October 12, 2020 | By Julius Melnitzer
Increased funding for legal aid to help with the dilemma of self-represented litigants (SRLs) isn’t in the cards — at least not anytime soon.
“I and many others who have advocated more funding for legal aid just have to be realistic,” said professor Nicholas Bala of Queen’s University Faculty of Law, an internationally renowned expert on access to family justice. “It’s just not a budget priority for government at this point in time.”
So much for the pleas of two of Ontario’s top judges at the recent Opening of the Courts of Ontario ceremony.
“When litigants are unrepresented and unsupported, the justice system slows to a crawl, valuable resources are drained, and other cases are held back,” said Court of Appeal Chief Justice George Strathy. “More important, the most vulnerable members of society, those whom our justice system purports to protect, are further victimized because their playing field is uneven.”
In her remarks, Chief Justice Lise Maisonneuve of the Ontario Court of Justice warned that the shift to virtual proceedings, occasioned largely by COVID-19, exacerbated the problem as many vulnerable litigants have limited access to a telephone or the Internet.
Last year, Premier Doug Ford’s government cut Legal Aid Ontario’s funding by some $133 million, leaving the organization with a deficit of up to $70 million in 2020-21. As Strathy saw it, however, legal aid cutbacks were a “false economy” that didn’t save money in the long run.
Still, while legal aid tightening and increased litigation costs are mentioned most often as the primary reasons for the rise in SRLs, there are underlying societal factors at work.
“To begin with, we’re in more of a do-it-yourself society,” Bala said. “So people who in the past may have gone to great lengths to afford a lawyer are now looking to represent themselves.”
Making matter worse, Bala adds, is the reality that North America is ever more a “conflict-driven” society.
“It’s demonstrable that there’s been an increase in high-conflict litigation with or without lawyers — something that’s especially true in family law,” he said. “And people with high-conflict mentalities won’t settle without their day in court, especially because self-representation gives them a chance to question and harass others.”
As well, the public’s rising level of awareness about civil and human rights may be contributing to the explosion in SRLs.
“Fewer and fewer people are prepared to say that incidents like police beating them up doesn’t matter,” Bala explained. “But in that sense, self-representation is a healthy thing.”
Otherwise, the ready availability of information may be driving the rise in SRLs as well.
“Some people — men more than women — are becoming overconfident in their abilities and underestimate what’s involved in putting a case forward,” Bala said.
Problems with SRLs are particularly manifest in family law. Indeed, the Law Society of Ontario has estimated that 50 to 70 per cent of family law litigants are unrepresented.
“Family law is an arena that requires human counsel, advice and wisdom,” Bala said. “Information alone doesn’t cut it.”
Consider, for example, that the increased use of technology has been a double-edged sword for SRLs.
“People used to file at the courthouse, where they could at least find someone to help them,” Bala said. “Now, filing is online, which may make things more accessible. On the other hand, there’s no one around to assist.”
So while technology can have a role in easing the problem, it’s not a solution.
“Family law disputes won’t be resolved for anyone, especially the unrepresented, just because some computer predicts the outcome,” Bala said.
But limited scope retainers (“unbundling”) and greater involvement by paralegals can, in Bala’s view, reduce the cost of legal services and help with the problem. An important development here is the Ontario’s Family Law Limited Scope Services Project, funded by The Law Foundation of Ontario. Its aim is to improve access to family justice for middle income Ontarians by increasing the use of limited scope retainers, legal coaching and summary legal counsel in family law matters.
“There’s also more scope for increasing representation by supervised legal providers who are not lawyers, such as paralegals, law clerks and students,” Bala sad.
Yet he cautioned that Law Society of Ontario proposals, which envisage a limited licence allowing paralegals to deal with certain family law matters, go too far.
“Paralegal representation in family law should be seen in the context of their working with lawyers, but not independently,” Bala said.
Prison law is another, oft-overlooked area where SRLs pose a serious issue.
“Incarcerated individuals have a host of disadvantages even when they’re represented,” said Hanna Garson, who practises in the field with the Mackillop Pictou Law Group in Halifax. “The demographic is relatively less educated, they usually have no research tools or knowledge of the law, and they often face severe mental and cognitive challenges because they have been in lockdown or isolation.”
While many judges try to assist SRLs — indeed, they are bound to do so — their role as independent arbiters limits them. Still, the quality of the assistance can vary widely.
“Depending on their emotional pitch, judges relate to liberty deprivations in different ways,” Garson said. “Some manage to be independent even as they grapple with the severity of the disadvantages prisoners face. Others are less attuned to these issues.”
By way of example, Garson pointed to the recent decision of the Nova Scotia Court of Appeal in Pratt v. Nova Scotia (Attorney General) 2020 NSCA 39.
The case involved an unrepresented prisoner, Maurice Pratt, who had been in solitary confinement for 15 days beyond the discharge date mandated by the penalties imposed for several internal infractions. He filed for habeas corpus, but Justice Peter Rosinski of the Nova Scotia Supreme Court, in oral reasons, dismissed the application for lack of jurisdiction. Several months later, however, Rosinski released more extensive written reasons in Pratt v. Nova Scotia (Attorney General) 2019 NSSC 6 that dealt with substantive aspects of the application.
On appeal, however, it emerged that Rosinski’s office and Crown counsel had engaged in “numerous communications” after the oral reasons were given. The upshot was that the Crown provided additional information and submissions to the judge before he issued his written reasons.
Pratt knew nothing of this.
On appeal, the court characterized the proceedings as fraught with procedural unfairness, set aside Rosinski’s decision, and awarded $3,000 in costs against the Crown.
According to Garson, Pratt demonstrates both the difficulties that prisoners face and the advantages of having counsel.
“But there’s been little if any success in improving the situation,” she said. “It’s a very slow moving process driven by a tiny community of individuals and organizations.”
Among them are the Elizabeth Fry Society, the Halifax-based East Coast Prison Justice Society, the Prison Law Clinic at Queen’s University Faculty of Law in Kingston, the West Coast Prison Justice Society in B.C., and a few similar organizations in other provinces.
Some are government-funded. But, Garson maintains, that’s not nearly enough.
“People abused by the state should never be expected to defend themselves against the state without representation,” she says.
Julius Melnitzer is a Toronto-based freelance legal affairs journalist and communications and media consultant to the legal profession. He can be reached by e-mail directly at [email protected] or at his website, www.legalwriter.net.