Tribunal Refused to Rule on its Legitimacy
Harry Kopyto’s fight to keep his paralegal licence has reached a critical juncture as it enters its third year.
His strategy to challenge the constitutionality of the independence of the Blight Panel is now being played out before the Superior Court in Toronto. It was sent there by both the LSUC’s Blight good character Panel and the Swinton Panel of the Divisional Court which supported Blight 100%. They claimed that the Law Society’s good character Panel lacked the resources to decide if the takeover of paralegals by lawyers breached the public interest by eliminating competition and driving up the prices of legal services. They held that the Blight Panel was “institutionally incompetent” to deal with the issue. But the Panel also acknowledged that its independence as a tribunal was challenged by Harry’s argument that it was appointed under an unconstitutional by-law. A challenge to the independence of a tribunal must be dealt with by that tribunal no matter what. This is a fundamental principle of law—not to mention that it is a matter of simple logic. Sadly, the Panel abrogated its legal duty. Its refusal to rule on its own institutional independence is fatal to its legitimacy.
Harry is now likely the only grandparenting paralegal candidate left to complete his good character hearing. The Panel has yet to decide if, at the age of 65, he will be stopped from working as a legal advocate which he has done since 1974.
From 2007 to 2009, the LSUC left him alone as a “Paralegal Candidate”. However in June, 2009, his number came up.
The first 10 days of hearings between the fall of 2009 and the end of 2010 involved efforts by Harry to get disclosure of the case against him and to get a hearing before an unbiased panel. The first Panel chaired by Carl Fleck showed extreme hostility to Harry. Fleck phoned Harry’s prosecutors behind Harry’s back. He also kept Paul Dray as a Panel member although Dray, the LSUC’s poster boy for the takeover of paralegals by the LSUC, was a witness to the proceedings. That biased Committee bared its teeth by hitting Kopyto with a $10,000 costs penalty. The outrageous penalty was imposed on Harry for abandoning his motion for directions regarding disclosure. Fleck’s conduct showed his bias. Fleck’s brazen breach of the LSUC’s own rules was swept under the rug by the LSUC complaints department which refused Harry’s demand to investigate Fleck’s conduct. So, Fleck gets to arbitrarily fine Harry for speaking up in his own defence but is immune from disciplinary procedure.
A second panel was then appointed. However the panel Chair resigned, admitting that there was a perception of bias. That Panel imploded.
Blight Was Well Cast
The Blight Panel took over in January, 2011 as Panel Number 3. Polished, bright-eyed, a friendly smile, promising fairness and a full hearing, Blight took on the post of chairing the Panel judging Kopyto’s character that was dangled before her by Bencher Alan Gold, whom Convocation appointed to run the show. Blight had the right optics. A non-Bencher outside the LSUC’s little circle. An already impressive history of putting out fires in “sensitive cases”. An image of independence, but the track record of a trusted and loyal fixer for the status quo. Sincere? Maybe. Self-aware? Not so much. Critical? Not in this universe.
Blight is a quintessential systems person. A case management specialist. Both federal and provincial Liberal Party governments have used her insight and skills to deal with “difficult” cases. After an initial period of staged coyness about the assignment which included successfully “auditioning” on one of Harry’s motions, she agreed to chair the Panel judging Kopyto. The other members of the Panel include a businessman from Mississauga, Baljit Sikand—with connections to the local Liberty Party, and another paralegal member being groomed by the LSUC, Michele Tamlin. It’s a well-cast harmonious ensemble orchestrated by maestro Bencher Alan Gold that was carefully selected after two embarrassingly failed prior Panel appointments hit some sour notes.
Blight has proven her suitability for the role to the backstage managers who appointed her. She did compel the prosecutors to disgorge some previously withheld disclosure (except for some sensitive documents), though she didn’t have much choice. However, she rejected every one of Harry’s motions brought over a 10 day period designed to give him the same procedural safeguards in the hearing as are available to someone charged with an offence of speeding in a Provincial Court. She ducked dealing with Harry’s constitutional challenge to the Panel’s appointment because the Panel derived its authority from a by-law passed by lawyers that denies access to affordable justice by neutering and colonizing their competing paralegal profession. In so doing, she completely ignored a Supreme Court decision that conflicted with her narrow reasoning and breached the LSUC’s obligation to promote the public interest in her ruling. Now, that the Law Society case against Harry initially designed to picture him as a despicable cheat and fraudster is falling apart, she is trying to case-manage the hearing to a rapid conclusion to stem further bleeding. Blight’s more subtle and nuanced approach provides an appearance of impartiality compared to the earlier panels but her decisions and perceptions reflect the sensibilities of her minders.
