Distributed-Justice Solution for the Crisis in the Canadian Legal System

By Denis G. Rancourt, PhD

First published on Dissident Voice:
http://dissidentvoice.org/2017/05/distributed-justice-solution-for-the-crisis-in-the-canadian-legal-system/

SUMMARY: The Canadian legal system is in crisis. I describe the circumstances of the crisis, its features, and its large-scale causes. I propose a radical and complete solution in the form of a “distributed justice” model. The model is a wiki approach for judicial decisions, using small teams of decision makers chosen from a large pool of non-legally-trained jury-like contract employees. Prerequisites of the model are: dissolutions of the lawyer and judge monopolies; and complete transparency and public access to recordings at every stage.

Canadian courts have gone to hell. The Chief Justice goes on and on about a crisis in “access to justice”, without expressing any concrete solutions whatsoever. The family courts are an obscene nightmare, shredding families faster than we can make them. Lawyer fees are through the ceiling and lawyers cling to their monopoly like flies to shit. No justice, justice delayed and justice way-over-priced are now the norm.

Beyond the economic and resources issues, the courts themselves are exceedingly class-status biased, where trial-court judges systematically give deference to the most highly-paid liars from the most “prestigious” law firms, while showing contempt for ground-floor lawyers, and outright hatred for self-represented litigants.

I’m not exaggerating. I’m stating reality as it is. That is why my words may sound excessive. Reality is far beyond what most of us would like to believe.

I have been intensely observing the courts and administrative tribunals, from the inside, now for more than a decade, up to all levels of courts in the country, mostly as a litigant (both represented and not represented) and recently as a researcher for the Ontario Civil Liberties Association (ocla.ca).  Here is a report I made in 2014 [1].

Why do lawyers lie? First, because they are trained to lie. They are trained to present and defend a plausible “version” of the “truth” that best advantages the client. This is called “advocacy” or “trial advocacy”, and their work in doing so is concealed behind a wall of secrecy called “solicitor-client privilege”. Crown attorneys (state criminal lawyers) have a broader responsibility but they are nonetheless notorious hacks looking for convictions. Second, because they are handsomely rewarded for good lying. It’s that simple.

The judges never interfere with the lawyer lies. They guard themselves from vigorously testing these lies, or even from spelling them out clearly. That is called the “adversary system”, in which each side tells its best lies, which may or may not to be related to the truth. If the judges were to seek the truth, then they could be challenged as showing “bias” and as misbehaving. In fact, their real and systemic bias requires them to stay clear away from the truth.

Why are judges biased? First, because they were trained and practiced as lawyers. Second, they were named because of subservience to political and systemic interests, beyond any other criterion. Third, their first concern is their own social status, especially within the legal profession. Fourth, there are punishments for rulings that offend hierarchical dominance, and rewards for rulings that support society’s dominance structure. The punishments include everything from vigorous viable appeals to gala-event gossip. The rewards include conference keynote talks, favourable academic reviews of decisions, and political promotions to higher courts and to high positions within a court.

Naturally, the higher the court, the more political are its decisions, often reversing the rare fundamentally correct and well-reasoned lower court rulings that “err” towards decency for the individual (I’m making a list).

In addition to all this, and as supported by all this, these boys (judges working with lawyers) continuously act to degrade the constitutional protections of the individual, by contributing a constant jurisprudential creep towards less and less individual rights, not to mention their central role actually drafting laws and advising in the creation of new laws.

Dwelling on the latter institutional damage to the fabric of society would take us beyond the scope of the present article, but there are many Canadian examples of judicial creativity in concocting “tests” for increasing numbers of newly carved-out classes of circumstances… (Another list.)

The said jurisprudential creep away from allowing individual autonomy and influence was brilliantly exposed, for example, in the seminal critical works of Alexander Aleinikoff in the USA, who coined the phrase “familiarity breeds consent”. This known tendency has now been joined by runaway legal-system degradation that accompanies the on-going assault against the working and middle classes in Western countries, in favour of globalized interests.

The economic assault is accompanied by more and more totalitarian control over the individual. Thanks to independent sources such as Wikileaks and a thriving alternative media (social media) network, and no thanks to academics and foundation-funded NGOs, the increasing socio-political totalitarianism is correctly perceived as the multi-tentacular work of the recognizable military-industrial-finance-propaganda complex that Eisenhower described before the propaganda component was fully integrated [2]. The current rapid increases in totalitarianism are driven at the highest level by loss of USA hegemony and the emergence of Eurasia and competing trade structures such as BRICS.

The crisis in the legal system is a predictable consequence of this sudden global shift, since our constitutional legal system was designed to stabilize a domestic society having significant post-depression and post-war individual freedoms (in the absence of present levels of paramilitary policing, surveillance, and enforcement), and is thus maladapted to the new dystopic reality. However, if individual rights are not defended and preserved, then there will be a true melt-down of Western society. So far, the legal system has refused to play its originally intended safeguard role, and has essentially accompanied the new impositions at breakneck speed. There are only a few valiant resistors (“activist judges”?) who are exceptions that prove the rule [3][4].

The features of the crisis are unmistakable, and include: a myriad of statutes that attack hard-earned classic civil rights and liberties (speech, privacy, autonomy), that directly attack constitutional rights without being refuted by the judiciary, huge prison populations, overtly aggressive in-court judicial behaviour (Canada refuses to have in-court video cameras), unmanageable numbers of litigants, unprecedented trial delays, aggressive bail-judge practice, and increasing judicial bias (substituting for principled judicial discretion).

It is not an accident that the Chief Justice has made it a speaking-point fetish. The crisis is also causing cultural backlash that includes the “freemen on the land” phenomenon, a growing and visceral men’s rights movement led by influential men’s rights activists (MRAs) [5], and a growing number of incisive legal reform associations. The Lighthouse Project is emblematic and worthy of note [6].

Well, I have a practical domestic solution. In three words: Dissolve the monopolies.

