In a decision that will likely become the subject of an appeal, Harry is being shut down. On March 8, 2013, he was given five more days to finish his personal testimony before decamping his tent off the witness stand and heading back to the shoals.
Never before has a Law Society (LSUC) panel or—as far as we know—a judge, imposed a deadline on a party who was giving relevant evidence. Law Society Panel chair Margot Blight admitted the decision to limit Harry’s evidence was “arbitrary” (her word). The Law Society prosecutors had been ordered by Blight to provide her with legal precedents for her decision. They accessed their network of electronic databases and came up with an empty bucket. Still, Blight had to go there. What choice did she have?
Central Command Scopes the War Zone
Dozens and dozens of days of hearings have dragged on. The hundredth hearing day is on the horizon. Harry filed his application to be grandparented as a paralegal in 2007. The hearings started in 2009. Harry jokes about being past his retirement age. (He’s kidding, we hope, but he won’t be 66 again). Hearing dates are now outstanding right into June. Harry still has to call his witnesses. Everyone seems tired. Everyone is unhappier than they were 50 or 60 hearing days ago. There are fewer witticisms traded across Osgoode Hall’s Museum Room which has been virtually expropriated for the hearings. Exasperation has replaced adjudication. The lines are drawn. Positions have been taken, defended and encased in concrete. You wanna bet nobody is gonna change their mind? Everyone knows it. But nobody says it: the deed is done. (Sorry, Lady MacBeth).
Still, there is a protocol to be followed. You usually can’t see them or feel them but the gray suits are watching. Who was that stern woman sitting in the Museum Room’s corner next to the entrance on March 8th? Was she scoping the war zone from Central Command? It may be likely, given the way LSUC senior Prosecutor Susan Heakes hobnobbed with her during a key point in the session.
The Hearing Panel, which scrutinizes the audience as carefully as it does them, knows the pressure and feels it. Case-management maven Margot has tried every trick in (and also out) of the book to prod that pesky Harry along. Give us your topics! Provide six tabbed copies of all your exhibits! Give us a detailed plan of your evidence! You’re messy! You’re interrupting me, etc., etc., etc. She has used threats, chicanery and ridicule on Harry. Nothing has worked.
Plan B: Monsieur Guillotine
The spark for shutting Kopyto down was lit several hearing days ago. After the second anniversary of Blight’s reign, the prosecutors started beating their drums over and over: Harry is repeating himself (code for “cut him off”)! Blight chimed in, “You’re disorganized, aren’t you?” (Aha! Another reason!) Precisely these same accusations were cited by Blight to justify putting Harry’s evidence to the guillotine on March 8, 2013. It’s all she’s got on him. This patently contrived picture of Harry provided a lame excuse to shut him down. Not especially clever of Ms. Blight, but full of guile.
Arguably, some repetition over 60 days of hearings over three years should not set the alarm bells ringing. Her perception of Harry’s “disorganization” arises from Blight’s desire to change his style of presentation. It has been based on documents or public records and media accounts of his legal work introduced by him as exhibits with commentary. Initially, this style was explicitly accepted as valid by Blight. But she had no idea! Kopyto used each new exhibit to illustrate points he had already made in the abstract thereby drawing a charge of repetition. Harry’s endless stream of public media reports of his wide-ranging legal achievements almost drowned her in a tsunami of exhibits. By validating his method of presentation, Blight never expected that she had given Harry a licence to continue “forever”.
So, suddenly switching to recovery mode, the ever-resourceful Blight altered her course 180 degrees. She “directed” Kopyto to reassemble hundreds of his proposed exhibits and organize them into “topics” to satisfy her linear thought patterns. She set short deadlines that Kopyto could not meet. She persistently interrupted his testimony in what appeared to be a case of case-management Turrets Syndrome with refrains such as “You’ve already said that”, “You’ve told us that before,” and “We’ve heard that many, many times”, etc. Her efforts to micromanage Harry’s evidence into a topical or chronological order, the better to assess its length and rush it through, failed abysmally. Harry eschewed abiding by her direction. (Tut! Tut! Kopyto—you’re ungovernable!) Hence Plan “B”—Monsieur Guillotine.
