You Are The Ones Being Judged

In this post you’ll find the final installment of an adapted version of Harry Kopyto’s address to the three-person Law Society of Upper Canada Panel made on July 9, 2015.  The Panel concluded that he lacked the good character needed to continue to work as a legal advocate. A serialized version of the balance of his submissions which continued on July 10, 2015 will be posted in due course.

The decision is presently under appeal in the Divisional Court of Ontario scheduled to be heard at Osgoode Hall on Friday December 2, 2016.  See here for more details.


Why Do I Do What I Do?

Honourable members of the Panel, I ask you to say, “Yes, Harry, you are imperfect. But Lewis, you were better off with Harry representing you.  Velma, you were better off with Harry representing you.”  Who was the fellow in the wheelchair who had testified thanking me for my help?  Tell him also: “You were better off with Harry.”

Go through the entire list of my clients who appeared as witnesses.  Twenty-two clients. Tell me which clients were not better off with me than without me.  Did I succeed in every case?  Does anybody succeed in every case?  Did I wow the courts?  Does everybody wow the courts?  Is every case winnable? But win or lose, did I try?

Why do I do what I do?  Why is my practice what it is?  Why did I even go into law?  I wasn’t one of those guys in law school wearing a school tie from the University of Western Ontario whose father was an insurance company or bank executive and who knew everybody in his law school classroom since they graduated with their Masters of Business Administration degrees after going to the same private schools.  I was the little guy off in a corner.  I was the one who didn’t quite know what I was doing there…

 

My Practice Is a Weapon For Social Change

But I had an idea.  I wanted to use my practice as a weapon for social change. Did I succeed?  Sometimes.  Part of my practice has been used to bring police accountable for breaches of the law.  Remember the drama of the Keeping case? A victim of police abuse. He secretly tape-recorded conversations with police officers who were coming to his house, taped five hours of threats against him, and those two police officers—Sills and Campbell—ended up being found guilty of perjury when they tried to nail my client on false evidence of trafficking after denying in court under oath their threatening statements made on the secretly recorded audiotape taped tightly to Keeping’s chest.

Remember my litigation against the RCMP over Operation Checkmate and numerous related lawsuits, one of which got me cited for contempt for saying that the RCMP and the Courts “stuck together like krazy-glue?”  It ended up in a decision by the Ontario Court of Appeal abolishing a form of the law of criminal contempt—“scandalizing the court”—which I was charged with.  That litigation was key to disbanding the RCMP security service in the 1980s and to replacing it with a civilian Canadian Security and Intelligence Service.  (It turned out not much better.)

Just as I used my practice to make police accountable for breaches of the law—just as I used my practice to protect the right of private prosecution—I had to appear before the Supreme Court of Canada twice on that one. Just as I used my practice to win equal rights for women—remember the cases in which I was able to get sexual harassment and gender discrimination treated as unsafe work hazards under the Occupational Health and Safety Act so that women could get a hearing right away before the Labour Board instead of waiting months, if not years, for the underfunded Human Rights Commission to deal with their complaints…

Just as I fought the first gay rights case in the history of Canada that resulted, eventually, in the amendment in 1981 of the Ontario Human Rights Code to include sexual orientation as a prohibited ground for discrimination.  Just as I used my practice to fight for tenants’ rights by representing hundreds of public housing tenants at 200 Wellesley Street East in Toronto and adjacent high-rise buildings in a group action to try to get the City to repair their premises to a condition fit for human habitation…

 

My Clients Want to Break Down the Doors to Get Into the Court

Just as I was able to win the largest rent abatement award in the history of Canada—$144,000 for tenants in a suburb of Scarborough for letting a model apartment building that was featured on the front page of Architecture Today magazine fall into a state of abysmal disrepair.  Just as I used my practice to defend those who are very old and those who are very young from discrimination on the basis of age…

Just as I used my practice to assert and expand the rights of persons with physical and mental disabilities, the blind, the wheelchair-bound, and also of minorities, immigrants and the Black community.  Just as I used my practice to defend their rights, so also my thoughts and legal ruminations have also been dedicated to these goals—the Op Ed articles that I have written for the Globe and Mail, the articles that I have written for the law journals, the UBC journal, the McGill journal, the Criminal Law Quarterly, Queen’s Law Journal, the Ottawa Law Journal…

Just as I have participated in political activities such as the founding of the Law Union of Ontario and the professional associations that I have been part of.  Just as providing access to justice has always been the focus of my public and social activities, so also it has been the focus of my law practice which I crafted as a weapon for justice.

