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Unrepresented litigants and the crisis blocking the right to full answer and defence

The above graphic is American but except for the fact that Canada does not have the death penalty, it is relevant all over North America. A District Attorney in Jacksonville, Florida bragged that since the first of March, this year, his office has tried 8 death penalty cases and won seven of them. Think about it. Convicting citizens and executing them is literally a blood sport where some prosecutors are concerned.

Of course, in Canada we are incarcerate our citizens with a degree of bloodlessness (most of the time) that gives us a high-horse complacency that we are civilized.

We are not. Since Richard Klassen represented himself at the civil trial -- and won -- Dec. 30, 2003, injusticebusters have been overwhelmed with requests for advice. Most often the requests come too late but more recently people are catching on that it is important to be properly represented at the beginning of their case -- as soon as they have been charged -- rather than waiting until either a high-priced or legal aid lawyer has walked them into jail and exhausted their bank accounts.

We have a simple code of ethics as we offer our experience and our advice: tell the truth and demand the same of the prosecutor. Of course this is easier said than done. The Crown in this province lives by lies and it is the rare prosecutor who plays fairly by the rules. We are therefore left with devising strategies to force the crown to provide proper disclosure and access to any other information we might need to help a person avoid becoming another statistic.

I heard on CBC radio today that Supreme court chief Justice Beverley McLachlin, reporting from the SCC annual retreat, was shocked to find how many judges were faced with unrepresented litigants and they did not know how to handle the situation.

We recently ran into this in Saskatoon Provincial Court where Judge Pat Carey absolutely refused to allow Richard Klassen to speak on behalf of a man charged in a fairly straightforward assault case. Carey insisted that it could not be done, even though Klassen had previously represented John Melenchuk in the same court and received the judge's gratitude for deflating a volatile situation.

I have also spoken for people in provincial court: two or three times on behalf of my son and once for a young friend who had been falsely identified as a thief.

There is no shortage of lawyers in Saskatoon. There is a shortage of honest lawyers who are willing to work for their pay cheque. The Saskatoon College of Law is a disgrace. Anyone practicing criminal law should be taught fundamental skills like how to listen to a client, how to talk to a client as one human being to another, simplifying rather than mystifying the legal process. It is important that anyone defending a person charged with a criminal defence know the case and know the client.

It has been our experience that many judges find it refreshing to have the facts placed before them clearly and honestly.

There are going to be a lot more unrepresented litigants in Saskatchewan until lawyers wise up. Law is not money for nothin' and yer chicks for free. At least it is not going to be if we continue to stay on the scene. Which we fully intend to do.
--Sheila Steele, June, 2005

Some of the reasons Saskatoon people are going into court without lawyers

Ed Holgate

It is all about disclosure! Many defence lawyers automatically assume their clients are guilty of something and that they are doing them a big favour by consenting to "defend them in court". We have been urging people to fire their lawyers so they can get their own disclosure.

The example of Tracy Marcotte's recent efforts to do this are on our Prosecutors from hell page.

Treacherous Saskatoon lawyer Ed Holgate: We have evidence he conspired with Dueck's lawyer, David Gerrand to have Richard Klassen struck from the civil claim in 2002. Story of the failure: Klassen weathers latest gov't challenge to lawsuit: Province's bid to halt case denied by judge, who says it's 'imperative' matter proceed

Lawyerless litigants slow wheels of justice

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

"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.

Is price of justice rising out of reach?

Legal costs behind trend toward people arguing own cases: Lawyerless Litigants: is Justice being Served?

After spending $30,000 on her divorce, Dawn Baribeau decided she had better ways to use her money than hiring a lawyer for the fights over child access.

So Baribeau, like an increasing number of Canadians, is arguing the case herself.

"Why pay for somebody to say what I'm going to say anyway?" she asks after a recent appearance in Court of Queen's Bench.

"The lawyer, basically all he did was he took everything I said and went into court and repeated it. I thought, 'I paid you that kind of money for that?' "

Judges and legal experts are concerned that more and more people are representing themselves in court, a trend they feel is clogging the justice system and can lead to the inexperienced sinking their own cases.

They pin most of the blame on stratospheric legal costs. A survey last fall in Canadian Lawyer magazine showed the price of a wide variety of criminal, civil, family and corporate matters rose an average of five to 10 per cent from a year earlier.

"Most lawyers start their price at $150 an hour. For two hours, they just made $300," says Baribeau, who studies law enforcement at Grant MacEwan College. "Then it's $50 per page for every document they draw up. I have a computer at home. I could do that at home. It's no wonder they try to (encourage) getting a lawyer."

Eric Macklin, president of the Law Society of Alberta, admits legal fees are beyond the reach of some working people, especially those who don't qualify for legal aid.

