The Canadian Judicial Council (CJC) recently released 3 guides for self-represented litigants, one each on civil law, family law, and criminal law. We have been curious to know what SRLs themselves would think of these guides, and so we asked two of our SRL supporters (both NSRLP Advisory Board Members), Jeff Rose-Martland and Jana Saracevic, to take a look and write a review. (Jeff reviewed the Civil Law Handbook, while Jana reviewed the Family Law Handbook.) While Jeff and Jana agree that the Handbooks are extremely useful, their thoughts about the tone and language used differ significantly. To us, this highlights the range of SRL perspectives, and it’s a good reminder to everyone in the justice system that the SRL population is far from a monolith, as it cuts across an enormous swath of Canadians with a great diversity of viewpoints.
What do you think of these Handbooks? Let us know in the comments.
CJC Civil Law Handbook for SRLs – review by Jeff Rose-Martland
I reviewed the Civil Law Handbook. I found it patronizing, condescending, and essential. The great part – and the CJC deserves praise for this – is that finally we have a document that walks us through the process and provides a lot of information and answers self-reps waste hours trying to get. The need for this handbook cannot be overstated.
Sadly, the execution is deeply flawed.
It’s pretty obvious that few, if any, self-represented litigants were consulted during the handbook’s development. Certain assumptions are made regarding self-reps and their needs – the same assumptions we face constantly. Right in the opening paragraphs comes, “this is not legal advice,” and the backhanded claim to “not comment on the wisdom of self-representation.” (One would expect judges to know that making such a statement is, in fact, a comment.) There is the usual suggestion to get a lawyer, and frequent comments throughout that lawyers know this or lawyers are trained in that, which assumes that SRLs don’t understand the value of a lawyer.
But the worst part of the handbook is the tone. The CJC has fallen into the trap of confusing plain, accessible language with dumbing-down. Much of the handbook reads like an elementary-school textbook. The choice of second-person point-of-view, clearly intended to be conversational and friendly, is instead frequently patronizing. It is possible to write that way and not come across as condescending; if only the authors had consulted with people who know how (i.e. writers and editors expert in plain language). It’s not just the tone that’s the problem either. Many sections include information that is dumbed-down so far as to be offensive, or spend too long elaborating on something anyone who can read a newspaper already understands. And there’s plenty of Do Nots that pre-suppose self-reps are being difficult or are ignorant – such as telling us to type our documents.
So be advised: reading this handbook is a frustrating experience. It requires patience and you may be offended at points. But try to rise above that, because behind the bad tone and all the annoying statements is information you do need. Information you haven’t been able to find other places. Answers no one has been willing to give you because ‘that’s legal advice’. It’s in there. But getting to it takes work.
CJC Family Law Handbook for SRLs – review by Jana Saracevic
I reviewed the Family Law Handbook and found it to be a good overview of what an SRL would need to know. I wish this had been available when I attended family court. It has comprehensive descriptions of what to expect, and demystifies the legal process in a step-by-step manner. The wording is in plain English, so it is relatively easy to read and understand. Personally, I do not think it is too long as all the information is relevant and important for people with no legal training.
One can skip to the area of interest most relevant to them, but I would highly recommend that people read through the whole document at least once. Court processes and legal terms are very well explained. The glossary of terms and resource directory are well-organized, and one can quickly find what is of interest. The tips and examples in each section helped clarify any questions I had. I especially like the work sheets as they provide a template to practice and organize relevant information. (One caveat: The communications worksheet on page 53 felt out of place. The strategies for high conflict communication seemed to be clear enough on the previous page. It can’t hurt to have someone review what specific communication strategies they would use but I just didn’t have the same positive response to it as I did to the other worksheets.)
I think it is an excellent resource. I would highly recommend it, in its entirety, to SRLs and new law students. It would also be helpful for represented litigants to familiarize themselves with processes and terms prior to contacting a lawyer. This background information may come in handy when choosing a legal representative.
I concur with Jeff’s comments. I have repeatedly seen condescending leaflets/booklets about criminal and civil court process that treat people as though they are seven years old. Unfortunately, the real nitty gritty facts SRL’s need to know about legal process are not possible for an arm of the establishment to publish. Tricks and games, underhand tactics, lawyers and judges working together, to the exclusion of the interests of SRL’s and justice – the jeopardy is what needs to be divulged, which only an experienced, literate self rep can do.
I only got to page 20 of the civil handbook. I stopped because there were too many “shoulds” . The Judge should engage in case management. The Judge should ask questions. The Judge should act impartial and fair. The Judge should explain the rules. All these “shoulds” set up a person to expect something fair. This is being unprepared. My experience has taught me that none of those shoulds happen, either separately or together. If anyone believes what they read here, then court will be very disappointing and that person grossly unprepared. No matter what any other helpful “information not legal” advice there may be here. Not helpful. Painful to read given my experience. I used to rely on publications like this, but no more. Lesson learned.
