An Open Letter to the Canadian Judiciary: a First Step towards a Dialogue between Reasonable People?

An Open Letter to the Canadian Judiciary: a First Step towards a Dialogue between Reasonable People?

An Open Letter to the Canadian Judiciary: a First Step towards a Dialogue between Reasonable People?

One of the projects we have been working on at NSRLP for this month’s Action Step focus – Judges and SRLs – is an “Open Letter”, written by a group of self-represented litigants, addressed to the Canadian Judiciary.

The “Open Letter” – which is reproduced below – is the result of discussions and debate between myself and a group of ten SRLs whom I approached earlier this summer and asked “If you had their ear, what would you say to the Canadian judiciary to help them to better understand and relate to SRLs?”

The result is a pointed, concrete, insightful and pithy set of insights aimed at increasing the awareness and understanding of judges who deal on a daily basis with people without counsel in their courtrooms.

The Open Letter sets out some important misconceptions that need to be challenged – beginning with, we are not here because we thought this would be fun. In fact, self-representation is extremely stressful and difficult – for most, a final recourse not a preferred choice – and made harder still by a pervasive sense that SRLs are often not listened to or taken seriously by the judges before whom they must appear.

Building on our proposal for a “meeting point” between “reasonable people” (https://representingyourselfcanada.com/2014/09/04/judges-and-srls-moving-the-conversation-out-of-the-courtroom-and-into-a-meeting-place-for-reasonable-people) we hope that the Open Letter can be a first step in a dialogue between judges – who are trying to adjust to the biggest change in their job description in the last 150 years – and SRLs – who consistently complain of poor and unfair treatment in the courtroom.

Surely, we are asking, we can all do better than this?

Later this month we are hoping to publish the results of a second project, in which NSRLP is facilitating discussions among a small working group of judges from across Canada. These judges are concerned about how they can effectively respond to the SRL phenomenon, and are sharing their practice – new and evolving – to integrate SRLs into their courtrooms and enable access to justice for the unrepresented.

We invite you to add a comment to this blog to get the conversation started.

 

AN OPEN LETTER TO THE CANADIAN JUDICIARY

FROM SELF-REPRESENTED LITIGANTS

We are a cross-section of individuals who have represented themselves in court over the past several years. We have different stories to tell – some of us have been family SRLs and others have been civil litigants – but our experiences are very similar in many critical respects.

One common understanding of our own experiences in interacting with the judges in our cases is that many judges regard us as annoying obstacles unworthy of compassion and understanding. Although some of us have experienced welcome assistance and empathetic treatment from a particular judge, in large measure we have found our interactions with members of the Bench to be negative, and sometimes downright distressing.

This Open Letter is written to our Canadian judges to present to you three, widely shared aspects of our experience that you have within your power to change, in your courtroom.

We are not naïve enough to imagine that any one part of the legal system can “fix” all the problems associated with the high costs of legal services and the rising number of self-represented litigants. But we do believe that as judges you can make a difference, and to this end appeal to you to consider our three requests.

  1. When you meet us, please do not assume that we are enjoying ourselves – we are not. Please do not assume that we have chosen to represent ourselves because we believe that 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. This makes self-representation a necessity, not a whim or an adventure. If we could afford to pay for competent and effective legal representation by someone who was competent to assist us – believe us, we would do so.

By the time you meet some of us we have become battle-weary in the litigation game. We may react irritably to the constant suggestion that we should go and hire a lawyer since we do not have the means to retain counsel. This may be desirable, but it is entirely unrealistic. To make matters worse, many lawyers are leery of taking on the unknowns of a formerly self-represented case, and few offer unbundled or hourly assistance.

We are here because all other choices have been removed. Self-representation is a poor choice – it is incredibly exhausting, stressful and difficult. Over the course of months or even years the cost of legal services has forced us to become our own advocates – and now, for better or for worse, we are the experts on our case to whom you must relate. Please, be mindful of this reality when you talk to us.

