Speaking Truth to Power: Kopyto v the Law Society of Upper Canada

It’s been a while. But Kopyto is still alive and well, hoping that the Law Society’s guillotine will not cut off his professional head after 40 years of legal service.

While he awaits the verdict of the Margot Blight Panel, there’s not much left of his fingernails. Of course he’s proclaimed his intended retirement to the Panel (Ha! Ha!) but we know what’s in the D.N.A. in Harry’s blood and we know that he won’t (can’t), say no to anyone facing the well-oiled machine of class justice. Now that his batteries have recharged during the short Ontario summer, Kopyto’s blog is back on track. We thought you’d be interested in reading his parting shot.

Starting on the morning of July 9th and continuing on July 10, 2014, Harry Kopyto presented his closing submissions to the Law Society of Upper Canada panel presiding at his character hearing. Below is an edited version of part 1 of his submissions. The remainder of his presentation will be printed serially on this blog at regular intervals.

 


 

I Come to Bury Caesar, Not to Praise Him

Good morning, Members of the Panel. When I began my defense, I started my submissions by invoking the memorable words of the slave gladiators when they stepped into the Roman arena: “Ave, Caesar, morituri te salutant!” “Hail, Great Caesar. They who are about to die salute you!” Today, I invoke the words of the great English poet Shakespeare: “I come to bury Caesar, not to praise him.” Later, I will invoke another famous phrase of Dreyfus: “J’accuse.”

The first issue that I wish to raise may be described as an existential one. How did I end up being here? A corollary to that question might also be: How did you end up being there? I always needed to understand the world and my place within it toward some insight into the situation I find myself in. This is a natural human impulse. I believe that I have a good idea how I ended up playing the role of paralegal candidate in this drama. Although I am formally designated as a candidate, I really don’t feel like a candidate. I have always felt that this was my place, that it is, or was, my fate to be within the world of law.

As you well know my background and history, my legal work has been an extension of my political work which has had a life‑long pattern of consistency reflected in the legal causes and cases that I have fought since 1974 and even before. My clients, the continuity that I maintained in my associations, the legal issues that I have raised in my cases all the way up to the Supreme Court of Canada on several occasions, and in particular, the historic important precedent‑setting cases that I have achieved: the first gay right’s case, a massively significant decision by the Supreme Court of Canada upholding the right of private criminal prosecution…

I have always seen myself as a social justice activist, and by extension, a legal activist. The law has been my weapon. The courts have been my arena. I am told that the law is not political. However, I have yet to find a single case in which policy choices have played no role at all. Everything is political.

 

You Came Knocking on my Door

I have always believed that the law ultimately reflects social issues, and it is inherently politicized by the social relations between litigants which take on legal form at points of otherwise unresolvable conflict. For 15 years, I was a barrister and solicitor, as we used to be called at that time. For a period of 18 years, I was a legal agent or paralegal, as we came to be known. From 2007 until the present, a period of seven years, I have been what is called a paralegal candidate, running presumably for the office of paralegal.

 

I say that I do not feel myself to be a candidate. Why? Because I was here a long time before the body that appointed you came knocking on my door in 2006 or thereabouts. I was here first. I have been here before at least one of you was born. I have always felt at home here. When I say “here,” I mean the judicial system. This is where I feel I belong, where I feel comfortable. So to say that I made an application to be here doesn’t reflect the reality that for 18 years before, I was doing what paralegals do without having to apply for any membership in any organization.

By the way, there were thousands like me. We organized ourselves. We bought insurance. We held lectures. We educated ourselves. There were almost no complaints about us.

I have always been in favour of paralegal regulation. I only take issue with paralegal regulation by the Law Society. That is why I find it incredible that I am being charged with being accused of being ungovernable when I have advocated publicly before the Law Society even began to advocate regulation of paralegals.

Why is it important that you came knocking on my door instead of me knocking on your door? The reason is important because it reveals the expansionist, exclusivist and monopolistic nature of the Law Society which now has a complete stranglehold on admission to one of the three key institutions that form the Government of Canada: namely, the executive, the legislative, and the judicial bodies that represent the democratic institutions of our country. Unlike any other professional body, the Law Society is not merely a professional body, but it also controls admissibility to a public institution that is a constitutional pillar.

 

A Clue as to The Likely Outcome

Just so you know where these comments are coming from, at one point during the evidence, you [Chairperson Blight—ed.] said on behalf of the Panel: “Mr. Kopyto, why are we going there? This is merely a professional admissions panel.” I believe and I want to argue that this is not merely a simple professional admissions panel   investigating somebody’s character who wants to be a member of an ordinary profession, like, for example, an engineer or a doctor. There is something unique about your role that does not apply to professional admissions committees, and that is unlike all the other committees. You now have with By‑law 4 [takeover law of Law Society over paralegals—ed.], a stranglehold over who can become a lawyer, who can become a paralegal, who can become a judge, who can participate as an advocate in the legal system.

Unlike any professional body, the Law Society is not merely a professional body, but it also controls admissibility to a public institution that is a constitutional pillar and not just a profession. It is important that you keep that in mind when judging my character. You are not dealing with only a technical admissions issue. You are cutting off somebody from being able to play any kind of role in one of the three key public institutions in this country as an advocate. It is not a job that I am looking for. It is to be able to participate as my conscience dictates within a fundamental institution of every democracy. The Law Society has an absolute, complete legal monopoly over delivery of legal services and advice.

The reason why this is important and how it relates to evaluating my character or determining the moral character of anyone who wishes to be an advocate in Ontario, is because it gives us a clue as to why you are here. It gives us a clue as to what criteria you use in evaluating my character. It gives us a clue as to how your own judgments and your own opinions are formed. It gives us a clue as to what the likely outcome of this proceeding will be.

