Southwest Quebec Dialogue
Vol. 6, No. 1 – May 1992
This is a transcript of a lecture by Harry Kopyto, a former York University student, now a criminal lawyer, to approximately 250 students at York University, City of York, Toronto, Ontario, which took place on September 2, l989.
Jack G. Miller, Ottawa
I am glad to be back home. This is where the corruption started. “I came to bury Caesar, not to praise him.” I have been a criminal lawyer for the last 16 years and let me share with you some of the experiences I have had. But maybe before I do that, I should tell you a little bit about myself.
One time I used to be a nice guy. It was a long, long time ago in a place far, far away, maybe in a different universe. What happened was that once upon a time there was this kid born by the name of Harry Kopyto and he was born in very unusual circumstances, in a D.P. camp in Germany. By the way, D.P. stands for “displaced person.” It sounds very technical displaced person, but it means that you are born without any grandparents; it means you don’t have any cousins; you don’t have any uncles or aunts. It means that the only people who have survived Nazi Germany are your father, your mother and your brother. And something like that can give you a very strong social conscience, a strong sense of justice at a very early age. From the moment that I developed any ideas of what society is all about, I dedicated my life to fighting for justice, a world without racism, a world without antisemitism, a world without war, a world were people are equal in fact as well as in law.
And this little kid named Harry Kopyto, raised at Spadina and College in Toronto, went through public school, went through high school, went through university, and one day decided he would go to law school . And the reason that he wanted to go to law school was because of his thirst for justice, because of the requirement. The need that he had, to atone for the death of others (whom he didn’t even know) – maybe out of a sense of guilt, whatever.
But this kid named Harry Kopyto wanted to fight for the rights of people; he wanted to fight against racism; he wanted to fight against sexism; he wanted to fight against ageism. He really believed that the single most important thing that he could do with his life was to dedicate it completely, and totally and utterly, at whatever cost it might be for him personally, and with whatever limited abilities he had, to the fight for justice.
And that is the attitude that he had when he hit first year law school. And there were other kids: he wasn’t unique, he isn’t unique; in fact, there are lots of other kids who thought the same way. At first year Osgoode law school there were lots of persons who wanted to go into criminal law, who wanted to defend people who were wrongly charged. Do you know what it means for a person to be found guilty of a crime which he did not commit? For me the horror of that ever happening, it was a Kafka-esque nightmare, that this could ever happen.
I wanted to find that person who was so wrongly charged; I wanted to defend him; to stop this travesty of justice. I wanted to change the laws so that rich and poor would be treated the same, so that black and white, Jew and Christian, men and women, everybody, would be treated the same.
“I wanted to find that person who was wrongly charged….. I wanted to stop this travesty of Justice”
I didn’t like the idea that most of the persons I fought for in the courts ended up being poor. I didn’t like what I perceived to be a tendency in the law to treat people differentially on the basis of their connections; and there were others like me.
And you know I went through second year law school, and third year law school, and then I took the bar admission course, and then I got out to practice. And a lot of young kids, who, in law school had felt like me, all of a sudden – I noticed that, some of them, for example, changed their names; people whose names were something like Kopyto all of a sudden became Cooper; kids that I used to play softball with all of a sudden started wearing three-piece suits, and going to different kinds of places for long drinks, and things like that. And all of a sudden when I saw them at the Old City Hall and at the criminal courts – well, I didn’t see them there. They ended up some place on Bay Street, some place in a nice shiny building with lots of glass windows and high ceilings, oak desks, doing work for corporations: tax law, corporation law.
But Harry Kopyto decided that he would go into the halls of the Provincial Court, criminal division of the District Court, and the Supreme Court and fight for truth and justice and give whatever he could to the struggle to make people be treated equally.
