This week’s guest blog is written by Tania Perlin B.A., L.L.B. from the law firm of Tania Perlin, Barrister & Solicitor. Ms. Perlin is also a certified Mediator with the Ontario Mandatory Mediation Program, a public speaker, and a litigation wellness coach.
“If you’re always trying to be normal you will never know how amazing you can be.” – Maya Angelou
We have all heard the phrase, “don’t judge a book by its cover.” The saying is an epitome of acceptance and tolerance, and we hear it often, but we have not yet managed to fully put the sentiment into action. In many instances we still make assumptions based on the cover, rather than waiting to read the book. In the context of the justice system, despite the best intentions, hasty assumptions often follow individuals throughout their litigation journey, many times to their detriment.
Recently I had a business meeting which required a great deal of concentration and professional expertise. The professionals in attendance were serious in their endeavor to resolve an issue that needed to be addressed.
However, one of the participants was quiet, and when she asked questions, it appeared that she had not read the preliminary materials. In general, it looked like she did not want to be there.
My preliminary assessments were made in the first 10 minutes of the meeting, and they turned out to be very wrong.
This person was actually very knowledgeable about the subject-matter of the meeting. She offered a great deal to help resolve the problem. Her quiet demeanor was an important calming factor throughout the meeting.
Diversity is about our real differences
The purpose of this anecdote is to remind us that as human beings, we are all different. If we were all the same, the world would come to a standstill. There would be no new ideas, inventions, or innovation in art, science, literature, and the world at large.
Our lives would be grey rather than multi-coloured, devoid of the differences that energize and excite us and that challenge us to create and innovate beyond anything that one individual can imagine.
In spite of many statements encouraging diversity, we are still a long way from accepting each person for who they truly are.
Our default is usually to see differences among us as a negative rather than a positive thing. Subconsciously, we feel threatened by differences, despite understanding on a conscious level that these differences are a necessary element for improving our lives and the world around us.
By recognizing this default, we may start moving towards actually changing our subconscious reactions and happily accepting and learning from others whom we perceive as being different.
Acceptance, not just tolerance
One way we may accomplish this is to see everyone as a puzzle piece whose presence contributes to a greater whole. We all have different talents and skills, which we can use to achieve a global purpose of peace and love. By using our individual gifts to work towards a greater good, we can see others as our partners in creating true acceptance of differences, and not just tolerance.
In the courtroom
Our legal system is one area of life in which this type of acceptance is not just a requirement, but a necessity. Access to justice is not always available to those who do not speak English, who come from a different culture than the one reflected in the Canadian justice system, or who simply do not understand the legal system and its numerous rules and procedures.
At times, we encounter individuals in the legal system who have been labeled “vexatious litigants.” However, what appears to be obtuse and “vexatious” behaviour may in reality be a facade obscuring the reality of a misunderstood or confused litigant, or someone in such despair that advocating effectively for their rights becomes impossible.
A few months ago I saw a debtor in small claims court who stated on the stand that he would rather go to jail than pay the creditor. He was shouting and quite upset, not behavior we expect or hope for in a Canadian courtroom. He had lost everything, his wife had left him and he could not pay the money that he owed. He had hit such a low point in his life that he no longer cared what would happen to him.
Fortunately, and to his credit, the Deputy Judge presiding that day could see beyond the anger and frustration. He heard the litigant’s angst through his anger and tried to help. The Deputy Judge spoke to the litigant in a calm manner, explained procedures, and in the end managed to settle the case in open court.
To everyone’s astonishment, at this point the self-represented litigant broke down in tears and thanked the Deputy Judge profusely for his kindness and understanding.
Sometimes a kind word and a gesture of understanding can be a catalyst for resolution of seemingly unresolvable situations.
Maybe next time we see someone who is different, or acting in a way that does not seem to be the “norm”, we can step back and take a moment to remind ourselves that our perceived “reality” may be very different from that person’s lived truth.
