Chaetognath
Scholar
- Joined
- Oct 15, 2011
- Messages
- 90
Oh, you don't know the half of it. I specialize in the 'eccentric' litigants we see in my court, so I often observe our judges facing schizophrenics, religious or ideological extremists, paranoids, persons with severe cognitive impairments, addictions, and so on. To their credit, the judiciary is very aware that persons who make extraordinary claims are sometimes telling the truth. And that sometimes an extraordinary claim has embedded within it a genuine legal right of a more mundane character. The court's job is, in part, to tease out that right.
But when we are confronted by someone who is attempting to consciously distort and game the system, that role becomes problematic. For one, Canadian judges have a positive obligation to assist a self-represented litigant to present and advance their case: R. v. Phillips, 2003 ABCA 4, 320 A.R. 172, affirmed en toto, 2003 SCC 57, [2003] 2 S.C.R. 623. Now, that's a criminal prosecution scenario, but that same concept has been held to apply as well in a civil context.
There's a strong logic to that. Court processes are complex and, at times, damned arcane. Some persons are self-represented by necessity.
[Editorial note - and the Canadian Law Societies deserve nothing but contempt for their claim that there are always pro bono or government assisted legal services that fill that need. Spend one morning in any family law chambers session and you WILL see the unanswered needs of persons with socially and personally important legal issues drowning without a life preserver in an alien and confusing sea.]
So justice is served by a judge assisting the self-represented litigant in explaining court processes, rules, and other general hand-holding. Judicial assistance keeps legal proceedings structured, timely, and helps obtain a fair result.
Nevertheless, that leaves the system very open to manipulation. By design or accident, a fair number of FMOTLish tactics play directly into that judicial vulnerability. Unless a judge knows that a litigant's lack of cooperation or peculiar conduct is a pre-planned mechanism to jam the court, the judge will have an obligation to attempt to help that litigant through the process, step by step. The judge has only the most limited right to say "I think you're screwing the system - get out."
As if they don't, that is grounds for an appeal. Here's an unsuccessful attempt on exactly that point:
Papadopoulos v. Borg, 2009 ABCA 201 - http://canlii.ca/t/23nxk
Papadopoulos v. Borg does not appear to indicate a standard of review, but I think the right to assistance would have to be an aspect of procedural fairness and an aspect of the Charter, s. 7 principles of fundamental justice. As a consequence, an appellate court would review the trial judge without deference - so an appeal on this kind of point would be, in theory, rather easy.
My experience has been that in Canada the legal community has only a minimal understanding of the FMOTL and their relatives. That means a judge almost never receives in evidence a backstory on the spurious argument / scheme / courtroom antic in play. Let alone relevant case authority. The judge then has to ask: is this a person who may have an actual legal right, or someone attempting to disrupt the system? If the judge cannot exclude the possibility this is a genuine attempt at litigation, then R. v. Phillips requires the judge assist, warn, and guide, step by step.
So that's problem #1. There are two other factors that combine to complicate the situation. Canadian courts have taken a very cautious approach to their contempt of court authority. In practice, a person is only rarely found in contempt of court because appellate courts have instructed that contempt of court ought to be used with caution, and that a penalty is only appropriate where a litigant is given an opportunity to 'cure' their misconduct.
Last, it is difficult to terminate a civil proceeding before trial. The rule is that a proceeding can only be struck if there is no change a litigant might succeed, in spite of the length, complexity or novelty of a matter, or the defences available: Hunt v. Carey Canada Inc., [1990] 2 S.C.R. 959 at para. 33. My observation has been that appellate courts apply Hunt v. Carey Canada Inc. in a very strict manner. That too shelters the FMOTL from being kicked out of court.
Then there's a more personal aspect. I have come to know the judges at the court where I work very, very well. Without exception, they take their roles very seriously, and are loath to think that they might deny a person the right to response, remedy, and beyond anything else, a fair hearing of their grievances. One of the fascinating things I have observed, watching many proceedings where one party has been a little less than calm (and arguably rational), is how often that angry person is satisfied if they have some confidence that they have been heard, in full, and that a fair and unbiased umpire has chosen the other side. That is why detailed reasons for a decision are not only important for appellate review, but those reasons and explanation can often also make a difference on a more personal, social level.
Sadly, Freemen and their relatives take advantage of and exploit that vulnerability.
Chaetognath.
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