Now one day – I remember my first criminal client; I was sitting in my office. I had just put up my little shingle; and there I was, ready to shine light into darkness; I was ready finally to begin my life-long struggle. In walks this kid. He is about 18 years old; he is grubby; he looks at me and he’s got a bump on his cheek, the right cheek. And he says to me, “Harry?” I said, “Yeah.” He said, “I just got beat-up by the cops.” I said “You’re kidding! They wouldn’t do that, those things don’t happen.” I was a little naïve, you might say. And he says, “Yeah, I really got beat up y the cops.” For sore he was a liar. I cross-examined the you-know-what” out of him and still he stuck to his story. And finally after a tremendous amount of time, soul-searching, and trying to determine whether or not he was giving me a line, I decided that the guy was going to tell his story in the courtroom the following day when he showed up for trial. The funny thing was, he was charged with assault by the police, and he’s the one who says he was assaulted by the police. No problem. And by the way, I asked him just the night before when we were preparing for trial, “you don’t have a criminal record, do you?” “Oh yeah, I do.” “Oh, is that right? But nothing involving assault?” “Uh, well, as a matter of fact, Harry, there was one or two little assaults.” Turned out he had a lengthy criminal record. “Well, no problem. You are going to tell the truth.” So I put him on the stand the next day, and there was this judge there, wearing the robe. Any person wearing a robe, you know he’s going to be some kind of fatherly God-like figure, who is going to do right by you. So I put my client up on the stand. I told him how to give his evidence. Be sure and speak to the point; don’t volunteer answers: don’t be argumentative. And then he goes up there. He tells the story about how he was arrested and about how the police pushed him around on the street. He was a little bit drunk and the cops had stopped him put him against the car. And then they started working him over while he had his hands on the car, and they started kicking him and hitting him. And then they charged him with assault. And he told this story to the judge. Oh, I could hear the violins. There was no way I was going to lose this one. This guy was going to be discharged for sure. Well, he spoke really, really nicely. Then the policeman came on. There he was in his uniform. He even had his gun on him; he didn’t have time to change from his uniform. And what happened then was that the policeman also gave his answers. He sort of shouted them out. They were terse. It was like he knew exactly what to answer. On the cross-examination, he was right to the point. He’d been prepared a little while too, maybe by 15 years of experience.
Anyway at the end of this, I made a passionate plea to the judge to find my client innocent, to give him the benefit of a reasonable doubt. After hearing my impassioned argument, my pleas, the testimony, my case law, there was a moment of silence. Then the judge says to my client, “please stand Mr. John Smith,” and Mr. John Smith stands up. There I was standing right beside him, both fingers crossed. And he says, “Mr. Smith, on the evidence that I have heard, I find you guilty as charged”. It was a blow from which I scarcely recovered. I didn’t quite cry in the courtroom, but…………..
Next week somebody else came into my office. And guess what? He also had a story. He was beaten up by the police. I said, “OK, we are going to put you on the stand and we are going to plead you not guilty. We’ll do it again.” And I went back. There was another judge, but after a while they all started, you know, looking alike. And I put my client on the stand and he told his story, and the policeman told his story. And what do you think happened? Yeah, I lost again.
“I fight….for those who don’t have power, who don’t have influence against those who have both.”
But I’m a pretty tough guy and I don’t fight too often. But if I have to….I believe in justice, and I went back a third time and a fourth time. You know, all these kids who get beaten up, they seem to have criminal records. It seems that people who have no credibility in society are targeted by the police. If you have got a criminal record, nobody is going to believe your version anyway. So there is a sense out there that the cops can do anything to you. Anyway, I went back for a third time, and I went back there a fourth time, and a fifth time and a sixth time, and a seventh time, and time after time, they kept coming back and finding my clients guilty.
But then….there was a tenth time. A client came to me and said, “Harry, the police are talking to me; they came to my house; they are threatening me. They want me to make up a story admitting to what I have been charged with. They are twisting my arm, they are saying that if I don’t cooperate with them they will make up a story and send me to jail for three to five years.” I said, “You’re kidding!” – but, I no longer said that the police don’t do that. But I said, “Hm, very interesting”. And then I grabbed my briefcase, and what do you think I found in my briefcase? I found something that looks like this (a recording machine). Except it was a little smaller. And I said, “Let’s see, do we have a tape? And would you like to phone the police – and here’s a device to hook up to your phone.”
