With the number of self-represented litigants on the rise, all participants in the justice system have a role to play in facilitating access to justice for all litigants, says the Canadian Judicial Council.
The CJC released its statement of principles regarding self-represented litigants last week, developed by a committee of the council, chaired by Chief Justice Mark Monnin of the Court of Queen's Bench of Manitoba. The principles are designed to be advisory, rather than a code of conduct, says Monnin.
"After a detailed examination of the issue, the committee concluded that self-represented persons are generally uninformed about their rights and about the consequences of the options they choose," says Monnin. "They may find court procedures complex, confusing, and intimidating and they often do not have the knowledge or skills to participate actively and effectively in their own litigation."
Chief Justice Beverley McLachlin, who heads the CJC, says "ensuring better access to justice is one of the organization's priority. The council views the increasing numbers of self-represented persons who appear in the court system as a serious matter. These principles will assist key participants in the justice system to ensure that self-represented persons are provided with fair access and equal treatment in the courts".
The document provides principles for promoting rights of access and equal justice for self-represented litigants, including the fact that "judges and court administrators should do whatever is possible to provide a fair and impartial process and prevent an unfair disadvantage to self-represented persons."
Monnin also notes that "all parties to the system have a role to play in promoting equal access to justice for everyone, as well as for the timely and efficient administration of justice."
Parker MacCarthy, president of the Canadian Bar Association says the CBA made a submission to the CJC regarding the statement of principles.
While he says a report like this was needed, "one of the things that we had hoped would be in the report would be some sort of distinction to be made between people who we characterized as self-represented and those people who are unrepresented."
According to the report, judges have a responsibility to ask self-represented litigants whether they are aware of their procedural options, and to direct them to available information if they are not. In appropriate circumstances, the CJC notes that judges should consider providing self-represented litigants with information to assist them in understanding and asserting their rights, or to raise arguments before the court.
Depending on the circumstances, the judge may also explain the process, inquire whether both parties understand the process and the procedure, or modify the traditional order of taking evidence or question witnesses.
MacCarthy says the CBA's second concern is the accommodation by the judges and court administrators for people who are self-represented.
"The concern that we had expressed in our submission is that we didn't want to, I guess, end up with a two-tiered system of justice, in other words, the people who are self-represented getting some advantage in terms of the rules as a result of making the choice that they're going to be self-represented," he says.
"Clearly we've got to make sure that the system is on a level footing and clearly that the rules shouldn't be working against people who are self-represented, but on the other hand we wouldn't want to see things evolve that it was, for strategic purposes, better to be self-represented in litigation."
Also included in the report is the fact that judges, court administrators, and other participants in the legal system should inform self-represented litigants of the potential consequences of proceeding without a lawyer and also refer them to possible sources of representation, through legal aid plans or pro bono assistance, for example.
The report notes that members of the bar are expected to design and deliver legal aid and pro bono representation to those who would otherwise be self-represented. The guidelines also point out that lawyers are expected to be respectful when dealing with self-represented persons and to the extent possible, avoid the use of complex legal language.
MacCarthy says the CBA was hoping for more in the way of guidance for lawyers in dealing with self-represented litigants.
Recommendations in the report not only refer to members of the bar and judiciary, but also extend to other groups. For example, it notes that legal aid should be encouraged to not only provide representation, but to "create flexible options and models for addressing the challenges of self-represented persons, including programs providing education and short-term information and advice."
View the full Statement of Principles on Self-represented Litigants and Accused Persons at www.cjc-ccm.gc.ca/cmslib/general/Final-Statement-of-Principles-SRL.pdf