New York State introduces “SRL Navigators”: Can We Narrow Judicial Discretion on Allowing McKenzie Friends into Canadian Courtrooms?

New York State introduces “SRL Navigators”: Can We Narrow Judicial Discretion on Allowing McKenzie Friends into Canadian Courtrooms?

Last week Justice Jonathan Lippman – Chief Judge of New York State – announced a pilot program that will allow non-lawyer “Navigators” to accompany SRLs to housing court in Brooklyn, and to consumer debt cases in Brooklyn and the Bronx. The Navigators will not be permitted to address the court, but will be able to respond to questions from the judge and generally assist the SRL.

Chief Justice Lippman is implementing recommendations made by the New York Task Force to Expand Access to Civil Legal Services at the end of 2012, and echoed last June by the State Bar’s Professional Responsibility Committee.

It’s taken a while for this idea to come to fruition. As far back as 1995, the same Committee stated “it is inevitable and essential that legal practice must be deregulated to allow for expanded roles for non-lawyers.”

Many SRLs Want Courtroom Friends

A desire for aides / friends/ allies to accompany them into the courtroom is an idea that we have heard over and over from Canadian SRLs (our theme for this month is Listening to SRLs, Action Step 2 in our 10 Action Steps for Change). For example:

“If an attorney can have their assistant help them find something, why can’t a self rep have someone beside them to assist with the paperwork or to take notes?”

But hang on a moment – don’t we already have a similar concept in Canadian law – the McKenzie friend?

This is where the difference between an idea, and its implementation, becomes really important.

SRL “Navigators” in Canadian Courts

We know from our study that there is widespread confusion and inconsistency about the role of a McKenzie friend, despite its development through case law for almost 200 years. Judicial practice varies widely when it comes to bringing an “aide” or an “ally” into a Canadian court.

Most SRLs of course have no knowledge of the concept of a McKenzie friend, but simply want someone to come with them to keep them calm and centred, and perhaps to help them take notes and answer questions.

Some of our study respondents described being refused permission to bring a friend with them to the front of the courtroom, no matter how dire their need for assistance. One woman with a brain injury explained to the judge that this meant that she needed her friend to take notes for her in a settlement conference. Her request was denied and she was told: “You look pretty good to me. Sit down.”

Judicial Discretion and Courtroom Participation

Here is the problem.

“Any person, whether he be a professional man or not, may attend as a friend of either party, may take notes, may quietly make suggestions and give advice; but no-one can demand to take part in the proceedings as an advocate, contrary to the regulations of the court as settled by the discretion of the justices.” (Collier v Hicks (1831) 2 B & Ad 663 per Lord Tenterden CJ, my italics)

Conduct in the courtroom remains under the control and discretion of the individual judge. Second, the line between advocacy and assistance is a fine one, and can be used to deny almost any form of assistance.

So asking for a McKenzie friend to come into court with you in Canada is always a wild card. We can only advise SRLs that they “may” be able to bring a friend – something they find difficult to understand.

A good idea is all very well, but it needs to be fairly and consistently implemented in practice.

Between Principle and Practice

This is an example of a problem that recurs throughout the justice system – fine distinctions, unclear boundaries, and the inevitable application of judicial discretion (a 17th century jurist famously described “equity” as approximating to “the length of the Chancellor’s foot.”).

SRLs have a hard time understanding the dance that takes place between principle and practice in the justice system.

A theme that we hear over and over when we listen to SRLs is why should a rule always be subject to the exercise of discretion? Why, they ask, can’t there “just” be a rule – for example that my courtroom aide can assist me but not stand up and speak, and must behave respectfully towards everyone in the courtroom – and as long as you follow the rule, you can have a courtroom aide? And if you break the rule, you lose your aide? Doesn’t this look more logical and fair than a determination based on “the length of the Chancellor’s foot”?

Judicial Discretion and Public Skepticism

This extent of judicial discretion on interpreting and following the “rules” may have been acceptable to the public where the justice system was held in high esteem – or “deified”, as some sociologists once described it.

In these (bygone) days people would accept what a judge told them even if they disagreed with it or were disappointed “because it was a judge who told me”. Or, when studies showed that people’s willingness to wait in the courthouse far exceeded their tolerance for this activity in other, less elevated, venues (see for example the work of Patricia Ewick and Susan Silbey, “The Common Place of the Law”, 1998)

But those days are long gone.


Turning an Idea into a Reality

We shall be watching the New York SRL Navigators experiment closely. Perhaps with the weight of Chief Judge Lippman behind it, the new proposal will work consistently and fairly and provide a way for SRLs to participate more effectively in the courtroom.

We hope so, and we hope to see a clearer, more consistent, and more credible approach to McKenzie friends or navigators implemented in Canadian courts next.

Because, as so many SRLs told us:

“It was tremendously, tremendously difficult. I am an educated individual – but I go to court all the time with other people who are just way over their heads…(H)ow can a person handling issues like this on their own figure this out?”

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