Today’s podcast focuses on the experiences of people with cognitive disabilities (PWCD) who are trying to navigate the courts without a lawyer.
Since the beginning of the pandemic, we have heard increasingly from SRLs with cognitive disabilities about their lack of accommodation from the courts. It seemed that the accommodation processes in place – for example in Ontario, via an Accessibility Co-ordinator in each courthouse – had broken down. SRLs described making applications for accommodations in open court, disclosing private medical information to the other side, and having to “duke it out” over necessary accommodations to enable them to meaningfully participate in their own case.
Shannon Meikle
Silvia Battaglia
In preparation for Julie’s recent presentation to the Ontario Courts Accessibility Committee, chaired by Associate Chief Justice Fairburn, on this topic, two NSRLP research assistants, Silvia Battaglia and Shannon Meikle, reached out to SRLs with cognitive disabilities and asked them to speak about their experiences seeking court accommodations. They discovered that almost all the SRLs were unaware of the presence of Accessibility Coordinators in their courthouses, or the process for requesting accommodations before a hearing. Their descriptions of feeling like there was no one to help them are captured in excerpts from the interviews, recorded with their permission. Their experiences are shocking and heartbreaking, and frustrating, since there is a process for seeking accommodations that is intended to be private, responsive, and to remove such requests from an adversarial setting. The problem? Almost no one knows about it, or how to use it.
This episode also uses a short clip from a podcast recorded in 2017 with Judy Gayton, an SRL whose devastating experience in the Alberta Court of Queen’s Bench was covered by CBC, and who describes graphically and poignantly the impact of her brain injury on her cognitive processing.
See also: our Primer “A Guide for SRLs with disabilities: Understanding your rights and requesting the assistance you need.”
In Other News
Katie Pfaff
Guest Other News Correspondent Katie Pfaff today focuses on access to justice for Indigenous people in Canada. In the wake of the discovery of the graves of 215 Indigenous children at the Kamloops residential school, Chief Justice Richard Wagner states that there must be more education for the bench to understand Indigenous history and the histories of other cultures and communities. Katie’s second news story focuses on a settlement reached to include hundreds Indigenous people who were left out of the residential schools’ class action compensation protocols.
We would also encourage our listeners to read Windsor Law Acting Dean Beverly Jacobs’ recent piece in The Conversation, “Investigate discovery of 215 children’s graves in Kamloops as a crime against humanity.”
“Settlement reached on residential school day scholars class-action lawsuit” (CBC)
Jumping Off the Ivory Tower is produced and hosted by Julie Macfarlane and Dayna Cornwall; production and editing by Brauntë Petric; Other News produced and hosted by Katie Pfaff; promotion by Moya McAlister and the NSRLP team.
Great episode
If “Access to Justice” was properly spoken to it would be relabelled “the right to a fair trial”, which is exactly what PWcD are denied.
None of the Rules of Readiness for Trial were addressed in my case, rendering it impossible to have conducted a fair trial. It was an abuse of me, taxpayer’s $ & the systems time that will be used to justify abuse of other PWcD. The studies present a body of evidence of systemic abuse – a Human Rights violation demanding a class action lawsuit. The legal system knows or should know they cause harm & perpetuate an unjust society.
Having been represented, SR & found incompetent to try my own Medical Malpractice lawsuit without counsel, I highly recommend everyone with or without counsel have a copy of the Civil Law Handbook for Self-Represented Litigants so they know what counsel should be doing.
As one interviewee aptly stated, it would be helpful if she knew what accommodation was available. Failure to have provided a comprehensive accommodation guide is like having a waitress ask for your order, despite the restaurant having no menu.
Mandatory Education addressed in a haphazard, piecemeal fashion, excludes many. Education on the costs, loses & hardships compounded upon PWcD, women, poverty, homelessness, victims of sexual/violence, persons of colour… is the humane thing to do. Addressing people one group at a time ensures little change will occur. The suffering caused is real & profoundly rooted in genocide, eugenics & hate.
With all due respect to the hero’s pushing forward movement, no primer, no amount of Mackenzie Friends & no amount of training can stop the callous disregard of the people the system abuses & allows others to abuse. Abuse is always a choice.