He estimates a junior litigation lawyer might charge $100-$125 an hour, while the hourly rate for a senior specialist can reach $350.

On top of that, if you lose your lawsuit you face paying part of the other side's costs, which can bump up your total tab by about 50 per cent.

Macklin insists it's simply the free enterprise system at work. "I think lawyers essentially charge what the market will bear. Members of the public have to shop around, just like they shop around for mechanics."

Greedy lawyers are the butt of as many jokes as dumb blonds, but they insist the fat-cat stereotype is unfair.

Rising expenses and stiff competition mean only a relative handful of big names take home the huge paycheques, they say. Many criminal lawyers charge by the case, not the hour. They often work more hours than they bill.

Local lawyer Phil Lister calculated in an October 2000 court application that it costs at least $81,000 a year for one lawyer with a secretary to run an office in Edmonton.

"Are you going to tell the landlords not to charge as much to lawyers so they can charge their clients less?" asks Jean McBean, senior counsel for the legal-aid family law office.

Still, judges have repeatedly warned that the legal profession is putting itself out of the reach of the middle class.

In 1999, Supreme Court of Canada Justice Ian Binnie suggested courts could rein in "astronomical" legal fees. Alberta Court of Queen's Bench Chief Justice Allan Wachowich thinks lawyers may have "out-priced" themselves in criminal matters.

Legal aid is supposed to fill the gaps, but government cuts have reduced services and made it harder to qualify in many parts of the country.

Budgets aren't as tight in Alberta. While legal-aid society spending dropped by more than one-third during 1992-95, to $19.7 million, it's expected to rise to $33.1 million this year, the highest amount in the society's 29-year history.

The number of people receiving coverage has gone up steadily over the last decade, to 33,800 in 2000-01.

However, the proportion of applicants accepted has gone down from 82 per cent a decade ago to 74 per cent last year, even though income limits have been raised to keep up with inflation. Someone whose family of four makes more than $32,604 a year generally isn't eligible.

Even then, anyone getting help has to repay what they receive if they can do it without hardship.

McBean says the working poor are falling through the cracks. She thinks governments should spend more to increase the legal-aid guideline incomes and make more people eligible.

"There are many people who clearly can't afford lawyers and don't qualify for legal aid who would benefit from legal representation," she says.

"It's involved with how much the government is giving to legal aid, and right now they're cutting back on everything."

A further spending hike for the program isn't in the cards, Alberta Justice spokesman Bart Johnson says. In addition to raising guideline incomes five per cent last year, the hourly legal-aid fee paid to lawyers has gone up from $61 to $80 by 2005.

"We just came to a five-year legal-aid agreement (last spring) and there are no plans to revisit that," he says. "In a perfect world, I suppose we could all have access to free legal representation, but it's a question of what's available and what's appropriate."

As for Dawn Baribeau, she plans to continue fighting her own courtroom battles. It isn't just the money -- she thinks as a layperson judges pay attention to her.

"When I went into the court by myself without the lawyer, I got better results. They listened more," she says. "I still feel like I can hold my own."

New methods help curtail civil trials

One way to stop people without lawyers from clogging the courts is to put fewer people through the court system in the first place.

Judges and justice officials have put a lot of energy over the past few years into finding better ways to solve legal fights than letting two robed combatants duke it out before the bar.

Mediation, judicial dispute resolution (in which judges outline likely verdicts after hearing brief versions of the facts to spur settlement), alternate measures to avoid a record in criminal charges -- all are helping simplify things.

The moves seem to be working, says Bart Johnson of Alberta Justice. There were 949 civil trials (excluding family matters) heard in Alberta Court of Queen's Bench last year, down from 1,671 four years earlier.

At the same time, the average wait for a civil trial shorter than six days has dropped by a month, to about half a year.

Still, the province recognizes it must deal with the issue of lawyerless litigants, Johnson says. "The government always is looking at other ways to address this issue and all other issues related to access to justice."

There are many other ideas for handling what is widely seen as a growing problem for society and the justice system:

- A mandatory course on court procedure for lay people wanting to file their own legal applications; judges now have to take time showing non-lawyers the ropes in the daily motions courts, Court of Queen's Bench Chief Justice Allan Wachowich says.

- Duty counsel in civil courts, similar to the duty counsel who give brief, on-the-spot advice in all major Alberta centres to unrepresented people facing criminal charges; some provinces already offer this program.

- An $80,000 pilot project started in Edmonton last fall requires people without lawyers to meet a court worker before going to provincial court on a family matter; the worker tries to get the sides to settle issues by consent, or ensures everyone is ready if the matter goes to trial.

- In 2000, more than two dozen self-help booklets were made available through the Court of Queen's Bench for people representing themselves in family court.

There have also been calls to loosen regulations governing the legal profession.

