presented at trial.

A Work-In-Progress.

In assessing the effectiveness of the trauma-informed guidelines at trial, Justice Akbarali concluded: "I am sure there is room for improvement in the process we employed, but I am equally sure that employing the process we did was infinitely better, and more human, than conducting the trial on a business-as-usual basis."   

Trauma-informed justice can be transformative to the experience of participants within our legal system without transforming the fundamental nature of that system. As the justice noted, "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."   

Building on the work of path-breaking practitioners of trauma-informed lawyering, the guidelines I helped to establish for this trial offer one example of how courts tasked with evaluating traumatic events and evidence can create a more humane process. Best practices will likely take shape as participants in other trials assess and adopt or alter past guidelines.   

As legal practitioners and participants who see the value of using this type of lens in our legal system, we should work collaboratively with like-minded colleagues to educate others about the potential benefits of this process and share our experiences so that we may continue to refine it.   

To read the trauma-informed trial guidelines established for this trial, scroll to the appendices of the trial decision.