131. Beyond 'SAD'...the reality is INDESCRIBABLE!

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NOTE: For clarity, I was not one of the 10 citizens. On reading Julie Macfarlane's dedicated letter, my previous Blog Post, No.130, was my own response I sent the Ontario Attorney General's office.

In the nutshell (and I can NOT repeat this enough: "Our Legal system is grotesque! The fact it has been allowed to deteriorate to this disgracefully self-serving low level is ample proof, like a number of other 'government-run' systems, the clarion call for IMMEDIATE reform is beyond timely."

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By: Carol Goar Star Columnist, Published on Sun Sep 21 2014

The request would be funny if it weren’t so sad.

Last week, 10 citizens who couldn’t afford lawyers sent an open letter to Canada’s judges. “When you meet us, please do not assume that we are enjoying ourselves. We are not,” they wrote. “Please do not assume that we have chosen to represent ourselves because we believe we can be brilliant trial lawyers.

“The most important — and simple — reason that we are representing ourselves is that we cannot afford — or can no longer afford — the cost of legal services.”

Do the arbiters of justice in this country really need to be asked to treat litigants with basic decency? Do they really need to be told that lawyers have priced themselves out of reach of the average Canadian?

Regrettably, the answer is yes.

After being scolded, bullied and humiliated by judges for years, a handful of self-represented litigants, assisted by University of Windsor professor Julie Macfarlane, are finally speaking out. She sent the group’s three-page letter to Chief Justice of the Supreme Court Beverley McLachlin who chairs the Canadian Judicial Council, to the National Judicial Institute, to a number of supportive judges and to members of the media. She also posted it on Facebook, Twitter and other social media.

The signatories — from Toronto, Vancouver, Halifax, Edmonton and North Bay — represent thousands of Canadians. Two-thirds of those who appear in family court (three-quarters in Toronto) don’t have a lawyer. They either can’t afford the $350 to $400 hourly fees charged by family lawyers or they run out of money as the trial drags on. They’re not poor enough to qualify for legal aid.

The majority are middle-class parents over 40. Half have university degrees. They are responsible, competent people, but they haven’t been exposed to the arcane language and complex procedural requirements of the courts.

The number of self-represented litigants has ballooned in the last decade. Policy-makers, judges, lawyers and court officials all knew it was happening, but it took Macfarlane and her team of researchers to find out why and show how it changed the justice system. They interviewed 283 individuals who had gone to court without legal counsel, documenting their experiences and feelings.

One single mother told the research team: “I can’t feed my children — and the judge is telling me to hire a lawyer.” A humiliated father recounted: “The judge blasted me. He sent me out of the court and told me not to come back until I had a lawyer.” One bitter litigant asked her interviewer to deliver this message to the judiciary: “Don’t assume we are stupid just because we have not gone to law school.”

With striking consistency they described appearing before a judge as “the worst experience of my life.” Some said they would never enter a court again.

“I was really horrified — perhaps I was naive — by the social, emotional and psychological consequences,” Macfarlane said after releasing her report.

Judges weren’t solely to blame. Court officials were rude and short-tempered. Provincial officials drafted incomprehensible pretrial forms. Lawyers left clients high and dry when their money ran out. Self-represented litigants encountered barriers at every turn.

For the past year, Macfarlane has walked a fine line between full-blown advocacy and dispassionate academic research. She has recommended practical, cost-effective remedies for the shortcomings she highlighted. She has put her findings in the hands of key decision makers. She has reached out to the media to amplify the messages in her report. And she has organized self-represented clients to take a stand. Last week’s open letter to the judiciary was part of that campaign.

The tone was polite but forthright. “We write this letter not to lay blame, but to try to explain the widespread experience of self-represented litigants in our legal system,” they said. “The cost of legal services has forced us to become our own advocates. Given the complexity of the system that we are learning from the ground up, it is not surprising that we fail.

“Of course our presence makes your job harder,” they acknowledged. “We understand that you exercise judicial discretion. We need your clear and respectful explanations and your fair discretion to avoid turning the courtroom into a playground for experts.”

Their request is reasonable. Self-representation is not an act of bravado. It is a desperate, exhausting, stressful choice.

That is the new reality of Canada’s courts.

Carol Goar’s column appears Monday, Wednesday and Friday.

130. Dear Canadian Judiciary

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MY OPEN LETTER TO THE CANADIAN JUDICIARY

I am a retired Canadian citizen living on a fixed income. This forced me to become a Self-Representing Litigant in what in my view should have been a relatively uncomplicated legal interpretation. Instead, the judgment of my claim of Contractual Non-compliance has become a five-year nightmare. It is ongoing. 

