Lawyerless litigants slow wheels of justice

Chief Justice Scott said the problem is especially acute in the family-law field, where he described legal aid as being ""practically non-existent."" Approximately one of every four family cases involves an unrepresented litigant, he said. ""Litigants are left to their own resources. A case that might take two days with experienced counsel might take three or four days without."

The Globe and Mail
January 14, 2002

Lawyerless litigants slow wheels of justice
Kirk Makin

A flow of lawyerless litigants into courtrooms across the country has reached epidemic proportions, prompting calls for action from increasingly worried senior judges.

"There has been a very substantial increase," Manitoba Chief Justice Richard Scott said in a recent interview.

"It bogs the system down and causes enormous stress. We want to do justice in every case, but the whole system is being stressed and strained by the fact that many of these people need a lot of help," he said.

Chief Justice Scott said the situation is especially distressing in provinces where courts are very crowded — particularly British Columbia, Quebec, Ontario and Alberta.

He said the top judicial body in the country — the Canadian Judicial Council — is assembling information about the extent of the problem and will likely issue guidelines in the near future about what judges should do about it.

While the prospect of judges putting pressure on government is a sensitive one, Chief Justice Scott said, "as a council, I think we will generally make governments aware of our concerns about this matter."

At a recent judicial forum in Ottawa, several judges warned that the number of lawyerless litigants has unduly lengthened trials and led to emotional outbursts in court.

They also said that many litigants unwittingly do damage to their own cases because of their unfamiliarity with the justice system.

"It places courts in a very difficult position," Chief Justice Scott said. "On the one hand, you want to help the unrepresented party. Most litigants don't even know how to pose a question; they just want to argue their case. On the other hand, you have to be even-handed. You don't want the other side to say: 'Has the judge entered the arena?' "

Most judges identify the main cause of the problem as the steady strangulation of legal-aid programs.

Mr. Justice James MacPherson of the Ontario Court of Appeal did not mince words when he addressed an audience of court administrators recently. "The reality today is that many people — especially low- and middle-income people — cannot come to court at all," he said, according to a copy of his speech.

"Many people who do come to court must represent themselves — even in, sadly, criminal cases. The reason — no money. This is wrong. It is regression, not progress."

Judge MacPherson said that government funding for legal-aid programs has dropped by approximately 30 per cent over the past decade.

"Governments have failed in the area of legal-aid funding," he said. "In the justice system, efficiency has won the debate with respect to legal-aid funding."

Chief Justice Scott said the problem is especially acute in the family-law field, where he described legal aid as being "practically non-existent." Approximately one of every four family cases involves an unrepresented litigant, he said.

"Litigants are left to their own resources. A case that might take two days with experienced counsel might take three or four days without."

Chief Justice Scott, who also acts as chairman of the judicial council's conduct committee, said judges are especially concerned that by actively helping litigants prepare or present a case, they leave themselves open to formal complaints. He said complaints from unrepresented litigants who feel they were unfairly dealt with are proliferating.

It all comes down to a matter of lawyers being trained and experienced with the complicated machinery of document filings, motions, evidence and legal argument, Chief Justice Scott said.

"The capacity for misunderstanding is much, much higher and more acute than it is with lawyers," he said.

The judiciary has also encouraged efforts in recent years by universities, provincial law societies and altruistic law firms to combat the problem with pro bono programs that supply free legal help to deserving litigants.


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