Over the next five months, my client was visited by the police at his home on five different occasions. There was a dozen phone calls. We tape recorded every single one of those phone calls. What they said to him: – “We’ll go for your throat if you don’t cooperate with us.” They agreed to cover up for him when he couldn’t appear in court. They threatened him physically with harm if he wouldn’t tell his (their) story. They even said they know which judge to talk to, which crown to talk to. And there it was, on tape! And then I ended up getting it all typed up, three hundred pages of transcripts. And then I went back to the court. And I put my client on the stand. I said, “Your honor, my client has a story to tell.” Well, actually, we had a “voir dire.” We had a trial within a trial to determine whether the statement would be admitted.
And the police officer, one of the two police officers – Sills and Campbell – one of them, Sills, got up on the stand in the District Court, and I said to him, “Did you tell my client that if he doesn’t cooperate, he will get three to five in the pen?” No, sir, I would never say such a thing.” “Did you say to my client that if he doesn’t say so and so, I’ll go for your throat?” “Oh no, sir. I would never do such a thing.” “Did you say that you could get the charges dropped against my client if he turned in a heroin addict from Parkdale?” “Oh no, sir, I would never do such a thing.” Question after question after question: “No, no, no, NO.” And then, while the police officer was on the stand, I reached under the counsel table. I pulled out and put on the table a ghetto-blaster. You could see the blood draining down this person’s face, and, of course, all the charges were withdrawn. My client was found ‘not guilty’ and that police officer was found ‘guilty’ of perjury and of obstructing justice.
And why have I told you this story? Because I wanted you to know a little bit about myself. I’m a fighter for justice. Now, there may be not too many people like me, but you can have an influence on the criminal justice system; you can beat the cops on their own terrain. I fight for people who don’t have money. I fight for people who have minority status in society. I fight for the young against the old. I fight for tenants against landlords, for the widows against the mortgage companies; for the poor against the rich; for prisoners against jailers; for the physically and emotionally disabled against institutions in which they are virtually incarcerated; for women against men who beat them up; for children against persons and institutions that abuse them; for those who don’t have power, who don’t have influence, against those who have both.
Let me tell you something about the justice system. The justice system on the outside looks very, very hard. The criminal law says “thou shalt not do this” – and of course anybody who does is going to get up to five years’ imprisonment or up to 10 years’ imprisonment. On the outside it is very, very hard. But do you know what happens when you fight the justice system. Inside, it becomes very, very soft. If you put up a fight, if you fight for justice, it can have a resu
The Law pretends to be equal
Now I want to talk to you a little bit more about the kinds of things I have done within criminal law, about the experiences I have had. But first of all, let me just tell you what I consider to be the fundamentally most important thing that I want to leave with you today, and that is that the law has two aspects to it. On the one hand it pretends to be equal; it holds itself out to be fair; it holds itself out to treat everyone equally. Everyone is forbidden to sleep underneath bridges, both the rich and the poor. Everybody shall not murder, everybody shall not steal. There’s the whole ideology of the law which is based on lex talionis, equality. An eye for an eye, a tooth for a tooth. Every single criminal justice system that’s ever existed, whether in Africa, in Asia, 10,000 years ago, or now, reflects the principle of equality, restoration of equality. You put the person back in the same position he was in before he was aggrieved. And the payment extracted from a person who violates a public law, a law that offends society, a criminal law, it to extract from him a payment in time, or in some form that is equal to the magnitude of the crime that he has committed. There is this historical, rooted, collective, unconscious sense that the criminal law is there to restore, that it is there to make absolute equality, an that it treats everybody equally, an that everybody is treated the same way. The lawyers, both the defence lawyer and the crown lawyer, both work closely together. The Judge is in the middle. Everyone knows the Judge is neutral. Everyone knows that the Judge doesn’t have any predispositions. Everyone knows the judges have come down from the sky right now and will listen to you completely fairly. Everybody knows that there are clear procedural rules of conduct that apply to the Crown and to the defence. The whole system is based on a concept of equality, the scales of justice, and justice is blind. There are no predispositions. And that’s the myth of the law; of the criminal law especially, (we’ll talk about civil law some other time, maybe.) But there is another reality. Because this myth of the law, myth of equality, myth of treating everybody the same is constantly being buffeted around by a new reality, the social reality that people are not equal, that it is only the poor people who need to sleep under bridges and not the rich, that nine tenths of the law has to do with the preservation of private property, which means maintaining the system as it is right now, which means that nine tenths of the criminal law is designed to protect those who have from those who have not. There is the reality of the law just because two lawyers each wear robes, that doesn’t mean the one who is retained by somebody who has $10,000 and fifteen police officers behind him, isn’t in fact much more able to present his case than somebody being represented by a legal aid lawyer who has five other cases on his mind, who has five hours to prepare the case, and who might get $500 for his work.