In this day and age, there are more educated persons in Canada than ever before, and they are all computer and research savvy. There are more and more self-trained litigants who do outstanding work.

The only reason that judges do not allow self-represented litigants to call on whatever help they choose is because that would put a burden on the judge to actually think about the law, rather than simply gauge party-status, based on known quantities that are the certified lawyers with their canned arguments.

Everyone now has access to the powerful legal search engine “CanLII”, which is not behind a prohibitive pay wall. Everyone knows how to do a Google search. Everyone knows how to read, and can learn things on which their welfares depend.

There is no physical or technical reason that justice cannot now be distributed.

There are two monopolies that need to be broken.

The first anti-justice monopoly that needs to be removed is the lawyer monopoly. A litigant must bear the responsibility of his/her free choice of help or representation. Period. Then it is up to the judge to impartially impose standards of evidence, and to correctly rule on the evidence.

This means that a judge might not have both sides spoon feeding him/her the formulaic law, and it implies that a judge would need to know and research the law, in order to make a correct ruling that does not selectively ignore relevant law. What a concept heh?

That is more work for the judge, which brings me to the second anti-justice monopoly that needs to be abolished: judges. All judges could be replaced by a network, and the network individuals do not need to be highly (over) paid tenured servants. “Judge” network individuals could be drawn from the general public (as with juries) and let loose, to a large extent.

This follows the original Wikipedia model of how editors create Wikipedia articles and make editorial decisions, except that in the presently overrun Wikipedia there are large numbers of secretly paid editors and the organization has steadfastly refused to enact policy against paid editorship [7][8].

My idea is that “pool judges” would be impartially and transparently selected and transparently paid at a fair market price for the work. These pool judges would be selected at random from among general-population applicants, allowed to refuse to serve, and screened solely for overarching conflict of interest (such as financial or benefit “encouragement” from enthusiastic employers or special interest entities). As a result there would be retired and otherwise underemployed individuals, which is a good thing. Proportional rather than disproportionate social-status representation would thus be self-managed.

Working groups of small numbers of pool judges would make the decisions in individual cases. Their post-trial deliberations would be protected by privilege and made entirely public and accessible (we have the technology). The post-trial decision-conference would be recorded for the public and would have the judge team present the evidence and hash out their reasoning, all done transparently. Their draft written reasons and decisions would be allowed to be openly critiqued by all parties in the case and by interested observers prior to being finalized. Again, the entire process would be transparent and public.

The law is too important to leave it hijacked by career monopolies, but the prospects for change are dim. The reactionary legal establishment cares only about itself and vigorously opposes any movement towards a working and responsive model. This is clear even from the smallest efforts. For example, the lawyers vigorously fight against paralegals [9], and the judges will never voluntarily accept needed video cameras in the courtrooms [10].

The fact that we have the dinosaur that we have, where actual justice is entirely possible in our present technological society, proves that the systemic imperative is dominance imposition.

The legal system’s crass compliance with this imperative is causing it to come dangerously close to self-destruction. Will this proximity be enough? The history of the professional classes suggests not. The intelligentsia always goes along with even suicidal projects such as wars of global conquest.


Endnotes

[1] “Rogue Courts in Canada Trample Self-Represented Litigants”, by Denis Rancourt, September 29th, 2014, Dissident Voice.
http://dissidentvoice.org/2014/09/rogue-courts-in-canada-trample-self-represented-litigants/

[2] Dwight D. Eisenhower national television address of January 17, 1961.
https://www.youtube.com/watch?v=CWiIYW_fBfY

[3] “Ottawa bail court a 'disgrace', justice of the peace alleges”, March 15th, 2016, Ottawa Citizen.
http://ottawacitizen.com/news/local-news/ottawa-bail-court-a-disgrace-justice-of-the-peace-alleges

[4] “In challenge to Ottawa, judge refuses to impose mandatory sentence”, February 13th, 2012, The Globe and Mail.
http://www.theglobeandmail.com/incoming/in-challenge-to-ottawa-judge-refuses-to-impose-mandatory-sentence/article549725/

[5] “The Red Pill: A Feminist’s Journey into the Men’s Rights Movement”, USA documentary film by Cassie Jaye, 2016, Jaye Bird Productions.
http://theredpillmovie.com/

[6] “Feminism LOL”, YouTube channel of Diana Davison.
https://www.youtube.com/channel/UCVRQqUgDRBevsDGOeE1DL3A

[7] “Wikipedia: Paid editing (essay)”, accessed on May 16th, 2017, Wikipedia, and links therein.
https://en.wikipedia.org/wiki/Wikipedia:Paid_editing_(essay)

[8] “The Covert World of People Trying to Edit Wikipedia—for Pay”, August 11th, 2015, The Atlantic.
https://www.theatlantic.com/business/archive/2015/08/wikipedia-editors-for-pay/393926/

[9] “NSRLP Petition in support of the Bonkalo Report”, by Margarita Dvorkina, accessed on May 16th, 2017, Paralegal Society of Canada.
http://pscanada.ca/nsrlp-petition-support-bonkalo-report/

[10] “OCLA Petition ‘Allow Cameras in Ontario’s Courts’”, by Ontario Civil Liberties Association, April 11th, 2016, ocla.ca.
http://ocla.ca/ocla-petition-allow-cameras-in-ontarios-courts/

Rogue Courts in Canada Trample Self-Represented Litigants

By Denis G. Rancourt, PhD  [1]

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”.

PURPOSE AND METHODS FOR THIS ARTICLE

In this article I describe the phenomenon in Canada of systemic and often-egregious judicial and legal-system bias against self-represented litigants.

In a next article, I will give my interpretation about the causes of this phenomenon, in the broad context of judicial and legal-system bias, by describing the different types of circumstances in which extreme judicial bias is most likely to occur, and the systemic devices that are used to cover-up judicial bias. I have already written several preliminary articles about judicial and legal-system bias [2][3][4][5].

