Balancing the Scales
The need for reform of judicial guidelines to balance support for self-represented litigants and uphold public confidence
Introduction
Legal issues can cause immense stress to individuals, and this can be debilitating when one cannot afford a lawyer. As living becomes more expensive for Canadians, there has been a visible increase in self-represented litigants (“SRLs”) engaging with the justice system. Statistics indicate that about 50%–80% of family law matters, 30%–50% of civil matters, and around 30% of appeals are dealt with by SRLs. These staggering statistics evidently showcase larger issues.
This paper argues that a judge’s role in relation to SRLs must be clarified and narrowed through the development of clearer judicial guidelines and the expansion of out-of-court resources. Without this reform, the growing demand for judicial support risks undermining public confidence in the fairness and legitimacy of the courts. Additionally, the responsibility for addressing the needs of SRLs must be distributed more equitably across the justice system to prevent judges from being stretched beyond their core adjudicative functions. The Supreme Court of Canada’s decision in Pintea v Johns illustrates the gaps in the framework for judicial discretion, specifically in helping SRLs. While this case marked a milestone by endorsing the Canadian Judicial Council’s principles and affirming the need for judges to assist SRLs, its uneven implementation has exposed the limits of relying solely on judicial flexibility to uphold fairness.
The paper proceeds in four parts. First, it outlines the theoretical and empirical insights into how external and internal factors influence judicial decision making, including the specific challenges posed by SRLs. Second, it reviews the current Canadian judicial framework governing assistance to SRLs, including ethical principles, Charter protections, and case law. Third, it analyzes the impact of SRLs on the adversarial model and public confidence, emphasizing the tension between fairness and neutrality. Finally, the paper explores the reforms needed to address these challenges, specifically, clarifying judicial boundaries, redistributing responsibility among justice system actors, and simplifying procedural and evidentiary rules to reduce reliance on judicial intervention.