  1. Treat us with respect, talk to us like fellow citizens

SRLs learn in a few short months to become their own lawyers. This is a difficult and stressful crash-course education. Most SRLs work very hard to “get it right” for you. Given the complexity of the system that we are learning from the ground up, it is not surprising that we sometimes fail.

More than half the family litigants, and more than a quarter of civil litigants that appear before you are without counsel. This is the new reality of the courts in Canada. Your commitment to communicate clearly with us, avoiding excessive legalese, and taking the time to explain complex legal terms and procedure will help us to participate meaningfully and productively. Please do not talk “past” us or “over” us – for example to counsel for the other side or to duty counsel. We are not children, but fully enfranchised participants, but we don’t always have the tools we need to take advantage of this.

SRLs are already at a disadvantage – and while we understand that the judiciary cannot fully redress that imbalance you can take steps to avoid making it worse. We may not be legally trained but we are intelligent people – please treat us as peers and allow us to learn.

Think of us as visitors from another land with very different cultural traditions, who have just been swept up on your shores – and show us the courtesy of an open-minded welcome.

We also need to see that the rules that we strive to master – including how to comply with procedural requirements and how to present evidence – are applied to everyone in your courtroom in the same way. We understand that you exercise judicial discretion, but are concerned when we see this being exercised in a way that is prejudicial to SRLs.

We need your clear and respectful explanations and your fair exercise of discretion to avoid turning the courtroom into a playground for experts where amateurs are eaten alive – giving the impression that justice is a commodity that is bought and sold, rather than a universal good belonging to us all.

  1. Recognize that we are probably not at our “best” when we are invested in self-representation

Another way in which SRLs are disadvantaged is that we often appear before you in a state of emotional distress. Often a great deal – for example future relationships with our children, significant monetary compensation – is riding on our appearance, and we are concerned about whether our performance will provide us with justice.

Inevitably we have a strong emotional investment in our case. That investment – and our determination to succeed – is often deepened by the obstacles we face in representing ourselves and navigating the legal system. We believe that if you were in our shoes, speaking to your own matter, you would probably feel the same way, even as an expert in the system. Bearing both the burden of justice and of advocacy for something intensely personal was probably not anticipated by our systems of justice – but it is the present-day reality for many of us.

Of course, our presence makes your job harder. But if you could accept and acknowledge our reality – in your demeanor, in how you speak to us, in how you encourage our participation, and in the time you take to offer some procedural explanations – it would help a great deal. Taking this approach from the Bench would enable us to feel calmer, and probably more functional in the courtroom.

If as part of the matter that you are trying you are assessing our character – as a parent, as a spouse, as a creditor, as a former employee – please recognize that you are not seeing us at our best. It is hard to present one’s very best self in what feels like a hostile environment in which we need to retain mental alertness, fend off challenges, and demonstrate the integrity of our character. You may enhance your courtroom climate, put us a little more at ease, and get better results by not assuming the worst about us.

In conclusion: As SRLs, we believe that we should expect to be treated with respect, listened to, and included as much as possible in the hearings in which we must represent ourselves. Sadly, too many of us have had too many experiences in which we did not receive this type of basic courtesy or enjoy what felt like “due process”.

We write this letter not to lay blame, but to try to explain the widespread experience of SRLs in our legal system and to solicit your support in bringing about small, meaningful changes in the climate of the courtroom to make it a friendlier and more inclusive arena for some of life’s most challenging contests.

Making us feel like we belong and as welcome as any other of the professionals in the system would go a long way to helping us see that the system belongs to us, serves us and includes us. We are ready to take your input – SRLs are always learning! – regarding what we can do to ease the difficulty of a situation in which lay people rather than lawyers are regularly before you. Our goal here is for a productive dialogue, between reasonable people.