My conclusions about the phenomenon itself are based on:

• many first-hand reports from victims of legal-system bias
• a review of specialized web-site discussions
• my discussions and interviews with community organizers against legal-system bias
• an expert report from an academic legal researcher, and my discussions with that researcher
• media reports
• published practitioner commentary, such as on lawyer's blogs
• my experience as the volunteer coordinator of the Self-Represented Workgroup of the Ontario Civil Liberties Association
• my in-court observations of several cases unrelated to me
• my own extensive experience as a self-represented litigant in Ontario, Canada

THE CRISIS IS REAL

Chief Justice Beverley McLachlin frequently warns of a crisis of “access to justice” in Canada [6]. 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 [7]. 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 [8].

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 [9]. 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.

EGREGIOUS AND SUSTAINED JUDICIAL BIAS
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 and a trial, over more than three years -- in the trial, motions, appeals of motions, and case conferences in the action against me [10][11]. I have prepared thousands of pages of legal documents, and I have been ordered to pay legal costs of the suing party, the unpaid portion of which totals more than seven hundred thousand dollars to date, prior to the appeal that has been filed [10][11].

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 and commentators. This bias exists irrespective of my level of education (PhD) and irrespective of my ability to present an argument (former university professor) [12], 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 [13].

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.

SYSTEMATIC AND HABITUAL JUDICIAL BIAS

The evidence for habitual 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 [14], which led to former US Congresswoman Cynthia McKinney's petition to the Canadian courts [15][16]

•    the trial judge, in the charge to the jury, instructing the jury that "there is no defence to consider", despite my having presented the fair-comment defence to the jury and despite ample evidence for the fair-comment defence having been admitted at trial -- see Notice of Appeal [17]

•    the trial judge refusing to recuse himself despite admitting that he has all his university degrees from the University of Ottawa and is an annual financial donor to that university, where the university is a partisan intervenor at trial and is funding the plaintiff's legal fees -- see recusal motion factum [18], and Notice of Appeal [17]

•    judges refusing to consider or recognize (or admit supporting evidence for) the maintenous and champertous nature of the obviously improper and political funding of the private lawsuit using public money [13][19] -- see court documents for the champerty motion and its appeals [10]

•    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 -- see many court transcripts [10]

•    allowing opposing counsel to make repeated and hyperbolic prejudicial comments, despite my objections -- see many court transcripts and court submissions [10]

•    not allowing me time to make my arguments, despite my good preparation and organization -- see defendant's factum in appeal from judgement in champerty motion [20]

•    refusals to hear evidence of misconduct by opposing counsel (that could be a separate article)

•    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 (another separate article)

•    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 known and proven fact that I have no money [21][22][23]

•    two opposite orders by the same (trial) judge on exactly the same question of my inability to pay ordered costs, however it benefited the other party [24]

•    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

CONTRIVED REASONS MAKE IT WORK

These examples are in addition to the macro-evidence for actual bias that resides in the judges' "Reasons" for their decisions, in which judges allow themselves to:

• describe only the facts they choose to highlight to support their rulings
• redefine and recast the actual facts, thereby destroying facts and creating new facts
• make prejudicial and unnecessary comments that other judges will read
• make findings of credibility without direct evidence
• make strongly worded findings on matters that were not before the court
• or, simply not provide reasons for particular findings
• (not to mention a case of releasing such "Reasons" after the judge voluntarily recusing himself)

The only way to gauge the systemic bias that is expressed in judicial "Reasons" is to compare the Reasons with the actual evidence and arguments. Legal researchers virtually never do this work but, instead, content themselves with clever analyses limited to the tunnel-vision of the Reasons themselves. The only possible reviews arise from costly appeals, when appeals are allowed, and the appeal courts then write their own "Reasons"... The more less-represented a litigant is, the greater the possible gap between the "Reasons" and reality.

JUDGES CLOSE RANKS

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, some two years prior to trial, I discovered that a motions judge (in a motion to end the action -- "champerty motion") 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 (University of Ottawa) 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 [25]. The Ontario Civil Liberties Association complained to the chief justice about an apparent systemic Registrar's bias against self-represented litigants -- see OCLA's letter to the chief justice [26].

That whole bias episode with the motions judge (champerty motion), 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 [27].

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 [28], 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.

THE HIGHER ONE GOES, THE WORST IT GETS

All of this has only been repeated at the trial itself, which started on May 12, 2014, and ended on June 6, 2014. 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 [18]. 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 [29], which was reported in the media [14][15][16].

In a May 20, 2014, email to the court, I explained among other things that "In the interest of justice, I have withdrawn my presence from the trial in order not to be used as a prop that would make it look to the jury as if I were being allowed to defend myself." I returned to the trial on June 3, 2014, immediately after the jury retired to consider its verdict, to argue post-jury-verdict trial motions. A Notice of Appeal from the outcomes of the trial was served on July 4, 2014 [17].

THE MYTH OF A FAIR COURT CANNOT BE SALVAGED

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 and former US Congresswoman Cynthia McKinney launched 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 [15][16]. 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.

This must be accompanied by formal appeals to the courts, which have been known to make judgements towards correcting undemocratic and unjust systemic trajectories of the legal system [30]. Even when there is a right to appeal, however, the phenomenal costs of the court transcripts [31], which the appellant must buy and provide to the appeal court, is itself a significant systemic barrier to access the appeal court. In my case, the lawsuit washed out my life savings long before I accumulated ordered and unpaid costs totally more than $700,000.00, and a funding campaign was launched by academic colleagues just to collect enough for the court transcripts [23].

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


Endnotes

This article was first published by Dissident Voice.

