In her article “The Reality of Pro Se Representation”, Judge Owens compares the self-represented litigant (SRL) experience to a childhood game. Just like ‘Hide & Seek’ or ‘Hopscotch’, the courtroom consists of specific rules and if a litigant does not follow the rules, they are out of the game. Owens goes on to inquire “If you don’t know the rules to the game, how can you win?”[1]
My name is Erin Chesney and I am a law student at the University of Windsor as well as a research assistant for the NSRLP. Throughout my year and a half of legal education, I have learned many of the rules of the game of law in my various courses. Some of these rules are relatively straightforward, while others are more complex in their application. That being said, after studying a given subject for an entire semester, I have never been able to walk into a final exam and say ‘I think I had a complete grasp on all of the law in this course.” Law is complicated, even when legal education is your full time job.
Now, throw into the mix a career, children, expensive legal resources and many other obstacles that stand in the way of many SRLs being successful at the game we call justice. For me, it’s difficult to fathom self-representing while simultaneously confronting all these challenges. However, one of the most valuable lessons I have learned while being a research assistant for the NSRLP is that many SRL’s are extremely intelligent, incredibly resourceful and have the potential to grasp many of the legal concepts necessary to successfully complete a case. If we, as a society, were to move past the stereotypes and start to listen to their stories, we would begin to realize that ‘the SRL problem’ is not a legal education barrier but rather an overall disconnect between what people need and what the system offers them as access to justice.
This semester I am enrolled in both an evidence and a civil procedure course. In both of these classes, we are taught a given rule and the social policy behind implementing said rule. For example, we were taught that in order for a piece of evidence to be admitted at trial, it must be (1) relevant (2) material and (3) not violate any exclusionary rules. We were then taught the method for proving each of these requirements, all of which seemed relatively logical and comprehensible. For instance, the person seeking to admit the evidence can call a witness to testify regarding the materiality of the evidence. In my opinion, these rules are necessary in a court proceeding to ensure justice is being served. Furthermore, although it might take significant studying to master these rules, it is not an impossible feat.
However, there is a final barrier to evidence being admitted that blurs all the lines. A concept called ‘judicial discretion’ gives the judge the power to make the final decision, even if all the aforementioned requirements have been satisfied. From my limited experience in learning about judicial discretion, it is my understanding that the initial reasoning behind providing judges with this authority is well intentioned.
Judicial discretion in the application of rules arises in all areas of law. In a criminal case, for example, this discretion is essentially the determination of whether the probative value (the strength of the evidence in proving a fact) is higher than its prejudicial effect (the harm it will do to the person the evidence is incriminating). From this test, it is clear that fairness for the accused (in a criminal case), which is a Charter-protected right, is a central concern.
I would never propose that I can truly understand the emotional roller coaster that is self-representation. However, I can imagine that after months preparing for a trial and learning as much as possible about civil or criminal procedure, it must be beyond frustrating that a judge can just rule against you. When a SRL has ensured that every single evidentiary requirement has been properly fulfilled, it must be completely devastating and seemingly unfair to suddenly fail without an understandable explanation.
SRLs believe if they learn the rules and show they can apply them, everything will come right for them. It is telling that in the National SRL Study (2013) we saw that SRLs complained far more about being disadvantaged by procedural rules that they thought they had understood and applied, than about any actual outcomes in their case. SRLs are not usually law students and have not attended extensive lectures about the reasoning behind certain legal concepts, such as judicial discretion. It follows that it is not reasonable to expect an individual outside of the legal sphere to instinctively know the context of legal procedure they have studied and the reasons why it might be an important part of the legal process.
In class we are taught that the purpose of rules such as these is to maintain the administration of justice and preserve the rights of those involved. However, to me, the lack of education and support that the legal system provides to SRLs does not seem to be promoting these objectives. This is not one person’s fault, but rather a systemic problem – that disconnect again.
