National Post Barbara Kay: Kafkaesque kangaroo ‘justice’ at the law society

National Post - Tuesday January 12th, 2016

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The scales of justice outside the Vancouver law courts

Nobody understood the pitfalls of speech codes better, nor was more eloquent in defending the freedom to offend in speech, than George Jonas, who died last Sunday. By coincidence, a free-speech story came to my attention just days before George’s death, one he himself would have relished. So, George, this column’s for you. 

Peter Best is a generalist lawyer near Sudbury in practice with his daughter Amy. A great admirer of Nelson Mandela, Best has a strong and abiding interest in all matters pertaining to racial equality.

In Dec. 2014, he posted a long, scholarly and provocative dissertation on a dedicated online site (, entitled “There is no difference: An argument for the abolition of the Indian reserve system and special race-based laws and entitlements for Canada’s Indians.”

Best also posted the essay to his firm’s website, both for wider dissemination in the marketplace of ideas, and to ensure potential clients were aware of his views to avoid future awkwardness. In August three complaints (the “Complainant”) against Best regarding the essay were filed with the Law Society of Upper Canada (LSUC), and one as well against Amy, who the anonymous Complainant deemed complicit in working for a “racist.” The LSUC’s gatekeepeer dismissed the complaint against Amy, but in Oct. 2015 opened a dossier on Best.

Amongst other charges, the Complainant denounced Best for writing that the Truth and Reconciliation Commission was a “net negative undertaking,” stoked a “guilt-making machine” that is perceived “as a mere agent for the accumulation of more power and money in the hands of the Indian Industry”; that it was “harmfully fixated on the past,” with “a complete lack of any ennobling goal,” which “ended up merely providing a lot of short-term Indian industry jobs and temporary jolts of feel-good meaning for its employers and adherents”;  and that its “victim narrative” was exploited “for status quo-maintaining political purposes.”

Best’s real “crime” is to fail to exhibit the requisite spirit of reverence for liberals’ received wisdom on aboriginal history and grievances

Not a single word of the essay meets the Criminal Code criteria for “hate” speech or “incitement,” but the complainants are treating it as though it does. They expressed the hope to the LSUC that Best would be “disbarred or suspended” unless he “completes a sensitivity training course and a Native Studies course” as well as “apologiz(ing) for using his law practice to disseminate racist materials.” 

As a reading of the essay makes clear, Best’s real “crime” is to fail to exhibit the requisite spirit of reverence for liberals’ received wisdom on aboriginal history and grievances. Best believes that the Indian Act is a benign form of apartheid, and a version of the “separate but equal” regime in the U.S. before 1954. This may be an unpopular view, but it is not irrational. He believes he is arguing in aboriginal people’s best interests, that they have been victims both of their own elites and of non-native elites. Also not irrational.

His opinions do not impinge on his legal competence, and nobody is suggesting they do. So what’s the LSUC’s beef? 

According to the LSUC, Best had been “instructed for investigation” because, based on the above and other examples of facts and conclusions some aboriginals might find wounding, he “may have engaged in discriminatory conduct” and “may have acted in a manner that reflects adversely on the integrity of the profession (of law) and/or the administration of justice.” Best has asked for an explanation of what the LSUC means by these words so he can properly defend himself, but has not received an answer. Best quite understandably describes this bureaucratic behaviour — vague accusations with no basis in law against which no defence can be mounted —  in his correspondence with me as “Kafkaesque.”

Best removed the essay from his firm’s website in order to protect his daughter’s reputation. But the “investigation” hangs over his head months after notification — he’d been promised a decision within 10 days — with no explanation for the delay.

The LSUC’s Rules of Professional Conduct state that “the Law Society will not be concerned with the purely private or extra-professional activities of a lawyer that do not bring into question the lawyer’s professional integrity.” A spokesman for the LSUC has told Best in writing that in his opinion the excerpts submitted by the Complainant “are not enough to merit a finding of any form of professional misconduct on their face.” And that’s where it should have ended.

Ah, but wait! The LSUC Rules also state that LSUC members have “a special responsibility to recognize the diversity of the Ontario community.” That has a somewhat ominously Humpty-Dumpty (“it means just what I choose it to mean — neither more nor less”) ring to it. Those are words that could entrap any lawyer who doesn’t toe the progressive party line in identity politics. What’s it to be, LSUC? Freedom for a private citizen to express evidence-based, politically incorrect opinions — or feelings-based, kangaroo-court “justice”?