Some of us who have ongoing matters did not feel comfortable putting our names to this letter. The remainder of us are, respectfully:

Desmond Collins, North Bay                                  Wanda Cummings, Halifax

Andrew McGinn, Toronto                                         Gillian Leigh, Halifax

Jennifer Muller, Vancouver                                      Tim Summers, Edmonton

 

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Comments (18)

  • Hilary Linton

    This is a very thoughtful open letter and I hope everyone “in the system” reads it.

    The demands on court staff, judges, lawyers and mediators are growing, not only because family law has become so complicated, but also because — as this open letter evidences– there are many more unrepresented parties who have greater needs than represented parties. This challenges us all to do better. And just like the SRLs, no one in the system is always at their best. It is a very stressful time for everyone.

    I hope we all will have more empathy for everyone: for the SRLs of course, who are very vulnerable as this letter notes; and also for their spouses who may not feel capable of self representing and who must pay a lawyer. Litigating with an SRL can often feel unfair to the party paying the lawyer. I hope for more empathy for the judges who are in most cases going above and beyond to try to help. The adversarial court system is not designed for the numbers of SRLs that we have, and a great deal of judicial, lawyer and SRL education is badly needed to come up with a more coherent understanding of the challenges and potential solutions we are all grappling with.

    We are lucky as family mediation service providers to offer unrepresented parties a free or highly subsidized opportunity to negotiate in a process that is balanced, non-judging, respectful and supportive. Legal Aid Ontario now funds certificates for mediation and for negotiated agreements; and the Ontario government provides Family Court Support Workers to further support vulnerable parties who are often not represented by counsel. Each court has an Information & Referral Coordinator whose role includes supporting SRLs as they navigate the system. There are some terrific resources in Ontario.

    We find that most unrepresented parties have very positive experiences in mediation, particularly now with the enhanced LAO support, and also with more of our mediators speaking different languages and with both legal and mental health backgrounds. It is so much easier for mediators to understand and address the stresses facing SRLs; it is our job to be non-judging and supportive of the needs of each party. Judges are– in fairness– hired to judge. As this open letter explains, SRLs are not always at their best in court. In a “judging” system, that is definitely a disadvantage.

    I hope that more SRLs will take advantage of the deeply subsidized family mediation services— including FREE same day onsite mediation in all Ontario family courts. It is far better designed to meet the needs of SRLs. And remember– under the Family Law Rules you can ask the judge to order the parties to a free and confidential intake meeting with a highly skilled and qualified mediator, and possibly qualify for legal advice through duty counsel, advice counsel or the new LAO legal advice certificates. More SRLs should be asking for this remedy.

    September 17, 2014 at 7:59 pm
  • Jennifer Shepherd

    Thank you so much to the authors of the Open Letter and to Jennifer Muller who I just heard being interviewed on CBC. Jennifer, I could relate to every single thing you said in your interview. I have been forced to represent myself in provincial family court for many years, and the experience has been extremely stressful and time-consuming. I would describe it as horrendous.

    I have found little consistency between judges – some seem kind, patient, and respectful; others can be impatient, sarcastic, and even contemptuous. I have found they use their discretion so often I can no longer rely on things I thought were givens such as one judge enforcing another judge’s order, or time-limits being enforced.

    I believe that your letter will be helpful in raising awareness about this issue and perhaps prompting some change. However, the problem is the entire system – it is convoluted, intimidating, and archaic. Is it truly supposed to be accessible to anyone? because it certainly is not. Access to justice currently can be found only by people who have lawyers; and possibly by others with sufficient intelligence, time, work/parental flexibility, motivation, and facility with English (which I would estimate to be about 10% of us at best).

    Women, mothers, and the poor (and most single mothers are poor) are being disproportionately oppressed by the barriers in this system. We have a child poverty problem in BC – I wonder if it would be as bad if courts were more accessible to the mothers of these children.

