The council said that self-represented litigants should be actively warned about the dangers of proceeding without a lawyer, and that judges should strive to prevent them from losing their cases because of minor technicalities that might have been easily rectified.
Judges should also intervene to question witnesses when they feel it would be in the interest of fairness, said the CJC, a supreme judicial body composed of the chief justices and associate chief justices of each superior court.
"The council views the increasing numbers of self-represented persons who appear in the court system as a serious matter," Chief Justice Beverley McLachlin, chair of the council, said in a commentary accompanying the release.
"The average person may be overwhelmed by the simplest of court procedures," the CJC statement said. "Judges should ensure that procedural and evidentiary rules are not used to unjustly hinder the legal interests of self-represented persons."
Judges also worry about the difficulty of fulfilling their traditional impartial role while ensuring a level playing field for self-represented litigants.
"It is a quandary at times," Chief Justice Marc Monnin of the Manitoba Court of Queen's Bench said in an interview. "It is difficult, but it is something that, as judges, we have to do. What you have to be careful about is not stepping over the line and becoming seen as the individual's lawyer."
Chief Justice Monnin said that there are no statistics to quantify the trend, but anecdotal accounts unmistakably reveal a growing trend toward self-representation in every sort of court. Family courts have been particularly affected, with some judges reporting that 50 per cent of litigants appear without a lawyer, Chief Justice Monnin said.
Madam Justice Kathleen McGowan, an Ontario Court of Justice judge who presides in London, Ont., said that she sees them mostly on court days reserved for people who intend to plead guilty to criminal offences. "I usually see several per day," Judge McGowan said in an interview.
She said that if people seem likely to be overwhelmed, she refers them to a legal aid office or the Criminal Lawyers' Association, both of which may be able to arrange for free legal representation.
If these alternatives fall through, Judge McGowan said, she sometimes issues an order appointing legal counsel for the litigant. "Sometimes, a party absolutely wants to represent himself," Judge McGowan added. "We try to make sure the proceeding runs fairly."
The council guidelines also specify that:
Where possible, judges should attempt to hold conferences that involve self-represented litigants in order to reach a settlement;
Judges should manage cases in a hands-on manner to eliminate unnecessary legal issues and keep them moving efficiently toward a resolution;
Judges and court administrators should develop packages of information and standardized court forms for the use of self-represented individuals.
"Judges and court administrators have no obligation to assist a self-represented person who is disrespectful, frivolous, unreasonable, vexatious, abusive or making no reasonable effort to prepare their own case," the CJC added.
