Kopyto’s Legal Career Sparks Social Change

Harry faces two days of grilling starting Thursday, June 6th and continuing Wednesday, June 19th before a Law Society Panel judging his character at the Museum room at Osgoode Hall,  at 9:30 a.m.  Fasten your seatbelts. The battle is likely to rage.

May 23rd was the last day of testimony given by Harry Kopyto in his “good character” hearing before a panel of the Law Society (LSUC) that will rule on his grandparenting application to work as a paralegal.  Next on the agenda of Big Law?  Harry will be cross-examined on June 6th and 19th.   Same time. Same place.

Harry Shatters Legal Barriers For Gays

There was a major theme that flowed through Harry’s evidence on May 23rd.  The theme touched on the scope and significance of Harry’s legal career since 1974.  He used the day to describe some of the key cases that have shattered legal barriers and established precedents for others to follow. One such case involved John Damien. It was the first civil gay rights case in North America, and likely the world. John Damien started his suit in the 1970s against the Ontario government for firing him from his job as chair of a panel of three judges of the Ontario Racing Commission. Every day, they made decisions that could affect hundreds of thousands of dollars being bet on horse races. The rationale for his firing? That he could be blackmailed.  Yet how could he be blackmailed if he never hid his sexual orientation?

The widespread attention and support for John Damien and the success of his case led directly to the decision of the Ontario Human Rights Commission in the early 1980s to include sexual orientation as a prohibited ground of discrimination.  Damien, by going public under Harry’s direction, became an iconic inspiration for hundreds, if not thousands, to exit the closet and assert their humanity.  Harry kickstarted the earliest phase of the gay and lesbian rights movements in Canada.

Also during the 1970s, Kopyto argued the first gay rights case to reach the Supreme Court of Canada.  He represented the Vancouver-based Gay Alliance Towards Equality (“GATE”) based in Vancouver against the Vancouver Sun. The Vancouver Sun refused to publish an innocuous two-line paid ad for GATE’s newsletter. The bitterly fought case eventually reached a rare session of a full nine-judge Supreme Court bench. Following Harry’s dramatic address to the court, the judges split three ways. The majority, led by the three Quebec Catholic appointees, used freedom of the press to trump gay rights. The court’s decision became mandatory reading in constitutional law courses in law schools across the country over decades and ended up being regarded as the key freedom of the press case in the last half of the twentieth century in Canada. Nonetheless, the real victory lay in the subsequent mobilization of pro-gay rights forces who succeeded in putting pressure on provincial governments to alter their human rights codes to include sexual orientation.

Kopyto Battles Dirty Tricks by RCMP Security Service

Next, Harry described a series of suits against the RCMP Security Service which also involved appearances in the 1970s and 1980s before an Ontario Public Commission under Justice Krever and the federal McDonald Royal Commission.  His client, Ross Dowson—with Harry’s help—exposed the RCMP’s illegal dirty tricks directed against a legitimate organization headed by Dowson, the League for Socialist Action, in the 1960s and 1970s. Harry fought the RCMP in the courts over an eight and a half year period. He made more than 70 appearances. The federal government cited revelations from this litigation as one of the key reasons for the decision to disband the RCMP Security Service in the 1980s.

The RCMP Security Service was replaced with a civilian intelligence agency. Despite this decision, the Ontario government blocked Ross Dowson’s efforts to lay criminal charges against the two senior RCMP officers who admitted authorizing criminal acts under Operation Checkmate.  In response, with the support of the late Ian Scott (who later became Ontario’s Attorney-General) and others, Kopyto headed to Ottawa with a team of lawyers who won a unanimous decision from a seven judge bench of the Supreme Court of Canada affirming the historic right of private prosecution.

Kopyto Advances Women’s Rights in the Workplace

Kopyto also summarized a series of cases in support of women’s rights starting with the McDonald decision by the Ontario Court of Appeal in the 1970s. It affirmed that his client could not be fired from her job in a warehouse in Hamilton only because of her gender. This decision is remarkable for the fact that it thrust human rights legislation into private civil law. This marked a major victory for human rights advocates. It also was the first of a series of cases pursued by Harry that expanded women’s rights in the workplace. These cases (Au, Musty) resulted in sexual discrimination and harassment becoming recognized as a “workplace hazard” under the Ontario Health and Safety Act.  These precedents circumvented the slow-moving queue of human rights cases before the Ontario Human Rights Commission. IN part under pressure from the stampede of cases to the Labour Board which deals with workplace hazards, the Ontario Human Rights Commission revised its administrative procedures with reforms that partially met the needs of complainants including harassed women workers.  More recently, Kopyto won a sexual harassment case against multi-millionaire tycoon Frank Stronach who harassed a summer student working in a clubhouse owned by him in Aurora, Ontario.

