Trauma-Informed Sophistication
Rachel Wickham, JD Candidate at Toronto Metropolitan University
In Canadian case law, there is a positive correlation between legal sophistication and the frequency of police exposure (R v Le, 2019 SCC 34 (CanLII) at para 107 (Le)). A detainee’s sophistication, the legal concept of individual familiarity with the criminal justice system, indicates a greater likelihood of acquiescing to detention due to “learned helplessness” (Le at para 109). A generalized assumption of acquiescence will likely apply to detainees from racialized communities that experience disproportionate detention. Modern research on trauma shows that the assumed correlation between acquiescence and sophistication is underinformed and inappropriate since individual responses to stressful events like detention will be unpredictable. Much of Canada’s racialized population is vulnerable to historical trauma, making involuntary trauma responses to detention significantly more likely [1]. Trauma-informed sophistication analyses are critical to ensure that courts identify the appropriate finding of detention.
Sophistication In the Case Law
Detention refers to a suspension of the individual’s liberty interest by significant physical or psychological restraint (R v Grant, 2009 SCC 32 (CanLII) at para 44 (Grant)). The test for detention from Grant states that one is “detained” when a reasonable person, placed in the position of the accused and subject to police conduct, would conclude that their right to choose how to respond has been removed (Grant at para 44). The Grant test is an objective standard, meaning the subjective perspective of the accused is not heavily considered (Grant at para 50). Where there is no physical restraint or legal obligation, psychological detention is determined with non-exhaustive considerations of the circumstances giving rise to the encounter (as they would reasonably be perceived by the individual), the nature of police conduct, and the characteristics of the individual (Grant at para 44).
The extent of the detainee’s sophistication is one of the potential individual characteristic considerations. Historically, courts use the legal concept of “sophistication” to indicate a higher level of knowledge of one’s rights and the legal system, implying the detainee is more likely to understand that resistance to police cooperation is disadvantageous (Grant at para 171).
Le reinterprets sophistication to correlate more frequent police exposure with a greater likelihood of acquiescence to detention due to an experience of “learned helplessness”, a concept coined by psychologist Martin Seligman. (Le at para 109).
Le draws on Dr. Seligman’s theory to predict detainee conduct based on the frequency of police encounters (Le at para 109). The objective analysis for sophistication from Le is highly relevant for racialized detainees given the positive correlation between race and frequent police encounters in Canada (Greene, “It Stays with You for Life”: The Everyday Nature and Impact of Police Violence in Toronto’s Inner-City). A finding of detention may work advantageously for a detainee, as it opens up the bundle of rights associated with the Charter-protected right against arbitrary detention. However, Le’s application of Dr. Seligman’s research is narrow-sighted, and further research finds a broader range of likely responses to detention. This essay will expand on the case law’s interpretation of sophistication to incorporate physiology and social science research and argue that sophistication should instead be assessed on a subjective standard.
A Trauma-Informed Lens to Detention
Understanding Trauma
Mental health consultant Fiona Dunkley defines a traumatic event to mean witnessing or experiencing something that, based on their perception, robs someone of their sense of control, or disrupts their understanding of important life concepts [2]. When highly stressed, one’s prefrontal cortex becomes dormant and physiological responses are involuntary [3]. Traditional physiological responses include fight (feeling or behaving antagonistically), flight (an overwhelming desire to escape), freeze (being unable to act or unsure of how to proceed), and fawn (a combination of fight and freeze that often manifests as a desire to appease) [4]. In general, the human body’s default involuntary biological response begins with low arousal and escalates to extremely high arousal, known as fight or flight [5].
These responses are widely accepted as paradigmatic responses to trauma [6]. An individual’s response to trauma is particularized and highly informed by their life experience, as they learn to adopt reactions that are most effective for protection [7]. For example, if a child is not able to flee an abusive home, they may resort to engaging the fight response in threatening situations. This combination of informing factors speaks to the unpredictable nature of an individual’s unique automatic response. Responses are unique to every individual and unpredictable for every unique situation due to infinite contributing factors [8]. Every individual remains ignorant of their unique trauma response until the moment they present.
Trauma and Police Detention
Traumatic events are more common than we think. They include experiences that seem ordinary, such as slipping on ice, a romantic breakup or a non-violent police detention [9]. Detention can comprise psychological or physical detention, but its essence is feeling as though one does not have the freedom to choose a response. When the prefrontal cortex becomes dormant in response to stress, an individual is acting from their “emotional brain” making it challenging to engage in rational conversation or thinking [10]. Therefore, the assumption that increased encounters with police would illicit a reasonable or rational response of acquiescence when detained is generally not true. Even the less intensive psychological detention can be experienced as traumatizing. People are vulnerable to being triggered by a traumatic experience and act without reason contrary to their exposure to the police, contrary to Grant.