But, with combined efforts, there may be hope.

After I studied the Rules of Civil Procedure diligently - in my view I came to court well prepared - all considering. Yet I found my treatment in court to be off–handedly dismissive. Counsel for the defense was given the Judge’s primary focus. At one stage I felt the need to remind the Court I was present, as an equal party, deserving attention, if not some respect. This did not sit well, and, like a minor, I was reprimanded.

In every aspect of procedure, whether filing documents, a Motion, or ordering transcripts, the process is awkward, responses curt; a sense of distant mystery seems retained; I the outsider; they the ‘club.’ My questions became aggravants and were generally reiterated - parrot-fashion - ‘my need to find Counsel.’ When I ultimately did, my matters grew worse!

In time it became apparent (notwithstanding my claim’s potential), I was the 'responsible' party. Defense Motions, with more questions, more demands, gradually morphed this Plaintiff in to becoming the 'Respondent.'

I lost track of the meaning of the RULES!

The journey is sufficiently intimidating and emotionally all consuming, court alienation is the last thing the SRL hopes for. Clearly, affordable, learned, and  dedicated counsel would have been far preferred.

You, the Masters and Judges, are the ultimate representatives of our democracy. As appointed pillars of our society, we are all entitled to your insights, knowledge, fairness and wisdom - not your criticism and disdain.

That approach does not help to boost our general concept of your noble office.

Maybe in a distant Utopia Judges need NOT be beholden to their former profession as lawyers. Maybe Judges could earn to fulfill their exemplary role in our society by being the most wise, understanding, and impartial human representatives in our most conflicted environment, in some arms-length fashion? Could this make their roles easier? If so, how to implement it? 

Would it be like finding a Dalai Lama at age 4? I so hope not.

129. On Approaching The Ontario Ombudsman

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Searching within the umbrella of our democratic systems, I have been looking for a niche  that concerns itself with vital behaviours of our society. When presented to the public at large, seriously questionable matters, perpetrated even by the highest officials, can have far greater positive effects, than an individual fighting a lonely, personal battle. 

This takes me to the following connective I just gleaned online. The creation of an ombudsman's office in large organizations. I present it here, so that by comprehending it, I can better prepare my text for the Ontario Ombudsman's office. 

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http://www.agreeinc.com/ombudsman.html

Requirements for a Feasible Ombuds Office

Alignment

First and foremost an ombudsman's office must reflect the values of the organization it serves. There is no use imposing an ombudsman upon an organization that is hostile to reform and change and views complaints and complainants as trouble and trouble makers respectively. For an ombuds Office to work it will need to be part of a conflict resolving system. The organization must decide what it values in that system and know what it wishes to accomplish with it. There are many competing values within organizations and the forward thinking organization will want to articulate its values expressly.

Blogger's NOTE: "the forward thinking organization"  - approaching a staid, set government establishment may be easier said then done.

Autonomy

An ombudsperson needs, as much as is possible, to have an arms length relationship with the organization he or she serves. This will mean a reporting relationship to the legislative or policy making branch of the organization. In a public body like the Law Society of Upper Canada that would mean Convocation. In a private body such as a corporation, that would mean the Board of Directors.

Blogger's NOTE: In principle, and after experience, I question the 'autonomy' of any self-appointed body overseeing the behaviour of its related organization.

Due Process
An ombudsman in the classical sense is an office of last resort. It is not (and never was) intended to serve as the front line resolver of disputes in an organization. In the largest sense, an ombudsperson's job is to assist the policy makers in an organization in overseeing the administration of their policies, to comment critically upon how they are being administered and to recommend policy changes where they seem appropriate. They are intended to keep the "big picture" in mind, seeing the forest and not just the trees.

Although I wholly agree with the above, Human Nature, as it is, tends to fiercely protect its kind; hence, with all good intentions, the original 'arms length' relationship, in time, often tends to diminish. 
  
Due process means respecting the Rules of Natural Justice as they apply in the organizational setting. 

Blogger's Note: "Rules of Natural Justice" >>> I need clarification on this phrase, since my take on Nature has no such thing. In Nature there IS no JUSTICE. 'Survival of the fittest' is the justice of nature. 
The Rules of Civil Procedure, however, with its clear usage of the word 'CIVIL,' Is MAN-made. 
Justice, as such, is man's introduction to its 'organization,' its society. The concept of a certain 'equality' amongst brethren was created when organized religion came in to favour. "We are all God's children."

When observing present day global truth, it is rapidly proving that although with all noble intentions, equality is an impossible task to fulfil. It is in fact UN-natural.  