    September 19, 2014 at 5:18 am
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  • bcaptijn

    Thank you to the brave writers of this Open Letter to the Canadian Judicuary. You raise so many important concerns. It seems at every turn consumers are being told to “get legal advice” to solve everyday legal problems. But who can afford $400 – $750 per hour for legal representation? No one chooses to be self-represented: it is too often a financial necessity…..
    For self-represented this is nightmare, takes weeks of time off work, and brings financial hardship and overwhelming stress to entire families and sometimes whole communities.
    Access to a courtroom is not access to justice. The “winners” in these cases are the deep-pocketed, the most skilled in cross-examination and legal procedures. This unlevel playing field is in need of urgent reform.

    September 22, 2014 at 6:15 pm
  • Omar Ha-Redeye

    Be assured that there are many of us within the legal system who are also working very hard to transform the way that our legal system works. We are your best allies in accomplishing this goal.

    September 22, 2014 at 9:46 pm
  • StopApartheid Israel (@NadineLumley)

    It’s not a justice system…

    it’s just a system…

    and quite the money making one at that.

    .

    September 23, 2014 at 6:39 pm
  • Self Represented Litigant SURVIVOR

    My heartfelt personal appreciation for being my voice….
    My heartfelt societal appreciation for being the voice of many.

    Over the course of our many conversations, you have been a compassionate intellectual listening ear, a voice of reason and most importantly — a pillar of hope. While I begin my journey to heal from the trauma of this process, I reflect gratefully upon your work.

    Reading this article brought me to tears and reminded me of the fragility I hold deep within having had the experience of self representation.
    Reading this article also brought me to joy and reminded me of the survivalist strength I bestow and that I am being heard. Many are being heard.

    Thank you for giving me the gift of being heard.

    September 24, 2014 at 1:11 am
  • Denis Rancourt

    I applaud this effort, but in my recent article I suggest that getting judges to behave in court might not be enough…:
    http://dissidentvoice.org/2014/09/rogue-courts-in-canada-trample-self-represented-litigants/
    “There is indeed a crisis, and it is of the legal establishment’s making. It is a crisis of systemic barriers and judicial partiality against ordinary citizens who cannot afford brand-name “justice”.”

    September 30, 2014 at 1:52 pm
  • Denis Rancourt

    In my recent article, I suggest that getting judges to behave in court will not be enough:
    http://dissidentvoice.org/2014/09/rogue-courts-in-canada-trample-self-represented-litigants/
    “There is indeed a crisis, and it is of the legal establishment’s making. It is a crisis of systemic barriers and judicial partiality against ordinary citizens who cannot afford brand-name “justice”.”

    September 30, 2014 at 1:56 pm
  • Tibor Moscowitz

    What is really the worst in the present judicial system that there is practically no protection for the clients from lawyers who are in the race for billable ours, sometimes it is like taking a ride in taxi without a final destination and with them meter running. The judicial system is more concerned with costs when with dispensing justice. The costs orders could be in many cases brutal. Those costs are on the top of the the fees payable to the own lawyer. The system is broken and there is no will to reform. So far….

    October 3, 2014 at 1:56 am
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  • sandra olson

    I am also such a survivor. in my case, I can tell you, I was treated with contempt and disdain by the opposing counsel. duties to release expert evidence was ignored by both judges and lawyers. the rules were not followed by the opposing counsel or judges, and I was told I had to follow these rules. I was not given the opportunity to examine the witnesses or the evidence even though I demanded this. I set up a time to do so, while I was waiting for their arrival, their counsel was in court in a different district having the case dismissed without my being there. FAIR???? how about even honest. THIS IS NOT A JUDICIAL SYSTEM it is a corrupt system bent on getting rid of anyone who would dare to try to exercise their rights without a lawyer. it seems that rights only exist if you have an unending supply of money. and the very legal concept of what is “reasonable” is still very much up for debate within the courts. if they do not even really know what reasonable is, how can they claim to be acting reasonable. I will not be surprised if I do not get an answer. I got none while I was there.in front of the courts.
    Sandra olson
    Chilliwack bc

    October 9, 2014 at 4:54 pm
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  • MOLL

    Middle class SES [socio-economic status] folks who out of necessity become SRL’s, often have as much, if not more, formal education than most of the lawyers [justice] and many judges [judiciary] put together. True, SRL’s may NOT be familiar with the coded-jargon of ‘the law’, they might not have memorized the thousands of ‘rules’ the game of justice is played by, nor will they have the full array of ‘case law’ needed to be cited at the snap of the finger.

