|
Edmonton
articles | The Saskatchewan
Crown's efforts to ruin self-represented Richard Klassen
| Klassen's appeal for help |
Evidence of crimes found in civil
suit disclosure | Michael
"The Metis Man" Durocher's Legal help page | |
Sandra Crockett | Robert
Elliot | Foster
Parent case | Martensville |
Defamation cases
| People representing themselves
| Klassens await trial | Geoff Dufour | Ontario
families' lawyer incompetence results in $1M being awarded against
them
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Lawyerless
Unrepresented litigants
and the crisis blocking the right to full answer and defence
The above graphic is American
but except for the fact that Canada does not have the death penalty,
it is relevant all over North America. A District Attorney in
Jacksonville, Florida bragged that since the first of March,
this year, his office has tried 8 death penalty cases and won
seven of them. Think about it. Convicting citizens and executing
them is literally a blood sport where some prosecutors are concerned.
Of course, in Canada we are
incarcerate our citizens with a degree of bloodlessness (most
of the time) that gives us a high-horse complacency that we are
civilized.
We are not. Since Richard Klassen
represented himself at the civil trial -- and won -- Dec. 30,
2003, injusticebusters have been overwhelmed with requests for
advice. Most often the requests come too late but more recently
people are catching on that it is important to be properly represented
at the beginning of their case -- as soon as they have been charged
-- rather than waiting until either a high-prced or legal aid
lawyer has walked them into jail and exhausted their bank accounts.
We have a simple code of ethics
as we offer our experience and our advice: tell the truth and
demand the same of the prosecutor. Of course this is easier said
than done. The Crown in this province lives by lies and it is
the rare prosecutor who plays fairly by the rules. We are therefore
left with devising strategies to force the crown to provide proper
disclosure and access to any other information we might need
to help a person avoid becoming another statistic.
I heard on CBC radio today
that Supreme court chief Justice Beverley McLachlin, reporting
from the SCC annual retreat, was shocked to find how many judges
were faced with unrepresented litigants and they did not know
how to handle the situation.
We recently ran into this in
Saskatoon Provincial Court where Judge Pat Carey absolutely refused
to allow Richard Klassen to speak on behalf of a man charged
in a fairly straightforward assault case. Carey insisted that
it could not be done, even though Klassen had previously represented
John Melenchuk in the same court and received the judge's gratitude
for deflating a volatile situation.
I have also spoken for people
in provincial court: two or three times on behalf of my son and
once for a young friend who had been falsely identified as a
thief.
There is no shortage of lawyers
in Saskatoon. There is a shortage of honest lawyers who are willing
to work for their pay cheque. The Saskatoon College of Law is
a disgrace. Anyone practicing criminal law should be taught fundamental
skills like how to listen to a client, how to talk to a client
as one human being to another, simplifying rather than mystifying
the legal process. It is important that anyone defending a person
charged with a criminal defence know the case and know the client.
It has been our experience
that many judges find it refreshing to have the facts placed
before them clearly and honestly.
There are going to be a lot
more unrepresented litigants in Saskatchewan until lawyers wise
up. Law is not money for nothin' and yer chicks for free. At
least it is not going to be if we continue to stay on the scene.
Which we fully intend to do.--Sheila Steele, June, 2005
Some of the reasons Saskatoon
people are going into court without lawyers
It is all about
disclosure! Many defence lawyers automatically assume their clients
are guilty of something and that they are doing them a big favour
by consenting to "defend them in court." We have been
urging people to fire their lawyers so they can get their own
disclosure.
The example
of Tracy Marcotte's recent efforts to do this are on our Prosecutors
from hell
page.
Treacherous Saskatoon lawyer
Ed Holgate: We have evidence he conspired with Dueck's lawyer,
David Gerrand to have Richard Klassen struck from the civil claim
in 2002. Story of the failure :
Klassen
weathers latest gov't challenge to lawsuit: Province's bid to
halt case denied by judge, who says it's 'imperative' matter
proceed
Lawyerless litigants
slow wheels of justice
by KIRK MAKIN JUSTICE REPORTER, January
14, 2002
A flow of lawyerless litigants
into courtrooms across the country has reached epidemic proportions,
prompting calls for action from increasingly worried senior judges.
"There has been a very
substantial increase," Manitoba Chief Justice Richard Scott
said in a recent interview.
"It bogs the system down
and causes enormous stress. We want to do justice in every case,
but the whole system is being stressed and strained by the fact
that many of these people need a lot of help," he said.
Chief Justice Scott said the
situation is especially distressing in provinces where courts
are very crowded -- particularly British Columbia, Quebec, Ontario
and Alberta.
He said the top judicial body
in the country -- the Canadian Judicial Council -- is assembling
information about the extent of the problem and will likely issue
guidelines in the near future about what judges should do about
it.
