Inequality and Discrimination in the Justice System

Posted by: NSRLP Category: Blog Comments: 12 Post Date: September 6, 2018

Of the most important life lessons I have learned in the last 35 years, many have been about recognizing inequality and powerlessness.

Growing up in a rural island community that presented as 100% white, Christian, and heterosexual, I was unaware of anyone from a different religious or ethnic group, or a different sexual identity, until I went to university – where in 1976, there was just one black student on the campus.

Learning about those different from ourselves is never straightforward. Understanding occurs via many twists and turns. We make many mistakes along the way; I know I have.

It is a trite but critical truism that those with power, who have not experienced inequality or discrimination, are also the most unconscious of their privilege.

Canada’s commitment to fairness and equality

 In Canada, the importance of identifying power imbalance and discrimination is fundamental to the centrepiece of Canadian legal jurisprudence, the Charter of Rights and Freedoms. The evolution of the Charter in law distinguishes Canada’s approach from other countries – like the United States – by understanding fairness and equality as a collective endeavour for which we are all responsible, and not just the elevation of individual rights.

But in practice, our success in reducing homophobia, racism, religious discrimination, sexism and more, is tied directly to our ability to recognize inequality and privilege whenever and however it arises.

Power in the justice system

Despite the feel-good message of the Charter, the day-to-day operation of the Canadian justice system is a petri dish of inequality, discrimination and privilege. A small number of individuals – judges, lawyers – wield enormous power. Access to legal knowledge and membership in the legal “club” is often an unconscious privilege.

When privilege is not shared, society reflects it. The incarceration rate of African-Canadians is more than three times their proportion in the general population. Indigenous people are more likely to go to jail than to university. Women lawyers are patronised and discriminated against in both courtrooms and law firm boardrooms (there is a terrific recent Atlantic article on this). Minority lawyers face continuing marginalization and exclusion.

I could go on. But you get the picture.

SRLs are “the other” in the justice system

Where do self-represented litigants – who reflect Canada’s diversity across race, class, education, gender, sexual identity and more – fit into this analysis?

Self-represented litigants are another marginalized, mischaracterized, unfairly treated group in a justice system that is already unfair to most of those who do not fit its preferred “type” – possessing the “right” education, upbringing, clothes, ethnicity and gender.

There is clear evidence (browse the NSRLP research reports if you are in doubt) that most self-represented litigants:

  • Have insufficient resources to retain a lawyer for full representation
  • Are treated as “second-class” actors in the legal system
  • Are penalized for errors that are seen as intentional mischief-making or for doing well (so any subsequent mistakes are unforgiveable)
  • Eventually lose an unequal fight

It is self-evident that SRLs have not endured the same history and extent of chronic prejudice that others groups have. I am not suggesting that there is any comparison between the suffering and violence experienced by Canadians from communities long discriminated against.

But SRLs’ current situation as the “other” in the justice system leads to some similar dynamics to those historically excluded.

  • They are often not taken seriously or treated as reasonable, intelligent people
  • They are frequently accused of behaving in a way that undermines their effectiveness (too emotional, too adversarial, too many mistakes)
  • Their complaints are usually dismissed as self-interested and inadequately informed by what the “real” actors in the justice system understand
  • They are expected to fall into line with existing conventions and practices (and to somehow know what these are)

This is a classic typology of a group that lacks real power and is treated unequally.

  • They are demeaned and regarded as inferior to the group with privilege
  • Their grievances are discounted
  • Pushback is regarded as bad behaviour that must be punished
  • They are treated as “outsiders”

If SRLs were an homogeneous group identifiable by race, religion, sexual identity or other, we would more easily recognize their situation as characteristic of a disempowered group. If the same group were profiled by the court system as “troublemakers” intentionally messing with our revered traditions we would, I hope, see quickly that this was the consequence of their “otherness” rather than their actual behaviours and traits.

But the real litmus test here is how the justice system defaults to assumptions and treatment of SRLs as a group, rather than as a diverse collection of individuals with unique problems, aspirations and values.

It’s time for us to start to talk frankly about the SRL phenomenon as an issue of power and inequality. It’s time for us to start developing A2J solutions that recognize this core reality.

