Incarcerating Self-Represented Litigants for Overzealous AdvocacyNSRLP
The question I am asking in this blog is a simple but shocking one. Should we be imprisoning self-represented litigants for objecting to and even resisting particular outcomes – in short, for being overzealous advocates?
This is far more complex than a simple legal question. We know that the law of civil contempt allows for imprisonment where a court order is breached. The question posed here is a much harder one. When an individual advocates – non violently, but zealously – in a way that expresses their resistance to an outcome pronounced by a judge, how is the seriousness and consequence of that resistance appraised? For example if a parent in a custody case is required to “co-operate”, how is that measured? Isn’t this a highly subjective assessment?
The nature of this assessment becomes extremely important when a judge determines, as a judge did two weeks ago in British Columbia, that a civil contempt has been committed by a family litigant which should be punished with imprisonment.
Victimization or the rule of law?
I hope I am not alone in finding the decision of Mr Justice Neill Brown to send Ms A (Mom) to prison last week (M.W.B. v A.R.B. 2015 BCSC 941) absolutely shocking. This was the culmination of five years of acrimonious litigation over children (now older teens) and money. This decision makes Ms A the victim, on the application of Mr B (Dad), with the sanction and complicity of the justice system.
In 2013 (when I first became aware of this case) Ms A resisted the relocation of her teenage son (B.B.) against his stated wishes – and advocated in a way that was judged to be disrespectful or defiant of the court’s wishes. In fact, the relocation never took place – having told Justice Brown that he did not want to move, leave his school, friends, older sister and mother, B.B. managed to negotiate between his warring parents. The upshot was an agreement between his parents that he would stay where he was, on condition that he and his father had counselling and that he visited with his father in Vancouver.
By the time the residency of B. B. was negotiated, Mr B had applied to the court for Ms A to be held in contempt of various elements of their joint custody arrangement and asked that she be sentenced to a prison term.
In sentencing her to a prison term on June 3 2015, Justice Brown referred to Ms A’s “strident opposition to this order ever coming to fruition” (para 111). For her opposition to the relocation of her teenage son against his wishes, Ms A was held in contempt and subject to punishment. Is this an “offence” that we are comfortable with punishing with incarceration? If a lawyer “stridently opposed” an order that they believed to be unfair and unjustified, wouldn’t they just be doing their job?
Justice Brown also found Ms A in contempt on a variety of other highly subjective matters, including that she “refused to respond in a reasonable fashion to the yearly access schedule” (para 288), and her “misleading of the children about the litigation” (para 114) (the guardianship order including a prohibition on discussing the litigation with the children. The children are now almost 18 and almost 16 years old. The children became aware of their father’s applications to have their mother imprisoned when Canadian Lawyer covered the case in August 2013, and their father sent them the article: http://www.canadianlawyermag.com/4753/An-expansive-interpretation-of-family-violence.html).
Justice Brown also made a series of orders over the last few years for “additional costs” against Ms A – who could not afford legal counsel – for up to $30,000, persuaded that Mr B – who also represented himself some of the time, at other times represented by counsel – had suffered financial hardship as a result of Ms A’s behaviour.
Descent into the abyss
Let me be clear – I am neither defending nor promoting any particular individual’s actions or behaviour in this case. Having read many but not all of the associated judgments, it is obvious that everyone involved in this case, like any long-running family conflicts, made mistakes, exercised poor judgement, and reacted emotionally in ways that negatively affected others.
Some might argue that this is a case of “parental alienation (a concept about which social scientists have profoundly different views). I am not in a position to judge this, and neither are you. But even if it were, is this the way to deal with it?
But what I can say is that is that if we have reached the point that our justice system is so broken that we have to resort to the incarceration of family litigants, based on the subjective assessment of a single justice who has clearly formed strong opinions about the culpability of the parties, we have a very big problem that should be alarming all access to justice advocates.
The judgments in this case make it clear that Justice Brown is clearly extremely angry and frustrated with Ms. A., and very favourably disposed towards Mr B. I understand, of course, that a family court judge must form a belief about credibility in extraordinarily acrimonious family conflicts. Such evaluations will inevitably inform decision-making, but there need to be procedural safeguards to ensure that this does not undermine a fair and balanced adjudication of ongoing issues. And there need to be special additional safeguards (perhaps review by a different judge) before a parent can be incarcerated for contempt.
We have seen this particular pattern before at NSRLP. A self-represented litigant can become infuriating to a judge who sees them over and over again. The judge appears to have developed an extreme personal dislike towards the individual litigant. Everything that one side does is perceived as evil, and everything the other side does is perceived as exemplary. This a problem not only of access to justice but of fundamental fairness, whether a litigant is represented or not.
Also last week, a long-time SRL was successful at trial on a custody issue before a trial judge. For four years she had been heard by a single (another) judge and had lost every motion (and all access to her kids). When a case becomes this distorted, it is time for the judge to recognize this and recuse him or herself – or bring the administration of justice into disrepute.
Taken to jail in shackles
On June 3 2015, Justice Brown sentenced Ms A to be incarcerated for 30 days, 15 days suspended, followed by 90 days probation. She was transported to a prison the other side of the province in shackles, where she remained until the end of last week.
We applaud and reward lawyers who practice zealous advocacy. We train them to do this at law school.
When self-represented litigants – perhaps ineptly or obsessively but authentically – practice zealous advocacy, we imprison them.
Something is profoundly wrong here.
On a different issue, the same question
In a second B.C. case last week, the Law Society of British Columbia asked a judge to sentence a 74 year-old man who has been collecting small fees to help SRLs draft and file documents. This was the latest in a series of actions brought by the Law Society of British Columbia to restrain him from “the unauthorized practice of law” (see for example Law Society of British Columbia v. Bryfogle 2012 BCSC 59). In this case however Justice Victoria Gray refused to order incarceration and instead imposed a suspended sentence (http://www.vancouversun.com/news/forbidden+from+filing+legal+documents+never+been+lawyer+judge/11137896/story.html).
Can we agree that incarcerating self represented litigants, or those who assist them, even if they behave unwisely or inappropriately in pursuing their sense of justice is not what the justice system is for? This is not why so many of us work in the justice system. And I do not believe that it is what Canadian citizens are asking for when they trust the courts to dispense justice, keep order and enable access to justice for those who would advocate for themselves.