    These well-educated middle-class folks who have often studied at world class university’s, know all about ‘scientific rigour’, ‘due diligence’, verification and confirmation of every fact presented, cite sources, because they’ve written theses and dissertations requiring all that. It is a huge mistake for the legal professionals to dismiss SRL’s.

    In our opinion, with legal fees rocketing out-of-sight, and the simplest divorce case calculated to cost no less than $100K; with lawyers fees rising anywhere from $400 to around $700+ per hour; and with the legal aid criteria eligibility well below the poverty line in most provinces, if the concept of SRL’s is vigorously opposed both by the lawyers and the judiciary, then we will ONLY have justice for the upper-lower to upper-upper SES, or those who are the middle-to-lower lower SES.

    October 31, 2014 at 2:07 am
  • Alan

    One obstacle I encountered being a self represented litigant before is the lack of ability to actually show exactly how say a judge conducted themselves. For example, apparently you are barred from talking specifics in the pre-trial conferences where you have to use your imagination based on the end documents. Or in the trial itself you have to rely on transcripts that can have missing dialog and it doesn’t show you one’s mannerism and attitude. Even in my scenario I truly believe if it was as simple as streaming a live video of the whole session for the public to see it would probably create swift change. But that isn’t the case unfortunately as there seems to be too much financial and legal barrier for the regular person to even document items like a judge’s conduct.

    November 24, 2014 at 7:46 am
  • angelica matei

    As a african canadian minority who was born in canada. I grew up to understanding that are canadians citizens were protected brother charter of human rights and freedoms act. I believed that as a coloured person actually have the right to not be discriminated against and the to have equal justice and access to justice furthermore as a woman who is coming from me violent and abusive relationship as well as a woman who is disabled i found out early on education with the and unsurmountable hard work and dedication and belief that there is justice in our justice system. I was one who was interviewed for the self-representing litigation form in 2012. And you understand why there are so many of us. As there are other mothers of african canadian minority descent w who do not have any of the physical barriers to which i have but have experiences greatly similar experiences in terms of dealing with family and children matters court procedures and the fair or lack of fair treatment that we have had the opportunity to meet and discuss. We find that in the year 2000 and forward get in canada it seems we have no more voice no right no equality we have no freedom to be seen as an equal and it seems we have no right to read are coloured children. And that there is a obvious repeated underwear the needs of people have been treated in terms of their children and residential school situation is an exact example of exactly what now in 2014 us african canadian mothers in children i’m going through. I see this cuz the words that my toes and judiciary jo jo jo’s to use that broke my heart but not for the reasons you think more for the reason that when i state that i’m being discriminated against i provided don’t evidence to be discriminated against nye the process dealing with some situations in terms of the ministry for children and family corrections site and had hoped that the truth and ponies evidence and apologized something i guess i believed in the justice system goodnight have to bear witness to a judge saying such very prejudicial summarisation.

    Judge i’m sorry that you have been miss lead in your understanding to what is fair and equal treatment. I do not believe if you are a woman who is truly been abused should you have to go through a process such as the one i have been only to be abused again by the system. Kill i wish i knew the system better at the time for i would have taken matters into my own hands to alert you to the fact that you are allowed someone to continue to have last word on your stand that was just perjury the other party was asked three times if the person has a criminal record. All three times he said no. But while you were making your decision i went to the computer in the courthouse to double check i’m not sure why you never check. But he does.
    i’m not sure why on that last day before your decision his confession to stabbing somebody 5 times then almost severing off his own arm while at a scheduled visit with his children by the social worker at my house

