Growing trend of unrepresented litigants is disturbing, says judge

The surging number of unrepresented litigants trying to navigate the complex demands of law and procedure may leave legislators with little choice but to review and enact simplified rules of practice to make justice more accessible, said the chief justice of Quebec’s Superior Court at a conference examining the disturbing trend.

The figures are alarming, with an average of 37 per cent of parties representing themselves in civil matters before Quebec Superior Court, revealed Judge François Rolland. In divorce cases before Quebec Superior Court, 36 per cent of Quebecers are unrepresented litigants, a figure that rises to 42.1 per cent in family matters dealing with child custody and separation. Almost 42 per cent of parties appealing a sentence in criminal matters before Quebec Superior Court are unrepresented litigants while 38.8 per cent of individuals facing a motion that could authorize their psychiatric treatment do not have legal representation, prompting Justice Rolland to remark that if anybody “should be represented it seems to me it’s the treatment cases.”The Court of Quebec, a court of first instance that has jurisdiction in civil, criminal and penal matters as well as in matters relating to youth, does not fare better. Approximately 38 per cent of individuals who have a matter pending before its civil division appear in court without a lawyer. Even the Supreme Court of Canada cannot dodge the trend. Approximately 30 per cent of requests to file an application for leave to appeal are lodged by unrepresented litigants, noted Justice Rolland.

“Is it by choice or because they cannot afford it – our statistics don’t go so far,” said Justice Rolland at a conference on plain language and the law held in downtown Montreal. “I would dare to assert that in the vast majority of cases people simply don’t have the means to be represented.

“But if the phenomenon grows, we will be obliged to change the rules of the game. It’s all very well that the rules of practice have been simplified, but the Quebec Code of Civil Procedure was made for lawyers, not the typical person. So things will have to change — the approach, the (legal) culture, the laws and the Code so that (justice) is more accessible.”

The subject of a major reform that was passed by the Québec National Assembly in 2002, the Code was  overhauled to establish a more rapid, more efficient and less costly civil justice that would improve access to justice and increase public confidence in the justice system.

But government cutbacks in legal aid coupled with escalating legal fees has made legal representation out of reach for low and middle-class Canadians, giving rise to Rowbotham applications or petitions for the appointment of “state-funded counsel” in criminal law matters and ill-prepared unrepresented litigants in civil matters, asserted Isabel Schurman, a Montreal criminal lawyer and vice chair of the Canadian Council of Criminal Defence Lawyers, who moderated the panel.

While there are self-represented litigants, armed with a “do-it-yourself attitude” who choose to go before the courts without legal representation, that does not account for the dramatic decrease in the number of civil cases before Quebec Superior Court – a 57 per cent drop since 1996, pointed out Justice Rolland. Nor does it explain why family law cases before Quebec Superior Court have plummeted by 24 per cent since 1996. “Is it because there are less conflicts in our society or because there are less child custody problems since 1996?” wondered Justice Rolland. “I don’t think so.”

Echoing remarks made by the SCC’s Madam Chief Justice Beverly McLachlin, Justice Rolland said that unrepresented litigants impose a burden on courts. Proceedings are stretched out, adding to the public cost of running the court, because unrepresented litigants are at a loss, and ill-equipped to steer around the complexities surrounding  law and procedures. And more often than not, they turn to the judge for help, an impossible task for a judge operating in an adversarial system. “It’s not the role of the judge to help someone in the preparation of their case because the other party who may be represented by a lawyer may feel aggrieved,” explained Justice Rolland.

While Justice Rolland believes that people can make a case before the courts without a lawyer in some suits, unrepresented litigants should not be dealing with complex cases such as administrative, constitutional or medical malpractice suits. “Such cases are so complex one must know the rules of practice – it’s an art, and it requires some experience,” noted Justice Rolland, adding that not even young lawyers get to handle such court cases.

Assistance and resources should be made available to help people who cannot afford counsel or choose not to retain counsel, said Rick Craig, the executive director of the Justice Education Society, a Vancouver-based non-profit organization dedicated to improving access to the justice system through hands-on, targeted, two-way education between the public and those working in the system.

Though not as troubling as in Quebec, the number of unrepresented litigants in British Columbia is disconcerting. Over 20 per cent of cases at the trial stage before the B.C. Supreme Court involve unrepresented litigants, a figure that jumps to 23 per cent in chamber matters. Approximately 23 per cent of all filings before the B.C. Court of Appeal are made by self-represented litigants, according to Craig.

“If we leave unrepresented litigants alone, the consequences are very serious,” said Craig, who has designed numerous public legal education programs, including materials for the minority communities, Aboriginal youth, the deaf community, the mentally challenged community, youth with special needs and programs for justice system personnel. “If we have support programs in place, the consequences can be more managed.”

The Justice Education Society has spawned more than two dozen websites, many of which are geared towards providing litigants who go to court without legal representation with the basics of the court system. The Society has also published guidebooks that provide information about civil, non-family claims in BC’s Supreme Court, and four years ago it established the Justice Access Centre Self-help and Information Services in Vancouver, which now serves over 6,000 people annually.

“We know that anytime someone runs into a health problem, the first thing they do is go to the Internet and research it,” said Craig. “People are now doing that now around law. There’s a lot of resources out there, a lot of them are designed to help people become more comfortable.”

This story was originally published in The Lawyers Weekly.

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