Agree with your last statement wholeheartedly. People pay “lip service” to this issue yet the abuse continues to go on and on. I suffered tremendously, for over a decade, being a SRL PWCD … and despite many medical professionals stepping in and asking for accommodations for me ..none were granted .. and I was penalized for asking for them ..
Unrepresented disabled litigants have a Constitutional Right to access to justice see Trial Lawyers Association of British Columbia v. British Columbia (Attorney General), 2014 SCC 59, [2014] 3 S.C.R. 31 at par. 39 also the UN Guidelines on access to justice https://www.ohchr.org/Documents/Issues/Disability/SR_Disability/GoodPractices/Access-to-Justice-EN.pdf which I provided to this project.
In my case a Case Management Master systematically refused to accommodate me. He accommodated opposing lawyers 5 instead, the judge hearing the motion also denied me the reasonable accommodation. He agreed for me not to be present at the hearing and made paid for it by making me to renounce to my right to a rebuttal. When we are in a Court room we really are on the ground of Section 96 of the Constitution but it seem judges and lawyers are above it.
Hi Carlos, we are hoping to conduct more interviews on this topic for a research report. Would it be alright if we reached out to you about this via email?
Sure. No problem. My partner and I we both have sent communications to the Right Honorable Chief Justice Richard Wagner through the Court Registrar and through the Canadian Judicial Council regarding problems with accommodation at the Federal Court and the Federal Court of Appeal but to no avail. They do not even dare to answer your communications. I file a claim and Imy accommodation request was systematically denied by a Master and I was punished, by no reason at all, by the presiding Judge. I was condemned to pay almost $40,000. I file an appeal but I had to file a motion to request an accommodation because of that barrier my appeals at the Divisional Court and the Court of Appeal were not possible. I filed an Amended Statement of Claim ordered by the Judge in 2017 and I have been told at the Court Registry that there is no record of it.
Hi Julie, E. here. This podcast is so wonderful (and so heart-breakingly true). My experiences with Accommodations within the Ontario Court system is that they are completely missing the mark in terms of meeting the needs of persons with cognitive disabilities. In some cases PWID PWCD/SRLs are told they must file a motion to seek accommodations (which costs $350.00) then denied the motion by the judge that ordered it be filed. The case management judge left it to the trial judge who then also denied the accommodation. When asked, the trial judge had not even received the full accommodation request repeatedly provided to the courts via the accommodation clerk and the tone of the justice made the PWID SRL feel it what futile and in fact damning for the SRL to try to further pursue accommodation in court. Dr. Karin Huffer’s book, Unlocking Justice, describes how disclosing our medical information even in the most basic form to opposing counsel and to some judges is often used against the SRL PWID to their disadvantage and to the advantage of the opposing party. The Human Rights Codes do not seem to top Judicial Independence. Being a SRL PWID, IMHO, is a very dangerous experience to go through. In another court proceeding the person who was to be handling accommodations didn’t even know what to do. Then, the judge said they wouldn’t accommodate anyway. Thank you SO MUCH for this podcast.
When reading your post, my attention was grabbed when I came across your mentioning the late Dr. Karin Huffer. Dr. Huffer advocated for me, for years, with several of the justice institutions in Canada. I am a SRL/PWCD. We sent a total of about 20 + letters to so many entities — some of these entities are allegedly supposed to help SRLs. Not only were none of her recommended accommodations for me ever put in place, but not one of those entities had the decency to ever reply to her. When I wanted to call her as a witness in court, the judge belittled her credentials and denied me the right to have her speak on my behalf. She fought hard for me for close to 8 years, right until her passing .. She was a saint and she fought so hard for people to have accommodations and dignity while going through the court systems. The worse thing is that there is nowhere to turn when you are denied any type of accommodation .. the bodies that are the gatekeepers for the legal professionals are all incestuous. Wish there would have been a peer support group or something ..there just was not
I am very pleased to virtually / anonymously meet you “A”. I corresponded with Dr. Huffer who mentioned about a case she worked on here in Canada. Her comments were generally that it was bad enough in the states but that she was entirely in disbelief as to how much worse it was for Canadians. The Americans at least had the Americans With Disabilities Act. She observed that from her experiences Canadians had virtually no support and that she was shocked and dismayed by the attitude of the Judiciary and Government of Canada. I am so so sorry you had such a horrendous experience. It will be empowering for all of us to come together on this issue.