 

An Inherent Contradiction

I want to address the criteria you use in evaluating my character. This is important to me. I want to be able to develop why I believe you are using the wrong criteria in evaluating my character and what criteria you should use in evaluating my moral character, which is the only question before you. I should be allowed to do that in my final summary after, what, 100 days of hearings before three panels?

The Law Society incorporates an inherent contradiction. The Law Society controls professional access, as I pointed out, to a key fundamental institution: The courts. But at the same time, it is controlled by benchers who are elected exclusively by lawyers. The legal profession votes and elects those who run the Law Society and ultimately those who place you where you are. The fact that you are placed in the position you are in— at least two of the three of you— by lawyers is not a neutral fact in evaluating my character and determining what criteria you should use in evaluating my moral character. It is not a neutral fact. It is a critical fact. It is a seminal fact. The reason it is critical is because members of the legal profession have their own interests, including their own financial interests, and more broadly, their own professional interests.

On the one hand, therefore, the Law Society ostensibly represents the public interest in determining who should be admitted to the legal profession, in determining whether I should be admitted to the legal profession, whether I have the moral character. And on the other hand, the persons who selected you and placed you in the positions that you are in also represent the distinct financial and related interests of those who elect them: lawyers. It is my perception and my belief and presented in the evidence that I have given that the two interests are conflated too often. I take the position that the two interests are not identical. I take the position that the two interests are distinct, or at least the financial interests of lawyers, the professional, sectoral interests of lawyers shape the perceptions of how best to protect the public interest, albeit, very often, subconsciously. I take the position that public interest and the financial interests of the legal profession that shape its conduct, including its monopolistic takeover of paralegals within its scope of control—which is what directly brings me here to be judged by you are different interests, that are often in conflict.

 

Protecting the Public Interest or Lawyers’ Interest?

They speak about protecting the public interest. Those who appoint you, who chose you, also have an interest in their financial and professional commitments and needs and aspirations and hopes. The reason why this is important is because once again, lawyers are given an effective monopoly of choosing those who decide who will judge my moral character and the moral character of other persons who want to be advocates in the judicial system. Lawyers are directly in control of defining what the public interest is. Lawyers are directly in control in deciding what criteria should be applied in assessing moral character and admissibility. But,and this is the essence of the contradiction, the determination of what constitutes good character is not a legal question. It is a judgment that the case law establishes beyond a doubt is a determination that any member of the public can make. It is not a question of legal expertise. It is not a question of precedents. It is not a question requiring resolution by those who possess specialized knowledge. It is a question requiring the making of a general assessment that the public is fully competent to make.

A person who fixes leaking pipes, who constructs wooden decks, who sweeps the streets, who nurses in a hospital, who is an engineer, who sells fish in Kensington market and who sews or cleans clothes or drives a taxi is just as able as a lawyer in assessing moral character. Assessing moral character involves an approach rooted in ethics. No legal divining rod is needed to assess honesty, integrity, courage, and candor: The four pillars of what is often referred to in the case law amounts to good character. So, lawyers are not more qualified than anybody else to make such a judgment. The opinion of each of you is just as valid as the other. The criteria you should use are the criteria of the common man, not the criteria of lawyers.

 

Ironic to be Attacked as Ungovernable

Don’t you find it ironic that I should be attacked for being ungovernable, the key meme that the Law Society uses against me when I myself have advocated regulation? I accept that regulation may involve an inquiry into my moral character. But what causes me some concern is the legal profession has taken upon itself, virtually the exclusive right to choose who will judge my moral character and requires the majority of those persons to be legal advocates and not members of the public. So the assessment of my character becomes a matter over which the legal profession has a veto, or for all practical purposes, a monopoly. This is not the case in England. This is not the case in Australia. This is not the case in New Zealand. In those countries, the public regulates professional advocates in the legal systems, but it is the case in Ontario. I am not appearing before persons judging my character who are selected members of the public, but of a narrow group of people defined solely by their profession. This is unfortunate because it is my participation in a public institution, the judicial system that is at stake, not merely membership in a professional organization.

So why is this important in judging my moral character? It is important because you come to your task appointed by people who expect you to use certain standards and criteria in evaluating my moral character that they themselves as lawyers have fashioned. The judgment of my character is being done and has been done through the application of legal principles promulgated by members of the legal profession predominantly. Even those who have been particularly chosen to represent the public interest by the Attorney General—and we know the practice is for one of every three panel members to be appointed by the Attorney General. Even those people are surrounded by lawyers, breathe their oxygen, live in their context, are imbued with their syntax, and also imbued by the criteria that lawyers have developed and applied, for judging moral character. Therefore, the process that I am presently being engaged in, what should be an evaluation made by persons who directly represent the public, becomes an evaluation that is made by persons selected by lawyers and are predominantly lawyers, who are paralegals themselves and reflect their narrow ideology and sanctioned perceptions.

This distorts the evaluation of my character. The legal prism through which evaluation is put through distorts the assessment of a person’s character because it makes that determination on the basis of principles that are important to lawyers and not necessarily those that are important to the public. Lawyers dominate the character adjudication process.

Some argue that it is insular. The formalistic approach of lawyers is confined to narrow precedent-following. In character evaluations by the Law Society, however, there is no legal obligation to follow precedent. There is no principle of stare decisis, if it exists anywhere anymore, since that famous Ontario Court of Appeal decision that said that you should not follow precedent to the point where you jump into a lake, where you can make a decision that is completely unjust.

To be continued…

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