Returning to Judge Owen’s metaphor of a game, it seems to me that a legal case is a game with very specific rules. However, being self-represented in Canada currently is like learning all the rules of the game, only to be tripped while it’s your turn. While it is not impossible to win the game, it is very difficult and emotionally draining. As a result, many SRLs leave court extremely frustrated and even angry, which only continues to perpetuate the stereotypes of self-representation.
SRLs are the new players in the legal game and they aren’t going away. For this reason we need to change the way the game is played if justice has any chance of winning.
[1] Judge Denise S Owens, “The Reality of Pro Se Representation,” (2013) 82 Supra 147
while it seems the judge in any court action has the discretion to make decisions to allow evidence or not outside of the rules, it would be handy if the judge actually told the litigants why this decision was being made, and in my case,,, I was simply asking repeatedly for the right of discovery and cross examination,. I was never given this right,. how can the merits of a case be known to the court, without these steps being followed. I am left on my own to prove my case outside of the courtroom, I have said repeatedly that mr wong, is my childs father, dna testing and in one case out of VGH, hla testing claims this is not true. I said something in wrong with the evidence and I would like to review it. full disclosure of the file despite my many requests has never been done. I have a dna test from Calgary childrens, and an independent genetics doctor has stated, it I snot me and not my daughter despite the labs claims it is, no one will answer. from the lab. I have now received a copy of a NEW HLA TEST just on me, I seem to have an antibody to B15. this is an Asian identifier. it has endangered my life by having really sever reactions to medications,.normally safe. I have been advised by my genetiist that there are only three ways for me to have this identifier, transfusion from an Asian, organ donation from an Asian , , or child birth of an Asian child. guess which one is mine, I have said repeatedly there is something wrong with the evidence and if the courts would have just followed their own rules providing for examination of the evidence, then this would have been discovered years ago. instead, no one wanted this matter to be heard, I was thrown out of court, called vexatious and barred from all evidence by the labs who are still refusing release of the files to me on the new hla testing and the old, the same of course with all other evidence from dna, chain of custody etc etc,, these are the long term injustices that occur when the courts refuse to be fair and to support fair, to hear their clients, to respect them enough to know they probably know why they are asking for the support of the court to examine evidence the courts have forfeited their role as quardians of justice, they are now just bullies . and have destroyed my childs life, her rights and my life and my rights, congratulations… if you want to say we the victimized are angry,,,,, why yes,, you are right. I came asking for a fair trial, if the courts want to admit dna evidence, it had also better have some safeguards to protect the public from cases like mine. what, no protections? then may I ask what this sort of evidence is doing in a court of law without them? discretion of the judge???? no one wants to hear what is happening? rather we be victimized then just follow your own rules?
This is by far the truest assessment of SRL experience I have taken notice of to date. The number of hours , many times dollars spent in attempting to understand, prepare , research can be unmeasurable for the SRL and only to result in a discretionary decision by the judge that appears to hold no just basis. However, the ” system ” provides opportunity for certiorari , judicial reviews with the view to insuring accuracy and lawfulness of these decisions; so how can one ever trust the foundation of the legal concept on which discretionary decisions are made unless one opts to go to the end…which very few SRL s opt for.
I think the author means well. This article perpetuates the myth! ” judicial discretion ” is the BALONEY judges use to screw 99% UN represented.
Anyone can easily see this – if they open their eyes. FAR easier to cite “systemic disconnect” and UN represented faults which sadly blames the victim.
We are UN represented NOT self represented, and it is a disservice, to not recognize this fact!
The author may indeed be well meaning, but if anyone studies court decisions, regular “irregularities”, judicial “errors”, procedural “errors”, illogical, non meaningful reasons, or no reasons are the RULE not the exception (remember the context “SLR” and “judicial discretion”)
YES some appellate decisions do recognize these “warts” of our judicial system, but VERY few actually provide JUSTICE let alone “Justice seen to be done!”
Small wonder there is a disconnect.
A free citizen is under the delusion that articles like this and the few good judges are the NORM, sad reality is that INJUSTICE is the norm.