Pleased to virtually meet you as well, “E”. I believe I was Dr. Huffers sole Canadian client at that time. Dr. Huffer was absolutely gobsmacked at how horrible PWID are treated within the Cdn Justice System. Every “accommodations request” letter she sent (about 15 letters in total) was either ignored, laughed at or outright dismissed. The courts would not even allow me to have her testify viva voce. Judge thought she was not qualified to be an expert … and said right onto the record:” unless someone has a JD behind their name, I do not want to hear from them” …. the arrogance and narcissism of so many legal professionals (judges, lawyers,etc) that I have had to deal with is overwhelming.
I agree with you when you state that it will be empowering for all of us to come together . I am willing and able.
Hello E., we are hoping to conduct more interviews on this topic for a research report. Would it be alright if we reached out to you about this via email?
Of course, please contact me anytime. Would be happy to discuss.
I would be happy to however unfortunately cell and email are not always (often?) secure for some who may feel they are experiencing indicators of communication interception. I understand Covid protected face-to-face interviews are not possible…
It would be interesting to know if one is permitted to speak of accommodation issues experienced during closed proceedings as well as open proceedings. It seems accommodation issues may fall under “court administration”, which bodes the question as to if such experiences fall under closed proceeding confidentiality rules?
I’ve been reading caselaw with respect to administrative matters that seem to / might be deemed to fall outside of judicial independence. It seems the US and the UK have some jurisprudence on this aspect of law (not o be deemed advice / ask a lawyer for that) It’s an interesting subject to try to understand regarding accountability remedies.
…correction…immunity rather than independence…
Here is a summary from Wikipiiea…Of course, always seek legal advice. I find this case interesting;
“In the United Kingdom, tribunals are considered judicial in nature and so judicial immunity applies to them at common law. This was accepted by the Employment Appeals Tribunal and subsequently the Court of Appeal of England and Wales in respect of police misconduct hearings constituted under the Police (Discipline) Regulations 1985 (since superseded by the Police (Conduct) Regulations 2008) in Heath v Commissioner of Police for the Metropolis [2004] EWCA Civ 943.[5] However, in P v Commissioner of Police of the Metropolis [2017] UKSC 65, in which a police officer (an officer of the Crown, but under the Equality Act 2010 treated as an employee in employment discrimination cases) sought review of her dismissal as constituting disability discrimination due to post-traumatic stress disorder, the Supreme Court ruled that the Employment Equality Framework Directive (implemented by the 2010 Act) provided directly applicable rights of access to justice in cases of employment discrimination, which, given the supremacy of EU law, overrode the common law rule of judicial immunity.[6][7]”
There seems to be other cases but it is a challenging subject…Still, quite interesting to research, IMHO…
At the end of the day, wouldn’t it be healthier for the courts to design a holistic, simpler, healthy, accountable, equal and accessible environment resulting in restorative justice? …and then to actually apply those policies rather than referring to them as “guidelines” or saying they “may” be applied rather than “must” be applied?
Hello A, we are hoping to conduct more interviews on this topic for a research report. Would it be alright if we reached out to you about this via email?
Yes! I would most definitely make myself available for interviews in regard to this topic. Thank you for all you do!
Eldridge v. BC SCC : https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/1552/index.do
is what I understood to be the leading caselaw with respect to Accommodation requirements by institutions in Canada, yet the lowers courts seem to say NO.
