The mask is off. Her fangs show. No more friendly chit-chat. Ms. Margot Blight, chairperson of the Good Character Hearing Panel, is red in tooth and claw ready to spring on Harry’s character and tear it from limb to limb. Margot Blight had previously hovered the skies waiting to zero in for the kill. But on February 11, 2013 in the Museum Room at Osgoode Hall, there was already blood on the floor. What will she do to Harry at the next hearing scheduled for Thursday, February 21, 2013 at 9:30 a.m. at Osgoode Hall? One thing for sure: there will be more blood.
The Big Issue: Disclosure
There was a time, Harry thought, he had chance. Scratch that. There was a time for subtlety. That’s gone. There was time to pretend that minds were open. Forget it. The Blight panel, charged with assessing Harry’s suitability to be grandparented as a paralegal, has clearly made up its mind. It’s going the whole nine yards against him. But if the Blight panel’s treatment of Harry is not a pretty sight, at least it is extraordinarily revealing.
The big issue was the panel’s ruling on Harry’s disclosure motion. He sought release to him of the telling and revealing file the Society compiled on him in connection with his disbarment in 1989. Harry needs the documents for a number of reasons. One is to show that his disbarment was without foundation as the finding of fraud for submitting “false” accounts to Legal Aid could not stand legally without evidence of a loss to Legal Aid. (Legal Aid never claimed compensation for the fees it paid Harry for his alleged “overbilled” accounts because there was in fact no “overbilling”—just improper tracking of times and dates).
Harry also needs the file to support a collateral attack that he is making on the decision to disbar him before the panel. The Law Society, Harry argued, lost jurisdiction when it disbarred him without evidence of the essential ingredient of deprivation. Therefore, Blight can reconsider the decision to disbar him. (But that is something that Blight loudly and repeatedly refused to do echoing the same objections made by the Law Society prosecutors.) Next, he wanted the disbarment file to show why he did not need to feel remorse for a “fraud” that never occurred. Finally, in respect to the Law Society’s charge that he failed to cooperate with their investigator (Adrian Greenaway) of his current character, he needed to show that there was an objective basis for his insistence that Greenaway provide him with full disclosure of the complaints against Harry before meeting with this biased investigator. His evidence of the abuse of process in his disbarment proceedings documented in that file would validate Harry’s wariness in the investigation of his character for the current hearing.
Blight’s Agenda—Shut Kopyto Down, Deny Him a Platform
Had the Blight panel decided to give Harry the file, he would be receiving all the details and documents to show how the Law Society abused its own process and acted maliciously in driving him out of the legal profession in 1989. Only a year or two prior to his disbarment, Kopyto had struck a major blow in favour of freedom of expression by succeeding in a constitutional striking down of a criminal charge laid against him of “scandalizing the court” (a form of contempt.) Kopyto won his stunning victory on appeal from his criminal conviction for making the offending statement criticizing the close connection between police and the courts. Kopyto was hailed by the media (nine editorials in the Toronto papers supporting him), the public at large and most lawyers for standing up against Big Law. (Even Blight admitted supporting him at that time.) The LSUC, alarmed by Harry’s defiance and popularity, laid charges of professional misconduct against Harry for making his famous “Krazy-Glue” statement. But it abandoned its own prosecution of him after deciding it would be more effective to build a case against him by exaggerating minor errors in his accounts to Legal Aid which the LSUC falsely transformed into allegations of fraudulent billing.
Blight had postponed Kopyto’s motion for disclosure, brought initially in 2009 before an earlier panel, until February 11, 2013. Would she abide by the most basic obligations of providing a fair hearing by granting the disclosure? Or would she shamelessly cover up the conduct of the LSUC’s past ghosts, whose litany of venal deeds now threatened to rise out of their graves to engulf and haunt the panel if the motion were allowed?
Margot Blight was brought in to shut Harry down, not to give him a platform. Hers was the third LSUC good character hearing panel appointed after two others dissipated into thin air under Harry’s blows. LSUC Bencher Alan Gold, who runs the hearings, needed somebody to do the job. Blight had the skills to do it with aplomb, he thought. And so Blight responded, “Aye, aye, Captain!” and took on the job, undoubtedly moving closer to a judgeship in her mind.