“nine tenths of the law has to do with the preservation of private property….designed to protect those who HAVE from those who HAVE NOT”
There is the reality that the judge who is supposed to be neutral in the middle and not taking sides himself, has heard the police officer testify before him fifteen or twenty or thirty times before, and there is a sociological phenomenon which is explained better by others than me, which makes him have a predisposition to accept, as valid, evidence which is given in a certain way by people who have notes. There is the reality that this judicial system that we have, the criminal justice system, which is allegedly based on a Crown fighting a defence lawyer in an adversarial system in which the best will win, in fact doesn’t exist. Does not exist! Do you know what is the busiest room in Old City Hall? It is not the courts. It is not even the hallways. You go down to the Old City Hall where hundreds and hundreds of people are processed through the criminal justice system every day and the busiest place, there is a room there – actually, there are lots of rooms with lots of doors – and there is one, and on it, it says room number 114. It is not a court room; it is not a library; it is not a place where defence lawyers hang out for coffee; it is not a place where criminals hang out. Room 114 is the Crown’s office. You go in there at 9 o’clock in the morning. The rest of the place is deserted, but you open that door at Room 114 and –VOOOM! There are fifty defense lawyers lined up to make deals with the Crowns. That is the busiest room. That’s the kitchen sink behind the appearance of justice. This adversarial system in which lawyers are supposed to move mountain and earth for their clients and give everything they have is a façade masking the reality of a chummy little club where people make little deals and work everything out. That’s what happens, because lawyers are busy, you see; they get their guilty pleas in by 10:30 a.m., then they can go home or go to their office and make some more money. That’s the reality. The reality is that the system, allegedly adversarial, is really a very chummy little club in which things are “worked out.”
The system………… is really a very chummy little club
Now, of course, the defense lawyers are lined up. There are not enough chairs for them, it is so crowded. The Crowns are all sitting in their own cubicles and they are just processing. You go in there; you say, “My client is 27 years old…..,” and this and that, and “He’s got only three previous…..”, and you distinguish the previous convictions and the Crown says, “Well okay, I’ll ask for six to nine months or nine to twelve months, “ and you say “No, three to six,” and you try to work something out. And then you go into court and you rubber stamp it and you leave. That’s the way: the reality behind this adversarial façade. The judicial system in this country is basically dominated by political hacks, old, white, conservative, male, waspish, sclerotic individuals. Its basic purpose, the criminal justice system, is to protect those who have from those who have not.
You go into the halls (of the court – Old City Hall) and see what kind of people hang around, go through the system. They are people without jobs; they are people who are young; they are people who live in public housing; they are persons who have medical problems, educational problems; they are persons on second or third generation welfare. They are the underclasses, the lumpen proletariat and the working class. That’s who hangs around. And they are like sheep, waiting there and they know – look at their faces – they know what is going to happen to them; they are timorous, they are fearful, they know what’s going to happen to them. Those people out there have a deeper, intricate understanding of the operation of the law, of the social nature of the law, than a room full of university professors, because they understand the contradictory nature of the façade of equality and the reality of inequality. Because it does make a difference if you can afford a good lawyer. It does make a difference if you can delay your case for five years. It does make a difference if you’ve got somebody who can have some schlep with the cops. It does make a difference if you wear a tie that lets the judge know that you are a graduate from a certain private school. It does make a difference how you look in court. It does make a difference what accent you talk with. It does make a difference how you present your case. It does make a difference what crime you commit. A poor person who breaks a window of a store and steals something can go to jail for nine months, or twelve months and do that time. On the other hand, some rich person, very well connected, who wash-trades, and makes millions of dollars on the stock market illegally and unlawfully, can end up getting that same kind of sentence and serving a few days of it. That is the distinction between the reality of social inequality and the myth if formal equality.
