The theme of this year’s conference in Saskatoon, Saskatchewan is access to justice. Two timely reports were released during the conference, the CBA Access to Justice Committee’s summary report, Reaching Equal Justice: An Invitation to Envision and Act, and The Commissioner of Official Languages of Canada’s report, Access to Justice in Both Official Languages: Improving the Bilingual Capacity of the Superior Court Judiciary.
As expected, Chief Justice McLachlin commented on the need to improve access to justice, and the issue has been one she has been championing for several years. Access to justice might begin with the reforms to the profession and justice system envisioned by these reports and others, but it ends with the self-represented litigant who cannot afford legal services as they are currently provided. A break-out panel at the conference focused specifically on “Dealing with Self-Represented Litigants.”
The Access to Justice Committee report obviously highlights this trend, demonstrating soaring rates of self-representation rates across Canada. Trevor Farrow of Osgoode Hall Law School provided an overview of the literature, demonstrating that the self-rep issue is something that academics are particularly interested in understanding in recent years. Anthony Young provided practice management tips to lawyers dealing with a self-represented litigant on the other side.
One of the other panelists in this session was none other than Justice Rooke, who presided over the now infamous Meads decision. Justice Rooke was dealing with a specific phenomenon within the self-represented litigant community who rely on erroneous information and disruptive tactics within the courts, well beyond the typical vexatious litigant. Justice Rooke expressed in his 736 paragraph treatise the need to rein in these forms of litigants, who he labels as Organized Pseudolegal Commercial Argument [OPCA] Litigants.
Yet the Meads decision is not without its detractors. Noel Semple questions whether derisive attitudes by the bench towards litigants who are already confused, emotionally distraught, and legally illiterate, is the appropriate response to this phenomenon. Some members of the public have turned the finger around and blame the justice system for failing to meet the needs of society.
The Access to Justice Committee report confirms some of these concerns, finding a growing distrust by the public in the justice system. This should be more than a concern for lawyers, and should be a priority given our ethical and professional responsibilities to the legal system.
Justice Rooke confirmed at the session that he was only referring to a very small subset of the self-represented phenomenon. But his language belied his qualifier, referring to them as “the Taliban of the self-represented community.” In my humble opinion, these types of labels are not likely to address the concerns or provide the proper assurances to the public that they will be treated with respect when they are unrepresented.
The first challenge to Justice Rooke’s approach came from the Chief Justice of the Quebec Superior Court, François Rolland. Rising self-representation rates should not be perceived as a problem that should be fixed. Self-representation is the new normal, and we simply have to adapt to it.
Justice Rooke pointed to the litigant in Meads as an example of success. Following Justice Rooke’s ruling, the litigant secured counsel and quickly settled his case. Although it may have resolved the specific misunderstandings of the legal system that this litigant had, this thinking does not really address the underlying problems.
As lawyers, we still consider our profession to be the only solution to the problem. That’s why we’re looking at how we can provide legal services differently, from unbundling services to transforming the legal business model. But that’s not enough.
Even with all the legal aid in the world there will be some people who will represent themselves, either by choice or by circumstances. This should not be something inherently flawed or problematic, even if it may require unique litigation tactics and approaches by the represented side.
If these litigants cannot navigate the justice system easily, and cannot find the right information to represent themselves, that’s our problem – not theirs. Lawyers are not the exclusive gatekeepers of justice, although we maintain a responsibility to uphold it.
Allowing justice to only occur when employing the services of a lawyer is surely an injustice in itself. And that’s why it’s up to us to figure out all of the other solutions, including reforming the court system entirely and providing more free and accessible legal information that everyone can use.
Omar Ha-Redeye practices out of Fleet Street Law in Toronto. He is a Professor at Ryerson University and Centennial College. He sits on the board of directors of the OBA and co-chairs its Young Lawyers Division.