[1] A judge of the Ontario Superior Court of Justice cited the author (Denis Rancourt) in criminal contempt of court for among other things publishing an earlier version of this article, and stated in open court that the author could consequently be sent to jail following a "show cause" hearing that the judge ordered the author to attend. The judge then (some three months later, prior to the hearing) dropped all his charges when he realized on further reflection that he had not followed the accepted procedure for criminal contempt of court: The judge never told the accused to not do what the judge wanted to jail him for if he did it! The judge's dropping of the changes is at paragraphs 47 to 50 of this ruling: Joanne St. Lewis v. Denis Rancourt, 2014 ONSC 4840 (CanLII). This all occurred despite judges having been given detailed instructions by the Judicial Council about the correct procedures and fairness principles for making criminal contempt charges. 

[2] "Reflections of a self-represented litigant as an old man", by Denis G. Rancourt, Activist Teacher, February 17, 2012.

[3] "Self-represented litigant discovers the truth about the 'justice system'", by Denis G. Rancourt, Activist Teacher, December 15, 2012.

[4] "David W. Scott on self-represented litigants", by Denis G. Rancourt, Activist Teacher, January 4, 2013.

[5] "Made in Canada legal system costs policy precludes access by design", by Denis G. Rancourt, Activist Teacher, November 30, 2013.

[6] "Access to justice a 'basic right'", Toronto Star, August 12, 2007;
"Access to justice becoming a privilege of the rich, judge warns", Globe & Mail, February 10, 2011;
"For many, access to justice means actually getting to court", Vancouver Sun, March 7, 2011;
"Canadian courts not accessible enough, says chief justice", CBC News, August 12, 2012; 
"Why people representing themselves in court are clogging the justice system", Macleans Magazine, February 4, 2013;
"Ontario courts ‘only open to the rich,’ judge warns", Globe & Mail,July 2, 2013;
"Access to justice in Canada ‘abysmal’: CBA Report", Toronto Star, August 18, 2013;
"Access to justice in Canada ‘abysmal’ and ‘radical reforms’ need to be made to legal system, report says", National Post, August 18, 2013; 
"Too rich for legal aid, too poor for lawyers" (original journalist's title, later: "Legal help beyond the financial reach of many Ontario residents"), The London Free Press, October 25, 2013.
"How to improve access to justice", School of Public Policy, uCalgary, November 5, 2013;
"Chief justice celebrates pro bono work with students", Canadian lawyer Magazine, March 17, 2014;
and many more such reports, starting in 2007.

[7] "We Won't Back Down: CFFLR (video)", by Canadians For Family Law Reform, YouTube, June 9, 2012.

[8] "The National Self-Represented Litigants Project: Identifying and Meeting the Needs of Self-Represented Litigants, Final Report", by Dr. Julie Macfarlane, May 2013, pp 147; and media articles about the report, such as: "Ian Mulgrew: Access to justice is a fairy tale, self-represented litigants conclude", Vancouver Sun, May 7, 2013; 

[9] "Self-represented litigants ‘treated with contempt’ by many judges, study finds", Ottawa Citizen, December 31, 2012.

[10] Links to virtually all the court-filed documents of all parties and all interveners in St. Lewis v. Rancourt are listed here: http://rancourt.academicfreedom.ca/background/stlewislawsuit.html; All the U of O Watch reports about the St. Lewis v. Rancourt case are here: http://uofowatch.blogspot.ca/search/label/Joanne%20St.%20Lewis.
[11] Most of the court rulings in the case are listed on CanLII here: http://www.canlii.org/en/index.html#search/id=st.%20lewis%20v.%20rancourt

[12] My ability to understand and make legal arguments (and to design those arguments in view of the systemic bias against me) steadily improved in the lawsuit, but my first document, the Statement of Defence, shows that even my starting ability was reasonably high: LINK-SOD.

[13] "Public Money is Not for Silencing Critics - University of Ottawa must end its financing of a private defamation lawsuit", Ontario Civil Liberties Association campaign, August 2013.

[14] "Denis Rancourt boycotts his own trial for libel, citing 'kangaroo court'", Ottawa Citizen, May 16, 2014.
[15] "Give a Fair Court Hearing to Denis Rancourt", on-line petition by Cynthia McKinney, former Congresswoman of the USA, Change.org, May 21, 2014; over 1100 signatories at the time of this writing.

[16] "U.S. activist Cynthia McKinney seeks new trial for Denis Rancourt", Ottawa Citizen, May 22, 2014.

[17] "Notice of Appeal", appeal C59074 from verdict and judgements at trial, St. Lewis v. Rancourt, at Court of Appeal for Ontario, July 4, 2014.

[18] "Defendant's motion for recusal of the trial judge (all documents)", St. Lewis v. Rancourt, motion heard and decided on May 7, 2014.

[19] "University of Ottawa paying for pointless legal battles (video news report)", Prime Time, Ezra Levant, SUN Media, May 23, 2014.

[20] "Factum of the Appellant", appeal C56905 (from judgement in champerty motion), St. Lewis v. Rancourt, at Court of Appeal for Ontario, May 9, 2013; and court transcripts and other documents at [10].

[21] "All court documents, submissions, and transcripts regarding costs of the trial", St. Lewis v. Rancourt, June 20, 2014, costs claim to Endorsement on Costs dated August 21, 2014 (10 documents).

[22] "All court documents about requesting that trial judge reconsider his August 21, 2014, Endorsement on Costs", because of apparent factual and procedural errors, St. Lewis v. Rancourt, August 25, 2014, to August 28, 2014 (4 documents).

[23h] The first (now closed) Indiegogo.com funding campaign for the "Denis Rancourt Legal Defence Fund" was HERE. The active funding campaign page is HERE.