With special thanks to Rob Harvie, Ranjan Agarwal, Judy Gayton and Chris Budgell

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Comments (12)

  • Connie Brauer

    How true! As a SRL for the past twenty years, the judicial system as shown me to be biased, discriminatory and secret.
    Anti father courts have killed the family and the next generation.
    It must stop.
    At this point, I have no Charter Rights. I have a permanent gag order because I lost a defamation case to our abuser who collected child support ’till the youngest was 26. She assaulted me, defrauded my husband and conspired with the children to remain hidden and inaccessible forever.
    How is that fair?

    September 6, 2018 at 10:19 am
  • Derek Thompson

    Great piece & so true . Here is some proof of what the message was talking about . Discrimination by the CJC , Attorney General Lawyer(s) & a federal Judge = http://alberta.newjusticeforthepeople.com/federal-court-info-for-the-people/ then we go on to breaches of your charter of rights ; you have to win a judges lottery first at the SCC before you can even get your appeal heard ( so out dated ) for breaches of your charter of rights = http://alberta.newjusticeforthepeople.com/supreme-court-of-canada/ , then we move on to the punishment from a judge after you make a complaint to the CJC & how they use & abuse their powers to stop your action completely , even though I though I tries to get the other parties defense struck because their lawyer not defended the action !!?? =
    http://alberta.newjusticeforthepeople.com/vexatious-litigant-scam/

    September 6, 2018 at 12:39 pm
  • Ron

    Amen ! Great article !

    September 6, 2018 at 3:51 pm
  • Shella Gardezi

    Thank you for raising awareness about this important issue. This is an issue that is not receiving attention in the mainstream media. When judges violate the Charter Rights of self-represented litigants, they often portray them as ridiculous, vexatious and mentally ill. This type of language appeals to predominantly white male journalists who then proceed to use the same type of tropes to ridicule people of colour in the media. These so-called journalists have none of the inquisitive and critical thinking skills that you would presume would be present in the profession. The fact that white judges, people in positions of authority, have publicly ridiculed an individual makes that person fair game. In my case this has contributed to an extremely unsafe community. I currently have a case that addresses this issue at the Supreme Court of Canada as I was criminally harassed by the president of my CUPE Local. I am waiting for a file number.

    September 7, 2018 at 12:44 am
    • Derek Thompson

      It has taken almost 4 months now & still no file number from the SCC . The clerks are breaching the rules of the SCC which states you will receive a file number in 30 days . See some more problems with the out dated SCC ? http://alberta.newjusticeforthepeople.com/supreme-court-of-canada/

      September 7, 2018 at 12:28 pm
  • Ken Chasse

    But, there should also be criticism of those who cause and perpetuate the A2J problem of self-represented litigants; they are:
    1. Canada’s law societies, because they have caused the problem by decades of failing to respond to it, and still do not have any program, the purpose of which is to solve the problem;
    2. Governments that do not challenge law societies as to such failure and thereby fail to make law societies accountable to the political-democratic process. And so, law societies rule by law but are not themselves subject, in fact, to the rule of law.
    3. Law professors who do not criticize law societies and governments accordingly. They do not write about such causes of the problem. For example the continuing causal factor is that, there are no economies of scale in the practice of law, i.e., the method of doing the work to produce legal services is very obsolete, which makes legal services (except for very routine legal services) unaffordable for middle and lower income people. The problem’s solution is a simple one-sponsor the support services that are essential for affordability. All of the manufacturing of all goods and services now uses methods of support-services production. None makes all parts of its goods or services by itself. The only true, external, highly specialized, and high volume support service the legal profession has is law book companies. The high degree of specialization and production volumes is what produces the necessary, large economies of scale that affordability, and flexibility in an ever-changing, dynamic economy make necessary. Otherwise, socialized law is the only way in which the A2J problem will ever be solved.
    Law societies are inevitably incompetent because they are still early 19th century institutions in their management structure, concept, and institutional culture. And that hasn’t changed since they were created. And that hasn’t changed because they are not held accountable by governments for their performance. The nature of the major problems of law societies means that now, they are like an elected government without a civil service. Such a government cannot govern, which is why the unaffordable legal services problem exists. So for the good of the population, the courts system, and the legal profession itself, abolish law societies. Or, create a civil service that can serve all of Canada’s law societies. For example, legal research should be provided by such a support service. CanLII should be providing such a centralized legal research support service, made availabe to all lawyers and judges in Canada. And see also: “Fasken InHouse.” The big law firms could be establishing such support services for use by the whole legal profession.
    For more explanation, see: “Access to Justice—Unaffordable Legal Services’ Concepts and Solutions (SSRN, pdf., June 7, 2018); online: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2811627 .