Fight, flight, freeze and fawn responses manifest in infinitely different ways. Take the example of being pulled over by a non-violent police officer. A detainee’s flight response may look like a refusal to stop and continuing to drive despite a request to pull over. A freeze response may look like the inability to answer questions accurately, truthfully or at all. A fight response may look like resisting instructions or initiating a fight. While appearing like a fight response, a fawn response may manifest as an aggressive attempt to convince the officer of innocence.
Racialized Canadians’ Predisposition to Trauma
Ideally, subjects of trauma can heal with resilience [11]. However, in cases of insidious, repeated, or racial trauma, many find it impossible to return to “normalcy” [12]. The effects of a traumatic event stay within the body beyond the present moment, as a resource of sorts, to prepare for future incidents [13]. For protection, a body that has difficulty recovering from trauma may automatically prepare for the worst when triggered by future stress and default to its trauma response [14]. Characteristics of triggering events will be particular to individuals, based on their life experience, making it impossible to know when a trauma response will be activated [15].
Social work professor and citizen of the Algonquin/Mohawk from the Six Nations of the Grand River Bonnie Freeman defines historical trauma to refer to the “compounded layers of pain, grief and loss” racialized Canadians experience, in confronting the society’s colonial heritage and residual commitments [16]. The effects that remain in the body are communicated culturally and compound with each generation [17]. In addition to this predisposition to historical trauma, racialized Canadians are more likely to experience unique individual trauma due to high vulnerability to exploitation, employment discrimination, poverty, and colour-coded health care [18]. These vulnerabilities to chronic stress are exacerbated for racialized Canadians with intersecting identities, such as newcomers or queer people [19].
Integrating the experiences of police violence emphasizes the importance of having a culturally competent consideration of trauma in courts (Greene). Both direct and vicarious experiences with police violence are highly traumatic for marginalized Canadians, causing hypervigilance and increased morbidity in affected communities (Greene). Race is one of the most predictable indicators of the frequency and nature of police encounters (Greene). Racialized populations are at a significantly higher risk of criminalization and encounters with lethal and violent police conduct (Greene). The heightened risk and common experiences of criminalization and police violence cause post-traumatic stress symptoms and hypervigilance in specific police-related circumstances, causing many Canadians’ fight or flight response to activate when there is even a possibility of encountering police (Greene). These intergenerational relationships between law enforcement and racialized communities trigger many other adverse responses, such as an unwillingness to report crime and cooperate, which has dire implications for public health (Desmond, Evidence of the Effect of Police Violence on Citizen Crime Reporting).
Courts and scholars, along with regular Canadians, acknowledge that racialized populations, especially Black and Indigenous, are disproportionately detained and criminalized due to racial profiling (Rudnicki, Implicit Bias and Racial Profiling: Why R V Dudhi's Novel 'Attitudinal Component' Imposes an Unjustifiable Burden on Complainants at 414). Racialized Canadians also overcome a disproportionate volume of historical and individual trauma throughout their lives compared to non-racialized Canadians [20]. The way courts draw conclusions about the likelihood of compliance and detention has direct and severe consequences for these groups. Independent of the phenomenon of police violence, non-violent examples of police detention can be stressful enough to trigger an involuntary trauma response, especially for those post-trauma. The compounded wounding of racialized Canadians from historical trauma causes a very common experience of being post-trauma for these populations [21]. A racialized social location is highly relevant context that informs how the most frequently detained Canadians are likely to respond.
Applying a Trauma-Informed Lens to Le
The sophistication analysis in Le largely imitates the analysis from R v Lavallee, 1990 SCR 852 (CanLII) (Lavallee). Lavallee applied Seligman’s concept of “learned helplessness” to the “battered woman defence” to explicate the phenomenon of trauma bonding between an abusive and non-abusive party that develops into a pattern of dependence, ultimately immobilizing victims from leaving the relationship (Lavallee).
