WORN OUT FACES: REPEAT SELF-REPRESENTED LITIGANTS AT THE SUPREME COURT OF CANADA.

• Author: Netolitzky, Donald J.

1. INTRODUCTION

   In Canada, people who appear in court without a lawyer are usually identified as "self-represented litigants", or "SRLs". (1) SRLs are often discussed in legal circles, particularly in relation to access to justice. Stratas JA of the Federal Court of Appeal (FCA) has recently concluded that the access to justice concept is ill-defined, an "abstract principle", and "a vague concept that takes on different meanings depending on the context." (2) Trevor Farrow and Lesley Jacobs observe the access to justice concept has changed and gone "through numerous waves of [conceptualization]" (3) Farrow and Jacobs state that the current focus ought to instead be on achieving "meaningful access to justice", which is, apparently, an even broader concept. (4)

   Much has been written about an amorphous "access to justice crisis". (5) Barriers to, and the allegedly unsatisfied needs of, Canadian SRLs are commonly identified as components of that crisis. (6)

   Given that access to justice is ill-defined and mutable, this article does not frame its investigation, analysis, and conclusions in reference to access to justice, or meaningful access to justice. Instead, this article engages a functional and quantitative data-driven methodology to investigate and describe specific litigation activities--in this case a population of SRLs active at the Supreme Court or Canada (SCC) in 2015-17. That makes this article a third puzzle piece in developing a data-based and statistically valid description of Canadian SRLs and their activities. The information gathered in this study complements and connects with two other such puzzle pieces: the "2016-17 FCA Project" (7) and the "2017 SCC Project". (8) These two projects examined whole litigant populations at the FCA and the SCC, respectively. Each project was a vertical slice, meaning a review of all SRL litigant activities during specific years.

   The two projects discovered that a substantial proportion of SRLs active in Canadian appellate courts engage in multiple separate appeal processes. How that repeated appeal litigation is conducted is hitherto unexplored. The current article responds to that gap, and conducts a "horizontal slice" review of an SCC SRL population. The horizontal slice investigates how repeat appellant SRLs engaged the SCC throughout the SRLs' entire litigation history. This article therefore further expands our understanding of the characteristics and operations of Canadian SRLs who engage in appeals.

   1. CANADIAN SRLs AND THE SRL NARRATIVE

      A kind of SRL narrative has coalesced in Canada. (9) To date, these SRL narrative claims have, for the most part, been accepted without much apparent scrutiny:

      1. SRL numbers are increasing;

      2. SRLs are a family law phenomenon;

      3. SRLs do not self-represent out of choice, but because they cannot afford professional legal representation;

      4. litigation that involves SRLs is lengthier and more complex, and that stresses already over-taxed Canadian courts;

      5. SRLs are "fair-dealers" who want to resolve their disputes using Canadian law, but find legal rules, procedures, and authorities alien, difficult, and complex;

      6. SRLs meet with reduced success because SRLs find law and litigation difficult; and

      7. very few SRLs are "bad apples" who misuse courts and their resources.

      Despite the attention that Canadian SRLs have received from academics, courts, and legal professionals, our understanding of SRLs and their activities is surprisingly limited.

   2. CHARACTERIZATION OF CANADIAN SRLS BY SURVEY METHODOLOGIES

      Prior to 2021, the information that purportedly describes Canadian SRLs was obtained exclusively from surveys of judges, lawyers, and litigants. (10) The Canadian SRL narrative is largely a product of these studies.

      Sometimes the reported survey opinions align. For example, there is broad consensus that SRLs appear at a high incidence rate in family dispute subject litigation. (11) Many justice system participants believe SRLs are unrepresented because lawyers' fees make legal representation unaffordable. (12)

      Other times reported opinions are markedly different. For example, lawyers, judges, and SRLs disagree when asked to evaluate each other's conduct. Lawyers and their clients report that judges treat SRLs fairly or provide SRLs an unfair advantage. (13) Surveyed judges overwhelmingly report that the treatment SRLs receive from the judiciary is very fair, or fair, but express less confidence in the conduct of lawyers who appear opposite SRLs in court. (14) Birnbaum et al interviewed represented litigants and SRLs and reported that they both said judges treat SRLs "Very Well" or that SRLs receive "Good Treatment". (15) However, a second study by Marfarlane found the opposite: SRLs reported very negative experiences with judges and opposing lawyers, and denounced Canadian judges as escaping discipline for their improper conduct. (16) Macfarlane's population of SRLs found court processes and litigation to be traumatic. (17)