I believe this is because this case has not been “tested” and that the Ministries of the Attorney Generals across Canada need to have a test case or a class action case filed in order to pressure the Court Systems to provide “Legal Navigators” and Lawyers to assist us. Some judges do understand ie. Justice Gascon of the SCC (Ret), Justice Richard Schneider is head of the Criminal Mental Health Courts in Toronto and wrote a great article in the Toronto Star, and Justice Tim Daley of Nova Scotia, openly talked about his experiences with grief and trauma being debilitating. https://www.cba.org/Sections/Young-Lawyers/Articles/2018/JusticeDaley2018. As well, Orlando DaSilva discusses the use of Legal Navigators and pro-active court services in your podcast, “We’re Only Human”. https://representingyourselfcanada.com/were-only-human/ . Bringing those from the “other side of the bench” into the discussion who also have cognitive disabilities, as collegial representatives might assist in delivering the message regarding the impact that the courts are having by not being sensitive to these issues; including escalating costs then putting that burden on the very person who was not accommodated, and escalating symptoms of the PWID PWCD SRLs, and possible causing the need for lengthy expensive appeals when a little compassion and accommodation up front may have alleviated these issues. I believe many (most) of us may never fully recover from our negative experiences and may in fact suffer long term harm as a result.
PS. the above mentioned motion was submitted with the unbundled / limited-scope assistance of a lawyer at an additional cost to the $350.00 court filing fee…of $500.00 plus hst for a total of almost $1,000 for a 1.5 page double-spaced motion for accommodation… that was ordered…and then denied…
I just discovered this online. Hopefully as many PWDs / PWIDs / PWCDs will consider it: https://www.surveymonkey.com/r/OCACSurveyEN
From what I can see, and based on my own observations of the court as a Mackenzie Friend, Judges do not have the qualifications to do the job. They are trained as lawyers and have the qualifications for that role. I do not see how their promotion to Justice/Judge is justified. I think for real change to take root we need Judges that are trained in their field. A 4-year PhD program in Justice with a focus on serving marginalized populations, equity, mental health and providing service excellence. Until there is true change at the basic educational levels and proper training for Judges, real change will not take place.
I was researching Her Honour, Justice Fairburn, which led me to the Supreme Court of Canada “Advocacy Program”. I cannot express how gobsmacked I was. Here is how wonderful they are to lawyers preparing to argue a case before the Supreme Court of Canada and the incredible accommodations they provide to “able” experienced lawyers: https://scai-ipcs.ca/programs.html…
…but notice the almost Postscript like “FYI” for Self-reps https://www.scc-csc.ca/unrep-nonrep/index-eng.aspx .
SRLs seem to be completely shooed to the side like annoying flies with no chance of having any success arguing a case before the SCC (which is true because the stats confirm this). Do the Courts realize the tone and message they are conveying?
This makes me appreciate Justice Beverly McLaughlin’s book wherein she describes The Famous Five “Persons” Case. Five women had to collectively raise funds to bring their case before the British High Court, under the British North American Act, for the right to be legally defined as being a “person”, thus they argued they had the same rights as a man. Here’s the case: https://www.thecanadianencyclopedia.ca/en/article/persons-case.
SRLs and SRL PWIDs / PWCDs should lawfully be entitled to equal legal experiences as determined by Eldridge v. BC (SCC) as well as the 2006 Ontario Court Report on Accommodation and Access to Justice which affirms “Eldridge”.
We are persons too.
Some years ago I began to experience an impairment – with my hearing – that has reached a point where I now have a personal appreciation of the need for accommodation. That’s important to me now as I am looking at the prospect of returning to court with an action challenging the B.C. provincial government on an “open court principle” matter.
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But I want to take this opportunity to note something else. I have just submitted what I’m calling a complaint to the Canadian Senate’s Ethics Officer. I am claiming that Senator (and former superior court justice) Pierre Dalphond is in a conflict of interest due to the role he has chosen to play in promoting Bill S-,5 as evidenced in the June 5 record at this link – https://sencanada.ca/en/content/sen/chamber/432/debates/049db_2021-06-15-e?language=e#60. In conjunction with that, another position I am pursuing is that there is a serious – I might say fatal – problem with the lack of separation between all of the privileged interests (the term usually cited is “separation of powers” – referring to the three purported branches of government).
