Justice for the rich
F
rom gowned judges and “learned friends” to the highly ritualized proceedings, Canada’s courtrooms can be intimidating places at the best of times. But most people are there at the worst of times, especially if the reason they are there is to sort out custody and access to their children.
In a perfect world, lawyers are their navigators. But increasingly, even middle-class Canadians are in court without them because the costs are beyond their reach.
To get an idea of how expensive it can be, consider this comment from a self-represented Canadian in the most recent report of the National Self-Represented Litigants: “If you’re young and have the funds to pay for a lawyer, consider going to law school instead. It will probably cost the same and you’ll get a degree out of it.”
Do-it-yourself lawyering is not only expensive and stressful (even for those who have English or French as a first language), it can lead to terrible decisions.
The high-profile case of J.P. v. British Columbia is one of those, says lawyer Morgan Camley. Had her client – the father in a custody battle – had legal representation in the lower courts, she contends the case that began in 2011 likely would not have dragged on for 252 days at trial. It also, she says, would not likely have resulted late last month in the Court of Appeal ordering a retrial.
“This is not a typical case of warring parents,” says Camley. “In my view, it’s about the failure of the system to make adequate provisions for people. It’s an access-tojustice case.”
She got involved at the appeal stage after reading the evidence and, specifically, reading the judge’s heavy reliance on a socalled expert witness whose stated credentials had not been earned, but purchased from diploma mills.
A lawyer would almost certainly have checked the expert’s credentials. But even if the fake degrees hadn’t been discovered and the expert denied the chance to testify, Camley says a lawyer would have argued for the judge to give more weight to the testimony of psychologists who had interviewed the children about the father’s alleged sexual abuse and less on the expert put forward by the mother’s lawyer who never had any contact with them.
To be fair, self-represented litigants put judges in a difficult position. They are forced to take a more active role — explaining terms and processes to the DIYers and essentially coaching them along — while at the same time trying to remain objective arbitrators of the facts put before them.
It slows the justice system’s usual ebb and flow.
A survey was done in 2013 of 100 B.C. judges and 30 court officials by B.C. Supreme Court Justice Vicky Gray. The overwhelming conclusion? Self-represented litigants were filing large volumes of disorganized and irrelevant information.
“I understand that people unfamiliar with a court process would think: ‘I don’t know what to tell the judge, so I’ll just tell them everything,’” Gray told the CBC in 2015. “So, the role as a judge can seem like looking for a needle in a haystack. … It’s costing everybody time and money.”
In 2015, 41 per cent of family cases in B.C. Provincial Court involved at least one self-represented individual. In the Court of Appeal that year, 57 per cent of family matters involved self-represented litigants, compared to 27 per cent of civil matters overall.
In a recent blog post on the Access to Justice B.C. website, Chief Justice Robert Bauman noted those statistics.
“Across Canada, legal aid programs cover only a small portion of the legal problems families face, and even then legal aid is available only to those individuals and families of extremely modest income levels,” he wrote.
The B.C. government cut legal aid spending by 40 per cent between 2002 and 2005. Funding for family cases dropped by 60 per cent. Those cuts have never been restored.
In April, West Coast LEAF and the B.C. Public Interest Advocacy Centre filed a constitutional challenge on behalf of the Single Mothers’ Alliance. They argued that without access to publicly funded lawyers, women and children in abusive situations are being denied their Charterguaranteed rights to equality, life and security.
Last month, a group of legal service advocates sent its Justice Reform for B.C. report to Attorney-General David Eby, suggesting how to address “the massive gap between those who can afford to access the justice system and those who are left out.”
Their recommendations include re-establishing legal aid clinics, paying for in-house lawyers for frontline social service agencies, and flat fee charges for legal services.
Fifteen years ago, Canada’s Chief Justice Beverley McLachlin said that if lower-income Canadians can’t access legal services, the justice system erodes along with people’s confidence in it.
Having failed to heed all the warnings, we’re now seeing the consequences. Children are among those paying the highest price.