BLIGHT AND HEAKES – TWO SPARRING PUPPETS STRUNG TO ONE HAND

Blight Gives Green Light to Heakes’ Attacks

It is part of the image groomed by the Law Society of Upper Canada (LSUC) to appear fair. In fact, lead LSUC Discipline Counsel Susan Heakes, charged with proving Harry’s poor character to block his licensing as a paralegal, has gone further. At an earlier hearing, she proudly declared that the LSUC has the obligation to set the utmost standard of fairness. That standard, in the prosecutorial context, usually involves an independent and disinterested tribunal, disclosure, a full opportunity to be heard and respectful and fair conduct in dealing with their opponents.  In Harry Kopyto’s good character hearing, each one of these principles has been egregiously breached.

The predisposition of the LSUC to prejudge Harry as guilty of poor character became dramatically evident earlier this month.  At least 4 or 5 times, Heakes has brazenly warned the Panel assessing Harry Kopyto’s good character that the length of the proceedings allows Harry Kopyto to continue to practice as a paralegal. She repeated this ominous warning at the conclusion of the last hearing day on January 10, 2012 as if “outing” Kopyto’s scheming gameplan to the naïve panel in her stern lecturing tone and presuming that the Panel will find him guilty of poor character.

Panel Chair Margot Blight’s response to Heakes was to admonish Harry Kopyto for not hurrying things up.  She, in the role of an adjudicator, therefore implicitly accepted the validity of Prosecutor Heakes’ blatant intrusion of the Panel’s independence. Is this an appropriate response from the supposedly neutral Panel Chair?

The issue can be divided into two parts: the efficiency of the cross-examination process and the appropriateness of Heakes’ comments and Blight’s response. As to the first matter, the perceived efficiency of cross-examination should have absolutely no bearing on whether Harry continues to practice as a paralegal or not. Otherwise, there goes the presumption of innocence. The time taken to elicit evidence should be based solely on the criteria relevant to a search for justice.  What Heakes’ little dramatic explosion ignores is that the time taken in cross-examining investigator Adrian Greenaway has escalated because of 3 additional complaints against Harry added by the LSUC last October and by dramatic revelations made by Greenaway that undermine the LSUC’s case and opened new fruitful lines of questioning.  Even if the Prosecutor sees fit to ignore these facts, why should the Panel?

No Nuzzling Allowed During Game Time, Please

As to the second matter, LSUC Prosecutor Susan Heakes’ comments are based on the foregone conclusion that the Tribunal will eventually find Harry guilty of poor character, so the process intentionally elongated by Harry’s nefarious machinations should be hurried up.  It is an admonition to the Panel Chair to fulfill a duty to her handlers in the Law Society—to expeditiously deprive Harry Kopyto of his role as a paralegal.  One who believes that the Panel should function as neutral adjudicators would find such a comment an affront to the Panel’s integrity. Rushed justice is poor justice.   Heakes telegraphs to Blight, “We know Harry will lose. Bring him to heel now!”

It may be that Heakes knows more about Blight and her predispositions than we do.  After all, they both share an employer, move in the same circles and share the same attitudes and perceptions.  But Blight has an image of neutrality and objectivity to project as a judge. She cannot be seen to be on the same wavelength as a party to the proceedings since the façade of neutrality would soon fade.  So there has to be an appearance of distance.  No nuzzling allowed during game time, please! None of this would suggest that there is a conspiracy, of course.  But who needs a conspiracy when the strings in this puppet show are all held by one hand?

One would expect, under these circumstances, that a truly independent Panel Chair would issue a stern warning to Ms. Heakes to not presume to tell the Panel that it should treat Harry’s case as having been decided and to allow the proceedings that have already progressed through 28 days to continue at a normal pace.  Perhaps, one might speculate, Ms. Blight was preoccupied at the end of the session and missed the implicit attack against her integrity for not abridging Harry’s cross-examination of Greenaway more forcefully.  Or maybe Blight has a difficult balancing act. However, this is not the first or second or even third instance of such a menacing utterance from Ms. Heakes.  Moreover, on a previous occasion, Harry brought this personal attack on his motives by Ms. Heakes to the Tribunal’s attention and protested vigorously. Ms. Blight’s response at that time? To make a show of trying to deflate tensions.  But times have changed.  Blight now no longer gives the appearance of taking her distance from Heakes’ personal attacks and even cracks the whip over Harry’s head herself.

Wink! Wink! We Know Harry is Guilty

Harry brought a challenge to the Tribunal on natural justice grounds before evidence was heard. He argued that the intersection of adjudicative, prosecutorial, investigative and administrative functions by closely related bureaucrats amounted to the Law Society’s sitting in its own cause.  Blight deflected the challenge to the end of the evidentiary portion of the good character hearing, but since then severely limited Harry’s cross-examination of Greenaway on this issue. Now, we are tasting the bitter fruit of the Blight Panel not allowing Harry’s challenge to be heard first, as would ordinarily be the case given the denial of procedural fairness that Harry alleged in his argument. The LSUC bureaucracy, which has appointed both the Panel and the prosecutors, is manifesting its invisible hand through hostile warnings and presumptions of Harry’s guilt advanced by its prosecutorial component to its quasi-judicial component. Wink!  Wink!  We know Harry is guilty.  The Law Society’s left hand is telling its right hand to hurry up and bury Harry Kopyto.  And the message has not been lost on Blight who now routinely perks up her ears to Heakes’ transmissions of her handlers’ impatience.