[24] ----At trial, on June 6, 2014, when the plaintiff argued that I had no way of paying the ordered costs and damages and therefore that I deserved to be gagged with a permanent injunction, the trial judge, in his oral Reasons from the bench ordered:
“[…] The possibilities of payment of the costs or the compensation or the award -- the costs or the award of damages -- that the defendant suggests are exist (sic) are frankly pure fantasy, there is no reasonable prospect he will be able to pay. Moreover, […]” [Emphasis added]
 ----Then, after trial, when the plaintiff argued that I had the ability to pay large costs, on August 21, 2014, the same judge on the same question, in his Endorsement on Costs, at paragraph 41, ordered:
"The defendant's evidence that he is impecunious is self-serving at best. At his cross-examination he failed to answer most questions put to him preventing any meaningful analysis of his allegation that he has absolutely no asset to pay any portion of the costs award."
(This, after the judge refused to let me make responding submissions to the plaintiff's submissions about the said cross-examination -- only one party was allowed to make submissions about the cross-examination about my inability to pay costs.)
The judge refused to reconsider his Endorsement in order to reconcile this contradiction by finding that he was suddenly "functus" (see all documents on this matter [22]).

[25] See the full chronology and links to all the documents of this particular saga here: "On-going story of an application to the Supreme Court of Canada", U of O Watch, June 10, 2013.

[26] OCLA's letter and attached documents to the Chief Justice of Canada, dated March 4, 2013: "We are writing to bring to your attention serious concerns about the conduct of the Registrar of the Supreme Court of Canada toward self-represented litigants, which deprives unrepresented parties from access to the Court."

[27] The bias episode with the motions judge (champerty motion) affected the entire champerty motion and its appeals. The saga is reported in posts at U of O Watch, with links to court documents and media report, under the tags/labels: "Justice Robert Beaudoin", and "OCLA".

[28] "Un ex-professeur de l’Université d’Ottawa fait appel aux Nations unies", Ici.Radio-Canada, March 14, 2014.

[29] Read my May 16, 2014 in-court statement here: "Why I walked out of the trial in which I am being sued", U of O Watch, May 17, 2014.

[30] One example, in Canada, are the recent rulings that apply the "principle" that there is no valid reason that a self-represented litigant who wins an action or motion cannot be awarded costs, where a represented litigant would be awarded costs. It is remarkable that the opposite largely continues to be the "logic", using glib judicial statements to the effect that self-represented litigants have no or little costs since they don't hire lawyers. See [9].

[31] Court transcripts typically cost $1,000.00 or more per day of trial, which can easily amount to between $5,000.00 and $50,000.00, for a self-represented litigant who did not have the money to hire a lawyer in the first place.


Dr. Denis G. Rancourt is a former tenured and Full Professor of physics at the University of Ottawa, Canada. He is known for his applications of physics education research (TVO Interview). He has published over 100 articles in leading scientific journals, and has written several social commentary essays. He is the author of the book Hierarchy and Free Expression in the Fight Against Racism. While he was at the University of Ottawa, he supported student activism and opposed the influence of the Israel lobby on that institution, which fired him for a false pretext in 2009: LINK.  

Background Links:
Petition site — Give a Fair Court Hearing to Denis Rancourt
Ontario Civil Liberties Association campaign page
The motions judge’s apparent-bias legal saga
Court documents in my motion for the trial judge to recuse himself
All (most) court-filed documents in my case

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”.

Background Links:
Petition site — Give a Fair Court Hearing to Denis Rancourt
Ontario Civil Liberties Association campaign page
The motions judge’s apparent-bias legal saga
Court documents in my motion for the trial judge to recuse himself
All (most) court-filed documents in my case

Made in Canada legal system costs policy precludes access by design

By Denis G. Rancourt

The express policy and practice of legal costs payable by the losing party of any and all litigation steps in a Canadian legal action are unjust by design, and preclude access to justice, yet the Canadian legal establishment has been morbidly and steadfastly silent about this systemic perversion.

By a straightforward application of Foucaultian institutional analysis, one is required to conclude that the unstated true purpose of the Canadian legal system's costs rules and costs policy is to frustrate and deny access to the less financially endowed party in any legal battle, or to both parties of limited means when such is the case.

Chief Justice of Canada Beverley McLachlin goes on and on about the problem of limited "access to justice", with oblique references to high legal costs and to the increasing pressures on the courts, but without ever a word regarding the policy framework and judicial practice that are the root cause precluding access to justice.

In the Canadian judicial mind it is an article of faith that the legal system's motives are pure, and that this purity is actuated by constantly improved policy and practice that need not be subject to overriding critical analysis.

In the mind of the Chief Justice, "access to justice" is frustrated by growing legal costs and increasing demand for court services, often verbalized by legal practitioners as "the self-represented litigant crisis", without any hint that established rules and policies of the courts may actually be a structural cause of the problem.


Here is how it works.

In any given litigation, there are typically several intermediate and preliminary "steps" or "motions" heard before the court. These motions are to determine procedural matters such as discovery of the evidence, limits to discovery, refusals to disclose relevant documents, whether there is a cause of action (legal reason to sue), whether the court has jurisdiction over the matter, whether any claim constitutes an abuse of process, whether the action itself is an abuse of the court process, questions of court process transparency, and so on.

For every such step or motion, the costs rules impose that the party losing the motion must immediately pay the legal costs of the winning party for litigating the motion. Note that these are the legal costs of litigating (paying lawyers), not any damages or contractual awards sought in the action.

In this way, a party can be forced to pay hundreds of thousands of dollars in costs before the action is even set down for trial, irrespective of the actual claim for reparations in the action.

Obviously, this paying-for-motions rule immediately creates a situation where a party with deep pockets can financially exhaust any opponent, especially since the opponent is also paying his/her own legal costs. The possibility alone of this tactic should be enough to cause the legal system to implement strict rules and oversight preventing any costs-based procedural bullying by dominant parties. But such is not the case. The whole thing is left to the discretion of the motions judge, without requiring evidence of actual costs, and without a right to appeal the costs decision.

That is correct. A judge's costs decision, for a single motion, can be over one hundred thousand dollars, more than the great majority of awards in actions, yet the costs decision is not based on any evidence, only on a lawyer's cursory claim (written submission), and the decision carries no right of appeal. How is that for an exemplary system without safeguards? One cannot even know how much the opposing lawyer actually charged his/her client for the services for which costs are claimed, as that is considered top secret ("solicitor-client privileged").