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In pursuit of that issue I have just found this article – https://biv.com/article/2018/06/former-supreme-court-canada-judges-politicians-find-new-careers-bc-law-firms- published three years ago. You will need to click on “READ MORE”. In a previous attempt at challenging the conduct of the B.C. government I had expressly named one of the people identified there: then Attorney General Wally Oppal. The article doesn’t seem to suggest that there is a problem with what is obviously a nearly total absence of boundaries.
Hi Chris, we are hoping to conduct more interviews on this topic for a research report. Would it be alright if we reached out to you about this via email?
Big news! Although it requires much improvement, since Julie met with the Ontario Accessibility Committee facilitated by Justice Fairburn one of Canada’s largest court houses has made a homemade poster that says “Are you Self-representing
Below it lists CLEO’s and the NSRLP’s websites! This is a huge first.
Unfortunately it is posted in a window far from the entrance doors and under shadow of a cement overhang and visible from the walkway approaching from the south parking lot, if you are paying attention. It doesn’t meet the needs of the visually impaired and some others. BUT it’s there, in a window to the left of what I believe is the lawyers lounge.
In all the courthouses I have visited, this is the first time I’ve noticed such information posted for self-reps. We still have a long way to go…but progress seems to be occurring. Keep up the amazing work you are all doing at the NSRLP and to those who are bravely speaking out about there experiences. I stood in front of the poster and just smiled.
As Margaret Mead said,
“Never doubt that a small group of thoughtful, committed citizens can change the world; indeed, it’s the only thing that ever has”
Anyone seeking information regarding Charter Challenge processes and resulting damages and other remedy orders, you may find these articles interesting;
https://www.bennettjones.com/Blogs-Section/Ontario-Court-of-Appeal-Upholds-30-million-Charter-Damages-Award-Against-Ontario
https://www.bennettjones.com/Publications-Section/Updates/Ward-v,-d-,-Vancouver-Putting-a-Price-on-Charter-Breaches
PS. Does anyone else have an issue with Canadian taxpayer dollars being used to provide luxurious comfy cozy lawyer lounges, when 50 to 80% of litigants are self-representing and we don’t even have a law library at the courthouse where we too can go to quietly prepare ourselves for proceedings or to rest and regroup, let alone one that accommodates PW(c)Ds? Seems this might not meet S.15 of the Charter nor UN international protocols regarding fair business practices nor the CJC mandates regarding equal experiences?
We are the very tax payers funding those lawyer lounges that we are ironically not allowed to enter.
#DefundLawyerLounges #FundSRLLawLibraries instead.
Hello this is very interesting! Which courthouse is this?
…………Brampton 🙂
Thank you!
What I believe was formerly a lawyers lounge no longer has what I recall were comfy couches. Not sure when this changed (maybe since covid). I know Milton had one with a library and computer area because my lawyer (when I could afford one) had to ask for permission to let me go in with her to do something for a judge. The poster at the Brampton Courthouse, with the NSRLP website, is not noticeable from the walkway approaching from the east parking lot leading straight into the front doors. You would have to know the poster was there in order to go over and read it. Nor is there any information in the court clerk area of the courthouse nor near the ticket counter where you go to file materials. Logical pathways, where one might be more inclined to make information more obvious and available, like where they had the small claims info on a shelf beside the clerk counters, would be much better. Im not sure how many people are actually noticing the self-rep information posted. But at least its there somewhere. Perhaps the counter clerks could direct people to the sign.
This is really interesting and helpful, thank you!
Thank you for this podcast, navigating the court system with a disability is horrific experience.
As a SRL injured worker I have some positive and negative experiences. The courts are one thing to get accommodations another is the administrative boards and tribunals.
The WSIB said I need to prove my disability and then questioned it even being recognized. Then the WSIAT mocked and made fun of my disabilities. Then during a civil proceeding the WSIAT accused me of committing a crime when I used a recorder for note taking purposes. I have a disability which makes taking handwritten notes impossible.
I have found the lawyers and the courts want to make arguments when this SHOULD NOT be allowed. I will say today the courts have improved, but what about the wrongs on us from the past should we just be forgotten!
A friend asked the WSIAT if he could record the hearing due to his disability. They said NO and a copy of the hearing would be provided to him after the hearing. Afterwards the WSIAT charged him for an audio and transcript of the hearing.
