The underground world of the justice system
“Think of being an SRL like throwing yourself into the middle of the ocean. You flail about and look up to the sun for direction, but you have no idea what is north, south, east, west.”
Often when the term “self-represented” flies around in the legal context, thoughts drift towards that parking ticket that was just unbearably unjust, or the speeding fine that was way too harsh. As banal as these situations may seem, they are a small glimpse of a much bigger phenomenon.
For long, self-represented litigants (SRLs) were regarded as outliers- a small stubborn minority who are on a mission to write their own laws and have no regard for the processes of the justice system. Nothing exemplifies this sentiment more as the infamous proverb:
“A man who is his own lawyer has a fool for a client.”
Needless to say, this has proven to be a gross misunderstanding.
In the spring of 2013, the National Self-Represented Litigants Research Study was released, shattering all preconceptions.
Conducted by Dr. Julie Macfarlane OC, Professor Emerita at the University of Windsor Faculty of Law, and a widely respected legal scholar, the study revealed the true magnitude of self-representation in the Canadian justice system, most notable in family and civil courts.
283 interviews were conducted with 259 SRLs in family and civil court. The findings revealed a lack of understanding of the prevalence of self-representation in the Canadian justice system.
Notable data included:
The number one reason litigants self-represent is lack of funds to pay for, or continue to pay for, legal services.
31% of cases in civil court are self-represented, along with 60% of cases in family court, with that number going as high as 80% in some urban centres.
50% of SRLs had post-secondary education, and 32% had income between $50-$100k.
Not only was the prevalence of SRLs in the justice system completely undetected, but the demographics as well. This proved to be not just a wake-up call to the wider legal community, but a blaring siren.
The siren was clearly heard, and the legal community begged for more, leading to a recommendation to create the National Self-Represented Litigants Project (NSRLP).
Today the project continues the work of the initial study by "enhancing the responsiveness of the Canadian justice system to SRLs, encouraging dialogue among the various stakeholders, and establishing a commitment towards information and resource-sharing."
Meet Project Manager, Dayna Cornwall, who carries on the torch.
She brings along a contagious warmth and unwavering optimism as she reflects on the NSRLP’s humble beginnings:
“With support from the University of Windsor Faculty of Law and the Law Foundation of Ontario, the NSRLP was created in 2013, and at the time it was just Dr. Macfarlane, and the past Project Manager, Sue Rice, who handled all operations, often from a kitchen table.”
For Dayna, the NSRLP came about as “the greatest opportunity in my professional life”.
With degrees in English Literature, and Education, from the University of Windsor, and a Master of Library and Information Science degree from the University of Western Ontario, Dayna has worked in public and academic libraries, in education research, and in human resources, and brings forth an appetite for access to information to the NSRLP.
“My professional background is not in law, but through my prior experience working at academic and public libraries, I became interested in non-profit work. I’d never heard of the NSRLP, or thought about self-reps in any meaningful way, but I received an email one day in 2016 from Dr. Macfarlane about an opening for the Project Coordinator role – someone had sent her my resume. I got to know more about the project and I was so fascinated but horrified at the same time by the findings of the study. As I started to get a better sense of the reality of SRLs I understood how obvious the problem was - lack of funds and access to justice - but very few people were aware of the issue, or the NSRLP and its resources. I certainly hadn’t been aware before, but it was definitely something I wanted to be a part of. I applied and got the job.”
Dayna’s passion is undeniable, she continues: “It was the luckiest moment of my life.”
Housed at the University of Windsor Faculty of Law, seven years since its inception, the NSRLP is continuing the initial research published in 2013, and remaining on the lookout for new needs SRLs might be facing in changing, and virtual times.
“These days we have a much bigger team, with Dr. Macfarlane as our director, two full-time staff including myself, and with the help of University of Windsor funds, grants, and other funding, we have multiple research assistants who are students at the Faculty of Law. The students help us with research, social media, and with creating our primers, among lots of other work.”
In tune with the NSRLP’s goal to help provide solutions for SRLs, they have released various primers that serve as guides for multiple facets of legal representation, such as court etiquette, how to do your own legal research using CanLII, and so much more.
“We’re often releasing new guides, and we’re also looking for the funding to translate them into French along with other languages", Dayna says.
Nonetheless, it must be emphasized, the NSRLP is not a legal clinic.
“We have SRLs writing every day asking for legal advice, but it’s important to note that we are not a legal clinic, neither are we practicing lawyers – we don’t have the staff power, funding, or insurance to give legal advice. But we do respond to every email and provide legal information and resources, which helps tremendously in steering SRLs in the right direction.”
Even though significant strides have been made, and the awareness of SRLs is at an all-time high, there continues to be a battle of stereotypes:
“It’s interesting to see how surprised some in the legal community are when they are presented with our findings, and sometimes there has been push-back. But what is so great about the project is how it methodically and academically sheds a light on SRLs with concrete proof of the reasons behind self-representation, allowing legal insiders to gain a more accurate understanding and see litigants who self-represent as real people, and not some kind of boogie man.”
This unique position has allowed the NSRLP to be the only viable link between SRLs and the legal community. In April 2017 the project took action and served as an intervener in Pintea v Johns at the Supreme Court of Canada.
“That was a big step for us as an organization. We were involved in bringing about practical change in the justice system. It was a landmark decision with the Supreme Court unanimously ruling in favour of the SRL in the case. In essence, the precedent was set that SRLs should not be unfairly penalized because they are SRLs, and that differences between knowledge and power need to be recognized. Ultimately, SRLs should not be treated like lawyers and sufficient effort needs to be made so they understand and can participate in the process.”
As the list of impactful projects taken on by the NSRLP continues to grow, one problem persists:
“Funding is always an issue. Because we rely on grants and small parcels of project-specific money, we operate on a year-to-year basis. Ideally, we’d like to secure larger, core funding, to solidify the long-term future of the organization.”
However, Dayna sees hope with the rise of legal innovation,
"It’s encouraging to see various products and tools out there that help people navigate the justice system. We’re often approached by start-ups who are seeking feedback and more information on the demographics of SRLs, because implicitly their products offer the kind of services SRLs are in need of and are willing to pay for. People don’t realize that there’s a large middle group of SRLs who don’t qualify for legal aid, because they don’t meet the low-income thresholds, but they do have some funds to spend – they just can’t afford the full traditional legal service. Legal innovation can help fill this gap.”
The NSRLP has innovative initiatives of its own such as the Access Revolution Blog with authors spanning from legal academics, judges, and even SRLs. Also, if you’re looking for more content to fill your free time, Jumping Off the Ivory Tower is an award-winning podcast (2018 & 2019 Clawbies Law Blog Award), hosted by Dr. Julie Macfarlane and Dayna Cornwall, focusing on various topics within the social justice realm.
“Access to justice is the whole reason for our being. So, we’re always looking for innovative ways to raise awareness on the access to justice issue for SRLs, but also create dialogue between disparate groups and get them talking about solutions.”
In the name of awards, the NSRLP has a pretty impressive record, including the recent Fodden Award for 2020 by Clawbies, which honours the "crème de la crème in Canadian legal commentary", and most notably in January 2020, Dr. Julie Macfarlane was inducted into the Order of Canada, in part for her work with the NSRLP.
With many medals commemorating the battles won, there are many more ivory towers left to jump,
“There is definitely no shortage of work for us, but ultimately my hope is that our organization is no longer needed and that SRLs no longer face the misunderstanding and biases they grapple with in the present. That will take time, but in the meantime, our priority is to secure the stability of the organization. We want to continue making in-roads and push for changes as we continue to grow.”
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