The request would be funny if it weren’t so sad.
Last week, 10 citizens who couldn’t afford lawyers sent an open letter to Canada’s judges. “When you meet us, please do not assume that we are enjoying ourselves. We are not,” they wrote. “Please do not assume that we have chosen to represent ourselves because we believe we can be brilliant trial lawyers.
“The most important — and simple — reason that we are representing ourselves is that we cannot afford — or can no longer afford — the cost of legal services.”
Do the arbiters of justice in this country really need to be asked to treat litigants with basic decency? Do they really need to be told that lawyers have priced themselves out of reach of the average Canadian?
Regrettably, the answer is yes.
After being scolded, bullied and humiliated by judges for years, a handful of self-represented litigants, assisted by University of Windsor professor Julie Macfarlane, are finally speaking out. She sent the group’s three-page letter to Chief Justice of the Supreme Court Beverley McLachlin who chairs the Canadian Judicial Council, to the National Judicial Institute, to a number of supportive judges and to members of the media. She also posted it on Facebook, Twitter and other social media.
The signatories — from Toronto, Vancouver, Halifax, Edmonton and North Bay — represent thousands of Canadians. Two-thirds of those who appear in family court (three-quarters in Toronto) don’t have a lawyer. They either can’t afford the $350 to $400 hourly fees charged by family lawyers or they run out of money as the trial drags on. They’re not poor enough to qualify for legal aid.
The majority are middle-class parents over 40. Half have university degrees. They are responsible, competent people, but they haven’t been exposed to the arcane language and complex procedural requirements of the courts.
The number of self-represented litigants has ballooned in the last decade. Policy-makers, judges, lawyers and court officials all knew it was happening, but it took Macfarlane and her team of researchers to find out why and show how it changed the justice system. They interviewed 283 individuals who had gone to court without legal counsel, documenting their experiences and feelings.
One single mother told the research team: “I can’t feed my children — and the judge is telling me to hire a lawyer.” A humiliated father recounted: “The judge blasted me. He sent me out of the court and told me not to come back until I had a lawyer.” One bitter litigant asked her interviewer to deliver this message to the judiciary: “Don’t assume we are stupid just because we have not gone to law school.”
With striking consistency they described appearing before a judge as “the worst experience of my life.” Some said they would never enter a court again.
“I was really horrified — perhaps I was naive — by the social, emotional and psychological consequences,” Macfarlane said after releasing her report.
Judges weren’t solely to blame. Court officials were rude and short-tempered. Provincial officials drafted incomprehensible pretrial forms. Lawyers left clients high and dry when their money ran out. Self-represented litigants encountered barriers at every turn.
For the past year, Macfarlane has walked a fine line between full-blown advocacy and dispassionate academic research. She has recommended practical, cost-effective remedies for the shortcomings she highlighted. She has put her findings in the hands of key decision makers. She has reached out to the media to amplify the messages in her report. And she has organized self-represented clients to take a stand. Last week’s open letter to the judiciary was part of that campaign.
The tone was polite but forthright. “We write this letter not to lay blame, but to try to explain the widespread experience of self-represented litigants in our legal system,” they said. “The cost of legal services has forced us to become our own advocates. Given the complexity of the system that we are learning from the ground up, it is not surprising that we fail.
“Of course our presence makes your job harder,” they acknowledged. “We understand that you exercise judicial discretion. We need your clear and respectful explanations and your fair discretion to avoid turning the courtroom into a playground for experts.”
Their request is reasonable. Self-representation is not an act of bravado. It is a desperate, exhausting, stressful choice.
That is the new reality of Canada’s courts.