I can relate to that very much. We need more judges like that deputy judge. Bless his heart. It is these good and pleasantly surprising judicial encounters that often make me not willingly paint every judge a rogue and so I wait until they act as one (like the three SHAMELESS ones on that panel back in November). There is a Master at Ontario Superior Court of Justice and twice I ran into him and I am moved to write to the “appointers” on that committee on The Hill to make him a judge. He has earned that. Then currently there are two judges in Alberta who stole my heart (my friend hates one of them). They put their foot down and the lawyer had to behave and act properly every time. Then there is my all time favourite Alberta judge (now retired C.J. at QB): He always did the right thing even when I was annoying. The bad judges are a disgrace and should be removed but we must speak well of those who come through and try to uphold their oath
An insightfully humane call for compassion and understanding of human beings that find themselves struggling in situations they are unequipped to address.
I relate, in part, to the persons experience in the example above. As a brain injury survivor I was repeatedly judged to be sophisticated, blamed for struggling, considered potentially incompetent, ultimately found incompetent and then competent again, (the latter based on nothing but the say so of others who were clearly frustrated and without a template for handling the unique needs of persons with cognitive injuries. )
It is not unusual for normal sequalae of brain injury to find physical expression via crying, yelling, swearing and as my outburst was and sadly to be labelled “disrespectful” even though it is outside my control (like having Tourette’s syndrome.) Despite that known fact, I was shamed and punished for symptoms I suffer that are a direct result of the very injuries I attended upon the Court to assist me in litigating, were used to deny me a remotely fair trial. This is discrimination.
The burden of living with (blaming myself) for what unfolded, was dumped on me to carry because the many professionals involved all got to walk away as if it never happened and left me to pick up the pieces of my shattered life along with the pain they caused me.
Thank you for speaking to the discrimination that the very systems intended to protect us from such abuses, can also be guilty of perpetuating against us.
This is an interesting perspective,, but it is very obtuse, We all are aware of our differences,, It is the judicial system that is attacking us because we are not lawyers, In their efforts to do so,, they actually have crossed the line over and over between following the law, and doing as they please. If you have not stopped them by now,, i fail to see how this article will do that, Someone has to come up with a legal wall, to stop the legal system,, from transgressing onto the rights of the public, and violating their rights, So far,, i see nothing happening,, And as a self represented litigant,, from my perspective, that is abuse of the law, abuse of the public,,and complete disregard for the rights of every canadian citizen, Not one of our cases so far,, has been rectified, All of our constitutional rights, to access to justice,, have been taken and flushed down the toilet, So,, now what, We are going to talk about our differences??? That seems useless to me
Hi Sandra Olson,
As you pointed out, we and many lay people are aware of our differences and are capable of thinking about creating equity despite our differences. However, the legal professionals and judges are unable to become aware of the differences – whether it is related to self-representation or disability as pointed out by Judy Gayton or otherwise – existing in the litigants that they deal with. Perhaps, their arrogance that they are experts and they know everything prevent them from being able to recognize and learn that they do not even know the foundations of the justice. That is the point of my comment below as well.
In my view, this article was written not for self-represented litigants. It was written to expose the poor competence of our legal professionals and judges, and to show a creative and proven way to move ahead.
There are many people and important players, including the mass media, which continue to tolerate and develop acceptance to the abuses suffered by the ordinary self-represented litigants belonging to the various prescribed or analogous protected grounds by keeping silence. It is very hard to fight against the powerful system particularly when the main stream media is keeping silence and failing to do their job properly. In the circumstances, I appreciate the small number of people who come forward to become the allies of the affected people and to do whatever they can in their capacity, for example to write and publish the flaws of our legal systems. It is better than nothing, and I would encourage these people to continue to do what they do and to consider doing even more, as their resources and capacity permit, and to increase the number of allies that support the affected people.
Koba
Basically, this article talks about Diversity and Equity/Inclusion in a different way. Diversity and Equity/Inclusion is the goal of Human Rights Law. The International Law and Canadian Law recognize that the Human Rights Law, particularly, the recognition of the inherent dignity and the equal and inalienable rights of each person is the foundation of freedom, justice and peace in the world. However, in Canada, judges and lawyers are not well trained on Human Rights Law. I can show a case where the lawyers and judges were unable to understand that preferential treatment is an unequal treatment. Perhaps, they benefited and continue to benefit from privileges or preferential treatments. Therefore, they do not consider preferential treatment as unequal treatment. Shame on them because even a lay person can understand that preferential treatment is an unequal treatment.
The same case would also show that the lawyers and judges dealing with that case were unable to understand that differential accommodation practice based on protected grounds is simply discrimination and hurting the dignity of the person of the protected grounds. When such stupid people are running the legal system, how can we expect justice?
