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Court Falsifies Record
October 7, 2006 permalink
A judge has been accused of altering the record of a case in his court. The accusation did not come from a lawyer, who would face the loss of his livelihood, but from a practitioner on the fringes of the law, disbarred lawyer Harry Kopyto.
This kind of case has ramifications beyond historical accuracy. Appellate courts follow the rule that they will not hear an issue on appeal unless it was raised in the trial court. Altering the trial court record serves as a denial of the right of appeal.
The judge's choice of lawyer shows the close alliance between judges and the family bar. Philip Epstein is Toronto's leading divorce lawyer.
Judge to face misconduct probe
Hearing ordered over complaint key remark deleted from transcript
An Ontario judge will be probed for misconduct by his peers in the wake of allegations that he deleted a key remark from a court transcript.
The Ontario Judicial Council ordered a rare misconduct hearing after it completed a preliminary investigation into a complaint lodged against Mr. Justice Marvin Zuker of the Ontario Court of Justice.
The complainant is disbarred Toronto lawyer Harry Kopyto, who was prevented from acting as a legal agent in Judge Zuker's court last year on the basis that Mr. Kopyto has a reputation for being overly adversarial.
After being excluded from the July 29, 2005, proceeding, Mr. Kopyto ordered a transcript so that his client, Robin Mayer, could appeal the ruling.
He alleges that the crucial phrases underlying Judge Zuker's ruling were mysteriously missing.
"I had to pinch myself," Mr. Kopyto said in an interview. "Did I dream it? That was my grounds of appeal. How can she [Ms. Mayer] proceed with an appeal if the grounds aren't there?"
Mr. Kopyto said the case has important repercussions for the justice system. "He [Judge Zuker] is highly regarded among the judiciary," he said. "If he feels comfortable editing a transcript for content, what are the other judges getting away with? If Judge Zuker is doing it, then it's widespread."
In one of several highly unusual twists, the case brings together two old adversaries whose initial courtroom clash in 1985 resulted in a milestone judgment on freedom of speech.
In that case, Mr. Kopyto, who was already well known within the legal community for his left-leaning causes and his combative style, was suing the RCMP for alleged political dirty tricks on behalf of a client, Ross Dowson.
After accusing Judge Zuker in The Globe and Mail of perpetrating a mockery of justice and favouring police "as if they're stuck together with Krazy Glue," Mr. Kopyto was charged and convicted of contempt of court. However, the Ontario Court of Appeal later acquitted him, striking down the contempt provision he had been charged under, known as "scandalizing the court."
In subsequent years, Judge Zuker, a highly regarded specialist in family law, rose from being a small claims court judge to a mainstay of the family court branch. Mr. Kopyto, meanwhile, was disbarred for cheating legal aid.
Mr. Kopyto's current complaint arises from a case in which Ms. Mayer was battling the Jewish Family and Child Service, which was investigating her treatment of her children.
According to the transcript, Judge Zuker questioned Mr. Kopyto's understanding of family law and stated several times that the welfare of Ms. Mayer's children was at stake.
"The best interests of the children come first; not who's right or who's wrong," Judge Zuker told Ms. Mayer. "At the end of the day, I may make an order that you don't agree with, and then you'll say: 'Well, I should have had a lawyer represent me.' What is more important in our society than the future of our children?"
Mr. Kopyto's complaint to the judicial council alleges that by removing the reference to his overzealous tactics from the court transcript, Judge Zuker effectively deprived Ms. Mayer of her ability to appeal the ruling.
"I believe that such conduct amounts to clearly improper conduct and, in the instant case, resulted in a miscarriage of justice to my client in the appeal process," he said.
Ms. Mayer states in a document prepared for the appeal that she was "dismayed and appalled" when she discovered that the transcript had been altered.
She said that "my life and family are being subjected to a judicial process before a judge whose apparent conduct has raised serious issues about the administration of justice."
