Canada

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

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

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

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

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

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

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

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

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

While the Supreme Court of Canada can decide which cases to take, that is not true for lower courts across the country, which are increasingly weighed down by a barrage of self-represented litigants, who account for more than 50 per cent of the clientele in some courts.

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

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

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

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

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

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

While Pintea had a lawyer by the time he reached the Supreme Court level, that wasn’t always the case. Pintea, who came to Canada from Romania and spoke English as his second language, was involved in a motor vehicle accident and went to the Court of Queen’s Bench of Alberta, ending up without a lawyer. Consequently, he had trouble meeting court demands, and was found in contempt of court. He later appealed at the Court of Appeal of Alberta, where the majority of judges dismissed his case.

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

“We obviously wanted to help him, but we know logically as lawyers, you’ve got to think on a bigger level,” says Sutherland. “For us it was an opportunity to deal with this relationship between fairness and impartiality, and making sure that self-represented people are not unjustly deprived.”

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

“If you are thinking about bringing an application for leave to appeal to the Supreme Court of Canada or if you have been named as a respondent in an application for leave to appeal, it’s very important to try to get legal advice as a first step,” the website says. “The Supreme Court of Canada only hears select cases. It helps a lot to get advice on whether or not yours could be a case which the court will hear.”