    September 7, 2018 at 3:08 am
  • Steve

    Are there any organizations that helps Self Litigant in the Supreme Court of Canada?

    Thank you.

    September 7, 2018 at 3:20 am
  • Ian O'Body

    I am sorry, but I have to entirely agree. Courts have, in my understanding, only applied this particular Charter right where they consider the analogous trait as “immutable”. But, this reasoning has always defied common sense.
    .
    As just one example, a person’s sex is not immutable. A Canadian (I believe in Alberta) legally reoriented the sex he/she identified with to reduce her/his insurance costs. Or, one could have one’s sex physically altered, hormonally altered, and identify with neither sex (btw, is this to be uni-sex or sexless, or either?). So, sex is not “immutable”. Of the analogous characteristics, sex is a conscious choice. Therefore, sex can be open to discrimination. But, this result obviously offends the sensibilities of most right-minded non-insiders.
    .
    By this reasoning, being self-represented could very well be an analogous trait, because “immutability” is not the relevant, cohesive consideration to identify traits that should not be subject to discrimination. It would however be best to make this the subject of a test case for a proceeding involving an “offense”, because of Charter rights. But in any event, reforming the correct legal convention to determine analogous traits is way above limited intellectual capabilities, so no one with any power will ever agree to hear any of this, for reasons set out in the article. And, one would have to prove discrimination – which in reality does not exist when it does not exist in the minds of those whose minds matter.

    September 7, 2018 at 12:00 pm
  • Twechar

    Fantastic article and right on point!

    September 7, 2018 at 1:24 pm
  • Chris Budgell

    I became an SRL years ago, and had what seemed to be a significant success in the first action I commenced in the B.C. Supreme Court. When that result was overturned on appeal (later that same year – 2003) I was not persuaded to abandon my mission and returned to court a number of times. So I’ve watched the unfolding A2J story.
    .
    I don’t think the courts (and similarly many of the tribunals) are going to accommodate themselves to self-represented litigants. They see, correctly I think, that they’ll be overwhelmed by our growing numbers. So they’ll continue with the array of tactics designed to discourage prospective SRLs.
    .
    Why is this a fairly recent (speaking in decades) problem? One reason is that the public has greater expectations. In Canada that has been encouraged by the rhetoric about the Charter of Rights and Freedoms. I happen to believe that that charter has been vastly oversold. The most significant factor though is the Internet and associated technologies.

    I remain committed to advocating for change because of the evident weakness of all the institutions run by the legal establishment. I count myself among those who are confident that they brought forward legitimate and significant legal claims, and who then endured not due process but abuse of process.

    Years ago I had a short in-person exchange with a seasoned journalist who’s focus was on the justice system. He knew something about what I had been pursuing and when I approached him during a break at a Senate committee meeting he said one thing to me: “you’ll never beat the judges”. What I said to myself was that I wouldn’t need to because the judges would ultimately beat themselves. And I think we are seeing that happen now.
    .
    There is some current media commentary about a battle of wills ongoing between a Federal Court puisne judge and the council of Canada’s chief and associate chief justices (including those from the Federal Court and Federal Court of Appeal). These two institutions – the Federal Court and the CJC – were created around the same time, a key player on both initiatives being W.R. Jackett (see the biography written by Richard W. Pound). What would he say if he was present today to witness this?

    September 8, 2018 at 6:31 pm
  • Judy Gayton

    From one red peg to another:))
    Thank you for framing the problem in a way that encourages us all to exercise the power of our privileged in service of those who need us most. We can ask nothing more of anyone than to live their best possible life, in a way that allows others to live theirs.

    September 10, 2018 at 11:23 pm

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