This includes such fundamentals as:

• providing both sides to a dispute a full and fair opportunity to be heard
• ensuring that no one in the organization is sitting in an adjudicative capacity over a matter where he or she has a direct interest
• providing an opportunity to fully respond to the case made by the "other side"
• providing reasonable notice of any investigation or hearing to individuals affected by the controversy and allowing a fair length of time for parties to prepare and make submissions
• wherever possible providing reasons for decisions that affect people

Blogger's Note:  Ah, wish it were so! A truly Utopian view...

Resources

The organization must make resources available such that the ombudsperson can perform their responsibilities in a diligent and timely manner. There is little that will harm an ombuds office's reputation more than getting a reputation for being bureaucratic, wasteful or sloppy. An ombuds office, properly managed, should model the kinds of administrative practices and behaviours it demands of other units within the discipline, profession or organization it serves. Where an organization does not provide the resources to allow this modeling to take place, it places the reputation of the entire enterprise at risk and may fairly expect to lose all or most of its investment.

Blogger's Note:  As the so called pillars of our society, our appointed Masters and Judges are there to see to that! We count on their unbiased, superior knowledge and wisdom to guide our trials and tribulations to their JUST conclusions. Oh wish it were so... 

Access to Information

An ombuds office's effectiveness is determined by the quality of its investigations. Because the ombudsperson does not have the authority to reverse executive or administrative decisions, its chief weapon is reasoned argument. One key tool in the toolbox is the thorough, demonstratably impartial investigation followed up by a well reasoned report. Without far reaching access to documentary and viva voce information, the investigative officer will be disabled from coming to sound conclusions of fact. Access to information denotes access to documents, electronic files and most importantly to people.

Blogger's Note: My own opinion is that there should be far less "viva voce" and almost exclusively proof of fact through written documentary. I was astounded when asked by Defense Counsel if I would be coming to the Appeal Hearing to ARGUE my appeal in person. 

My case, if I can even remember the claim - it's been so long - was based on a basic 'contractual non-compliance.'A contract, as we all know, is a detailed statement, signed by both parties. A well-written contract spells out in detail WHAT will be produced, HOW, WHEN, WHERE and by WHOM. In order to fulfill It, it should indicate ALL and EVERYONE's responsibilities; signed, sealed and delivered.

THERE IS NO NEED FOR ANY ARGUMENT!  If there IS a need for argument, the contract was clearly NOT well written, since it left questionable room for ARGUMENT.

In the case of a well-written contract, there should be NO need for ANY court appearance. An appointed judge can study the 'Statement of Work" (the Contract); the Plaintiff's 'Statement of Claim,' Defense's 'Statement of Defence,' then render a clearly defined objectively written opinion, followed by commensurate penalties and costs.

Any questioning party feeling ill-treated is allowed their Appeal. However, with the clear warning that should the appeal court feel the appeal is in any way ill-founded, far-fetched, and thus unwarranted, sizeable additional penalties may be ordered,   

That's MY take. I shall approach the Ontario Ombudsman...

128. Overwhelming Evidence is NOT ENOUGH !

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Oh but for all the BS out there go I. "What's real anymore" I keep asking the Sun when it shines?

Our fearless leader Stephen Harper spoke of FREEDOM, DEMOCRACY AND JUSTICE the other day - to his Canadian constituents. All the plebeians who voted him in to represent and lead our glorious Democracy. HE, our International spokesperson, with his MAJORITY government of a whopping 37% of the popular vote!

YES, we are fortunate indeed to be so interpreted - globally; a prime example to the world of what true Democracy is all about; how it REALLY works; the nitty-gritty of our affairs! Our 'JUSTICE.'

How it's RULED by the relevance of EVIDENCE by FACT! But the TRUTH is hidden by all this man-made stuff. Reality is, in fact, the game of MAKE BELIEF.

REAL truth (as in how life actually transpires) lies in the day-to-day functioning of our created systems, where all is rhetoric and theatrical posturing. For those of you old enough to remember Russian's Khrushchev, who was almost the epitome of posturing. Systems are manipulated by their appointed fronting folk, especially assigned to keep the lids on strayers.

Point is that Democracy works well as long as you do what you are told to; pay your bills, your taxes, obey the laws; stop at the red light. Do what is expected of you. Do NOT question the authorities put in place to keep you SAFE! Grin and bear it. Sit; that's a good boy!

The moment you start questioning, your troubles begin. THAT's Democracy in the flesh!

"Law is not about Justice" a US lawyer advised me the other day. "Overwhelming evidence is not enough", another experienced individual informs. YIP! I'm slowly beginning to get it...and I mean very .... SLOOOWLY....