Show-and-Tell Time in Law Society Kindergarten
Blight lost something important by harassing Kopyto during several days of his personal testimony. Her ongoing badgering of Harry, tag-teamed with the two LSUC prosecutors with whom there was some very intense and not so subtle messaging, violates the judicial principal that prevents judges from unduly intervening in the arena of battle. Interference with the style of presentation of evidence is usually verboten territory for a good judge. And on top of that, the Panel has clearly breached its two basic obligations. One is to remain open-minded. (But what if your mind was never “open” to begin with?) The other is to listen. (Failed again.)
The decision to truncate Kopyto’s testimony was not the only hammer that came down on his head at the last hearing date. The Law Society announced it wanted Kopyto to pay over $43,000 in costs for failed motions brought by him before the Blight Panel. Unlike those of us who believe that justice has no price, it seems that the cost of justice in the eyes of the lawyers who drafted the Law Society’s rules is high indeed. Blight, who has so far attempted to preserve her aura of neutrality in part by postponing the Panel’s ruling on the Law Society’s demand for a pound of Harry’s flesh, is now forced to show her hand. This will likely happen at the next hearing date, Wednesday March 27th.
The March 8th hearing marked a revealing point in the trial of Harry Kopyto. It was show-and-tell time in the LSUC kindergarten. Now that Kopyto’s right to defend himself has been cast off as a pretence, the gamut of role-playing, criticism and threats from the Panel has dramatically receded. Kopyto, who believed that Blight’s new-found ultra-aggressive stance shown by her during the previous hearing date was only the beginning, miscalculated. With the end of his testimony on the horizon, a collective sigh of relief infused the hearing room from the direction of the Panel. Blight grew noticeably more calm. After making the cut-off decision, she again put on her mask of fairness that had been gathering dust in the corner. No more snarling. No more scowling. No more “You are arguing with me, Mr. Kopyto!” or “May the record show…” from the LSUC’s chief prosecutor. Now, we can all be friends, right?
Blight Blows Kisses to Harry
Almost throwing kisses in his direction, Blight promised Harry a full five days to do as he wanted. She promised him she would no longer interfere with his evidence (unless of course, the prosecutors object.) She promised not to try to influence his style of presentation. She acknowledged at least one member of the audience whose case Harry testified about on March 8th as a frequent attendee at the hearings. In contrast to her previous imperious disdain, she even drew details of a case he was describing to Harry’s attention. She assured him that she had read the over 200 exhibits he had filed at the last hearing, even rhyming off the names of some of Harry’s clients. It’s easy to be nice to someone whose right to be heard you have just brutally amputated.
In a different tone, as if to mark a passage, Blight also summarized her holy trilogy over the past two days. This is what she told Harry:
- Your disbarment is an unassailable weighty “judicial fact” that neither reason nor reality can erase. (The courts can do no wrong.)
- Your acknowledged legal achievements during the 1970s and 1980s are too remote to be relevant (Unanswered Question: so why is Harry’s disbarment for events in 1984-86 so significant?)
- Your unauthorized practice, your breach of an order not to communicate with lawyer Joseph Markin who represented many of your clients and your refusal to co-operate in the investigation of your character are matters “of concern”— translation: that means these are hanging offences—to the Panel. (Excuse me? Since when did rule-obedience become the test of good character, which is defined in law as “empathy, courage, candour and integrity”?)
Blight Sings Same Old Song
The emergence of the “good” Ms. Blight and the concurrent disappearance of the “bad” Ms. Blight is just a cosmetic change: it’s still the same old song. Blight’s soliloquy was delivered in a deflated tone of voice immediately after she imposed the time limit on Harry. It was obvious that her gag order symbolized a turning point in the hearings. In a real sense, it marked a defeat for Ms. Blight. She failed in her main duty—to appear to allow Harry to be fully heard. And she failed to case-manage him with her bullying persona. And… she also gave him a powerful ground of appeal.
Now it was Harry’s turn. Relaxed and unhurried, he told the panel what goes through his mind when he helps clients who can’t afford lawyers (his Capital Crime). First, he identified a functioning judicial system as key to a civilized state. Governments have two main functions: to provide security and to establish a fair, accessible and peaceful way to resolve differences. Then, he argued that access to justice is a basic right. Otherwise, the judicial system takes on an exclusive class character. “Money rules,” Kopyto told the Panel. Third, he looks at the effect of denying people a legal remedy or defence. This harms the public interest. It denies Charter-sanctioned rights like equality, the right to a fair trial and fundamental justice. Affordable judicial access lessens anger and promotes respect for the law by allowing citizens to be heard by a judicial body and to be adequately represented. Finally, he considers the loss of integrity to the person who is denied a peaceful way of enforcing his or her rights as well as the loss to the integrity of the judicial system in the eyes of those brutally and unfairly excluded from it.