Insult to injury…disability!
The Courts, from my own experience, do not abide by s.15 of the Charter nor do they seem to care about their own supreme laws as found in Eldridge. They have just uploaded six of my medical letters onto public record. That should NOT be happening. It is one thing to disclose medical assessments to determine a decision but another to put that on public record. We shouldn’t have to fight for sealing orders. It should be automatic. What does Justice Fairburn have to say about this? What was the follow-up to the NSRLP study? From my perspective, nothing is being done nor does the justice system care to apply their own decisions. They don’t even enforce their own disclosure and other orders after forcing citizens to spend thousands of dollars to obtain those very orders.
Further, has the NSRLP lost their funding? At my end, I see no activity under the new director’s leadership but would love to. I miss the NSRLP’s energy and the great strides all of our efforts had been making but they seem to have now flattened. What is needed to bring it back to life? Or am I missing something…Liz
Hello Liz, I’m sorry to hear you feel the NSRLP has “flattened” since the appointment of our new director – Jennifer Leitch is a wonderful new leader for our organization, and she has the full support of Julie Macfarlane, who continues her connection with NSRLP by sitting on our Board of Directors. I’m not sure why this is your impression as we have continued to be very active – I would point you to our two successful sessions of the pilot program of the School for Family Litigants (which will continue in a new iteration later this year), our recently released report using more sophisticated analysis software on our SRL data, and our continued publication of blog posts, to name just some of our recent work. Currently, we are working on a very large research project on SRL experiences of virtual hearings (this report will be published in early 2024), a new SRL Intake Report, and plans for events in the fall that will be announced in the coming months. You are correct however that funding is an issue – right now it is a particular concern, and much of our time is taken up with seeking and securing funding to “keep the lights on,” on top of the large amount of other work that we’re doing. Please also remember that we are a very small organization, with only 3 full time employees. Trust me when I say that we are all continuing to do the best we can with what we have, and our energy for access to justice generally and SRLs in particular has not waned.
Speaking with another NSRLP supporter and participant, if the lights are not on it is difficult to see in the dark. Perhaps it is what we cannot see, from our end, of the NSRLP’s activities. Their seems to be little public posting by the current director, far less blogs and no podcasts [loved those 🙂 ], a different style to that of the NSRLPs founder. We also discussed if it might be possible for the School for Family Litigants to be video recorded and posted or some form of video tutorials [measure twice / cut once 🙂 ] It seems the new director’s background might be more research based, all good and very important too. Some thoughts for when time permits blog poosts; I do find it quite interesting to hear our current Prime Minister taking time to ensure new judicial appointments are “quality” vice reactionary, albeit yes we do need to fill judicial shortages, in that he wants to also ensure positions are filled by a broader scope of minority representation, such as more women, LGBTQ, indigenous, persons of colour…and…disabled judges to be considered for appointment thus bringing more focus and sensitivity to these historically excluded or limited representations on the bench. As well, my fellow srl friend mentioned that The Canadian Judicial Council recently published handbooks for self-represented persons, if it were possible to put this on the NSRLP resources page, some information can be found here… https://cjc-ccm.ca/en/news/canadian-judicial-council-publishes-handbooks-self-represented-litigants. So grateful to hear the NSRLP energy has not waned xo. Liz.
Hello Liz, we have had to scale back on blog posting due to other demands, but Jennifer has written a number of blogs, especially those for our Slaw column. As for the podcast, it was our intention to start releasing a new season this spring, but circumstances have been against us, and the need to find and secure more funding has taken precedence over some other activities. We certainly plan on getting back to the podcast when we can. As for the School, as I said in my previous comment, that will be coming again soon, and yes the plan is to adapt to a more sustainable model for us using at least some pre-recorded videos. In regards to the CJC handbooks, they were released two years ago, and we do have them linked on our Resources page: https://representingyourselfcanada.com/our-srl-resources/. The issue of judicial appointments is an interesting and pressing one, that we are certainly following. You’re right, it would be great at some point for us to write something on that topic.