    To summarise I am absolutely amazed that this individual can confess to such a clone in your court as well as facebook social media openly dragging about it and he gets produce himself consistently in your court room and indirect evidence by standing 3 times he had no criminal record when he does. And then the father who has many times been witnessed to painting swearing and yelling. Along with reports that you have right in front of you that steve exactly what i’m saying is true that he does to our children i do keep records keep records recordings of phone conversations these things you couldn’t possibly have had in front of you unfortunately my council was not very strong pinterest i do find i let my children down without having that strength free ruling at the end to make me the person who is on disability a fixed income to pay for supervised access to my children chile broke my spirit and my children for the record judge i did have my certificates fry graduated and the only child care educator in alberta have no criminal record. I guess you went through many drug screens and graduated as a drug and alcohol counselor in the vancouver college program during the time with my children removed from this incident i was pregnant with my last child to which i had tested negative effects from drugs and was allowed to continue to breastfeed my youngest child to whom you made a judgement decision to give the youngest child to the father in question although he did not apply for custody of child no i did hear there was a child into child was born. Nonetheless many of your decisions were completely quite frankly i don’t even have answer your words to express. Understanding yes it decision was the first decision under the new family law act what is your decision how many times you are tearing back and forth between all the family life and the new family night are you such as the youngest child never been with the father never was and applied for by the father you give custody of a child to the father. I had with me unfortunately you are not able to see these documents because again my cousin was very weak but i had at least 100 supporting community letters to which show testimony of my community works involvement and interactions with my children. And i was born in alberta i have an old friend actually is now in education position that is yours

    She cried when she looked over all the documents that i had in the courtroom with me the day the decisions were made. How does a swimmers to keep my head up keep trying and that judges are not perfect. I know this and so i have a faith. Newton advocacy call me the triple 5 discriminative case and the worst they have ever heard of. To my shock i did not believe that in this day and age that this could be possible i thought that the people in the world has somehow evolved i was wrong somehow we started to go backwards. And i wish that was education more hard work and determination i somehow we’ll be able to at least help others in similar situations like mine beware educate themselves stand up at the right time don’t be afraid to convey how to communicate to be involved with the decision makers because without our stories good or bad i sent them to never change sorry i’m not better i’m not angry i’m a bit disappointed and i have a and have beautiful canadian african children who need me be strong so they can be strong and fight because they’re still with this abuser it is about them it is about my children it’s not about me it’s not about race it’s not about poor decisions or lack of evidence about what’s the best interest for the children and being that i know whatever you said from being a child growing up with babysitters that was abusive i know that everyday and abused situation is not good yeah i asked for anyone’s input on how i can somehow swiftly correctly legally find some remedy for the are childrens best interests and in this situation. We wish to have any and we wish to allow this information to become public so that we can begin to show real communication and healing from the communication 2x can only allow myself to grow and allow the judicial system to grow and give hope to a children. At current the father of my children has relocated are children against a court protection order to ways to prevent him from moving from lower mainland as victoria police have already confirmed that he has moved but shows not to go ahead with a protection order and bring the children back as stated in the protection order and this is where i stand now with my children alienated and away from their family friends and i feel the best campaign for women against violence and such is not as strong at current as it should be and that there should be much more dan to protect the rights of children nice now i prayed and i’m publicly asking for help for direction after 3 4 5 years of court delays and decisions that are sometimes a bit disheartening disappointing that are womens tee time group of support in legal matters and understanding of procedures and advocacy i can see now why some of the clients and group supporters question mobility to continue to positively support them and provide advice and advocacy and many resources proving to be time and time again quite successful remedies for them but has not proven to be from me.
    I ways reply we must have patience we must learn to understand one another and then that we are not perfect if you have will will always be a way. learn the meaning enlightenment comes from these hard times we must all be challenged. From time to time a pence on how to become humble through humility. I accept lifes blessings teaching. Its time to grow, change.
    (unconditional love for everyone) the word is AGAPE. Amen

    January 12, 2015 at 2:10 am
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