What I try to do – and what I have done – is try to expose the raw nerves of the system that reflect the weakness in it. There is an institutional bias in favour of the police. They take notes. They are professional witnesses. They have done it a million times. Who do you think is going to be believed? There is an institutional bias in favour of persons who can afford rich lawyers. The legal aid plan is a major institution designed to give the appearance of justice without the reality of it. The low scale of pay and the number of charges that they don’t even cover and the unqualified lawyers that work for it in large numbers, the absence of senior lawyers, all of it makes the legal aid plan just part of the façade, part of the cover-up. The jails. The jails…. I told somebody who was in jail to plead not guilty and he said “Harry, I’ve got a D.O. – a D.O.” is a detention order. You know when they arrest you first you have to ‘show cause.’ If you have a record, if you have any kind of a record, the cops are going o make you stay in jail if they can. So they have a ‘show cause’ hearing in which their goal is to get a detention order. If they get a detention order, they put you in the Don. Do you what its like waiting three and a half months for trial in the Don jail? There are nicer places that you would rather be. The Don jail is a hot house for guilty pleas. I have seen dozens and dozens and dozens of persons plead guilty to crimes they are not even guilty of just to get out of that rat-hole. It is a hot house of guilty pleas.
There is an institutional bias in favour of the police.
They take notes. They are professional witnesses.
They have done it a million times.
The judicial system is a very, very class-oriented system. This doesn’t mean that you can’t get justice. This doesn’t mean that if a rich person kills somebody, he is going to be able to buy somebody off. This doesn’t mean that individual judges are corrupt. I am talking about a system, and I’m talking about institutional bias. I’m not talking about a police officer giving a judge any money. I’m talking about a social phenomenon. I’m talking about conservative judges who come from conservative backgrounds and who enforce conservative laws that haven’t changed for hundreds of years, sections of the Code that go right back to feudalism. I’m talking about the kind of mentality that develops there, where procedural wrangles end up taking on much more significance than the reality of what happens in the courts. I’m talking about a system where those who have make sure that those who haven’t stay in there place.
Is the law equal? There are so many different levels in which inequality can be expressed. God help you if you ever get involved in a serious political case as a criminal lawyer and you actually expect justice.
The judicial system is a very, very class-oriented system.
Let me tell you about one case I had in which I actually tried to get justice against two police officers. My client, Ross Dowson, who unfortunately is ill in hospital right now, came to me fifteen years ago. He said to me, “Harry, I was head of this group called the League for Socialist Action in the 1970’s. The RCMP Security Service harassed our group. The RCMP circulated phony letters in our group attacking me personally, attacking other leaders personally, trying to foment differences between the Quebec and the English wing. Here are the letters, here is the evidence, and here is the names of the officers. They just admitted, before the McDonald Commission, that hey did wrong and they wouldn’t do it again.”
Remember the Commission that looked into RCMP wrongdoing in the mid-1970’s in Ottawa? Everybody knows that the RCMP Security System was totally out of control. There was a federal Royal Commission looking into what had happened. They were burning barns. In Quebec and Ontario they were circulating phony letters at conventions of the League for Socialist Action, against socialists; visiting the parents of young members of that group, like mine; going to people’s employers and telling them they had dangerous subversives working on their shop floor. This league for Socialist Action was a left wing group in the N.D.P. It was a completely legitimate, legal organization that never advocated breaking the law. Well, I tried to bring charges against the two RCMP officers in charge of this operation, ‘Checkmate,’ designed to foment conflict within the League for Socialist Action. And I wet to a Justice of the Peace and I said, “Would you please hold a hearing to see if charges should be laid?” He said “Of course, I would like to.” You know, normally, when anybody else commits a crime, if you are not caught right there, the police are swooping down on you within seconds of finding out about you. But if you are trying to go after the RCMP, you had better be prepared for a long struggle. The Justice of the Peace set a date three months later for a hearing, a pre-enquette, to determine whether charges should be laid. My client went to a Justice of the Peace, wanted to swear out an information to get a warrant issued for the arrest of these two officers so that they could face their day in court on charges of fraud and circulating false messages. So, first of all we had to wait three months for our hearing. Then, when we showed up three months later, who shows up but the Deputy Attorney General of Ontario. He wants status. And, the Deputy Attorney General of Canada, he wants status at this hearing to determine whether or not charges should be laid. Doesn’t the right of private prosecution have any meaning? Apparently it doesn’t have too much meaning when you try to sue the RCMP in Ontario in this decade. So what happened was that the hearing was put off for another two months. We started hearing evidence. Other lawyers started showing up. Another two months. And, another two months. It took us a year and a half of hearings before we finally reached a point where the Justice of the Peace was going to determine whether or not these two officers should be charged. The very minute before the Justice of the Peace came down with his decision, the Attorney General of Ontario walked in, through his senior counsel, into that courtroom and said “No, we are staying the proceedings. We will not allow the Justice of the Peace even to decide whether or not charges should be laid against the RCMP.” The right of private prosecution all of a sudden disappeared, in one second, a right seven hundred years old, going back to the 1200’s, 1300’s in England! The social reality of what we were doing – a “dangerous, ideological subservisive” was trying to charge the RCMP – the social reality of what we were doing determined the content of what was happening, influenced by procedure, influenced the behaviour of the courts and the government of the time.