Blight took the opportunity of Heakes’ attack on Harry to tell him that the Panel “is also losing patience”.  She ordered him to file a “cross-examination plan” of Greenaway with time estimates. She directed him to identify remaining topics for cross-examination.  She warned that the Panel was “signaling” Harry that his cross-examination was counterproductive by generating responses that revealed new allegations against him.  She remonstrated with Harry about how the Panel had given him broad leeway by listening to his various “theories” (that word slipped out of her lips with only a slightly camouflaged disparaging tone).  And she handed down her own admonitions without even consulting the other two Panel members, whose adherence to her rulings has hardened by repeated unanimous decisions refusing virtually every one of Harry’s contested motions for over a year.

Blight Auditions–Earns Starring Role

What is at work here?  Surely, if she is running out of patience, as she says, Blight should consider recusing herself from the Panel.  Patience is the hallmark of a neutral judge and a prerequisite for a full and fair hearing. As Harry has rebuked her in return, “Ms. Blight, you have no business managing my cross-examination. The law forbids such interference.  If a question asked in cross-examination is relevant, it must be allowed. As you surely know, sometimes repeating a question during cross-examination has the effect of evoking a previously hidden response.  Every day of cross-examination—including the repetition of certain questions to Greenaway—has provided information helpful to my defence.”

Aside from the structural bias inherent in having unitary control of all the actors in Harry’s hearing, Blight also has concerns that she may not be perceived as discharging her mandate effectively. She accepted her role only tentatively as an “outsider” called upon to deal with a problematic proceeding after two Panels chaired by Benchers dramatically imploded under hammer blows from Harry. She confirmed her willingness to become chair of Harry’s Hearing Panel only after astutely finessing, in her first assigned capacity as a Motions Panel chair, Harry’s constitutional challenge to the law that allowed lawyers to rule over competing paralegals. Since passing that audition and accepting the starring role, she has robotically ruled down every single motion brought by Harry to limit the one-sided procedural rules that suffocate the rights of those dragged before the usually Bencher-dominated Panels. However, Harry’s feisty defence has meant that the Blight Panel is moving into its second year of hearings. (Tut, tut. Too long.)

Big Law Salivates for Harry’s Destruction

The mandarins in the recessed tea-rooms off Osgoode Hall’s elegant Victorian hallways are indeed impatient with the process.  Even one day of Harry in the courts is too long for them. Indirect heat emanates fiercely from Discipline Counsel as was seen on January 10, 2012.  But Margot Blight, whose self-image as a case management maestro is wilting at the edges after 18 of the 28 days of hearings chaired by her, is also challenged by the length of time taken to destroy Harry professionally – which Big Law salivates for.  Blight has a reputation to maintain and a promise to keep.  But impatience claims a prize.  Blight’s image as a fair adjudicator is not enhanced by her expressions of impatience, by taking the other Panelists for granted and by time-consuming clashes with Harry who tends to become increasingly assertive in defending his rights when under attack.  Blight is definitely not a happy lady.  She is still unable to see the end of the tunnel after 13 months of case-management (code word for rushing the hearings through the system).  Undoubtedly, like many other adjudicators, being perceived as being used by Harry puts the fear of death in her.

Harry’s continued refusal to heel by abridging his defence is only part of the troublesome picture.  The evidence at the hearing itself has created embarrassment to the LSUC. It was never part of Blight’s agenda to allow Harry to expose the myth of fraudulent billings to Legal Aid, for which Kopyto was led to ritualistic slaughter by the Benchers in 1989.  This gaping hole in the centrepiece of the LSUC’s initial case against Harry’s honesty was exposed as contrived during Harry’s cross-examination of Greenaway under Blight’s watch. The savvy prosecutors soon adjusted their strategy by shifting focus to Harry’s supposed “ungovernability” as their main focus.

Blight Protects Greenaway from Potential Scandal

Moreover, in the course of cross-examining the main witness against Harry, LSUC investigator Greenaway admitted conduct in his prior career as a cop that a Toronto judge found to be outrageous, shocking the conscience of the community and bringing the administration of justice into disrepute for his participation in what has been called a panty-raid of a lesbian gathering at the Pussy Palace in downtown Toronto in 2000. When Kopyto questioned whether he revealed Judge Hyrn’s condemnation of him when applying for his LSUC job, Blight, with a fine Italian hand, deftly disallowed that question thereby protecting the LSUC and Greenaway from a potential scandal, as he would never have been hired by the LSUC if he revealed such a devastating judgment of his own conduct and character. As a public law savant promoted for her ability to extinguish fires, Blight does not relish fleeing the scene with flames licking at her own heels.

And so, with two more hearing dates on the horizon, Monday February 27th and Wednesday February 29th, the show goes on.  Kopyto continues to insist on his rights. Blight continues to rush him, if not indirectly endorsing Heakes’ trashing of him. Heakes continues to snap the whip over his head calling for the end of the pretence of fairness. Ms. Blight, can’t you almost hear Heakes pleading, “Don’t be fooled by Harry.  He is benefiting from your fairness. Haven’t you seen enough?  Isn’t it obvious that Harry won’t allow us to control him?  Defiant. No remorse.  What else do you need?”

Another question arises. What does Harry need?  Not to be prejudged. Not to have his motives questioned by attack dog tactics in the style of Susan Heakes. To be judged by adjudicators who know how to hear as well as listen.  To be allowed to ask relevant questions without being harassed. To have his character assessed by judges with the patience to do the job right.  To have natural justice trump efficiency and speed.

And, dare we dream, to be judged by a truly independent panel that reflects the public interest and not selected by and beholden to the self-interest of a price-fixing monopoly.

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