So why is it that, despite these truths, the majority of Canadians cannot afford legal representation, especially in civil litigation? By providing some assistance to those who can’t pay a lawyer’s fees, Harry breathes life in practice into the atrophying constitutional principle of affordable access to justice. In Harry’s mind, as stated in his testimony to the impatient Panel, the needs of his clients outweigh the risk to his career from what the Law Society calls “unauthorized practice”.
What a Mensch Has Got To Do
Harry shrugs his shoulders when confronted with the dilemma of breaching a minor regulatory rule in order to protect, defend and expand a fundamental constitutional right. “So what?” he asks, using a favourite expression, “A mensch has got to do what a mensch has got to do.” Yet there is something deadly serious about what is at stake: Harry’s career as an advocate.
Harry also described to the Panel how he tries to achieve success in his precedent- setting cases. He sees the courts as social and political institutions that are subject to direct and indirect pressures and influences just like every other institution. Pressures can come from various external social forces. Harry tries to give voice to those who lack affordable access to justice. When he wins an important precedent for them, it is not because of a clever argument. It is because of what he described to the Panel as “the balance of forces”. He has no more control over the outcome of his game-changing cases “than I have over what you decide in my case,” he told the Panel.
Much of Harry’s responding soliloquy does not fit the predetermined pattern pursued by most good character applicants. Usually, the miscreant being dragged to judgment produces character references from rabbis and ministers. He or she profusely apologizes for the wrongs they are accused of. They beg for mercy on bended knees. They renounce their past sins. No direct eye contact—just frightful sobs punctuating their pleas for forgiveness and fervent promises never to offend again. To a man (or woman), they obsequiously genuflect before the Panel with their quivering hands clasped together in front of them and their heads bent downwards.
Harry Speaks Truth to Power
Not Harry. Defiant and bold, he lays it out. He tells the Panel that he sees himself as an educator, an advocate and an artist using humanity as his medium! The Panel already knows that he sees his hearings as a tool to set aside the takeover of paralegals by their lawyer-competitors thereby restricting access to affordable justice. Harry writes his own script. And it starts with the echo of the famous words, “J’accuse!” Everyone remembers that Harry started his evidence by asking the Panel to join him in his battle for affordable justice by doing their job which is to measure his character and not to act like a mouthpiece protecting the financial interest of a lawyers’ monopoly over legal services.
Ultimately it is the Panel, not Kopyto, which is off the script. The Panel has breached its mandate. Harry’s character is the only issue before them. Is he empathic? Does he feel the pain of others as his own? Is he courageous? Does he risk his comforts for the betterment of others? Does he have moral integrity? Does he pass by and pretend he does not see those in need? Does he have candour? Does he speak truth to power?
Instead of answering these questions which will reveal Harry’s moral character, the Panel has transformed itself into a Discipline Panel. It is seeking to punish Harry for perceived transgressions of its regulatory rules designed to serve the financial interests of a monopolistic, professional, privatized club. This is not its mandate. It’s not the proper focus for a gatekeeper assessing who can participate in a public justice system. The Panel’s focus is narrow. It blinds itself from seeing the big picture—that Harry’s sins flow from the gross indignities of a legal system that the majority of Canadians cannot afford to access.
Some of the greatest moral figures in human history—from Jesus and Socrates to modern day figures like Nelson Mandela, Mahatma Gandhi and Rosa Parks had to break unjust laws or laws that had unjust effects to better humanity. This has now been recognized as a sign of their moral strength, not a weakness. It is the Law Society that is in denial of Harry’s moral resources. And it is Harry who is rooted in the real moral world.
Kopyto’s case is not personal. It is political. And the Law Society’s prosecution of Harry is also ultimately, a (camouflaged) political act. What happens to Harry will help determine what happens to all of us. Whether it admits or not, on a certain level, the Panel also knows this. And, in large part, this is so because it knows it is being watched. All the more reason to continue to support Harry. Public passivity only gives a green light to those who benefit from the status quo.
Attend the next hearing date on Wednesday March 27, 2013 at the Museum Room, Osgoode Hall 9:30 a.m. Be part of the solution. We need you there.