I CAN SHOW THOUSANDS of such cases, and other “judicial discretion” examples – if anyone has any doubt….
how many times are “records and recordings” altered, lost, or even denied by judges?
“Understanding the legal game”; “judicial discretion”; “without an understandable explanation!” I take you back to the case of the last century: The OJ Simpson trial. We all ‘knew’ he was guilty; yet to prove it > beyond a reasonable doubt > when he tried on the shrunken blood-soaked, now dry gloves, and with the world watching the theatre, the ‘game’ of it all – they didn’t FIT! So there! You see! Your honour! The Court! The millions of us WATCHING! The gloves did not FIT! ERGO, he was not guilty > beyond a reasonable DOUBT! Two innocent people murdered; yet he was FREE to go!
After suffering 6 years, with some 3 years of never-ending discovery questions, questions that became ludicrous, having zero relevance to my claim of contractual non-compliance, I fought to have the court explain to me: “under the circumstances all questions have been found relevant; the plaintiff shall answer them!” I kept asking what ‘the circumstances were that made the questions “relevant.” The senior Master’s response: “Mr.Steen, the court is not there to give you advice, sir.” I was not asking for advice I said, I was asking for an explanation!
The Master informed me that the former Master had already decided the questions were relevant; that it was outside his jurisdiction to question the Master.
This is where the ‘game’ shows itself in all its simplistic glory. The court often decides early on WHO wins; relevance or justice be damned. If the gloves don’t fit to-DAY, they could not have fit THEN, during the gruesome bloodbath vicious murders! Since this Master says such-n-such, all’s required is the replacement of an other official at the next hearing. He/she can simply state: ‘I wasn’t there then; today it’s me your facing! I am the Master of this session, and it’s my judicial discretion you are subjected to. So there!
My Divisional Superior Court Appeal was recently dismissed by a ‘high profile, tough judge’, judge Charles Hackland. His clever rhetorical analysis, with references to case-law, gradually built to summarize his verdict. Guilty as charged; dismissed!
The courts are NOT about justice; the rules are NOT there to be adhered to (most are quite atrocious with their various allowable options).
As your articling student well puts it: “Understanding the legal game.”
Unless, and until, we drastically change the very foundations of our legal system, to make it become airtight, so rules actually MEAN something, so that we can hold even those who judge us accountable, there can be NO justice; it shall continue to be a game, a game played by those who are in control of it.
“The senior Master’s response: “Mr.Steen, the court is not there to give you advice, sir.” I was not asking for advice I said, I was asking for an explanation!” and how familiar is this to our own case…..decisions countervening our authorities and precedents stated made by the deputy judge WITHOUT any explanation !! and ” we are not here to give you advice ” when EXACTLY we were merely asking for help in even UNDERSTANDING the sentence !! the courts are NOT there for fairness and justice…. and the system is a CLOSE KNIT community that, at every turn gives only ONE PIECE OF ADVICE which is ” get yourself a lawyer ” ….perpetuating the drug on which it thrives…
I have said and said,, if you admit {expert{ evidence, without questioning or permitting questioning by the other party, without full disclosure of the file from the supposed expert, without regard for a full and fair examination of the evidence or the witnesses to the production of the evidence the courts, you , are not following your own procedural rules, if it is then shown that fraud and or error is involved in this evidence the court allows in without question, exists… the court is responsible for this. now,. if the court can then bar you from obtaining the file, or presenting it to the court,, the court can KNOW IT IS FRAUD but never have to take responsibility for it. that is what is happening,,,, and that is why I at least am saying,, the courts themselves are corrupt. and self interest means they cannot have a responsible role as guardians of justice, they are themselves, the criminals.
Senior Ontario Appeals Court Justice Tells Ottawa Law Class “there are very few if any cases where THE LAW will stand in my way of reaching a result that I think is just”
http://www.commonlaw.uottawa.ca/index.php?option=com_content&task=view&id=10337&Itemid=867
Link above is to Appeals Court of Ontario Senior Justice John L… lecture at Ottawa Law School…Justice L… is an expert on Factum Writing and this talk and accompanying slides are bang on and one the BEST and honest open sources for successful legal writing. He was one of the 3 judges that heard/ruled on my appeal. Justice L… is a brilliant strategist and analyst and discloses one of the best kept secrets of our system of justice-the law.
