A.

Allegation: Integrity of the profession/administration of

justice
1.
I am an author, journalist and anti-racism advocate, first and
foremost. On my web site, I have been commenting on politics, music
and other topics for 15 years. I am, and always have been, acting in a
purely private and extra-professional capacity on that web site. I do
not hold myself as a legal expert on that web site, or offer legal advice
there.
2.
The Law Society of Upper Canada should not ever be concerned
about the purely private or extra-professional activities of individuals
who happen to be non-practicing lawyers. This is particularly the case
where the activities complained of do not in any way bring into
question the integrity of the legal profession, or the lawyers
professional integrity or competence. [See CBA Rule 1-4, and past
rulings by LSUC on members involved in journalism and politics]
3.
The profession has determined that conduct which reflects
adversely on the integrity of the profession and the administration of
justice are: committing personally disgraceful or morally reprehensible
offences; acts of fraud or dishonesty; making untrue representation or
concealing a material fact from a client; taking advantage of a client;
misappropriation of client property; receiving client money/property for
a specific purpose and failing to provide it to same; assisting any
person to act fraudulently, dishonestly or illegally; failing to be frank
with a Court of tribunal, fellow lawyers; failing to honour ones word
when pledged. [See CBA Rule 1-5]
4.
My writings on a web site, in my capacity as an author and
writer, do not relate in any way to any of the nine above-noted
illustrations.
5.
My web site is an outside interest that is in no way related to
the provision of legal services for clients. There is no evidence offered,
whatsoever, that my private writings brought the profession or the
administration of justice into disrepute. Hurt feelings do not constitute
such evidence; equally, there is no evidence, here, that the Ontario
Ombudsman and his staff in some way are considered representative
of the entire legal profession or the administration of justice. In fact,
the only available evidence is that Mr. Marin was denied another term
as Ombudsman by the Government of Ontario because he and his staff
themselves acted in a manner that adversely reflected on the legal

profession and the administration of justice. [See CBA Rule 7-3; see
also attached news articles about the conduct, and about human rights
and several other proceedings initiated against Mr. Marin and his
cohorts.]

B.

Allegation: public respect for administration of justice

1.
In this case, my writings about Mr. Marin and his staff again, in
a purely personal and non-lawyer capacity were, in part, aimed at
addressing concerns that my readers and I had about the
administration of justice by drawing attention to the reprehensible
manner in which Mr. Marin et al. had conducted themselves. As a
concerned citizen and taxpayer of the Province of Ontario, I was, inter
alia, seeking improvements to identify some of the shortcomings of the
legal system by providing comments that were bona fide and as
reasoned as I could make them. [See CBA Rule 8-2]
2.
More personally, I can state that I hired a wonderful young
woman to act as my Executive Assistant at my political consulting
firm. This woman revealed to me that she had previously worked at
the Office of the Ontario Ombudsman and had been targeted by
flagrant racism there. As she is a person of color, she was
understandably hurt and offended by this. She left the Office of the
Ontario Ombudsman and brought a human rights complaint. As an
anti-racism advocate, I will not ever hesitate to speak out about the
sort of bigotry to which she said she was subjected. [See attached
news story about what my former EA endured at the hands of Mr. Marin
et al.]
3.
My comments about Marin et al. were not dictated by a client
interest. I wrote what I wrote, as a private citizen, because I truly and
conscientiously believed (and still believe) that my comments were in
the public interest, and because of my 30 years involvement in antiracism causes. I had also formed the opinion that Mr. Marin and his
senior staff were acting a manner that was wholly contrary to the
public interest, and felt it was imperative that Mr. Marin be denied the
reappointment for which he had been openly and cravenly lobbying on
Twitter and in the news media. [See CBA Rule 8-5 and attached news
articles criticizing the way in which the Office of the Ontario
Ombudsman behaved.]
4.
It is well-established and appropriate that lawyers should speak
out on behalf of various racial, religious and special interest groups,

