Top Court Tales: The self-representation problemWritten by Philip Slayton Issue Date: January 2008
If you click on the button marked “self-represented litigant who wants to apply for leave to appeal,” you are offered extensive and helpful questions and answers, forms to fill in, checklists, etc. — plus another warning to consult a lawyer: “It is a good idea that you get a lawyer as the procedure is complicated. . . . Even if you end up representing yourself, you should talk to a lawyer about your case.” If you click on “self-represented litigant who has been named as a respondent on an application for leave to appeal,” you get the mirror image of the information and advice offered those seeking leave, including the warning to consult a lawyer.
Of course, a person’s right to represent himself goes beyond merely seeking leave to appeal or responding to somebody else’s application. Should leave be granted, you are free to argue your case in person, although the Supreme Court web site doesn’t make this entirely clear. If you represent yourself in seeking leave to appeal, are you less likely to get leave than if a lawyer does the job? The published Supreme Court statistics are silent on this point, although they do tell us that, in most years, only between about 10 to 15 per cent of leave applications are successful.
Self-representation is not an occasional thing. The Ontario Ministry of the Attorney General reports, for example, that on average 46 per cent of litigants were unrepresented litigants in Ontario family courts between 1998 and 2003.
There’s a lot of angst surrounding the issue. For a start, judges don’t like parties representing themselves because it makes their job much more difficult. When I was a law clerk at the Supreme Court of Canada many years ago, I worked for Justice Wilfred Judson, a patient and polite man. The only time I ever saw him lose his temper was when a husband representing himself in matrimonial proceedings gave a detailed account of what he and his estranged wife used to have for breakfast. “I don’t give a damn what you had for breakfast,” said Judson. “Get on with it!” You’re not likely to get a proficient and economical legal argument from a layperson who is emotionally involved in the case. Someone making a mess of his argument puts the judge on the spot.
In a speech at the 2006 Canadian Bar Association annual conference, Chief Justice Beverley McLachlin said the growing trend of self-representation was putting great strain on the judicial system. The chief justice said of litigants representing themselves, “The judge is faced with telling them what the law is, telling them what procedures are available to them, and try to help that person while remaining an impartial arbiter.” Some months later, in her important May 2007 speech to the Empire Club of Toronto, the chief justice said, “Our courtrooms today are filled with litigants who are not represented by counsel, trying to navigate the sometimes complex demands of law and procedure.” (McLachlin’s Empire Club speech, available on the Supreme Court’s web site, www.scc-csc.gc.ca/aboutcourt/judges/speeches/Challenges_e.asp, should be read by every Canadian.) To ask a judge to preside over such proceedings does nothing for the integrity and efficiency of the legal system.
Nor are practising lawyers fans of self-representation. That’s not because self-representation deprives lawyers of work; litigants appearing in person generally do so because they can’t afford to hire anybody. Practising lawyers don’t like self-representation because it’s difficult to engage with someone who doesn’t know the law and doesn’t know how cases are prepared and argued.
Finally, from a public-policy point of view, self-representation doesn’t seem like a good idea at all. The burden on the court system is already huge. Delays are inordinate. Throwing open the courtroom doors to the uninformed and inexperienced is not going to help. Clogging the court with amateurs is costly.
And so, what are those self-representation buttons doing on the Supreme Court of Canada’s web site? Part of it, presumably, is making the best of a bad job, a practical attempt to bring some order into chaos. If litigants are going to show up in person and plead their own case, they should be helped to do it as well as possible — at least the forms should be filled in properly. Part of it, I suppose, is a reluctant recognition of a person’s fundamental right, inefficiency be damned, to represent themselves in the courtroom.
The self-representation issue, surrounded by anxiety and apprehension, is an expression of the legal system’s biggest problem. How do citizens of Canada get access to justice? McLachlin told the Empire Club, “Unfortunately, many Canadian men and women find themselves unable, mainly for financial reasons, to access the Canadian justice system. Some of them decide to become their own lawyers. . . . Others simply give up.”
Later in that same speech, the chief justice described the plight of the average middle-class Canadian faced with litigation: “Their options are grim: use up the family assets . . . become their own lawyer; or give up.” Must the words “give up” be inscribed on every courthouse portal in the land?
Various solutions have been suggested. Some say that lawyers should voluntarily lower their fees; this is not likely to happen unless market conditions dictate, and there is no sign of that. It has been suggested that the GST on legal services should be removed, but removal of a six-per-cent tax will have no discernible effect on the problem. The answer, I think, is a comprehensive national legal insurance plan, but expect violent opposition and many years to work out the complex details. Failing that, give up.