But, for the sake of argument, let us assume that there is no need to appeal costs decisions because motions judges never make mistakes, and let us assume that lawyers never lie about costs, not even when no verifications are possible, and let us next examine the system's highest-level policy rational for requiring that a party losing a motion pay the legal costs of the winning side, in addition to its own legal costs.


The overriding policy principles at stake with costs of litigation steps are described in a judgement of the Supreme Court of Canada: British Columbia (Minister of Forests) v. Okanagan Indian Band, 2003 SCC 71 (CanLII).

There is a hierarchy of policy principles for awarding legal costs of such interim litigation steps.

The first policy principle is that costs are "to indemnify the successful party". That is, compensation for the expense to which the successful party has been put. Simply put: A non-party to the action cannot be indemnified, and if there is nothing to indemnify then no costs are due.

The second policy principle (which is arguably secondary, and which came later in the common law) is that interim costs also serve to discourage both parties from bringing unnecessary litigation steps that have low worthiness.

That's right. Forcing the losing side to pay costs of the winning side is advanced as a way of reducing unnecessary litigation steps. Clearly, however, it is a mechanism for reducing unnecessary litigation steps solely when the litigation is between equal opponents. Otherwise, it becomes an instrument of intimidation and coercion. In any battle where one side can take a loss where the same loss on the other side is more debilitating for the other side, the dominant side will benefit from the attack. Thus, litigation behaviour is eminently predictable with unequal opponents, yet this escapes all the brilliant legal minds that dream up these policy developments and rationalizations.

Indeed, the law is often (and selectively) blind to logic that is correctly anchored in the social reality of power. Within the majestic equality of the law, its gatekeepers rationalize the second policy principle in terms of an objective that is only attainable in the ideal circumstance of equal opponents, and that, otherwise, has the opposite effect.

Put another way, when applied to unequal opponents, the policy can only have its alleged effect if the judge is able to and does make perfectly just decisions on motions, irrespective of the quality of the legal arguments, the depth of the presented evidence, and the social status of the lawyer (within the legal profession), which is virtually never. (It's not called an adversarial system for nothing.)

By design, the costs policy of paying the opponent's costs on motions won by the opponent financially rewards one party for having the financial resources and connections to hire high status lawyers, while financially punishing the other party for not having the financial resources and connections to hire equally high status lawyers.

The above policy analysis is not rocket science (my scientific papers are amply cited by NASA scientists), yet, somehow, the genius gatekeepers of the legal system conclude the opposite effect to arise from the system's costs rules, in the face of the known and obvious mechanisms at play, and without any basis in empirical studies.

To continue, the second policy principle includes the proviso that interim costs should not be so high as to unduly discourage worthy motions, or so high as to prevent a party from pursuing a worthy action to trial.

In order to accomplish the above described and other policy objectives, while being blind to the actual effects of awarding motions costs to the winning party, the legal system in Ontario, Canada, has devised a gradation of costs scales. The lowest scale is the "partial indemnity" scale, and it is intended to be the common scale in practice, directly aimed at addressing the first two policy objectives (indemnity, and moderate discouragement). Practice directives and case law have the partial indemnity scale tentatively corresponding to 60% of true costs.

The idea, therefore, is that just the right costs fraction will achieve the balance between stopping unreasonable motions and not precluding access to trial, while providing some (partial) indemnity.

This is, of course, a fiction. Within the majestic equality of the law, its gatekeepers have found that it is entirely consistent with the policy objectives that "partial indemnity" correspond to 60% of whatever the particular lawyers are charging. With unequal opponents, the dominant side hires expensive lawyers whereas the weak sides hires inexpensive lawyers or is self-represented. Thus, the policy objective is necessarily turned on its head by the application of the rule.

And the court goes so far as to codify this. In the sharp mind of the motions judge, it is pure reason that a client that hires expensive lawyers needs to be indemnified more than a client forced to use inexpensive lawyers having less gravitas with the court.

There you have it. "Partial indemnity" is structurally tied in quantum to how much the party spends on his/her own lawyers. This is an additional mechanism ensuring that the wealthy are rewarded for being wealthy, while the less wealthy are punished for being less wealthy, at every litigation step in the process. 

To add insult to injury, the courts long denied self-represented litigants any costs at all, using the logic that no indemnity is required since no lawyers were paid to do the legal work. (Read that again.)

Only recently* has this common law posture been changed in the case law. Now self-represented litigants are compensated according to lost wages. Of course if the litigant is unemployed or loses his/her job in the process of the litigation, then there is again "nothing to indemnify". While any self-represented litigant who makes as much as a high status lawyer would probably not be self-represented. (*Fong, et al v. Chan, et al, 1999 CanLII 2052 (ON CA); Skidmore v. Blackmore, 1995 CanLII 1537 (BC CA))

The system's position on costs to self-represented litigants especially makes a mockery of the second policy principle, and states that a self-represented litigant's legal work in wining a motion is worthless in terms of value to be indemnified.

To add injury to the insult added to the injury: If a dominant opponent has a non-party (such as the corporate or government employer of the private litigant) voluntarily paying all of its legal costs, then the court, guided by the majestic equality of the law, expressly sees no reason that the dominant opponent would not be indemnified. That is for the case where the non-party funding is disclosed, but there is no requirement to disclose such funding.

So, "indemnity" is the foremost policy principle but the court does not require disclosure of whether or not there is actually something to indemnify. And when it is disclosed that there is nothing to indemnify, since a non-party is voluntarily paying the bills of the dominant opponent, then the court will often pull out the second policy principle to ensure that the weaker opponent gets a good beating.

To add insult to the injury on the insult on the injury: In a recent case where an unemployed self-represented litigant had provided sworn evidence of his impecuniosity to the court, and where the dominant private litigant (a law professor) had her legal costs entirely and voluntarily paid by a non-party corporation, the judge found that the self-represented litigant must pay costs at the highest partial indemnity rate of the winning party's expensive lawyers because, in the words of the court (at paragraph 34), it is "important to avoid a situation where a person without means can cause responding parties to incur substantial legal costs without any financial consequences."