These lawyers and judges are not competent in the foundation of justice, which is, as recognized by the international and Canadian Law, the Human Rights Law, particularly, the recognition of the inherent dignity and the equal and inalienable rights of each person.
A Judge in “small claims court”is vastly different because the amounts at stake are “small”.
I wonder what this same “judge” in a higher court would have been if the “vexatious litigant” responded the same way on a claim that was for $millions against a big corporation or financial institution???
Conclusion: Apples to Oranges…small claim judges cannot compare. Notwithstanding, I still admire the judge’s sympathy and/or empathy for the broken man!
This is a great story – thanks for sharing. Unfortunately, I see too often that women who break down or show signs of obvious frustration from years of abuse and harassment from spouses are often treated very differently in family court. They are labeled and too often, children even removed from their care. It would be so uplifting to see judges in family court act the way that this Deputy Judge behaved. It would save a lot of children from being put in harm’s way as well, by those abusers who manipulate the legal system to divert attention from ongoing abuse.
we are entitled to a complete judicial review of all of our cases, Any case, in which a self represented litigant was declared vexatious,, and banned from court,, needs a complete judicial review,, and that would include the opportunity for the self represented to actually speak and be heard , I am appalled at what has been going on in the courts, The horrifying excuses they are coming up with for their despicable behavior, NO,,, NOTHING ELSE,, a review of every case where we were declared vexatious,, is the only path,
I am serious, We all need our cases to go to judicial review, tell us how to do this,, where do we go, because taking our cases one by one to a court that has thrown us out and labeled us vexatious,, is not the answer, There is a process for judicial review for criminal cases,, the innocence project is busy with that,, So who will do it for us?? Step forward,
The legal establishment, and the judges in particular, know what they are doing. The entire system has evolved to ensure that “justice” can easily be denied to those not worthy. And that undoubtedly includes many who are professionally represented through all of the litigation they pursue.
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The system doesn’t have unlimited capacity, and so justice must be rationed. How do you do that without being arbitrary? The conundrum is that the “rule of law” does not allow for an arbitrary system. To sustain the charade they must lie not only to the public, but also to each other and to themselves.
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Have a look at the McGill-Queen’s University Press page for “Broken: Institutions, Families, and the Construction of Intellectual Disability” – https://www.mqup.ca/broken-products-9780773554832.php?page_id=73& .
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I found that after reading a current Globe and Mail opinion piece by that book’s author about the news that the revered founder of an institution of which I wasn’t even aware was another candidate for the #metoo gallery of rogues – https://www.theglobeandmail.com/opinion/article-jean-vanier-was-revered-but-revelations-of-abuse-and-manipulation/ .
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Read some of the other opinion pieces about Jean Vanier. They are quite insightful. Would he have faced consequences if he’d still been alive when this came out? Putting people – anyone – on pedestals is a mistake. And we’ve acquiesced, particularly in Canada, to having our judges accorded the same status.
In my view, the main stream media is not doing their work properly. They have to present all sides of the stories, but they present mostly the government side story. We should not be distracted by the few criticisms, for example the government funded CBC offers against the government. By doing this, it is able to create an appearance that although it is funded by the government, it is independent from the government. It also helps the government to show that while it fund the media, it does not control it. However, in my view, the CBC wants to be very loyal to its funder and does not want to disappoint it by consistently criticizing it.
We all have stories to tell how rule of law is not respected in Canada and how the current procedure to appoint judges is not working effectively. However, the CBC does not cover our stories. Even when the government is boasting about its respect for rule of law, at least to provide a balanced view or alternate view, the CBC does not talk about our stories. Not providing all sides of the stories and all views as much as possible is against the ethical standards for journalistic practice. However, the CBC continues to engage in such unethical journalistic practice.
Here and there sometimes, the CBC covers some stories but those are chosen stories and those stories have the potential to anyway come out in the public domain through other ways. A news media should not be selective in following the ethical standards for journalistic practice. Rather, it should consistently follow the ethical standards for journalistic practice.
I think we have to first protest against the unethical practice of government funded news media, because it misleads the larger public by not presenting all sides and views of the stories because of its loyalty to the funding government. The unethical practice of media is hugely responsible for the lack of awareness of the public on the flaws of our legal system.