LSUC’s Case in Tatters—Now Harry’s Ungovernable
The evidentiary part of the hearing has been an unmitigated disaster for the Law Society right up to the November 22, 2011 hearing. The astounding revelation by the LSUC that Legal Aid never sought compensation for any overbilling by Harry blew a huge hole in the majority disbarment decision written by Bencher Allan Rock, who subsequently ran unsuccessfully for leadership of the federal Liberal Party in the 1990s. Harry’s disbarment was the foundation for the Law Society’s attack on his character. Now, it is melting in the air. As well, the LSUC’s investigator on the stand for five days, has admitted that his investigation’s purported rationale, which was to recommend or not recommend a good character hearing, had been decided even before the investigation of Harry began. Investigator Adrian Greenaway also admitted not unearthing a single example that showed Harry’s good character despite a multi-year investigation. And now, as Harry reviews the so-called complaints against him with Greenaway still on the stand for a fifth day of grueling cross-examination, it is clear that the LSUC’s smear campaign is in tatters. Harry’s penetrating questions of Greenaway’s Investigation Report so weakened their case that the prosecutors have been forced to adopt a new paradigm to frame their attack on him. Now, Harry is “ungovernable”.
Harry’s willingness to assist clients in their high court cases—at the risk of drawing the charge of “unauthorized practice” (UAP)—has become the focus of the prosecutors’ renovated strategy. But is it “bad character” for Harry to help an indigent client who can’t afford lawyer’s fees, especially without charge? Or when no lawyer will do the work? And if UAP is such a sin, why has the LSUC never pursued any charges over decades against Harry for helping whoever needed him? Why have judges even welcomed him to advise clients in their courtrooms and invited him to sit at counsel table during Superior Court proceedings from which the LSUC bans him?
Seventy-Nine Percent Say Rich Get Better Treatment in Courts
Kopyto’s confrontation with the LSUC comes as the LSUC is set to engage in a mandatory five-year review of the paralegal takeover law next year that will have to be approved by the Ontario Legislature. In a May, 2010 Report, Listening to Ontarians, former Conservative Party politician Roy McMurtry who, before retirement, metamorphed into a Superior Court Chief Justice, revealed the enormous dimensions of the crisis of unaffordable justice. Seventy-nine percent of those surveyed by him believed “the legal system works better for rich people than for poor people.” The lawyers’ monopoly over legal fees that drives the cost of legal services to soaring levels and keeps it there is never discussed by the LSUC as if ignoring it means it doesn’t exist. Instead, facile solutions, such as permitting lawyers to “unbundle” their services, are being promoted as a panacea. But the unaffordability of legal services is a burning issue that makes a mockery of the entire judicial system. It is the elephant in the room that the LSUC, with blinkers on, seeks to ignore or pretends to fix with band-aid solutions. Yet, in the words of the Chief Justice of the Supreme Court of Canada, it is the most important crisis facing Canada’s judicial system.
In this context, the fact that Harry has actually survived the hearing process this long, with significant numbers of supporters present at every one of his 25 hearings, is itself an embarrassment to the LSUC. The longer the case lasts, the more the LSUC is vulnerable to exposure as a tool to frame Kopyto. The Emperor has no clothes.
Blight’s Decisions Show her Colours
The rush to “justice” is on. Three days of hearings have been set for Tuesday January 3rd, Thursday January 5th and Tuesday January 10, 2012 and another at the end of January and two more the next month. The outline of areas to cover in cross-examination of witnesses has to be filed by Harry. All hearings are to start at 9:30 a.m. sharp—an ironic edict since the Panel itself has been frequently late or taken up valuable hearing time to discuss its decisions. The Panel, which happily cancelled a scheduled hearing because the prosecution was too busy without a peep, is breathing down Harry’s neck. And it’s not out of love.
Blight has shown a pattern of resisting Harry’s well-founded legal motions with trite and conventional judgments. Her ruling on her lack of jurisdiction to declare By-law 4 unlawful ignored a recent Supreme Court case that criticized the outdated empirical methodology she used in her reasoning. She denied Harry’s friend and co-victim of Law Society harassment, Angie Codina, the right to make legal submissions at a hearing in an area of Angie’s expertise on Harry’s behalf. She denied Harry the right to question the LSUC investigator on how the LSUC system allows it to centralize control of the investigative, prosecutorial and adjudicative functions in support of a motion Harry intends to bring. She has directed that Harry’s supporters, who he intends to call as character witnesses, should be excluded from attendance at hearings since they may be “influenced” by what they hear. She directed a motion challenging this exclusion order to be made in writing in the absence of consent by both parties and therefore in breach of the LSUC’s own rules requiring oral hearings. She has allowed negative decisions about Harry made by hostile judges into evidence without Harry being given a chance to question the judges by requiring them to be present to be cross-examined. She has refused to even consider a review of the thoroughness of the Law Society’s disclosure efforts as if the LSUC could never do wrong.