Just to be clear: In other words, a person without means must suffer the financial consequences of a partial indemnity costs award to a rich opponent in order to preserve the policy principle that the litigant without means should not bring or defend a motion that he/she will lose. Tadaaa. A person without means must be punished beyond his/her means for seeking procedural justice and losing, even if the other side has not incurred any costs.

Let's try stating it again: A party without means cannot, in the process of litigation, cause a rich opponent to incur costs without financial consequences, even if the rich opponent does not incur any costs. -- Yet, the only reason that large legal fees are charged is because there was a substantial legal question to address... And the only reason that the judge heard lengthy submissions and wrote a lengthy decision is because there was a serious legal question that needed to be determined... Otherwise, the judicial motions gatekeeper is not doing his/her job.

There is no right to appeal even that kind of extreme case, but a motion for leave to appeal (special permission to appeal) has recently been filed, which attempts to point out the policy contradictions, to the Court of Appeal for Ontario... If the motion is lost, costs will again be due to the winning party.


The third policy principle has an express punitive purpose. It is to punish overtly abusive practices such as making obviously unsound arguments, needlessly lengthening a process, being uncooperative with the judge, misleading the court, and so on. In such cases, a lawyer can be personally charged for costs of the other party, if the lawyer is at fault. These policy objectives are intended to be met by so-called "substantial indemnity" and "full indemnity" rates.

Again, even the punishments are scaled to the amounts spent on lawyers. Thus, by design, a rich party is punished less (in money amount) than a poor or self-represented party, for the same punishable offense.

One can see the pattern: The wealthy party, when punished (if ever), is forced to pay the meager legal costs of the impecunious party, whereas it's "only fair" that the wealthy party, on winning, be indemnified at the highest rates allowed, by the impecunious party, when there is nothing to indemnify because a non-party corporation is voluntarily funding the private litigant.


In conclusion, the entire costs policy and costs rules in Ontario courts are a shameful travesty, largely upheld by the Supreme Court of Canada, with no indication whatsoever that the legal system has any consciousness of the systemic and structural discrimination that is perpetrated in every litigation step of every action between unequal opponents.

This is in all likelihood not an accident of momentary blindness. The only reason that some discomfort is now being expressed by the Chief Justice of Canada and others is because corporate clients have driven legal fees through the ceiling, which increasingly exposes the unconstrained viciousness of court costs policies against increasing numbers of self-represented litigants. Overall, however, the system will clearly not allow financially disadvantaged individuals to seek and obtain justice. The Courts have never been and will never be for the lower castes, except for the the pro bono show cases, carefully selected to be benign regarding any challenge to the establishment, that justify the Rule.

The author welcomes any feedback to correct or improve the above arguments, prior to further development of these ideas for broader publication.

Denis G. Rancourt is the Self-Represented Litigants Workgroup Coordinator of the Ontario Civil Liberties Association. He is a former tenured and Full Professor of physics at the University of Ottawa, Canada. He is known for his applications of physics education research (TVO Interview). He practiced various areas of science which were funded by a national agency, has published over 100 articles in leading scientific journals, and has written several social commentary essays. He is the author of the book Hierarchy and Free Expression in the Fight Against Racism. He has self-represented himself in several courts and tribunals: labour relations board, access to information appeals, municipal court, Superior Court of Justice for Ontario, Court of Appeal for Ontario, and filed motions at the Supreme Court of Canada.

Brilliant citizens' video: Fighting judges and lawyers harming and exploiting families

This movement is occurring in Sarnia, Ontario, Canada. Here is the video:



And here is an association trying to help with these citizens' struggles in Ontario:

Ontario Civil Liberies Association for Self-Represented Litigants

And here are the Facebook groups:

Sarnia Group: CFFLR

OCLA Group

David W. Scott on self-represented litigants

Here in the capital city Ottawa of the advanced nation that is Canada, a Co-Chair of the national law firm BLG, and an officer of the Order of Canada, Mr. David W. Scott, was quoted in the following way in the city's Ottawa Citizen newspaper, on the topic of self-represented litigants in Canadian courts [1]:

The jaundiced judicial attitude is a holdover from an earlier era, when many of those who appeared in court without a lawyer were mentally disturbed, says David Scott, a prominent Ottawa lawyer.

“That’s changed completely,” says Scott. Now, “the unrepresented litigant is frequently smarter than the represented litigant and his lawyer combined. The idea that all these people are deranged is over.”

Within the legal profession, what to do with self-represented litigants “is now the hottest topic on the street,” says Scott. “This is a huge management job for the courts, and we’re just beginning to deal with it.”

Well there you have it. Is there a cultural bias against self-represented litigants in the legal profession? Do elephants have big ears?

Which "earlier era" is that Dave? Would this be based on a comparative study published in a law journal? Or would this be anecdotal? Did some Ontario judges make findings in their judgements that the self-represented litigants before them were "mentally disturbed", or, well ... what is your source there Dave? And who made the psychiatric evaluations in question Dave? Are lawyers and judges qualified to do that?

Also, Dave, could you specify: When did the "idea that all these people are deranged" become "over"? What year was that in your career? How did judges administer justice before it was "over"?

I ask because, my own research on self-represented litigants of an "earlier era" suggests that they were quite not mentally disturbed, but rather worked with a "mentally disturbed" or at least "disturbed" court. Two famous examples that come to mind are Fidel Castro [2] and Mary Mother Jones [3].

So... Dave is helping in the "huge management job" that "we're just beginning to deal with". I feel better already. These boys are going to "manage" self-represented litigants. Meanwhile, one lone researcher is interviewing the non-lawyered litigants to figure out what is actually going on [1].

Another research method, I would suggest, is to observe in the actual courtroom. That's where a lot of the "managing" is occurring, for anyone who cares to witness it.

