Ottawa Citizen

A VOICE OF THEIR OWN

Self-represente­d litigants often face a struggle to be heard at the Supreme Court of Canada

- Herman Wong is a student in the legal journalism course at Carleton University. HERMAN WONG

If you apply without a lawyer to be heard by the Supreme Court of Canada, prepare for almost-certain rejection.

Supreme Court statistics show there is only a 0.23 per cent chance a self-represente­d litigant will be granted leave to appeal to the country’s top court, which takes on cases it considers to be of public importance.

Only four of 1,748 applicatio­ns filed by lawyerless litigants were granted between 2003 and 2015, despite comprising one-quarter of all applicatio­ns filed each year, the statistics show.

By comparison, about 11 per cent of applicatio­ns are accepted overall, on average.

The Supreme Court cautions on its website that the chances of self-represente­d litigants being accepted are “remote.” There are many reasons for this, but legal analysts say the main one is that most do not have the legal know-how to navigate the complex system and prepare a convincing case.

“A lot of cases don’t go to the Supreme Court, regardless of self-representa­tion,” says Megan Campbell, a research associate at the National Self-Represente­d Litigants Project. Most self-represente­d litigants have the additional disadvanta­ge of not being able to sell their cases to the discerning panels of judges that decide which cases to accept.

“When you’re going to make an appeal … you have to write in a persuasive manner that is straightfo­rward,” Campbell says. “And that’s not always easy.”

The number of people applying to the Supreme Court without a lawyer is growing and the dismal acceptance rates could lead to injustices, she says.

While the Supreme Court of Canada can decide which cases to take, that is not true for lower courts across the country, which are increasing­ly weighed down by a barrage of self-represente­d litigants, who account for more than half the clientele in some courts.

The face of the self-represente­d litigants is also changing. Twenty years ago, they were often the poor, but the group now includes people across all socio-economic background­s, says John Gillis, the chair of the access to justice committee at the Canadian Bar Associatio­n.

There is also a sizable number of people who would rather fight their own fight in court. A 2013 survey from the National Self-Represente­d Litigants Project found about 20 per cent of self-represente­d litigants said they preferred presenting their own case rather than hiring a lawyer.

Whatever the motivation, people without legal guidance tend to “have worse outcomes” in court, says Gillis. “I’ve been in court and you cringe, and you watch them make horrendous tactical errors that you know are going to give them a negative outcome.”

There are exceptions. One of the best-known self-represente­d litigants to reach the Supreme Court of Canada was Jacques Chaoulli, a Montreal doctor who in 2005 successful­ly challenged a ban on private health care.

Campbell noted that a 2017 decision from the Supreme Court could help self-represente­d litigants throughout the court system.

In a victory for Calgarian Valentin Pintea, the court endorsed the Canadian Judicial Council’s Principles for Self-represente­d Litigants and Accused Persons by establishi­ng national standards for how courts handle people who do not have lawyers. The 2006 statement of principles says judges “have a responsibi­lity to promote opportunit­ies for all persons to understand and meaningful­ly present their case.”

While Pintea had a lawyer by the time he reached the Supreme Court level, that wasn’t always the case.

Pintea, who came to Canada from Romania and spoke English as his second language, was involved in a motor vehicle crash and went to the Court of Queen’s Bench of Alberta, ending up without a lawyer. Consequent­ly, he had trouble meeting court demands, and was found in contempt of court. He later appealed at the Court of Appeal of Alberta, where the majority of judges dismissed his case.

Lawyer Sean Sutherland then stepped in to help Pintea appeal to the Supreme Court, on a pro-bono basis, which is often the case for issues of public importance.

“We obviously wanted to help him, but we know logically as lawyers, you’ve got to think on a bigger level,” says Sutherland.

“For us, it was an opportunit­y to deal with this relationsh­ip between fairness and impartiali­ty, and making sure that self-represente­d people are not unjustly deprived.”

While would-be appellants without counsel have trouble being heard at the Supreme Court, the court’s website offers resources such as downloadab­le forms, but still recommends seeking pro-bono assistance.

“If you are thinking about bringing an applicatio­n for leave to appeal to the Supreme Court of Canada or if you have been named as a respondent in an applicatio­n for leave to appeal, it’s very important to try to get legal advice as a first step,” the website says.

“The Supreme Court of Canada only hears select cases. It helps a lot to get advice on whether or not yours could be a case which the court will hear.”

(Judges) have a responsibi­lity to promote opportunit­ies for all persons to understand and meaningful­ly present their case.

 ?? MARCOS TOWNSEND ?? Dr. Jacques Chaoulli, foreground, and Dr. Edwin Coffey speak to media after the Supreme Court of Canada ruled in Chaoulli’s favour for a two-tiered health-care system.
MARCOS TOWNSEND Dr. Jacques Chaoulli, foreground, and Dr. Edwin Coffey speak to media after the Supreme Court of Canada ruled in Chaoulli’s favour for a two-tiered health-care system.

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