      To date, three publications have reported direct surveys of Canadian SRLs who were either exclusively or predominately trial level family law litigants:

      1. Birnbaum et al: 275 family dispute litigants, 60% of whom were SRLs;

      2. Langan: 35 SRL family dispute litigants; and

      3. Macfarlane: 259 SRLs, 60% of whom were involved in family subject legal disputes. (18)

         Unexpectedly, Macfarlane's family law SRL population consisted predominately of divorce disputes rather than common law partnership disputes. For example, in Alberta, 85% of SRLs were the former while only 15% were the latter. (19)

         These different SRL studies report strikingly different demographic profiles. The Birnbaum et al SRL population were predominately under the age of 30. (20) The SRLs in Macfarlane's study were predominately over the age of 40 (77%), with only 3% under the age of 30. (21) Langan's study population exhibit a normal distribution profile centred on ages 31-40. (22) Birnbaum et al and Langan describe SRLs as a low-income population. Eighty-five percent of Langan's surveyed SRL respondents report an annual income under $30,000, and half of the SRL respondents received social assistance. (23) Similarly, a little under 60% of Birnbaum et al's SRL population reported an income under $30,000. (24) In contrast, 60% of Macfarlane's respondents reported an income of over $30,000, and 6% over $100,000. (25) Birnbaum et al state that many SRL litigants have limited "education and literacy skills", yet 77% of Macfarlane's population self-report that they are professionals, or college or university educated. (26)

         The markedly different demographic profiles of the three Canadian SRL survey populations suggest that each study's sampling method captured different groups. That possibility is supported by the very different methodologies employed in each study. The Birnbaum et al survey sample population was obtained by law student interviewers who approached a mixture of Ontario Superior Court and Ontario Provincial Court family law litigants in courthouses, and then administered a 34-item questionnaire to litigants who volunteered to answer. (27) This study did not indicate the rate at which potential interviewees declined to participate, which introduces the possibility of non-response bias. (28) That said, Birnbaum et al do not report any issue with obtaining consent to participate from interviewees, and Survey Research Methods--a social sciences best practices text for survey procedures--indicates that the direct person-to-person interview methodology employed by Birnbaum et al results in a high participation rate by persons invited to respond to the survey. (29) The direct interview procedure used by Birnbaum et al therefore likely obtained a high and statistically significant response rate from the target sample population, which was trial-level family dispute SRLs.

         Langan conducted a smaller survey of 35 family dispute litigants with a different methodology. (30) In the spring of 2004, Langan positioned a poster in the waiting area for a Kingston Unified Family Court courtroom that invited SRL volunteers to complete a printed survey form. Completed survey forms were then placed in a drop box. (31) The participation rate obtained with this methodology is unknown, though it appears fair to take notice that the 35 respondents who completed the drop box form during the two-month sample period were very likely only a fraction of SRL family dispute litigants who could have potentially been engaged. (32)

         Macfarlane's methodology appears to have changed as the project progressed. Macfarlane initially recruited SRL interviewees with posters located in certain British Columbia, Alberta, and Ontario trial courthouses. (33) Subsequently, Macfarlane recruited respondents via media reports, websites, a Facebook page, a blog, and a 1-800 number. (34) Again, the SRL response rate cannot be directly evaluated from this study's reported results.

         Surveys are inherently limited by factors such as sampling error and bias, reporter knowledge, subjective perceptions, honesty, and limits on what a reporter may know. (35) Birnbaum et al acknowledged that their study had limitations, such as the fact that interviewees may not have been honest. (36) Additionally, the Birnbaum et al investigation does not report on SRL litigation outside the trial-level family dispute context.

         Macfarlane made far more expansive claims. Macfarlane's initial report stated that the "enormous number of enquiries that we received" meant that "[w]hile this is not a randomized sample, it appears to be highly representative of the target group". (37) Subsequently, at some undisclosed point after 2013, Macfarlane edited her report to replace that passage with an expanded claim concerning the relevance and reliability of the report's data. Macfarlane stated: "the way in which the sample was collected supports the assertion that the study sample was effectively randomized as a result of...