While the prospect of judges
putting pressure on government is a sensitive one, Chief Justice
Scott said, "as a council, I think we will generally make
governments aware of our concerns about this matter."
At a recent judicial forum
in Ottawa, several judges warned that the number of lawyerless
litigants has unduly lengthened trials and led to emotional outbursts
in court.
They also said that many litigants
unwittingly do damage to their own cases because of their unfamiliarity
with the justice system.
"It places courts in a
very difficult position," Chief Justice Scott said. "On
the one hand, you want to help the unrepresented party. Most
litigants don't even know how to pose a question; they just want
to argue their case. On the other hand, you have to be even-handed.
You don't want the other side to say: 'Has the judge entered
the arena?' "
Most judges identify the main
cause of the problem as the steady strangulation of legal-aid
programs.
Mr. Justice James MacPherson
of the Ontario Court of Appeal did not mince words when he addressed
an audience of court administrators recently. "The reality
today is that many people -- especially low- and middle-income
people -- cannot come to court at all," he said, according
to a copy of his speech.
"Many people who do come
to court must represent themselves -- even in, sadly, criminal
cases. The reason -- no money. This is wrong. It is regression,
not progress."
Judge MacPherson said that
government funding for legal-aid programs has dropped by approximately
30 per cent over the past decade.
"Governments have failed
in the area of legal-aid funding," he said. "In the
justice system, efficiency has won the debate with respect to
legal-aid funding."
Chief Justice Scott said the
problem is especially acute in the family-law field, where he
described legal aid as being "practically non-existent."
Approximately one of every four family cases involves an unrepresented
litigant, he said.
"Litigants are left to
their own resources. A case that might take two days with experienced
counsel might take three or four days without."
Chief Justice Scott, who also
acts as chairman of the judicial council's conduct committee,
said judges are especially concerned that by actively helping
litigants prepare or present a case, they leave themselves open
to formal complaints. He said complaints from unrepresented litigants
who feel they were unfairly dealt with are proliferating.
It all comes down to a matter
of lawyers being trained and experienced with the complicated
machinery of document filings, motions, evidence and legal argument,
Chief Justice Scott said.
"The capacity for misunderstanding
is much, much higher and more acute than it is with lawyers,"
he said.
The judiciary has also encouraged
efforts in recent years by universities, provincial law societies
and altruistic law firms to combat the problem with pro bono
programs that supply free legal help to deserving litigants.
Is price of justice rising
out of reach?
Legal costs
behind trend toward people arguing own cases: LAWYERLESS LITIGANTS:
IS JUSTICE BEING SERVED?
Gordon Kent, Legal Affairs
Writer Edmonton Journal, January 28, 2002
After spending $30,000 on her
divorce, Dawn Baribeau decided she had better ways to use her
money than hiring a lawyer for the fights over child access.
So Baribeau, like an increasing
number of Canadians, is arguing the case herself.
"Why pay for somebody
to say what I'm going to say anyway?" she asks after a recent
appearance in Court of Queen's Bench.
"The lawyer, basically
all he did was he took everything I said and went into court
and repeated it. I thought, 'I paid you that kind of money for
that?' "
Judges and legal experts are
concerned that more and more people are representing themselves
in court, a trend they feel is clogging the justice system and
can lead to the inexperienced sinking their own cases.
They pin most of the blame
on stratospheric legal costs. A survey last fall in Canadian
Lawyer magazine showed the price of a wide variety of criminal,
civil, family and corporate matters rose an average of five to
10 per cent from a year earlier.
"Most lawyers start their
price at $150 an hour. For two hours, they just made $300,"
says Baribeau, who studies law enforcement at Grant MacEwan College.
"Then it's $50 per page for every document they draw up.
I have a computer at home. I could do that at home. It's no wonder
they try to (encourage) getting a lawyer."
Eric Macklin, president of
the Law Society of Alberta, admits legal fees are beyond the
reach of some working people, especially those who don't qualify
for legal aid.
He estimates a junior litigation
lawyer might charge $100-$125 an hour, while the hourly rate
for a senior specialist can reach $350.
On top of that, if you lose
your lawsuit you face paying part of the other side's costs,
which can bump up your total tab by about 50 per cent.
Macklin insists it's simply
the free enterprise system at work. "I think lawyers essentially
charge what the market will bear. Members of the public have
to shop around, just like they shop around for mechanics."
Greedy lawyers are the butt
of as many jokes as dumb blonds, but they insist the fat-cat
stereotype is unfair.
Rising expenses and stiff competition
mean only a relative handful of big names take home the huge
paycheques, they say. Many criminal lawyers charge by the case,
not the hour. They often work more hours than they bill.
Local lawyer Phil Lister calculated
in an October 2000 court application that it costs at least $81,000
a year for one lawyer with a secretary to run an office in Edmonton.