We went to an Ontario Supreme Court judge and we asked, “Does the right of private prosecution have any meaning in this country?” It says in the Code that everybody can go to a Justice of the Peace and is entitled to a decision. We can’t even get a decision. The Supreme Court said, “No.” They took a very technical viewpoint. I couldn’t believe it. Here’s a fundamental right recognized in every country, in Ontario, in Canada. All of a sudden, it disappears! We could not get the J.P. even to make a decision to lay or not to lay the charges.
And then we went to the Court of Appeal: three learned judges. Ian Scott was my co-counsel there, representing the Civil Liberties Association. We went for three days before the three most senior judges of the Court of Appeal. They came out three months later with a decision saying, “No, you are not entitled to it.”
And then we went to the Supreme Court of Canada. After seven years, seven years! seventy-five court appearances, all unpaid, just to fight for the right to get a J.P. to make a decision. And the Supreme Court of Canada, what do you think they did? Unanimously, they agreed that we had the right to have a decision! We had to go all the way to the Supreme Court of Canada to affirm a fundamental right. Why did we have to do that? Because there is so much tension between the formal rights that people have and the social reality of what you are doing, that it sometimes takes a lot of effort to get the system to function in the way that it’s supposed to. I never ask judges to do anything other than enforce their own rules. I may be a radical, I may have horns on my head, I may be spouting Maoist slogans. God knows what Harry Kopyto is when you really tear down the façade; but the fact is that when I go to court I argue case-law and I prepare well; I write articles for law journals, including Osgoode Hall’s I fight my cases on the law and I give the judges credit for trying to understand.
God help you if you ever get involved in a serious political case as a criminal lawyer and you actually expect justice.
But the reality is that someone has got to build political movements to get real justice in cases where the stakes are high.
We had to organize an eight-year long campaign to make sure that Ross Dowson could lay charges against the RCMP. We had to get the support of people like Jessica Mitford, Linus Pauling, Noam Chomsky, Benjamin Spock. We had to mobilize support from fifteen labour councils, get the endorsement of the N.D.P. federal convention, and raise maybe $15,000 or $20,000 before we were able finally to get the right to have a fundamental right exercised.
The reason I am telling you this is to show you as well that what It comes to, what really is important, is the social reality of what you are doing. The system has to affirm its own integrity. As I indicated earlier, that doesn’t mean that a judge who might be crooked cannot be sacrificed. It doesn’t mean that just because you are rich you can do whatever you want. But it is the integrity of the system itself. That’s what is key and that’s what is crucial. And they are ……… …………. appropriate instance, at the lower (court) levels anyway, to cover up and to try and defend themselves from an attack which they consider to be radical and militant, and then we can see the Supreme Court of Canada eventually reverse that decision. Why is that? Does that mean that the Supreme Court of Canada is really a fair and neutral body, that these are the only brilliant people who display total independence. We had to organize a massive campaign and make this the single most important anti RCMP case for twenty years or thirty years, before we were finally able to win that particular case. That’s why the Supreme Court of Canada ended up deciding in our favour, not because they were convinced by my beautiful face, my fine smile or my clever arguments. The fact is that the law is just a shadow, the law is black and white, but life is green. The law always follows reality. What happens in the street comes first, and then what happens in the courts comes next. You can’t put your foot in the same river twice. Who said that? Cardozo quoted it. Was it Lucretius? Was it Heroditus who was describing the law as a stream of water that’s always changing?