Mr. Kopyto said yesterday it is absurd for a judge to accuse a lawyer of being too adversarial. "That's a bunch of crap: Everything in court is adversarial," he said.
"Lawyers are terrified to lay complaints against a judge," Mr. Kopyto added. "The perceived wisdom is that you're cutting your throat, so you just don't do it. For every complaint that is laid, there are probably a few dozen that should have been."
Mr. Kopyto said that he had to fight hard in order to obtain a copy of the guidelines judges are given which set out the rules for editing transcripts; rules which specifically restrict changes to matters of accuracy and punctuation, and say that nothing of substance can be removed.
"This judge thinks he can get away with anything he wants to," Mr. Kopyto said. "He did it with Dowson in the 1980s, and he is doing it to my client now. . . . In a sense, he was the author of my misfortune then. Now, I may be the author of his misfortune."
Philip Epstein, the judge's lawyer, said he couldn't comment on the matter.
Source: Globe and Mail
Addendum: Judges can strike back at their critics in strange ways. The complaint against Mr Kopyto may not have been entirely sartorial.
His suit was dismissed
Ex-lawyer's crime was in his clothes
A colourful Toronto paralegal is seeing red after his forceful ejection from court for a fashion crime.
Harry Kopyto alleges that a Toronto cop "manhandled" him out of a Scarborough court yesterday after a justice of the peace adjourned a case because of his attire.
When city prosecutor Janet Stoeckl complained about Kopyto's multi-coloured open-neck shirt and his textured burnt-orange jacket, speeding charges against Kopyto's client were brought to a halt.
According to Kopyto and his client, Paul Lamy, the JP -- whose identity neither man can provide -- said Kopyto's jacket "clashes"with his shirt and was "a breach" of court decorum.
Kopyto said the JP suggested a white shirt and a dark suit.
When Kopyto retaliated and complained about Stoecki's "spike-heeled, pointed shoes and loud purple top," the JP ordered Kopyto to "leave this courtroom."
"He should know the Highway Traffic Act ... he is not a fashionista. We go to court for his judgment, not for what he thinks is au courant in the haberdashery," Kopyto fumed.
He said that as he turned to get into his briefcase, Toronto Police Const. Kevin Drake, acting without authorization, grabbed him by the arm and bent his wrist.
Drake was in room E1 at the Scarborough provincial offences court on Markham Rd. to testify that he had stopped Lamy for speeding on Hwy. 401 and is not a court officer, Kopyto said.
"He kept on pulling me and pulling me and pulling me through the exit doors," Kopyto said.
Just after Drake whisked him out of court, several court officers -- whom he presumes answered a silent alarm -- ran down the hall and into court, Kopyto said.
"I hope you're not coming back into the courtroom," Kopyto said one officer told him.
"I think they set him up," Lamy added.
"Yes, he had a blazing shirt that showed through his loud jacket ... but he was clean."
Kopyto balked a bit at the JP's statements about his attire, but he was not disrespectful, Lamy said.
"I don't think they like (Kopyto). I think the police officer had no business touching this man ... the police officer had no reason, in any way, shape or form to ... put him in an arm lock like that ... I was surprised," Lamy said.
Neither Stoeckl nor Drake could be reached for comment.
Court officials refused to give the name of the JP in courtroom E1, nor would they contact him. The supervisor of the court did not return calls.
'OUT OF TOUCH'
Kopyto said he loves the colourful shirt because his daughter bought it for him when he visited her in Fiji this summer.
He is threatening a charter of rights challenge in Lamy's case, as well as a civil suit against Drake and a complaint about the JP.
He said he will sue Drake for $1 "just to make a point."
Provincial offences courts are typically "out of touch" and "elitist," he said, adding that many JPs think they are "anointed, not appointed."
"They are not there for their competence or intelligence, but 'cause they worked on someone's election campaign."
Before his disbarment as a lawyer in the early 1990s, Kopyto set a court precedent which overturned a long-standing law which had forbidden criticism of judges.
Source: Toronto Sun