"Are you going to tell
the landlords not to charge as much to lawyers so they can charge
their clients less?" asks Jean McBean, senior counsel for
the legal-aid family law office.
Still, judges have repeatedly
warned that the legal profession is putting itself out of the
reach of the middle class.
In 1999, Supreme Court of Canada
Justice Ian Binnie suggested courts could rein in "astronomical"
legal fees. Alberta Court of Queen's Bench Chief Justice Allan
Wachowich thinks lawyers may have "out-priced" themselves
in criminal matters.
Legal aid is supposed to fill
the gaps, but government cuts have reduced services and made
it harder to qualify in many parts of the country.
Budgets aren't as tight in
Alberta. While legal-aid society spending dropped by more than
one-third during 1992-95, to $19.7 million, it's expected to
rise to $33.1 million this year, the highest amount in the society's
29-year history.
The number of people receiving
coverage has gone up steadily over the last decade, to 33,800
in 2000-01.
However, the proportion of
applicants accepted has gone down from 82 per cent a decade ago
to 74 per cent last year, even though income limits have been
raised to keep up with inflation. Someone whose family of four
makes more than $32,604 a year generally isn't eligible.
Even then, anyone getting help
has to repay what they receive if they can do it without hardship.
McBean says the working poor
are falling through the cracks. She thinks governments should
spend more to increase the legal-aid guideline incomes and make
more people eligible.
"There are many people
who clearly can't afford lawyers and don't qualify for legal
aid who would benefit from legal representation," she says.
"It's involved with how
much the government is giving to legal aid, and right now they're
cutting back on everything."
A further spending hike for
the program isn't in the cards, Alberta Justice spokesman Bart
Johnson says. In addition to raising guideline incomes five per
cent last year, the hourly legal-aid fee paid to lawyers has
gone up from $61 to $80 by 2005.
"We just came to a five-year
legal-aid agreement (last spring) and there are no plans to revisit
that," he says. "In a perfect world, I suppose we could
all have access to free legal representation, but it's a question
of what's available and what's appropriate."
As for Dawn Baribeau, she plans
to continue fighting her own courtroom battles. It isn't just
the money -- she thinks as a layperson judges pay attention to
her.
"When I went into the
court by myself without the lawyer, I got better results. They
listened more," she says. "I still feel like I can
hold my own."
New methods help curtail
civil trials
Gordon Kent, Legal Affairs
Writer, Edmonton Journal, January 28, 2002
One way to stop people without
lawyers from clogging the courts is to put fewer people through
the court system in the first place.
Judges and justice officials
have put a lot of energy over the past few years into finding
better ways to solve legal fights than letting two robed combatants
duke it out before the bar.
Mediation, judicial dispute
resolution (in which judges outline likely verdicts after hearing
brief versions of the facts to spur settlement), alternate measures
to avoid a record in criminal charges -- all are helping simplify
things.
The moves seem to be working,
says Bart Johnson of Alberta Justice. There were 949 civil trials
(excluding family matters) heard in Alberta Court of Queen's
Bench last year, down from 1,671 four years earlier.
At the same time, the average
wait for a civil trial shorter than six days has dropped by a
month, to about half a year.
Still, the province recognizes
it must deal with the issue of lawyerless litigants, Johnson
says. "The government always is looking at other ways to
address this issue and all other issues related to access to
justice."
There are many other ideas
for handling what is widely seen as a growing problem for society
and the justice system:
- A mandatory course on court
procedure for lay people wanting to file their own legal applications;
judges now have to take time showing non-lawyers the ropes in
the daily motions courts, Court of Queen's Bench Chief Justice
Allan Wachowich says.
- Duty counsel in civil courts,
similar to the duty counsel who give brief, on-the-spot advice
in all major Alberta centres to unrepresented people facing criminal
charges; some provinces already offer this program.
- An $80,000 pilot project
started in Edmonton last fall requires people without lawyers
to meet a court worker before going to provincial court on a
family matter; the worker tries to get the sides to settle issues
by consent, or ensures everyone is ready if the matter goes to
trial.
- In 2000, more than two dozen
self-help booklets were made available through the Court of Queen's
Bench for people representing themselves in family court.
There have also been calls
to loosen regulations governing the legal profession.
Edmonton lawyer Naeem Rauf
represents a Drayton Valley woman charged with violating the
Legal Profession Act for allegedly taking part in real estate
transactions. He'll launch a constitutional challenge at the
woman's April trial, hoping to strike down a section of the act
that prevents non-lawyers from giving legal advice.
"It's very paternalistic
of lawyers to presume to tell members of the public that for
this you have to have lawyers and no one else," he says.
"I think as long as the
person is advised very fairly and clearly, with no deception,
that the person isn't a lawyer ... he should be able to decide
who he will take his business to."
If successful, the biggest
impact of the case would probably be to give para-legals the
right to do simple real estate deals and other straightforward
work, Rauf says.
