As a finale to our month of focus on “Listening to SRLs and including them as stakeholders”, I want to explore a legal culture that enables and tolerates judges treating SRLs rudely and discourteously.
I do not mean to suggest that all judges behave this way. There are honorable exceptions and I hope they will take some support from this blog post.
For example, I did not notice any Supreme Court justices sniggering behind their hands at Elizabeth Bernard when she presented her arguments to them last December (the first SRL in the SCC for 7 years, she was awesome). Maybe other judges could take some hints on polite behavior from them.
The problem is – they are presently the exceptions that prove the rule. If you are in any doubt about this, please read the stories in the chapter on “Judicial interactions with SRLs” in the Report of the National Self-Represented Litigants Project.
Enabling and Tolerating
The present culture permits and offers impunity for incivility and, on occasion, expressions of direct hostility by judges towards SRLs. This is a direct consequence of the way in which the presence of SRLs in the courtroom is framed (“Why can’t they just get a lawyer and stop being such a nuisance?”).
In this framing, “helping” a SRL apparently includes the following:
• Giving them any information or assistance at all that is at all different to the way that a judge might address a qualified lawyer – that is, an individual with three years of legal training and at least a year of professional experience (and lawyers need to stop bleating about judges “helping” SRLs when they offer them any small tidbit of assistance to navigate the proceedings);
• Mockery and ridicule, eye-rolling, exasperated signs, and other histrionic behavior where at some other point in the case the judge has been minimally civil (this is the “in totality” approach advanced by the Ontario Court of Appeal this week in Martin v. Sansome, 2014 ONCA 1, where the court heard that the trial judge had called the SRL “an idiot”).
Moreover, judicial bad behavior is constantly excused by reference to their “frustrations” at having to deal with SRLs. I have said on record many times that I appreciate that the new reality – dealing with large and growing SRLs – was not the gig that many of our present judiciary signed up for and were expecting. But this cannot excuse the inexcusable. Neither should this be normalized and subsumed into a definition of “fairness” (for example, “[i]solated expressions of impatience or annoyance by a trial judge as a result of frustrations … do not of themselves create unfairness” (Chippewas of Mnjikaning First Nation v. Chiefs of Ontario, 2010 ONCA 47 at 243)).
It is comparatively rare for a judge to accept the presence of a SRL in their courtroom without chastising them for being there without a lawyer. This stems from the same framing – that SRLs are just doing this to annoy the judges and mess up the system. SRLs have told us over and over again that they do not understand why judges do not “get it” – the cost of legal services and the diminishment of Legal Aid mean that a vast number of people are now unable to afford legal services and ineligible for public assistance.
Telling SRLs repeatedly that they “should” hire a lawyer and acting offended when they show up without one is completely ludicrous and counter-productive – and is bringing the legal system into disrepute.
The core problem – the unaffordability of legal services – is a problem that needs the commitment and efforts of many people in the justice community. Next month, when our focus turns to Action Step #3 “Making Private Legal Services Responsive to SRLs”, I shall be blogging about ideas for change here.
What We Can Do Right Now
In the meantime there is something that everyone who works in the legal system can do immediately about judicial rudeness and obdurance in the face of SRLs. A lawyer who rarely goes to court and who participated in a workshop I ran on SRLs last week in Vancouver told a story about going to court one day and watching as a judge in family court called up and upbraided one SRL after another at the beginning of court that morning. She whispered to a colleague “What is going on here?” The reply “Oh, he’s always like this.” We are accepting this type of behavior from the Bench towards parties representing themselves as “the new normal”.
The next time you see a judge treating a SRL in a rude, hostile or mocking way, you need to say so – to a colleague, to the court clerk, to the judge him or herself. We need to stop tolerating this and stand up for a system that even in a time of change and strain and tension can still treat people fairly and with civility.
Pressing the Reset Button
Our focus needs to turn away from obsessing about whether or not we can construct a legal fiction of “fairness” – which appears from Martin v Samsone to amount to not being treated horribly for the entire time you are in the courtroom – that cloaks judges with impunity when they treat people badly. Of course we understand that judicial independence is important – but our notion of what this means is distorted by the culture that tolerates this behavior and rests on the erroneous assumption that SRLs are just behaving badly, rather than foundering hopelessly, in the courtroom.
Whatever happened to the judicial “duty to assist”? A few judges are working hard at figuring out how to manage their courtrooms in a way that enables SRLs to participate functionally and fully. These judges understand that if they are to do their job well, they need to use their considerable experience and intelligence to adjust their approach to conducting a hearing or a trial, rather than to stubbornly continue to behave as if everyone they address is a lawyer and berate them if they are not.
We need to press the reset button on how we think about fairness and judicial independence if we are going to bring court proceedings involving SRLs – more than half of family cases now – back into the real-world where the general public makes some fairly consistent assumptions about proper standards of courteous behavior. This does not include calling someone an idiot, eye-rolling or ridicule, or raising one’s voice and upbraiding someone as if they are a disobedient child.
I’m sorry, but I have to disagree with your generalization. I have found that the judges in Alberta are, in general, very considerate, respectful and patient with SRL’s. Judges all have different personalities – some are more respectful and patient than others, but I certainly don’t see them single out SRL’s for bad treatment.
Lawyers are sometimes treated harshly by judges too. The difference is that they spend a lot of time in the court, so, over the years, they learn to read the particular judges. SRL’s are only before a few judges, and they may take the judge’s comments or attitude more personally.
When a judge tells a SRL to get a lawyer, it is often code for “You’re completely missing the legal issue here – you need some help!”