Seligman developed his theory by observing an adaptive response of dogs to inescapable shocks (Seligman, Learned Helplessness at 408). Seligman’s research showed that in dogs, the effects of uncontrollable repeated trauma can result in a subconscious discouraging belief that trauma will continue regardless of their actions (Seligman at 408). This belief can result in passivity and a loss of the ability to voluntarily and effectively respond to stress (Seligman at 208). Involuntary immobility and hopelessness mimic the freezing trauma response and as discussed, is one of many possible responses to extreme stress [22]. Helplessness may also be a symptom of ongoing trauma that manifests in depression or other mental health challenges but does not eliminate the unpredictability of one’s response to a future traumatic event [23]. Response to trauma is a physiological response to protect the body from danger, which is why looking to varying animal responses can be appropriate to make inferences about humans, but it is often incomplete for considering complex human behaviours [24].
At no point does Seligman’s research of learned helplessness or trauma bonding infer that this phenomenon would surely or consistently present for humans. Rather, these were originally used as a justification for a victim’s lack of vigour in abusive relationships. The theory of learned helplessness explains an exceptional pattern of behaviours, but it does not serve as a predictive tool for the general population. Not every person subject to domestic abuse will experience the learned helplessness phenomenon. Trauma-informed research says that each instance of abuse or trauma can elicit a new response, and every person in an abusive relationship will respond differently and unpredictably according to their physiology and life experience [25].
Final Reflections and Recommendations
An assumed correlation between the frequency of police exposure and sophistication has the potential to increase findings of psychological detention in racialized populations. Any assumption that correlates race with behaviour can result in an unfair objective test. Because of Canada’s colonial roots and resulting historical trauma for the racialized population, implicit and subconscious biases against racialized people are expressed through daily police encounters and decision-making throughout the court system (Rudnicki at 414). These biases create a reality of racial profiling for racialized people’s interactions with police, creating a relationship between the frequency of police encounters and Blackness. While possibly unintentional, the close relationship may cause courts to make hasty conclusions of sophistication by virtue of race.
Involuntary responses to detention are extraordinarily diverse, unpredictable, and influenced by physiology and life experience. As such, generalizations about helplessness and passivity are not determinative and not trauma-informed. How one responds to detention depends entirely on one's subconscious perception of danger. Therefore, the only appropriate approach to a sophistication analysis would be subjective. An alternative subjective test that is sensitive to more appropriate factors, such as the detainee’s experience of the detention, could be capable of achieving the same Charter protections for detainees that the current sophistication analysis aims to employ.
The recommendation for a subjective sophistication analysis does not suggest a subjective test for determining detention as a whole. The limited scope of this research suggests that, in practice, the sophistication component asks for the subjective experience of the accused to be considered in conjunction with the other, non-exhaustive factors from Grant. Further research would be necessary to explore how this kind of evidence could be collected in a trauma-informed and practical manner.
Footnotes
[1] Peter A Levine & Ann Fredrick, Waking the Tiger: Healing Trauma, (Berkeley: North Atlantic Books, 1997) at 17 [Levine].
[2] Fiona Dunkley, Psychosocial Support for Humanitarian Aid Workers: A Roadmap of Trauma and Critical Incident Care, (New York: Routledge, 2018) at 14 [Dunkley].
[3] Ibid at 16.
[4] Ibid.
[5] Babette Rothschild, The Body Remembers: Revolutionizing Trauma Treatment, 2nd vol (New York: W. W. Norton & Company Ltd., 2017) at 40 and 44.
[6] Ibid.
[7] Ibid.
[8] Rothschild, supra note 4 at 31.
[9] Levine, supra note 1 at 24.
[10] Dunkley, supra note 2 at 16.
[11] Ibid at 14.
[12] Ibid.
[13] Levine, supra note 1 at 19.
[14] Dunkley, supra note 2 at 17.
[15] Levine, supra note 1 at 147.
[16] Bonnie Freeman, Soup Days and Decolonization: Indigenous Pathways to Anti-Oppressive Practice, 3rd ed (Halifax & Winnipeg: Fernwood Publishing, 2017) at 114 [Freeman].
[17] Ibid at 115.
[18] Ameil Joseph, Pathologizing Distress: The Colonial Master’s Tools and Mental Health Services for Newcomers/Immigrants, 3rd ed (Halifax & Winnipeg: Fernwood Publishing, 2017) at 238 and 239.
[19] Ibid at 240.
[20] Ibid at 238.
[21] Freeman, supra note 16 at originally 114.
[22] Levine, supra note 1 at 142.
[23] Ibid.
[24] Levine, supra note 1 at 17.
[25] Rothschild, supra note 6 at 31.