How Surreal Can This Potemkin Village Get? — May 23 Hearing Part 3

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.

Blight Knows What Will Fly

Placing someone with a long history of advocacy for state institutions in the judgment seat is not in itself a kiss of death for Harry’s professional future.  But it is also not an auspicious appointment for Harry’s future career.  Ms. Blight clearly knows what will fly. Whatever she lacks in subtlety, she makes up for in determination.  She has readily made findings of fact and contradicted Harry’s evidence—a big no-no for a judge who must keep an open mind until the end. She has interrupted his evidence endlessly at times, sometimes with a scarcely disguised swagger.  She has consciously or reflexively pictured Harry as disobedient, uncontrollable and defiant to her rulings. This solidifies the panel around her with repeated and often misplaced criticisms.  All this brands Harry as ungovernable, which will likely be the theme of her final decision.

Interestingly, while she makes a big show of restraining the “ungovernable” Harry, Ms. Blight has yet once to restrain prosecutor Susan Heakes who ad libs throughout Harry’s evidence. For example, when Harry, on the stand, testified that few paralegals do Superior Court cases outside their scope of practice, Heakes interrupted to state that she has many such files. When Harry testified about his dealings with the only client called as a witness against him, she interrupted with comments of how Harry cross-examined him. These interruptions, along with other spontaneous utterances made by Ms. Heakes, are completely inappropriate and disruptive. They violate the rules of procedure. Why has Ms. Blight not once restrained her?  Why has Ms. Blight not once deemed her to be uncontrollable?  Is there a double standard?  Clearly, there is.  Is it being applied consciously by Ms. Blight?  Who knows?  But one does tend to hear and remember what fits into one’s preconceptions.  And it is obvious that it is the perceptions of the LSUC clan that she is channeling.

Not Your Parents’ Law Society

These perceptions of the panel chair are reinforced by a multitude of factors—the sharing of her perceived wisdom with her colleagues on a daily basis; the reinforcement of perceptions that are considered “common sense” through her involvement in the social and professional lives of others who are similarly oriented; the need for approval and recognition that every person has from those whose values they share, and whatever personal ambitions and desires a person has to advance their career and social standing. All of these factors, which most often exist below the surface of awareness, become a potent formula influencing how a person evaluates their options, perceptions and opinions as a judge.  They are all at play.

Ms. Blight is operating on a hypothesis regarding Harry and scans the evidence from that perspective for proof.  She has been trained as a lawyer, not as a judge. This shows clearly in the way she identifies details to record in her judgment against Harry. Although somewhat cynically, the French jurist, Saleilles, wrote that “One wills at the beginning the result; one finds the principle afterwards; such is the genesis of all judicial construction…  The factors are inverted.  The principle appears as an initial cause from which one has drawn the result which is found deduced from it.” (De La Personnalité Juridique).

The third panel member judging Harry Kopyto comes from outside the tight legal circle. He has been appointed by the Attorney-General. He is a successful businessman who is publicly spirited and has a strong sense of justice, a strong personal moral code and connections to the Liberal Party and provincial government. As a member of a minority and a person with a history of advocacy arising out of his professional role related to his business, he is less likely to react with aversion to Harry’s conduct and character.  In some respects, he may share Harry’s sensitivities.  He appears to explore in depth the roots of Harry’s character.  But he is surrounded. The structure he finds himself in mute’s dissent. Institutional pressures are hard for anyone to resist.   Lacking the legal skills or support needed to buck the weight of such structural pressures, it becomes difficult, if not impossible, for one individual to question the judgment of the majority.

The current Law Society is not your parents’ Law Society. It has inflated from a dozen employees in the 1950s to over 500 at present.  The increased monopolization of our economy has been accompanied by an increased monopolization over the provision of legal services. The Law Society is now the sole gatekeeper determining the admissibility of every court representative and legal advocate in the province.  The Law Society’s role as regulator spills into every crevice in a lawyer’s or paralegal’s conscious and unconscious life and not only into the performance of their professional functions.  In Harry’s case, the LSUC even monitored his radio and television interviews and press releases.

Law Society More Preoccupied With Order Than Law

Today’s Law Society is more preoccupied with order than it is with law. It seeks to manufacture consent to what is, in reality, a class legal system.  Like other public institutions or those performing public functions, it seeks, through the threat of loss of livelihood, to control its members and eliminate those who are defiant and disobedient.

At its last hearing day into his character, Harry described the Society’s surveillance function as a panopticon—an innovatively designed prison conceived by British philosopher Jeremy Bentham in the early 1800s. A single prison guard is placed in the central point of a circular structure.  From this vantage point, he can superintend hundreds of prisoners in cells placed along spokes emanating at equal intervals reaching from the centre of the structure to its outer circular rim. This is an apt description for an institution that, like other institutions of state, intervenes more and more to control social behaviour.

At the conclusion of Harry’s evidence on May 23rd, Harry, usually defiant, seguéd into a conciliatory tone.  Given that the panel arbitrarily limited his time to testify, it was a rather odd gesture on Harry’s part.  However, the reasons why he did so may be understandable. After all, isn’t there something strangely Kafka-esque about attempting to defend breaching a rule before a body that calls itself the Law Society of Upper Canada?  The designation “Upper Canada” weighs present reality down with the burden of a colonial past dominated by the Family Compact. Yet Harry speaks with a vibrant vision of a future imbued with real justice.  And the designation “Law Society” veils the reality of an obsessive preoccupation with rule obedience that is most succinctly described as fetishism.

Law Society Breaks Its Own Rules

Still, as Harry points out, the ultimate irony is that the LSUC itself breaches its own mandate to provide affordable access to justice. The LSUC masks the unfettered discretion of nameless bureaucrats unconstrained by transparency or accountability in the discipline department. Most remarkably, with over a dozen complaints or known instances of breaches of unauthorized practice rules by Harry in the last 10 years, often done in full public view, the LSUC has not once charged him for breaching such rules! How surreal can this Potemkin Village get?  Harry’s character is pilloried for breaching a rule that the LSUC itself does not enforce against him.  And for that matter, a rule that lawyers routinely ignore, as the evidence at Harry’s hearing has shown.

Rule obedience has never been a true moral measure of a person. Where the public interest weighs more heavily in breaching a rule than in obeying it, where is the evidence of poor character?  Authoritarian and repressive societies thrive on unquestioning and blind submission.  Now recognized as moral giants of their time, the late Henry Morgentaler and Nelson Mandela, names currently in the news, broke unjust laws or laws with unjust consequences and suffered imprisonment. Walking away from someone who needs help has never been a value cherished by society.  Yet this is what the Law Society requires as a criterion for admissibility into the halls of justice.

Justice Sold to Highest Bidder

Harry’s efforts to draw the big picture by accusing “the system” as a whole for responsibility for the crisis of the unaffordability of justice should not mean that those who are an integral part of that system like the Law Society, bear no responsibility.  In a moment of weakness, Harry suggested otherwise. Ultimately, governments are responsible for denying affordable representation in the courts to the vast majority of Canadians.  But institutions like the Law Society, protective of the privileges of members of the legal profession, prop up the monopoly that makes justice unaffordable.  The monetization of civil justice and its sale as a commodity to the highest bidder is at the core of the Law Society’s ideology.  Harry was wrong to let that institution off so easily.

Harry still faces a day of grilling on Wednesday, June 19th at the Museum room at Osgoode Hall, at 9:30 a.m.  Expect to see blood.

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