You can’t understand my practice by looking at my individual cases and clients in isolation.  Look at the totality of what it is that I am doing for the unrepresented who can’t afford justice.  My law practice has become a safe space for my clients on a hostile battlefront.  It is a fort under siege from barbarian legal professionals with their precedent-laden weapons and armed with dusty tomes of legal gobbledy-gook.

My clients want to break down the doors to get into the courts.  So I try to open them—a little bit, at least—for the benefit of society and to enhance the image and public perception of our dysfunctional judicial system.  The irresistable conclusion is that my conduct has been of benefit to those that I have tried to help, even in the very limited way that I have been able to and even with the circumscribed skills that I have.

 

Am I Acting Arbitrarily?

You now have a clue as to why this professional admissibility hearing is different from most admissibility hearings.  In most hearings, clients testify against, not for, the subject of the hearing.  In most prosecutions, you have evidence of conduct motivated by self‑interest occluding the interest of the public.  In my case, you have evidence of the subject of the hearing willing to sacrifice his professional status to benefit his clients. You have the clients testifying for me, not against me.

How many candidates for admissibility who have poor character ask themselves moral questions?  How many candidates who have poor character even bother to try to consciously evaluate the ethical aspects of their conduct?  I do.  I ask myself: Can I justify obeying a by-law that requires me to breach a fundamental principle?

Am I acting arbitrarily in choosing to abide by the principle of accessibility to justice, not the by-law that protects lawyers’ scope of practice?  In reality, my moral compass points to the exact same principles of access to justice that the Law Society proclaims as its own revered goal.  But I have to step over an obstacle—the restriction on my scope of practice—to do so.  I follow my conscience.  Both I and the Law Society, at least statutorily, share identical goals. When adherence to a by‑law in a specific case results in breach of a fundamental principle, a moral choice has to be made.  If you have good moral character, do you obey the by‑law, notwithstanding the fact that it violates the principle?  Or do you minimize your breach of the by‑law as much as possible and abide by conduct that conforms to the principle?

 

Take a Look at What I do

The Law Society says I broke the by-law.  That is the whole story— the beginning, the middle and the end.  “The restrictive scope by‑law—you broke it!  So you have poor moral character!”  That’s reductionism.  Such an observation is a logical misstep.  You have to contextualize the breach, to consider cause and effect.  To do so is hard work.  It takes you away from black and white.  Such is reality.

In an abstract sense, the action of providing access to justice to clients who can’t afford it by becoming engaged in work outside your scope of practice (in high court) can be regarded as a moral issue in itself.  But truth is concrete. To understand the moral essence and the ethical value of any conduct, you really need to look at the surrounding circumstances.

I will give you just one example.  The Law Society, in its opening statement and in between, up to its closing statement—17 ways to Sunday—accuses me of misrepresenting that my clients were acting for themselves [in court proceedings] when in fact, I represented them.  That charge against me itself is a misrepresentation, a distortion of the truth.

Take a look at what I actually do.  I list my client’s name on the pleading.   But I put down my own address: “care of 340 College Street.”  I put down my phone number so anybody can find out who has carriage of the action.  I write the pleadings as if they were written by a trained lawyer, which I have been for 15 years before being a paralegal for 26 years.  I don’t write the contact information in a way to give the impression that it is written by the client.

When someone phones my number, I answer the phone.  I don’t pretend to be a lawyer.  I don’t pretend to be the client.  I do not make myself fully visible, but I don’t make myself invisible either.  Anybody with an iota of interest and perception would know right away, one, that the client didn’t draft a complex ten‑page claim or defence; and two, they could do a reverse internet search and check to whom my phone number is registered.  You will see it comes up identifying the line as belonging to Harry Kopyto.

 

I Hide in Plain Sight

I do not act as a legal representative to the point where I misrepresent, where I distort.  I do not engage in subterfuge.  The reason I don’t put my name on the pleading is to ensure that the issue remains my client’s rights and not my representation. Do I hide? If so, I hide in plain sight. I do what I can to minimize the breach but still give my clients access to justice.

Is every breach of a by‑law automatically ethically blameworthy?  It is important to me to build a bridge for somebody to cross over to enter the courtroom doors and prevent injustice because of financial barriers. In the case of John Rieger, for example, my intervention prevented him from remaining guilty of a criminal offence that he was not guilty of.  I offer each of my clients a juridical personality so they are not excluded from being able to participate in one of the fundamental institutions of a democratic society. If I need to breach a by-law to achieve this goal, is that evidence of poor moral character?