Blight Hides a Mountain of Evidence of Malfeasance
There was not too much room for aplomb last Monday, although there was plenty of room for crudeness. Blight’s fealty to Big Law was showing when she made her clumsily delivered decision on the disclosure motion scribbled by hand during the lunch break on February 11th. (Look how seriously they consider Harry’s submissions.) This was Blight’s ruling for refusing disclosure of what amounts to a mountain of evidence of malfeasance:
- Kopyto’s disbarment is a “judicial fact”. (What this means is that reality does not have any place in the judicial process since the courts can do no wrong.)
- The Rob Ford case decided in January by the Divisional Court which Harry relied on to show that a decision made without jurisdiction such as his disbarment could be attacked, was not relevant. (Nothing further? Why was there no explanation why it was not relevant? Could it be that there was nothing Blight could say because the Ford decision was clearly relevant?)
- The disbarment file is not relevant to the issue of remorse since the sincerity of Harry’s belief that he did not commit fraud is not being challenged by the LSUC prosecutors. (A neat lawyer’s twist!)
- Blight “won’t revisit” the issues of Law Society abuse in the disbarment proceedings because Harry should have protested his treatment at that time. (Excuse me? What’s that got to do with the time of day? Aren’t you barring Harry from obtaining evidence to justify his mindset in dealing with the LSUC current investigation of his character?) In any event, Harry pointed out that there was a finding of abuse of process for the Law Society’s refusal to issue subpoenas at the time of disbarment.)
If Blight had granted Harry access to the disbarment file, which he was given page by page disclosure of in 1989, it would have revealed the following dirty tricks:
- Law Society prosecutors were found guilty of abuse of process by an LSUC panel for denying Harry and his associate the right to issue subpoenas to witnesses in their defence.
- The Law Society Discipline Department directed auditors to misrepresent their intentions and to lie in their investigation of Harry and his associate by giving false reasons why they wanted to obtain files from Harry’s associate.
- The LSUC also had evidence that Legal Aid never lost any money as a result of Harry’s billings which was the basis for his disbarment—a fatal flaw to their fraud allegations against Harry.
- The LSUC prosecutors tried to induce Harry into resigning with the blackmail promise to him that they would drop unrelated charges against his associate if he would only resign, a glaring abuse of authority.
- The file would reveal the LSUC’s strategy of going after Harry because of his role as a non-conformist gadfly, especially in light of his dramatic victory a year or two earlier in having the law of “scandalizing the court” abolished.
Had Blight allowed Harry page by page disclosure of the relevant LSUC files, she would have done exactly the opposite of what she was appointed to do. It was never going to happen. If Harry Kopyto believed that it was, he was being naïve.
Blight’s Reasoning Strained and Shallow
Yet the shallowness of Blight’s reasoning, the strained logic of her decision to refuse disclosure as well as her abject refusal to deal with the implications of the Ford decision as a legal precedent allowing her to review the legitimacy of Harry’s disbarment dramatically revealed her bias. [This was the second denial of a motion which would have gored the Law Society ox. The first was the motion to declare that By-law 4 was unconstitutional.]
There is a patterned cacophony that is replayed sometimes several times each hearing day. The LSUC prosecutors object to an exhibit that Harry wants to introduce—a landmark case, evidence of LSUC abuse, evidence of the negative effects on affordable access to justice created by the LSUC’s unauthorized practice rules, etc. The prosecutors submit that the exhibit is irrelevant to evaluating Harry’s character. (It is too dated. It is not related to his “current character,” it is too remote, etc.). The Blight panel secretly agrees with the prosecutors but cannot show it because they have a different role. So Blight turns to Harry and admits his exhibit (Oh, how fair she is!) despite the fact that its relevance is “hanging by a thread” as she unabashedly tells him at the same time winking at the prosecutors who chortle with glee at Blight’s less than subliminal messaging. Yet what objective judge makes rulings on the weight to be given to evidence in the middle of a hearing? Has the panel already decided what it will rule and what is relevant and important without seeing the big picture at the end of the hearing and without hearing Harry’s submissions? How fair and just is that? In case Harry is too dense to figure it out, she tells him—no kidding—that it’s his show and she is gong to allow him to introduce his evidence for that reason alone but not because it will influence the panel. Take that, Mr. Kopyto!