What year did the French Revolution take place? In 1789? In 1788 somebody who opposed King Louis would have been found guilty of treason. The law changes. It is a part of a wide variety of social, economic, political, institutional forces. Yes, the legal system is just another institution. Judges are appointed. They are not anointed. They are real people with real prejudices. They tend to be predominantly male. They tend to be predominantly white, though there is always a few of those and a few of these. They tend to be predominantly white Anglo Saxons, they tend to be predominantly conservative, inordinately so. They tend to reflect the prejudices of their own upbringings. This is not to say that any particular judge in any particular case doesn’t try to do his best. – Peoples’ minds and attitudes to ideas, to the law, and to everything else is fundamentally shaped by the totality of their life experiences. The fact is that, while we have an appearance of equality, we have the reality of social and class discrimination against poor people. This is why there are a number of institutions I like the prisons, I like the legal aid plan, I like the legal profession itself, I like the police. These institutions are an integral part of the judicial system and they help to shape and limit the way in which it responds to the reality of persons who are processed as criminals through it.
I want to tell you something about what is possible, too. I don’t want to paint a bleak picture. I don’t want to make you feel that this whole situation is overwhelming. I don’t want to make you feel that there is nothing you can do in terms of struggling for real justice within the legal system.
While we have an appearance of equality, we have the reality of social and class discrimination against poor people
There is a lot that you can do. For the last fifteen years I have been fighting for young people with criminal records. I have been fighting for people who are innocent. I have been fighting for prisoners’ rights. And do you know what’s happened? In area after area of the law – criminal law is only one area of the law that I practice, but that’s what I am lecturing about now – I can tell you that I have fought for and represented dozens of tenants in all kinds of important cases. I have fought for, represented working people before the labour boards, before all kinds of courts; disabled people, emotionally disabled, physically disabled. I have had some of the earliest human rights cases: the most important gay rights case in the history of Canada, John Damien; the Gay Alliance Towards Equality versus the Vancouver Sun case, the single most important freedom-of speech case in the 1970’s. I won that one in Ottawa in the 1970’s. I have had a lot of successes. The Keeping case. I described that for you – the “ghetto-blaster” case (it’s sometimes referred to as such). You can have success. You can make the system respond. Despite the institutional pressures it is possible, but what you have to do is you have to fight the system every stage you can, in every way that you can. You have to maintain your commitment to your own ideals. You have to dedicate yourself totally to your clients. I do the opposite to what lawyers are supposed to do. We are told, you know, keep a professional distance from your clients. I empathize with people who are poor. I empathize with people who are victims of police abuse. I empathize with the victims of the social and judicial system and I identify with them. I fight their cases with whatever I have got, little as it is, as much as I can. And, you know, there are other people around that I really influence. There are other organizations around, such as the Law Union of Ontario which I founded in l970. There are other lawyers around who could stop what’s happening and you can exacerbate the contradictions, you can go in there and you can have successes.
I can tell you that in 1988, after I fought the Dowson case, the one against the RCMP for eight and a half years, and I end up losing it, I had to go back to the Supreme Court of Canada again. I was there twice to (try to) win that case.
And I couldn’t win it at the end, and after it was all over, nine weeks after, a Globe and Mail reporter, Kirk Makin, phoned me and he said “Harry, what have you got to say about the final result? The decision just came out.” I said,, “The police and the courts in this country stick together like crazy-glue.” I called the court system a charade. I said the courts in this country are warped in favour of the RCMP. And then I left on a vacation.