 

But does that mean that I am ungovernable?  Does that mean that ethical standards require that I should have completely ignored my client, Velma, and ignored Reynel Lewis, ignored the two dozen people and a dozen or two more that I mentioned in my own evidence who would not have been able to appear in court without my help, that I should ignore their dilemma? And what about the hundreds and hundreds of other clients for whom I have provided access to the courts who would otherwise have had their legal grievances dissipate into thin air?

The idea that there are legal services providers that were available to these clients to do the legal work I did for free or affordably is delusional—pure fantasy.  Anybody who is in touch with reality knows there are no institutions that draft factums, that analyze transcripts, that draft notices of appeal, that prepare appeal books and books of authorities and do outlines of oral submissions, what I did for John Reiger for $200—not even enough to cover my disbursements—and similar work for hundreds of clients.

 

It is Both my Burden and Joy to be Public Property

These services were not provided by me out of friendship with my clients.  My clients are strangers when they knock on my door.  These are people I don’t know.  They are people who came to me off the street—no pejorative suggestion implied.  I make myself available to everyone who needs my help. It is both my burden and my joy to be public property. My conduct is nursed by moral compulsion, not a desire for personal benefit.  I feel their need as if it were my own.  When I satisfy theirs, I satisfy mine.

The Law Society accuses me of making the wrong moral choice, but it perceives the ethical dilemma through the refraction of lawyers’ interests.  It considers it more morally justifiable that the six lawyers who testified against me have a clear track to hunt down and defeat my clients in court than for my clients to be able to defend themselves.  I say no.  Equalize representation.  Give everybody an opportunity, not only to be heard, but also to be heard with the help of competent legal representation.

When by‑laws have unjust consequences, when they negate fundamental principles and rights that the Law Society itself proclaims as inviolable, when the result of adhering to a by‑law results in personal tragedy or unrequited justice, that destroys a person’s juridical personality.  Is that what a moral person should allow to happen when it can be prevented?

I shared with you my impression that I could have had the corner office.  I learned the legal game very quickly.  I was on Bay Street for a decade and a half.  I shared office space with a senior establishment litigation firm in Toronto.  I was trained by an old school litigator, as right wing as I am on the left, who taught me the ropes.  (But don’t blame him—he did try to steer me to the straight and narrow.)  I always took for granted that I could make a few hundred thousand dollars a year if I wanted to.  But that is not me.  I consciously chose not to take that path.

 

I Peeked Into the Albany Club out of Curiousity

I don’t advertise for clients.  I have never promoted myself.  I never had to look for work. But, of course, I have nothing to sell in any traditional sense. I never sought to be part of the Bay Street crowd though I have peeked into the Albany Club out of curiosity and attended a few Osgoode Hall soirées just to look my opponents in the eye.

 

There are two types of clients I have never acted for—big business and organized crime, (to the extent that there is any difference between them).  I chose a long time ago to act for clients who don’t have power and influence. This commitment has always defined my practice: to help clients who cannot access the system effectively because of financial barriers.

Returning to the approach that you should use in assessing my character, you have sat through many days of evidence.  There are thousands and tens of thousands of individual facts and details of evidence related in evidence over close to a hundred days of appearances before three different hearing panels.  Do not look at each fact in isolation.  The challenge before you is to determine the nature of the fundamental thrust of my legal practice, what motivates me and what I strive to achieve.

 

Little Harry has Changed Over 70 Laws

Little Harry Kopyto has been able to change 70 different laws and by‑laws in almost every area of the law, requiring several appearances before the Supreme Court of Canada; including helping to abolish restrictions on the right to advertise by lawyers; including establishing sexual orientation as a protected ground under the Human Rights Code; including getting police officers that are crooked found guilty of perjury; including winning the Velma Demerson case—a case that was over 60 years old that no legal professional in his right mind would ever think of taking on; including expanding the rights of disabled people, of tenants, of women, of children and of the aged.

If you denounce me morally, you will also denounce the achievements and victories that I have won and the hundreds, if not thousands, of clients for whom I have had the honour of being their voice in court over close to half a century.  Ultimately, history will review the transcript of this hearing and judge your morality, not mine, on the basis of the decision you make.  Will you make the right moral choice?

 

 

 

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