There is a barely detectable, tacit subtext between senior prosecutor Susan Heakes and Panel Chair Margot Blight who both function as agents within the same institution, share the same loyalties and interact professionally. They both have a job to do and their jobs mesh. They don’t even have to wink at each other as they pass the puck to smack it into the net.
Harry has already announced that he intends to subpoena several judges on whose decisions Blight decided to rely against him to his hearing. As well, Harry is subpoenaing Greenaway’s controllers higher up in the LSUC’s hierarchy to testify on institutional bias based on his bad character following from his disbarment and on the overlay of LSUC functions that breach principles of natural justice. The judges and LSUC handlers are not extremely happy with the prospect of being dragged into the limelight of his public hearing. Sparks will fly. The media may well show interest in these events—something the LSUC dreads and wants Blight to block.
LSUC—Where Power Meets Power Meets Power
The LSUC is not just another regulatory professional institution. It is a horse pretending to gallop in two opposing directions. On the one hand, protecting lawyers’ interests. On the other, pretending to serve the public interest The two clash. It can’t be done. The LSUC fox has the keys to the paralegal chicken coop. Lawyers are eating their squawking competitors alive with feathers flying all over the place. The end result is a price-fixing monopoly.
The LSUC (that is, lawyers), has a statutory mandate to act in the public interest and promote affordable justice. But the judicial system belongs to the public, not to lawyers. Slick and oily lawyers for whom being savvy (yes, they actually use that word in their newspaper job ads) is a job qualification, run the LSUC. The big fish in the LSUC swim in a sea of camouflaged self-interest contaminated with disdain and snide sanctimony. They have a fetishized legalistic focus and seldom see the big picture. They are blind to the influences that shape their perceptions. Ontario went from having one of the best to having one of the worst legal aid plans in the world under the aegis of the LSUC. Cosmetic changes including electing the first female LSUC “Treasurer” in 200 years to head Convocation are purely decorative. The Law Society’s current campaign for civility among lawyers speaks volumes of its efforts to enforce conformity and fear in a profession that masquerades as adversarial but in fact is an Old Boy’s Network.
A boisterous and divided Convocation meeting showed deep divisions within the ranks of the Benchers last year. Many agreed with Justice Corey who warned that the LSUC should never govern paralegals because of their “hate” for them. Only 37% of lawyers bothered to vote in the Bencher elections this May. In such tough times, a $67,000 raise in the Treasurer’s “Honorarium” this year (on top of $125,000 already paid) was obscene beyond imagination. With talent at the top meriting a gift like that, one would think the Treasurer would be able to reduce the continued escalation of dissatisfied clients’ complaints the LSUC receives against lawyers, which will soon top 10,000 annually.
No Transparency or Accountability
The LSUC is where financial power speaks to judicial power speaks to political power. But if the LSUC has money and power, it does not have transparency, accountability and credibility. Its pretence of representing the public interest while actually protecting a price-fixing lawyers’ monopoly is under severe tension. The LSUC feeds on secrecy, a hierarchical mindset and a fetishism of obedience to its most miniscule rules as the ultimate measure of good character. It marginalizes its critics and victims by prosecutorial tunnel-vision and adversarial steam-rolling tactics. Most lawyers are terrified by the LSUC. Few resist it. They know that the wily LSUC adjudicators sit in their own cause.
Harry is standing in the way of the LSUC’s efforts to homogenize legal advocates into a chorus of obedient sycophants. He is playing the same role that he has played since 1974—when he was called to the bar—a fearless gadfly and thorn in the side of a legal system that pays lip service to the cause of affordable justice while delivering empty promises to 99% of the population. They burned with indignation when the Globe and Mail published Harry’s picture and biography on its front page at the height of Harry’s battle against the legal establishment in the 1980s. Never again, they swore, disbarring him on phony charges. But he continued to fight them for another 23 years. Now, they want to finally declare “Game over”. Kopyto is not going quietly into that good night…
The good character hearings for Harry Kopyto continue on January 3, 5 and 10, 2012. The Museum Room at Osgoode Hall. Be there.
|A full report for the November 22, 2011 Harry Kopyto good character proceedings will be posted soon. Thanks for your patience.Harry Kopyto Defence Committee|