I don’t think she was generalizing just stating (or blowing the whistle ) on a BIG problem . Saying people cant trust a lawyer is a generalization , A judge telling a SRL to get a lawyer, it is often code for “You’re completely missing the legal issue here – you need some help!” may be true but that is not a option for many . So they have to do it themselves with a lot of trial and error . Surely this frustrates many Judges who then behave inappropriately by saying or doing thing they shouldn’t but they are human . What isn’t human is a system that requires a masters degree to get thru . Is anyone going to have the guts to take the advice “The next time you see a judge treating a SRL in a rude, hostile or mocking way, you need to say so – to a colleague, to the court clerk, to the judge him or herself. We need to stop tolerating this and stand up for a system that even in a time of change and strain and tension can still treat people fairly and with civility.” or would they just feel they were putting themselves in the shrapnel ?
You are correct umagucci Dr. Macfarlane clearly did not generalize and Ms. Nicholls obviously works at Alberta Courts why else would she bring up Alberta Judges when they were not mentioned in Dr. Macfarlane’s article? I found Ms. Nicholls comment of “Lawyers are sometimes treated harshly by judges too. The difference is that they spend a lot of time in the court, so, over the years, they learn to read the particular judges”. This is tantamount to saying that if one cannot read a Judge’s mood, preferences and/or bias they will not get an impartial judgement and that is shocking! This is not a poker game but sadly as Ms. Nicholls describes it, it is exactly that!
Dr. Macfarlane forum gives voice to the voices and power to the powerless unfortunately from the womb to the grave every one of us are inherently “bias” or in softer language “make choices” or “take sides” and that is why we are offered so many different flavours of ice cream or drive different cars and like some people but not others but as is stated in the CSCJA website judges are in “a place apart” from that and are obligated to judge with “impartiality” and talking from personal experience certain Judges are absolutely not impartial!!
The waters of “Judicial Independence” and “Judicial Immunity” is very,very muddy! The Candian Superior Courts Judges Association (CSCJA) statesThe Rule of Law; “No one in Canada is above the law. Everyone, no matter how wealthy or how powerful they are, must obey the law or face the consequences” followed by the contradiction of “Finally, judges enjoy legal immunity and do not have to worry about being sued for something they say or do while carrying out their duties”. This clearly concludes that Judges are indeed above the law! Maybe if Judge’s did not have immunity they would think twice before being rude to lawyers and SRL’s alike?
Pope Francis observed this abuse of power as a problem throughout the jurisdiction of the Catholic Church and stripped the “immunity” component from all Judges and everyone holding high office in his Sept.1, 2013 Apostolic Letter. (I am not catholic but Pope Francis’s affirmation that nobody really and truly is above the law, without exception eradicates all perceptions of hypocracy within the system)!
When my ex and I appeared before a judge in rural Ont things were rather uncomfortable. I have a chronic illness and explained to the judge that I have difficulty with word recall. He rolled his eyes.
He made a point of noting how big our file was. Indeed it was! I had no control over that but it factored into his attitude towards both of us. I had long ago lost respect for the judicial system so it did not affect me. But my ex was noticably “flustered”. The judge also told us prior to starting that we were both “in over our heads”.
I didn’t think I was. I felt quite prepared. I was just in front of a pompous man who obviously had no time for SRLs.
In summary…it will take a generation to see change in my opinion. Judges such as this are strongly entrenched and not leaving any time soon unfortunately.
Hear,Hear sskelly… the Judges comments of being “in over your heads”…of course we are all in over our heads and that is exactly the point!
Certain Judges NOT ALL are still lawyers in Judges robes and shouldn’t be Judges at all! They act like lawyers,they speak like lawyers,they brazenly talk in court like lawyers and you,your language and your evidence is irrelevant to them because before they were judges they were lawyers and before that they were ordinary people, to which they are unable or choose not to empathize with anymore!
The majority of us see things through our chosen prism but Judges are obligated to be in “a place apart” from that, some are just not capable of doing that and that is the root cause of all the unrest among SRL’s.Certain Judges do not suffer fools (i.e.SRL’s) gladly and you may be right when you say “Judges such as this are strongly entrenched and not leaving anytime soon” However, I am of the belief that change will happen sooner than most of us think!
I am very happy to report that my 5 day trial acting as a SRL is over ,my ex retained 2 very reputable lawyers although the second one who he retained for the trial was IMO not much more knowledgeable than myself ! I do not have a high school education and suffer a chronic illness that fatigues me quite a bit so the year plus before the trial was consumed with preparation. It was hell it almost ruined my current relationship . I find it hard to believe that I could have been any better prepared than any other SRL so my guess is that Dr Julie’s work shedding light on the problems of SRL is helping ,or pure luck or blessings gave me 3 very kind and respectful Justices along the way .The trial Judge made me feel comfortable and put me at ease when I was confused ,She also gently scolded me for what was an inappropriate remark I defiantly should not have said but graciously let me explain the context I was attempting to frame the comment in allowing me to save face . The only eye rolling or rude remarks came from my Exs council and he was often corrected for his behaviour towards me and told he needed to remember I was a SRL . In the end I won my case in law ,but at the same time my Ex could have done much worse so although he likely won’t ever understand that despite the fact she attempted to explain this to him (ie:if it was a de novo trial ,if we used this years income etc) using supporting SSAG calculations .so I feel it was a fair decision and I trust her judgement after all she has devoted her life to justice and I for one believe she is someone to be greatly admired respected .