Federal Election Issues, Self-Represented Litigants, and Fear of the Other

Since I have returned to Canada this week from a month “Down Under” (for my reports from Australia see “Access to Justice Down Under” and “Political Pressure and Federal Politics The View From Australia”, I have read and watched a lot of federal election coverage that shouts “fear of the Other”.

“Other” is women wearing niqab, Syrian refugees, and sometimes Canadian Muslims in general.

“Other” is scientists who challenge the government line on climate change, or academics who contest the so-called “Terror Bill” C-51.

“Other” is missing and murdered indigenous women, and First Nations communities without access to clean water.

Once we see another group as having a worldview or an experience very different from our own, it seems pretty easy to distance ourselves from the Other. That’s not us, our subconscious tells us. We don’t need to care about that.

In an election campaign, going one step further and instilling fear of the Other is often highly effective for attracting votes.

It allows politicians to use this simple platform: “Vote for us. We are like you. We shall protect you from the Other.”

Amidst the increasingly frenetic focus this election campaign on demonizing certain groups and behaviours as “un-Canadian”, the complete absence of any mention to to the access to justice crisis is, well, unsurprising. I admit that when the writ was first dropped, I was optimistic and naïve enough to imagine that we could ask politicians questions and have at least some informed debate about this issue (Getting A2J Onto the Political Agenda in the Federal Election)…but oh well.

But all this focus on the Other has made me wonder – can we understand at least part of the response to the presence of so many SRLs in the justice system in the same way? Are SRLs another example of the Other – in this case, within the Canadian legal system and among justice system insiders?

The narrative is the same – those who are the Other are not worthy of our empathy and effort, they are too different to be one of us, and their difference makes them threatening to “our way of life” (read: the way the legal system has worked in the past using lawyers as agents).

Over the past two years, we have definitely made progress towards a more complex and informed understanding of self-representation. In some quarters there is now a clear rejection of the primitive stereotype of SRLs as “nutters”, bent on disrupting the justice system.

But despite this progress, a pervasive, engrained, and essentially negative perception of the “SRL as Other” continues.

• When a lawyer introduces a CLE video of SRLs by talking about how much of a “problem” it is that people “know more” about the legal system these days
• When a judge tells me over dinner that “this system is tried and trusted, it has worked for centuries and it will go on working now” in response to a question about what adjustments in practice the Bench might make in light of the volume of SRLs appearing in court
• When a lawyer says “The problem with SRLs is that they do not understand how to present evidence!” and the room of lawyers snickers softly (question: if you have paid a lot of your own money for three years of legal education, why would you then deride someone because they didn’t go to law school and therefore do not know what you do? Wouldn’t you say instead, “I’m glad I spent that money because I purchased legal expertise”?)
• When a professional organization advertises a talk about SRLs as focusing on “the tribulations” of working with SRLs
• When lawyers console one another that the reason that they find SRLs (and apparently many of their clients) difficult to work with is because these laypeople all have (inchoately and vaguely defined) “personality disorders” – thereby assigning them to the “Other” category, and meaning that lawyers cannot possibly be expected to help them.

Let’s not fall into the “Other” trap. Understanding the world as populated by “people like us” and “the Other” – whether Syrian refugees, SRLs or climate change scientists – is simplistic and primitive. It is the equivalent of a person characterizing the other side in a conflict as crazy, evil or stupid (Mayer, 2012). A useful “crutch”, but absolutely no help whatsoever in advancing understanding or realistic solutions.

What is more, SRLs are not even accurately described as “Other”. They are all of us now. Everyone knows people who have represented themselves because they cannot afford a lawyer. Some of them are lawyers, for goodness sakes (see the Final Report of the National SRL Study at page 40:) who say that they cannot “afford themselves”.

Let’s avoid falling into the us-vs-them trap that politicians set for us this federal election. Reject the temptation to snort derisively, titter condescendingly, or even be downright hostile towards the Other – however different.

And whether they are refugees, climate scientists, or SRLs.