With regards to the power of our judicial, Justice L… states right on this recorded audio (link attached above) one of many truths that the public and SRL must begin to become awake to; This is a MINDBOGGLING disclosure/admission of truth coming from the highest level of Justice and so this proves why my concerns about bias is so dangerous to justice. The system protects its own well (they write the laws) and I am personally experienced with how hard it is to prove bias and or negligence in the court. The good news is, that I believe that “the truth MAKES us free” and I would not give up until this becomes reality/is experienced. This is the ONE thing that the “masters” hate (are scared of) , and probably the only thing that they cannot simply take from you in the worst of circumstances.
An excellent Blog Erin, one of the best. It sounds like you have a pretty good grasp of the true reality of our justice system. The more involved one gets with the system the harder one must work to overcome evil with good. Even if an individual is a good person and not bad, the next stage is very difficult in that the pursuit of justice must become far less expensive and a whole lot faster. All the best in your efforts Erin.
In any given set of circumstances we are all; either a servant or a master. Our modern society has completely corrupted the respect and the responsibilities of both! I do not think the system should be turned inside out, I think it should be turned UPSIDE DOWN in the most righteous fashion!
Personally I am convinced the public and yes even todays SRL are not awake to what really happens everyday in our system. What really freaks me out is that history proves that more regulations or controls/oversight over judges will NOT fix the problem. The solutions reside in what we all truly have in common and we MUST realize that litigation is a battle between good and evil and that in order to receive justice, good must prevail against evil in our courts/ and in the decisions!!!
the link you refer to is INVALID..
Do you have a live link for the quote or even the full name of the Judge, Delmer. If accurate, I am shocked that a jurist would think it a positive portrayal of their role.
Hello Rob; I am stunned that the link for the audio has just been taken down by the University of Ottawa. I checked the link just before sending it to the blog and it was working. I did send the same link to Julie on September 29, 2014 and I sure hope she may have saved the audio to hard drive. I have not been able to find a copy of the audio yet on my hard drive or online. The Judges first name is John and his middle initial is i (Ontario Appeals Court) . What I have been able to find today is a statement by him on the official Ontario Appeals Court Website; http://www.ontariocourts.ca/coa/en/ps/speeches/forget.htm
where he states something somewhat similar in paragraph 5. ” We are powerfully influenced by the equities of the case, by the needs of real people. If we have to, we will bend the law to reach a fair result. Most cases are decided on the judge’s view of the facts – certainly, in our court, and even in the Supreme Court of Canada.” I apologize for the untimely broken link to the audio tape in question…someone from University of Ottawa Law course may still have access to it?
link does not work… who is Justice L?
Hello Rob and Julie;
Bingo, I just found an archived copy of the audio and slides on google and yes I have saved it to my hard-drive just in case. For the pertinent quote I gave earlier just go to the 1:06:00 part of the audio and start listening there and the exact quote I quoted comes right after 1:08:20 of the audio;
https://echo360.uottawa.ca:8443/ess/echo/presentation/1d6c01a6-bf3a-4f41-816d-2205ddc1d15d?ec=true
Best Regards;
Hearing that audio makes me think how promoting change for the better with pure facts and data is a questionable route. It’s almost like people need to take the idea implied in that audio recording as I personally don’t think it is hard to prove a bias. Basically, it’s more about gathering enough real stories and then packaging/presenting them in a simple way that compels the overall general public to care enough to change things.
Rob; In my personal experience Justice L… was not the really bad guy. The really bad guy was the initial Superior Court Justice who seized my lower court case and ruled against me in a truly biased, prejudiced manner. It is bad apples like this that create the most dedicated advocates for radical reform…and quite frankly ones own personal experiences can trump anything anyone else may opine about…Personally I believe the system should be turned upside down AND inside out!!!