Julie Macfarlane is project director, National Self-Represented Litigants Project, and professor of law, University of Windsor.
Dellen Millard's efforts to represent himself in a murder trial have grabbed a lot of attention.
The spectacle of Mr. Millard questioning the father of the woman he is accused of murdering has shocked many people. At minimum, it seems inappropriate – at worst, a cruel twist.
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A host of logistical issues are raised when someone without legal training represents themselves in court. Should a judge offer Mr. Millard or any other self-represented person any assistance? Should self-represented people be held to the same rules as the lawyers in the courtroom, even though they may not know what those rules are? How should a judge and jury respond to the arguments of someone who lacks the perspective of a trained advocate?
Mr. Millard is a stark example of the current and expanding crisis in Canada's courts. If you walk the halls in any family or civil courthouse, or look in at the lineups in the court registries, they are full of self-represented litigants. More than 50 per cent of those appearing in family court (and up to 80 per cent in some downtown Toronto courts) are coming without a lawyer. In civil and appeal courts, the numbers are creeping up above 30 per cent.
Yes, you read that right. More than half of those in family court now have no lawyer, and around one-third of those in civil and appeal courts.
There are no available statistics for criminal court, and Mr. Millard still presents an exception in a murder trial. But it is widely agreed that there is a smaller but parallel increase in the number of criminal defendants representing themselves, especially on minor charges where no legal aid is available.
This influx of self-represented litigants is one of the most significant changes and challenges to the justice system in 100 years. A system that has been comfortably managed between agents – lawyers, experts and judges – now interacts every day with a flood of ordinary Canadians. People who come to court after staying up all night reading up on how to present their case, lugging carrier bags of documents with them, probably standing up and sitting down at the wrong moments, speaking out of turn and getting increasingly frazzled. A few are remarkably composed and organized. Most are scared to death and trying their hardest to "get it right".
I know this because I spent a year (2012) talking to self-represented litigants in family and civil court in Ontario, Alberta and British Columbia. The stories I heard were remarkably consistent among courts and provinces. They were stories of humiliation, frustration and powerlessness.
Why are people self-representing? First and, most importantly, almost never because they want to. Most self-represented litigants do not suddenly wake up one morning and decide they fancy being a lawyer. The most significant reason for self-representation – and studies in the United States, England and Wales, Australia and New Zealand have reached the same conclusion – is because hiring a lawyer is now beyond the means of the majority of the public. Many cannot afford the upfront retainer (typically $2,000-$5,000) required by most lawyers. Others (more than half my study respondents) will begin with a lawyer but run out of funds as costs mount up.
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The gap between those funded by Legal Aid – in Ontario, you must earn less than $14,000 a year to qualify – and those of us who can afford to pay a lawyer, at rates of $300 an hour and up, is now enormous. It is, in fact, most of us.
Some self-represented litigants, resentful of being forced into a humiliating experience of presenting their case in front of experts who sometimes look down their noses at them, become defiant ("I can do this"). Their initial Google search seemed to turn up lots of online help. But as they proceed, they almost always become overwhelmed. Weathering a family or other personal crisis is bad enough without the added stress of representing yourself in court. And, unsurprisingly, self-represented litigants succeed at a far lower rate than litigants represented by lawyers.
To find a durable solution, we must return to the assumptions underlying our justice system and literally question everything. For the legal profession, this includes the cost and structure of legal services (traditionally a "full representation" model, rather than a task-by-task or coaching model). For the courts and judiciary, it requires simplification of grotesquely complex procedures, encouraging self-represented litigants to participate in settlement processes, and rethinking how a judge can ensure a level playing field in court where one side has a lawyer and the other does not.
Dellen Millard's case exposes just the ugly tip of a self-representation crisis that extends far beyond the criminal courts.