No Need For a Fix
The hearing panel has become impervious to independent judgment over numerous hearing days since it was appointed in January, 2011. The paralegal appointee to the panel, Michelle Tamlin gives the appearance of either being overwhelmed or bored. (The hearing was delayed for half an hour one day when she had gone out for a smoke and couldn’t be found.) Panel member Baljit Sikand, a successful Mississauga businessman and Liberal Party local luminary, has adopted the role of a diplomat appearing to soften the sharp edges of Blight’s killer instinct. As Ms. Blight is the only panel member consistently keeping serious notes of the proceedings, the two other panel members are completely dependent on her [they’re dependent on her because of her mastery of the law and experience as a lawyer in whom they’ve placed their trust]. They know it and are unlikely to dare take her on, even if so inclined. The panel members’ mutual loyalty has been cemented by at least two dozen decisions unanimously made against Harry during the hearing. Even if they are not aware of it, their judgments, although sincere, are shaped by those who appoint them, who pay them, by what is expected of them and by where their own future ambitions and interests lie. With a panel like this, there is no need for a fix.
Blight’s newly aggressive and bold antagonism to Harry showed in many ways during the hearing last Monday. Realizing that she could not arbitrarily block Harry from continuing to give his own personal evidence under oath, as she had previously announced she would, Blight instead ordered him to organize his files into topics and directed him to submit them within five working days. Embarrassed by such an oppressively short deadline, panel member Sikand whispered in Blight’s ear asking her to extend the deadline to March 4th which she partially did while boasting and admonishing Harry about how kind and giving she was by bending to his protests. When the Law Society prosecutors demanded monetary punishment for Kopyto for daring to make his disclosure motion, she agreed to consider imposing costs on Harry for failed motions that he had brought in the past as well as for the motion for disclosure of his disbarment file. She refused to admit exhibits of correspondence with lawyers who accepted Harry as a valid representative of clients in cases where only lawyers were allowed to practice under LSUC rules. She ignored his protests that the LSUC has initiated a renewed investigation of his character with a new investigator, Peter Stehouwer, requiring him to once again produce reference letters in the middle of the current hearing! (Talk about harassment!) She scheduled several more hearing days reaching into June, establishing a grueling schedule in her drive to get the hearings over with.
Authority, Not Objectivity, Rules
With LSUC prosecutors cracking whips over the panel’s heads and with the panel’s spirit of triumphalism filling the hearing room, all traces of a pretence of fairness are fast fading. Fundamental procedural rights are thwarted. Legal cases that should bind Blight’s panel are ignored or not addressed. Evidence is declared of minimal relevance in glaring breach of the panel’s obligation to keep an open mind until all the evidence is in. Harry’s style of presenting evidence (something only he can determine) is re-calibrated to Blight’s suiting and is imposed upon him. Blight’s personal undertaking to treat Harry fairly, which she promised him she would do on the first day when she accepted the role of Panel Chair, is now a distant faded meaningless echo. Authority, not objectivity, rules in the Museum Room at Osgoode Hall in downtown Toronto and will continue to do so when Harry reappears before the panel on Thursday February 21, 2013 at 9:30 a.m.
The lines are drawn. We now know where Blight stands. Which side are you on?
Harry’s legal career both as a lawyer and a paralegal from 1974 onwards has been as a voice for the dispossessed, those without power and influence and those without the lucre to buy justice. As he has stood by us, we now have to stand by him and make the panel aware that its deliberations are not being made in a vacuum. Many of Harry’s supporters have shown up as witnesses, supporters, and advisors at the proceedings. The panel and prosecutors have an uncomfortable awareness of this public scrutiny. Continue to let Blight know that her fangs are visible behind her confident and capricious smile. Keep on letting the panel know that their prejudgment of Harry’s evidence is being observed, noted and opposed. Your presence and support at the hearing next Thursday is appreciated and needed more than ever before. Be there.