I came back three and a half weeks later. It was Friday afternoon. I was sitting in my office and, “There’s a Mr. White to see you, Mr. Kopyto.” I’m the kind of guy, you know, who sees people without appointments. “Oh, show Mr. White in.” Mr. White comes in. “It’s Friday afternoon Mr. White. Now we don’t have that much time. Would you please come to the point.” “Mr. Kopyto, this won’t take very much time.” And Mr. White opens his briefcase and takes out a piece of paper and on it says “Notice of Application.” I said, “Hmm, very interesting.” Let me read this: “Take notice that the Attorney General of Ontario will make an application on the 4th day of February 1986, to have Mr. Harry Kopyto, barrister and solicitor, committed to jail for………”
The courts and the R.C.M.P. stick together like krazyglue……
What crime did I commit, what did I do? I try to live cleanly. I was influenced by William Motley. You know, “Live fast, die young, and have a good looking corpse.” Most of the time I try to get along. I’m really a nice guy when you get to know me.
So, I committed and offence called ‘scandalizing the court.’ Jesus Christ!
How serious. I didn’t even know it existed and I committed it. I didn’t know it existed! As a result of talking into a telephone nine weeks after my case, using those words “krazyglue, – the courts and the RCMP stick together like krazyglue,”
the Attorney General of Ontario wanted to jail me for a period up to 5 years! What’s happened to freedom of speech? I’m used to plain talk, telling it like it is. I had this problem in the 1960’s; I’m a bit of a leftover from that age. Anyway, what happened was that I went to court and do you know what? I didn’t go to court by myself. I showed up to set a date with nineteen lawyers wearing their gowns. All of them wanted to be my lawyer and none of them wanted a cent.
And eventually those nineteen ended up being thirty-three lawyers and eventually I fought against the law of scandalizing the court. And eventually I was found guilty. I had the editor of the Globe and Mail, the editor of the Lawyer’s Magazine, the Canadian Lawyers’ Weekly, I had a Rabbi, even, come and say, “Harry really tries to do the right thing.” But what do you think happened? Despite my charming nature, and keen sense of humour, Justice Montgomery found me guilty of scandalizing the court and then he ordered me to apologize. Apologize, or else I couldn’t appear in court again, anytime, ever. I couldn’t work in a court. And I couldn’t work in a court. And that sounded very Stalinist to me. You know that in Russia they stop people who don’t have the right ideas, – you know, won’t succumb to the system – from working (or they used to do it). Anyway, I took that case to the Court of Appeal and I had to make a decision. Let me give you an example of how much chutzpah I have. I decided – everybody said, “Harry, appeal the sentence It’s a ridiculous sentence. Nobody is going to order you to apologize; that violates your conscience.” Anyway, I said, “No, I don’t want to appeal the sentence. I’m just going to appeal the conviction. And I’m going to appeal the conviction only on constitutional grounds. The courts are going to have to choose between the law and me.” I didn’t know what they would do, mind you, but I wanted to use the public support that I had, the seven editorials in the Toronto papers including The Sun, the massive support that had come in from Doukhobors in British Columbia, from unemployed people in Montreal, from the Southern United States. This case had a big impact. I wanted to use that public support to do away with a law that belongs in the feudal ages. We don’t need that law. We were trying to do away with “scandalizing the court.” That law is now unconstitutional and it no longer exists. In that case, I was the part, the accused, not the lawyer. And what I did there was argue the case only on constitutional grounds.
So the law does respond, but it responds only for people who are dedicated, only for people who are committed, only for people who have a thirst for justice.
I hope that many of you decide to go to law school. I hope that many of you who, I know, have your own experiences in life, leave enough time. Get your own experiences. But in some way I have a feeling that on some level you have reached me and I have reached you in this discussion. We have some common ground, I sense it. You know I always feel so totally at home among young people. The older I get the younger I get. The more I fight, the more I am committed to my fight and I hope that whatever happens to me, because of the Law Society’s harassing me right now, whatever happens to me, I hope some of you go on to law school. I hope some of you will carry on the struggle for real social justice.
Thank you very much.
Harry Kopyto’s heroic battles against injustice and human rights violations earned him enemies among powerful institutions. It cost him his license to practice when, in a split decision, the Law Society of Upper Canada expanded his admission of poor bookkeeping into that harsh penalty, in defiance of the conventional practices of other professions such as medicine.
Jack Miller, Ottawa