Sunday, May 25, 2014

The crisis of access to justice and self-represented litigants — as I see it

By Denis Rancourt, PhD

There is a crisis of access to justice in Canada. It is a crisis of systemic judicial partiality against ordinary citizens who cannot afford brand-name “justice”.

Chief Justice Beverley McLachlin frequently warns of a crisis of “access to justice” in Canada. This crisis involves a large and growing number of self-represented litigants who cannot afford lawyer’s fees, which are inflated by corporate clients.

The Facebook group “Canada Court Watch” is focussed on self-represented litigants and has over 4,000 members. Self-represented litigants regularly picket outside courthouses and lawyers offices across the country. Researchers, such as law professor Julie Macfarlane, have described a widespread disillusionment and distrust of the legal establishment by ordinary self-represented litigants from all walks of life.

Beyond what is acknowledged by the chief justice and the legal establishment, there is a widespread conviction among self-represented litigants that the courts are biased against them. I am the coordinator of the Self-Represented Litigant Workgroup of the Ontario Civil Liberties Association, and I have experienced this bias directly as a self-represented defendant.

In a single case of alleged defamation for words on a blog, I have been required to go before 17 different judges, at all courts up to the Supreme Court of Canada, in over 30 open court hearings, over more than three years -- in the motions, appeals of motions, and case conferences in the action against me. I have prepared thousands of pages of legal documents, and I have been ordered to pay legal costs of the suing party of more than one quarter of a million dollars to date, prior to the trial that is now on-going.

In light of my recent experience as a self-represented litigant, it is difficult for me to believe that the pleas of the chief justice are authentic. I tend to think that the chief justice means only that lawyers should be affordable and available for ordinary persons, and that she wishes that the legal processes were less wasteful. However, access to lawyers alone does not provide access to justice, and neither does strong-handed case management by judges.

I feel like I have seen it all in terms of the behaviour of judges, in terms of the tremendous systemic bias against self-represented litigants, and that is described by legal researchers. This bias exists irrespective of my level of education (PhD) and irrespective of my ability to present an argument (former university professor), and so I believe what I have heard about what it is like for a single parent navigating issues of child custody.

In my case, the potential for systemic bias is increased by the fact that the plaintiff is a high-status lawyer within the legal establishment, and two of the lawyers who oppose me have formerly represented Canadian prime ministers. In addition, the private plaintiff is funded without a spending limit by a non-party using public money, a situation that has been denounced by the Ontario Civil Liberties Association (LINK).

At the mandatory mediation I was not allowed an accompanying person (because he was not a lawyer) even though I faced five lawyers on the side suing me. But obvious asymmetries of means are not the only problem.

The evidence for routine judicial bias, as I see it, is overwhelming and includes:
•    the trial judge cancelling my main and pleaded defence, off-the-cuff and in the middle of my opening address to the jury
•    judges and lawyers disrespectfully referring to me in court as “he”, and discussing me as though I were not present (until this behaviour was denounced on the Ontario Civil Liberties Association website)
•    judges’ frequent, repeated, and disorienting interruptions of me in court
•    allowing opposing counsel to make repeated and hyperbolic prejudicial comments, despite my objections
•    not allowing me time to make my arguments, despite my good preparation and organization
•    refusals to hear evidence of misconduct by opposing counsel
•    refusing to acknowledge transcript evidence of opposing counsel leading his witnesses in out-of-court examinations
•    allowing procedural dirty tricks by the lawyers, such as calling motions on one day’s notice
•    constructive barring of my evidence on motions and at trial, using both procedural technicalities and legal abstractions
•    allowing the plaintiff to pick and choose which questions to answer in cross-examinations
•    orders that I pay outrageously high costs, which in effect punish me for trying to defend myself, despite the fact that I have no money
•    orders that I, rather than the opposing party, pay costs even in the cases where I won all or the majority of the points argued in the motions
•    disadvantageous deadlines for document submissions and disadvantageous scheduling of court appearances, despite objections with reasons

In fact, there appears to be no limit to what the court thinks it can get away with when dealing with a self-represented litigant.

In my own case, for example, I discovered that a motions judge (in a motion to end the action) had a blatant conflict of interest. In the middle of the proceedings, I learned that he had strong personal, family, emotional, and contractual financial ties to a party intervening for the plaintiff in the case, and also to the law firm representing the party in court. He had not disclosed any of these ties. The judge’s ties made it inconceivable that he would rule against the plaintiff.

When I presented the evidence of the judge’s ties, the judge lost decorum, threatened me with contempt of court (a criminal judgement), and recused himself, but refused to rule on whether there was apparent bias, and continued to release decisions that stand to this day.

I raised the matter through available procedures with three more judges of the Superior Court, three judges of the Court of Appeal, and six judges of the Supreme Court (in two applications for leave to appeal), but all of them refused to allow bias as a ground for appeal.

In my first attempts, I was not even allowed to access the Supreme Court. It is a demonstration of apparent systemic judicial bias at the highest level that the Registrar of the Supreme Court refused to accept my duly prepared application — and then refused to accept my motion to denounce his refusal to accept the application. This was resolved only because the Ontario Civil Liberties Association made a request, directly to the Chief Justice of Canada, that the Registrar’s conduct be investigated.

That whole bias episode, involving 13 judges from three courts, shows the degree to which the entire judicial structure will tolerate a judge’s apparent bias, at least when the bias complaint is brought by a self-represented litigant being sued by prominent members of the legal establishment.

The only remaining remedy in the matter resides in international law. I am preparing a complaint to the UN Human Rights Committee for violation of the International Covenant on Civil and Political Rights, which guarantees an impartial court to every litigant in signatory countries, including Canada. Few self-represented litigants can defend themselves this effectively, and there are far too few resources among civil rights organizations to address the gargantuan need.

All of this has only been repeated at the trial itself, which started on May 12, 2014, and which is on-going. Prior to trial, I had asked then Regional Senior Judge Charles Hackland (who resigned on May 8, 2014) to name a case judge who had no connection with the University of Ottawa, and I had made a formal motion for the trial judge to recuse himself because of the judge’s shared interests with the University of Ottawa (LINK). None of this mattered and the trial judge refused to recuse himself. This, and the judge’s in-court actions, led to my walking out of the trial, which was reported in the media (LINK1, LINK2).

My case, the ordeals of countless others, and academic research show that there is a systematic bias against self-represented litigants. Such evident, overt, and pervasive bias proves that the judges are not impartial, but rather are significantly influenced by the social status and power of the litigant. Corporate and government litigants know this well, and count on it. It is the elephant in the courtroom for self-represented litigants.

For self-represented litigants the crisis in “access to justice” is really a crisis in access to an impartial court, a court that is not influenced by social status. This crisis will not be solved by increasing access to lawyers and reducing court backlogs. The solution will require that litigants themselves and civil rights organizations insist on and monitor impartiality of the courts.

In my case, high-profile American political activist Cynthia McKinney has started a petition demanding that the chief justices of Canada allow a new trial with a trial judge having no ties to the University of Ottawa — which is funding the lawsuit without a spending limit — and this has been reported in the media (LINK-petition, LINK-media). Only this type of protest-application of the open court principle, in combination with media exposure and civil society association pressures, has any chance of catalyzing a reform in a system that has now degraded itself beyond self-repair.

There is indeed a crisis, and it is of the court’s making. It is a crisis of partiality against ordinary citizens who cannot afford brand-name “justice”.

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