An interesting observation. Years ago, in beginning to learn about the discipline of legislative drafting, one of the simplest points I learned about was the use of “may” and “shall” in legislation. By then it had been decided that “shall” would replace the synonymous “must” that had previously been used. The choice of either “may” or “shall” is very important and I always note it. Is “should” something else, synonymous with neither “may” nor “shall”?
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The senate has recently been handed Bill S-5 – https://parl.ca/DocumentViewer/en/43-2/bill/S-5/first-reading – to consider. When they are done with it it will go to the House of Commons. I’ve just now found there five (5) instances of “should” along with sixty-nine (69) instances of “may” and seventy-nine (79) instances of “shall”. I am particularly interested in the language used under the heading of “Screening Officer”. For example, section 88 uses “may” (which I understand always implies “or may not”), while section 89 uses “shall”. Read together I think it is obvious that section 89 presumes that section 88 also uses “shall”. This may seem like I am quibbling, but I see it as evidence that this legislation is not the result of a serious effort by professionals. I think it was thrown together in haste.
Totally agree! “Shall”, “should”, “may”, are all loopholes to excuse not doing a thing that “must” be done. Whenever I read “may” I am particularly disheartened as it is always used to deny at the discretion of the authority. It is never used to actually do a thing. More legal loopholes not to do the right thing. Great point, I’m glad you brought it up. I thought I was the only one to notice!
I for one appreciate your candor. Having grown up in a world where teachers, police, doctors, lawyers, and especially judges were said to be your trustworthy freinds, I relied on explaining out my evidence, not yet proving it out, (as it hasn’t reached a Trial) and I got badlly burned at Settlement hearing, and now again in Court of Appeal, based on entirely false expectations that truth, morals or justice meant anything at all in our Courts. Silly me.
I read the Civil Law Handbook and although it is obviously very helpful, I was totally put off by its tone. I concluded it is written from the perspective of where NSRLP was about 10 years ago when everyone thought the problem is all the fault of the SRLs because they ALL don’t know what is required. It is obviously based on what judges say with no idea that the real problem is the injudicious and even totally unfit judges on our Bench especially those who think our courtrooms are lawyers’ exclusive domain (they also being lawyers first and foremost) and they must teach us a lesson to dare to come into these court rooms to seek justice and most of all how dare SRLs speak to them. The CJC needs to do a study on how SRLS on a very large part have their paperwork well put together and even how badly some lawyers fail in that regard. What is more just stating AND PROVING the facts is enough to decide any case. The winner can only be the one on whose side the fact are. Justice cannot be dependent on who can twist the story best (the argument)
If I may add, the CJC would be surprised to know how many judges, not to mention lawyers cannot follow the instruction in their Handbook. The same obtains with case law
Search “factum” in the CLH! It appears only twice, and that with regard to appeal. One big mistake litigating a 10-year case as SRL was not filing a factum with my affidavit to the very first of dozens of motions-all requiring factums. How many lawyers no longer file factums? To suggest this is intended to help SRLs is disingenuous at best. It seems more like CYA for CJC. Far better improvements to the system might result from SRL’s writing a Handbook-101 for lawyers and judges: what they should and should not do. This is 2021. So live stream all court proceedings. I attended hundreds of hours learning court procedure from other cases, which is quite effective but not convenient.
I agree with Richard. I attended a motion just to observe so I would be better prepared for my own response to a motion brought against me. While watching, I lucked out because it was a case similar to my own. A young lawyer quoted caselaw which turned her client’s case on its’ heels. I wrote the case down, went home and researched it, applied it in my own proceeding and … boom … obtained an adjournment in my favour. I didn’t know what a factum was but fast learned how important they were. I have been told SRLs are not sophisticated enough to understand what a factum is. Perhaps the system simply doesn’t want us to know? It is largely the attitude of the system that seems to be the biggest barrier. I had a lawyer tell me there was no way I should go into cross-examinations alone as a SRL. He was not wrong but I had no choice. I also said to the manager that if they tell us we “cant” do something, they are creating defeat before it even begins. But by telling us we “can” and giving us as many resources and support and encouragement as possible, our chances of success may improve because we’re going in there on our own anyway, because we have to. The “democratization of information” is changing the face of law. The more the public learns, the more difficult it is to patronize and belittle us. The system may not change for our generation but we can work very hard to change it for our children.
I believe it is time for the national self represented group to understand,, The cases you won,, Pintea, lymer etc,, to help the self represented, are blantantly disregarded by the courts. If you request that a lawyer take your case, and apply these cases, i was told that they didn’t apply to me, because the court was “angry” with me. The lack of accountability act, applying to judges, needs to be withdrawn, or re written, so that accountability is once again, available to the public, when dealing with the legal system. As well,, no lawyer will help you,, even if you actually have money to pay them. because how dare we call a spade a spade, and say they are acting in violation of the law. Even with the hard work you are doing,, no change has occurred. I submitted a copy of the Mcdonald report, outlining the fraud in the evidence in my paternity case. To this day i have not had any reponse, other then a threat from the AG of BC, by one of his lawyers. I sent you a copy. There is no justice or access to it,, STILL, for the self represented. Not one thing has changed. The judges need to be held to account. That piece of legislation preventing that,, has to go.