Edmonton lawyer Naeem Rauf represents a Drayton Valley woman charged with violating the Legal Profession Act for allegedly taking part in real estate transactions. He'll launch a constitutional challenge at the woman's April trial, hoping to strike down a section of the act that prevents non-lawyers from giving legal advice.

"It's very paternalistic of lawyers to presume to tell members of the public that for this you have to have lawyers and no one else," he says.

"I think as long as the person is advised very fairly and clearly, with no deception, that the person isn't a lawyer ... he should be able to decide who he will take his business to."

If successful, the biggest impact of the case would probably be to give para-legals the right to do simple real estate deals and other straightforward work, Rauf says.

But he thinks informed customers should have choices. "The ostensible reason for the section is to protect the public. What about those sections of the public that don't want to be protected?"

Members of his profession already try to make sure their services are available to people who can't afford to pay.

Many take on legal aid cases at less than their normal rates. There is also an ancient tradition of doing free work pro bono (for the public good) which the law society is trying to encourage.

Rhonda Ruston, chair of the Law Society of Alberta's pro bono committee, says they're looking at ways to improve this service.

The law society gave advice and helped find volunteers for the new Edmonton Centre for Equal Justice, which opened this month with a roster of almost 50 lawyers donating their time.

They assist poor people facing housing, small claims, employment, immigration and other non-criminal matters.

A similar office in Calgary has been running for 29 years, says Ruston, a Lethbridge family lawyer.

"We believe if we give a formal opportunity for lawyers to become involved in pro bono legal services, it makes it easier for us to do it."

Judges and legal experts are concerned that a trend toward people handling their own court cases is putting a spoke into the wheels of justice. It can bog down courts, hurt the chances of the unrepresented party, and cost you money.

Letter to the Edmonton Journal

I read your paper via the Internet and the columns on 26 and 27 Jan 02 by Gordon Kent caught my attention.

It seems the legal profession and the judiciary are concerned about self represented litigants "clogging" the courts.The indication is that the self represented litigant is at a disadvantage.

There is area of a case that a self represented litigant is much more familiar with than the lawyers, that is the actual facts of the case.

If the cases were decided on the facts instead of as a result of legal manoeuvring this would in fact be an advantage.

The next step would be to have a columnist write a column espousing the dangers of hiring a lawyer. If the facts were the deciding factor the litigant with the lawyer would be at a disadvantage.

Of course the "procedures", most of which are unnecessary, are what makes people feel they need a lawyer. These rules thus preserve the existence of the profession which writes the rules.

Just my own different viewpoint. Much easier to get rid of the lawyers than get rid of the litigants. Getting rid of the litigants would of course also get rid of the lawyers. (Hey maybe not such a bad idea)

Patricia Gay, letter to Edmonton Journal, January 30, 2002

The price of justice is rising out of reach for many people. Others, whether they could afford the cost of a lawyer or not, don't like the road that the system takes them down, particularly in family law.

As a family law practitioner, I believe the question is not how to get more lawyers into the courtroom, it is how to get more Canadians out of the courtroom. Particularly in family law, the traditional adversarial system is a most unsatisfactory way to address the issues faced by separating or divorcing couples.

The parties feel out of control, any communication that might have remained between them is frequently lost and issues, such as will they still be able to talk to in-laws or attend a daughter's wedding, are not addressed.

A further problem in the adversarial system is the lawyer who takes an aggressive, unreasonable adversarial stand --- entering inflammatory affidavits on behalf of the client and refusing to participate in a mutually beneficial process so that no matter how sensible and progressive one lawyer is, the other one fuels the fight and drives up the legal costs.

As matters now stand, the legal profession is in a quandary about how to deal with the problem -- at bar association meetings across the country speakers are urging lawyers to start showing professional courtesy to one another and toning down the rhetoric.

The legal profession has had a hard time bending its mind around the notion that there should not be a "winner" and a "loser."

Several years ago articles started appearing in the legal trade papers under such headings as "Should we take 'holistic' lawyers seriously" -- holistic lawyers being lawyers who preferred to encourage a negotiated, interest-based solution rather than carry on a fight to the finish.

However, the idea of alternate dispute resolution has continued to take hold in the legal community and particularly in the area of family law, where vicious battles between family members do take a miserable and expensive toll on the parties involved.

I hope Dawn Baribeau, the courageous woman who after spending $30,000 on a lawyer has taken her case into her own hands, is able to find out more about alternate methods of resolving her issues.

I refer anyone involved in resolving parenting issues after separation to the collaborative law Web site at or the information line at 780-429-3200.

The fact that these kinds of issues have moved from the obscure pages of the legal trade journals to the front pages of newspapers presages a long- awaited overhaul of the system.

The legal profession has in large part preferred to remain in denial about shortcomings until the number of unrepresented parties before the courts has brought the matter forcibly to its attention.