References:

[1] Butler, Don, "Self-represented litigants ‘treated with contempt’ by many judges, study finds", Ottawa Citizen, January 1, 2013.

[2] Castro, Fidel, "History Will Absolve Me", 1953.

[3] Foner, Philip S., "Mother Jones Speaks: Collected writings and speeches", Monad Press, 1983.

Self-represented litigant discovers the truth about the "justice system"

My name is Denis Rancourt. I am self-represented in a $1 million defamation lawsuit against me. The lawsuit is described HERE. And many of the legal documents are posted HERE.

The lawsuit has been on-going since the Statement of Claim was filed on June 23, 2011. I filed my Statement of Defence on July 22, 2011.

Since that time, some twenty four (24) motions (or mini-trials) have been filed in the action.

For the first time in my life, after a 23-year career as a university physics professor, I had to stand in front of a judge, over and over again, and try to be heard and understood. I had to write legal documents of all kinds, and learn the complex rules of litigation, on-the-go, always in a rush, as best I could.

For the first time in my life I was aggressively cross-examined out-of-court, without a lawyer, and did the best I could to preserve my rights. For the first time in my life, I had to cross-examine witnesses, five in a row in three days, and then more. I had to cross-examine the university president who fired me, the dean of a law faculty, and lawyers.

I learned about the grand principle known as the "open court principle" (said to be a Charter right) and how it does not apply, by some twisted logic on the mobius strip of legal "principles", to out-of-court cross-examinations where it would be most needed, where the bright light of public scrutiny would be most beneficial.

I learned that there are rules, but that these rules are not followed, and that the judge can make up all the rules he/she wants in order to achieve "a fair and efficient administration of justice": HERE.

I learned that, contrary to the the judicial mantra of "objectivity", at first instance the whole exercise is one of weighing the relative power and status of the opposing parties.

If there is somewhat of a balance in power and status of the opposing parties, then the court becomes an arbitration process to find the compromise that is least likely to be appealed to a higher court or to be negatively criticized within the legal establishment.

If there is a significant imbalance in power and status of the opposing parties, then the court becomes an outright instrument to maintain and strengthen the said imbalance, to preserve "the order of things", and to preserve the reputations and statuses of the illustrious members of the legal establishment (judges and lawyers) involved in the choreographed mobbing that will unfold.

The noncompliant element is processed by the system, using the full force of public (in-court) intimidation, enforcible exorbitant cost orders (for every "failed" step in the process), threats of contempt of court (a criminal offence), direct management of the litigant's time for preparation, and so on.

Public (and/or media) interest in the case provides some protection, but only to the extent that the thus exposed "processing" might impact intra-establishment reputations and statuses of the mobbers, or is perceived by the legal establishment to unacceptably put the entire "justice system in disrepute", thereby making maintaining "the order of things" more difficult.

I may be totally in error in my observations and perceptions and I may have learned false conclusions, but this is what I have learned. (It is a sad state of society that I must add the latter sentence, which is an obvious truism about learning.)

Reflections of a self-represented litigant as an old man

At my advanced age of 54 I find myself being sued for $1 million for a blog post on a blog (not this blog, another blog) critical of the University of Ottawa. All the blog posts (on the other blog) in the matter are HERE-link. The lawsuit against me is entirely funded by the University of Ottawa -- a public university in Canada's capital -- and the funding was directly approved by university president Allan Rock, who is amply criticized on the (other) blog in question (e.g., LINK).

I would characterize the legal action against me as aggressive, with a heavy use of procedural motions before the court and a less-than-cooperative lead opposing counsel, arguably one of Canada's leading defamation lawyers. It's been called a SLAPP.

I am self-represented and I have never done this before. To say that it is a learning experience is a vast understatement. At "mandatory mediation" I was alone facing five opposing lawyers, including the Plaintiff-on-record who is a law professor at the University of Ottawa. I was not allowed to bring an adviser or an accompanying person.

To date nine motions have been filed and I have appeared before the court six times. I have been cross-examined twice out-of-court on my affidavit evidence for motions. I'm starting to truly understand what Foucault was talking about in his analyses of state institutions. I don't think I could have learned this any other way.

So let me summarize some first observations -- preliminary conclusions, if you like.

(1) The court is balanced in terms of applying the law when the opposing litigants are both of high societal status and of equal societal status; like two corporations, or two billionaires, etc. Otherwise, the asymmetry in status is mapped into an asymmetry of treatment.

(2) The entire court hearing (on a motion or at trial) is a contest of impressions. The judge does not read and only asks to be impressed by the slogans and spin of the parties that resonate with his/her self-image. The competing shots to impress are received or deflected in a self-organized phase transition from initial position to coalesced final opinion. This is followed by a technical step of providing "reasons" for the final opinion.

(3) There is some measure of care with parties who have the means to appeal decisions. Otherwise, it's all purely an exercise of the establishment preserving the established order. It's a class war in most cases, and this is overt in family court with state intervention agencies or with corporate landlord v. tenant disputes.

(4) The lofty principles expounded in Supreme Court decisions are barely perceivable in the every day judicial decisions of establishment maintenance; and are often contradicted without a second thought. The court archives are stuffed with hand-written "endorsements" on the backsheets of motions that are at odds with "established" norms of justice and with any semblance of logic -- pure oozings of coalesced opinion.

(5) The rules of procedure are rationalized in terms of honorable motives but actually provide structural support for establishment maintenance. For example, mandatory mediation is said to provide a desirable mechanism for resolution by mutual consent. Yet it is overtly used as an instrument of intimidation by dominant parties with the full consent of the court.

(6) The rules are only a trap for self-represented litigants because only the lawyers and judges know which rules must be followed and which can be ignored and which rules are superseded by unwritten practice. And the first rule is that the judge can make up the rules "to provide a fair administration of justice".

There is no solution. Only navigation with a changing destination. They are as bad as we let them be.