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The impact of self representation: Long-term views | Gary Joseph

Monday, January 13, 2020 @ 2:52 PM | By Gary Joseph

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Gary Joseph
Much of the debate surrounding the tidal wave of self representation has focused on the difficulties posed by untrained individuals before the courts. Cases, previously advanced on the basis of fact and law, now often become overly emotional battlefields for the vetting of marital discord. Separated spouses can be subjected to aggressive and unnecessary cross-examination by a self-represented individual and judges, vexed between neutral adjudication, maintaining the dignity of proceedings and fair treatment to all, are being drawn into the process in a manner not consistent with their historical common law role.

Recent studies suggest that almost 50 per cent of litigants in family law matters are self represented. I am told that the number is much greater in civil disputes. Responding to this rise in the number of self-represented individuals, the Canadian Judicial Council has published a Statement of Principles (principles) to guide judges in their dealings with this development.

In 2017 in response to an appeal from the Alberta Court of Appeal, in a civil matter, the Supreme Court of Canada endorsed these principles in the case of Pintea v. Johns 2017 SCC 23. In allowing the appeal on behalf of a previously self-represented individual, the court signalled to trial courts a change in the way they must deal with unrepresented litigants.

The Pintea case has been hailed by many as an affirmation of the need to have open and accessible justice for all. Who could disagree with this lofty goal? Others continue to bemoan the somewhat radical change these principles usher in. The traditional role of judges is in transition. Perhaps, gone are the days when judges must insist on strict application of procedure and evidentiary rules in dealing with self-represented individuals. The principles endorse judges explaining the law to self-represented litigants, changing the “traditional manner of taking evidence” and questioning witnesses.

Having dealt for years with self-represented individuals as counsel in family law matters, a number of concerns arise for me. I venture into this discourse fully ready to receive accusations of self interest as I have in the past. I submit, with great respect, that these principles encourage self representation at a time when the profession should be proposing ways to assist all litigants with obtaining trained counsel in all matters whether family or civil (I speak not for matters of a criminal nature where I believe the legal aid system is more available).

I submit that in some respects the principles are neglectful of the individual who retains counsel, incurs significant cost and is met with a judge who “accommodates” the needs of the self-represented opposite party.

I further worry about the very real possibility of family law matters determined in the absence of a robust review of the applicable case law. Self-represented litigants no matter how skilled cannot be expected to present to courts an exhaustive analysis of the law as it applies to their case.

While judges have a reservoir of legal knowledge and those sitting as family law judges, more so, there continue to be discrete legal issues that frequently arise that require and benefit from legal debate between trained professionals. There is an enormous body of judicial precedent in family law that is at risk in a forum dominated by untrained litigants.

What about the rules of evidence? Help me understand how the relaxed approach to these century old rules will be applied. In circumstances where one individual is represented by counsel and the other not so, will the court demand strict adherence to the rules of evidence for one side and not the other? A host of problems flow from an abandonment or relaxation of rules developed over centuries designed to place structure and fairness in the trial process.

Perhaps the answer is to remove family law from the court process. Informal tribunals could be established with non-lawyers in charge and lawyers prohibited. This result would in my view be a sad solution to a problem that should and could be addressed by discouraging self representation and encouraging methods and resources to ensure that every litigant before our courts has counsel.

Cost is often cited for the increase in self representation and the finger is pointed at family law counsel. I reject this blame. Operating a law office is an expensive task made more expensive by increased regulation by the law society and government red tape. Further, I believe that much of the cost of litigation is driven by a court system operating as if it was 1960 rather than 2020.

Electronic filing, Skype and/or video attendances, simplified forms, rule changes to streamline simplified family law matters (and triage more complex matters), provincewide family law courts and the elimination of two-tier family courts (see Toronto where the Ontario Court of Justice and the Superior Court of Justice both deal with family law) would help reduce the cost. I argue for less regulation, a more modernized court system and an extension of legal aid and duty counsel services, not the encouragement of self representation.

The law society could contribute to the solution by granting lawyers credits for continuing education requirements for pro bono work done on behalf of clients who cannot afford counsel. That, and the other suggestions above, will ultimately lead to a system of justice founded upon precedent, law and structure. I agree that the public deserves and demands better of us in the profession. We can do better.

I close with my usual musings on this subject. Dental care is equally if not more important than access to justice. I venture that we will never see the Ontario Dental Association and the various dental colleges setting up clinics to train those who cannot afford dental care to fill their cavities, clean or pull their own teeth. Rather they pursue methods to bring affordable professional dental care to those in need. We lawyers should follow this example.

Gary S. Joseph is the managing partner at MacDonald & Partners LLP, family law practitioners.

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