But he thinks informed customers
should have choices. "The ostensible reason for the section
is to protect the public. What about those sections of the public
that don't want to be protected?"
Members of his profession already
try to make sure their services are available to people who can't
afford to pay.
Many take on legal aid cases
at less than their normal rates. There is also an ancient tradition
of doing free work pro bono (for the public good) which the law
society is trying to encourage.
Rhonda Ruston, chair of the
Law Society of Alberta's pro bono committee, says they're looking
at ways to improve this service.
The law society gave advice
and helped find volunteers for the new Edmonton Centre for Equal
Justice, which opened this month with a roster of almost 50 lawyers
donating their time.
They assist poor people facing
housing, small claims, employment, immigration and other non-criminal
matters.
A similar office in Calgary
has been running for 29 years, says Ruston, a Lethbridge family
lawyer.
"We believe if we give
a formal opportunity for lawyers to become involved in pro bono
legal services, it makes it easier for us to do it."
Judges and legal experts are
concerned that a trend toward people handling their own court
cases is putting a spoke into the wheels of justice. It can bog
down courts, hurt the chances of the unrepresented party, and
cost you money.
Letter
to the Edmonton Journal
I read your paper via the internet
and the columns on 26 and 27 Jan 02 by Gordon Kent caught my
attention.
It seems the legal profession
and the judiciary are concerned about self represented litigants
"clogging" the courts.The indication is that the self
represented litigant is at a disadvantage.
There is area of a case that
a self represented litigant is much more familiar with than the
lawyers, that is the actual facts of the case.
If the cases were decided on
the facts instead of as a result of legal manoeuvring this would
in fact be an advantage.
The next step would be to have
a columnist write a column espousing the dangers of hiring a
lawyer. If the facts were the deciding factor the litigant with
the lawyer would be at a disadvantage.
Of course the "procedures",
most of which are unnecessary, are what makes people feel they
need a lawyer. These rules thus preserve the existence of the
profession which writes the rules.
Just my own different viewpoint.
Much easier to get rid of the lawyers than get rid of the litigants.
Getting rid of the litigants would of course also get rid of
the lawyers. (Hey maybe not such a bad idea)
- Hal LEGERE (Self Represented
Litigant)
- New Westminster, BC
- CHILDREN NEED AND HAVE
A RIGHT TO BOTH PARENTS
-
Patricia
Gay, letter to Edmonton Journal, January 30, 2002
Re: "Lawyerless litigants:
is justice being served," Journal, Jan. 27.
The price of justice is rising
out of reach for many people. Others, whether they could afford
the cost of a lawyer or not, don't like the road that the system
takes them down, particularly in family law.
As a family law practitioner,
I believe the question is not how to get more lawyers into the
courtroom, it is how to get more Canadians out of the courtroom.
Particularly in family law, the traditional adversarial system
is a most unsatisfactory way to address the issues faced by separating
or divorcing couples.
The parties feel out of control,
any communication that might have remained between them is frequently
lost and issues, such as will they still be able to talk to in-laws
or attend a daughter's wedding, are not addressed.
A further problem in the adversarial
system is the lawyer who takes an aggressive, unreasonable adversarial
stand --- entering inflammatory affidavits on behalf of the client
and refusing to participate in a mutually beneficial process
so that no matter how sensible and progressive one lawyer is,
the other one fuels the fight and drives up the legal costs.
As matters now stand, the legal
profession is in a quandary about how to deal with the problem
-- at bar association meetings across the country speakers are
urging lawyers to start showing professional courtesy to one
another and toning down the rhetoric.
The legal profession has had
a hard time bending its mind around the notion that there should
not be a "winner" and a "loser."
Several years ago articles
started appearing in the legal trade papers under such headings
as "Should we take 'holistic' lawyers seriously" --
holistic lawyers being lawyers who preferred to encourage a negotiated,
interest-based solution rather than carry on a fight to the finish.
However, the idea of alternate
dispute resolution has continued to take hold in the legal community
and particularly in the area of family law, where vicious battles
between family members do take a miserable and expensive toll
on the parties involved.
I hope Dawn Baribeau, the courageous
woman who after spending $30,000 on a lawyer has taken her case
into her own hands, is able to find out more about alternate
methods of resolving her issues.
I refer anyone involved in
resolving parenting issues after separation to the collaborative
law Web site at www.collaborativelaw.ca or the information line
at 780-429-3200.
The fact that these kinds of
issues have moved from the obscure pages of the legal trade journals
to the front pages of newspapers presages a long- awaited overhaul
of the system.
The legal profession has in
large part preferred to remain in denial about shortcomings until
the number of unrepresented parties before the courts has brought
the matter forcibly to its attention.
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Truth can never be
told so as to be understood, and not be believ'd. William Blake, The Proverbs of Hell