A Blow For Freedom of Expression

Kopyto also referred to prosecution of him in the late 1980s on a charge of contempt known as “scandalizing the court”.  That charge arose after the court proceedings brought by Dowson against senior RCMP officers were blocked. After being prevented from getting a hearing on the merits for his client, Kopyto had told a Globe and Mail reporter that “The courts and the RCMP are sticking so close together you’d think they were put together with Krazy Glue.”  Prosecuted for contempt by the late Attorney-General Ian Scott for saying these words, Kopyto faced a five year jail sentence. In an internationally recognized and celebrated decision, the Ontario Court of Appeal affirmed that the law under which Harry was charged violated Section 2 of the Canadian Charter of Rights by denying him freedom of expression. The law was abolished and Kopyto was released from a sentence by the all-powerful legal establishment which barred him from employment as a lawyer until he apologized.  Kopyto won the support of Amnesty International, the media and broad sectors of the legal profession across the province in this battle.  It was an electrifying decision. But it caused the Law Society to blow a fuse.  The Law Society quickly brought its own complaint against Harry even though he was exercising a constitutionally protected right.

Kopyto Defends Victims of Racism After Sept. 11, 2001

Kopyto also reminded the panel of the case of Mohammed Attiah. That case signified a powerful blow against the wave of discriminatory stereotyping of Arabic and Islamic persons in the wake of the terrorist attacks of September 11, 2001.  Attiah was an Egyptian Muslim employed as a nuclear engineer by Atomic Energy of Canada Limited at its Deep River facility in northern Ontario.  He was fired within weeks of September 11, 2001 for allegedly being a security risk following a shoddy investigation by the RCMP and government security officials in a case of mistaken identity. Kopyto responded on Attiah’s behalf with a massive media campaign. That campaign propelled the case onto the front pages of newspapers across the country and became the first item on cross-country television news reports.  A lawsuit and human rights complaint quickly followed. In full retreat, the embarrassed federal government quickly rehired Attiah and compensated him generously.  This stunning victory, only two months after September 11th, was also reported in the Egyptian media.  It helped stem the wave of near-paranoid hysteria generated after September 11th. The case showed that Harry was still playing a critical role in defence of civil liberties and human rights despite the efforts of the Law Society to marginalize him by disbarring him on phony charges in 1989.

Obedience to Rules Defines Good Character

The summary of these legal milestones brought to the panel’s attention, vividly illustrated the moral strength of Harry’s character, if it was inclined to note it.  It also painted a picture of an advocate courageously speaking truth to power, a thorn in the side of the legal establishment and a muckraker exposing the raw nerves of a system dominated by the rich, conservative and powerful. No one in touch with reality could fail to link Harry’s legal record with the campaign of harassment that he suffered at the hands of the legal establishment. That includes his current character hearing designed to block him from continuing to work as a paralegal as he has for 24 years.

The panel judging Harry may not make this connection. They are unlikely to be invidious or hopelessly reactionary. No likely conspiracy or malice. No hidden agenda or standing orders. No “fix”. There is a commitment by each panel member to do what is fair and right and a subjective belief that they are doing so. But each panel member’s perception is shaped by a complex set of subjective and objective factors over which they have little control and may not even be aware of.  Their judgment of Harry’s character is ultimately framed by their own life experience and the formal rules of a body that values rule-obedience and submission to authority above all else. This is the oxygen they breathe.

Assessing Character Not a Question of Law

An assessment of a person’s moral character is not a question of law. Everyone, whatever their training, education or station in life, is equally competent to make such a judgment. But the Law Society reduces such judgments to a formula— those who break rules have bad character.  Those who obey rules have good character. And Harry, to the delight of the prosecution, has admitted helping clients who cannot afford lawyers in breach of the Law Society rules.  Conclusion: he must have bad character.  That’s all we know and all we need to know.

Harry agrees that rules should be obeyed. But he asks: Whose rules?  Which rules?  Who do they serve?  Who do they harm?  What are the consequences of obeying them?  What are the consequences of not obeying them? He points out that the Law Society breaks a more fundamental rule—its statutory obligation to provide affordable access to justice spelled out in the Law Society Act. And he also questions its proclaimed adherence to its statutory obligation to act in the public interest because of its record of shielding a lawyers’ monopoly protecting obscene fees that the majority can’t afford.

The panel charged with ruling on Harry’s character has been selected in an opaque process shielded form public purview. The adjudicative, prosecutorial and investigative functions of the LSUC, although administratively separated, lead back to one controlling body. The appointment of panel members used to be determined in a somewhat less arbitrary manner. Now, one lawyer appointed by the LSUC benchers decides who will judge Harry.  Given the history of two previous panels who both failed to complete their task, the LSUC went outside its circle of hearing panel members to pluck a chair for the panel from her Bay Street office who agreed to commit herself to do the job.  Is Harry likely to get a fair hearing?

FOR AN ANSWER, READ PART TWO TO BE POSTED LATER THIS WEEK.

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