because doing so makes a positive contribution to the community. It is

equally permissible, and at the core of democracy, for lawyers to speak
out about the effectiveness of existing bodies exercising statutory or
legal authority. Additionally, a lawyer is expected to speak out to bring
about positive change and heighten public awareness. In every
instance, that is why I was speaking out against the appalling conduct
of Mr. Marin and his followers in the Office of the Ontario Ombudsman:
to advocate for those who had allegedly experienced prejudice in his
office; to draw public attention to the lack of effectiveness in the
Ombudsmans office; and to bring about positive change ie., a
change in leadership in that office. Ultimately, that is exactly what the
Legislature of Ontario did in this case. While I understand that may not
make Mr. Marin and his cabal happy, it is worth noting that I was only
advocating for precisely what the Government of Ontario and the
Official Opposition ultimately did. That, as the CBA Rules state, is
obviously commentary that is proper. [See CBA Rules 18-8, 18-9, 1810]
5.
The Rules are quite clear. Per CBA Rule 18-11: the lawyer has a
positive duty to effect positive change in respect of administrative
boards and tribunals which are susceptible to public opinion. Per
CBA Rule 18-13: nothing in the Rules should be construed in such a
way as to discourage constructive comment or criticism. Moreover,
there is a constitutional imperative here, as well. As in the judgment of
the Supreme Court of Canada has recently ruled in the Grant case:
Freewheeling debate on matters of public interest is to be
encouraged and the vital role of the communications media in
providing a vehicle for such debate is explicitly recognized in the text
of s. 2 (b) itself. In Grant, it is worth noting that the highest court
explicitly held that blogs such as mine also deserve constitutional
protection, so as to encourage freewheeling debate on matters of
public interest. [See Rule 18-11 and 18-13, and Grant v. Torstar Corp.,
[2009] 3 SCR 640, 2009 SCC 61]

C. Allegation: Encouragement of criticism of Ombudsman petty,

intemperate or unsupported
1.
This part of the complaint against me relates to LSUC Rule 5.61, and the commentary thereunder about criticism that is petty,
intemperate, or unsupported by a bona fide belief in its real merit. It is
also reflected in CBA Rule 8-4, using identical language. The reasons
why lawyers should avoid such criticisms, it is stated, are: (i)
professional knowledge lends weight to the lawyer's judgments or
criticism; (ii) if a lawyer has been involved in the proceedings, there

is the risk that any criticism may be, or may appear to be, partisan
rather than objective; and (iii) where a tribunal is the object of unjust
criticism, a lawyer, as a participant in the administration of justice, is
uniquely able to and should support the tribunal, both because its
members cannot defend themselves and because in doing so the
lawyer is contributing to greater public understanding of and therefore
respect for the legal system.
2.
None of these reasons apply in the instant case. On my web
site, I was not in any way whatsoever offering professional
knowledge or legal expertise. I was commenting, and was widely
understood to be commenting, as a journalist, author and political
activist. In addition, I was not involved in any proceedings before the
Ombudsman. Finally, Mr. Marin repeatedly demonstrated that he was
capable of defending himself, and regularly did so, on his taxpayerfunded social media accounts and in the news media. His audience, in
fact, was always far larger than my own. My objective, per the LSUC
and CBA Rules, was simply to achieve a greater degree of public
knowledge about the way in which Mr. Marin and his acolytes had
diminished respect for the legal system. [See, in this regard, the
attached news stories about Mr. Marins use of social media to attack
his critics, and news editorials about how he had diminished respect for
the Office of the Ombudsman as a result.]
3.
My comments about Mr. Marin et al. were perhaps unwelcome
by them, but they were never unsupported. In fact, I always took
care to provide hyperlinks to relevant news stories about Mr. Marin and
his senior staff, so that readers could see the origins of my
observations. There were citations of news media stories in respect of
each and every comment I made. The definition of petty is of little
importance, trivial. The definition of intemperate is showing a lack
of self-control. Neither is applicable here. Mr. Marin and his senior
managers oversaw a staff of close to 100 people; they possessed
significant powers granted to them by the Legislature, and against
which there could be no appeal or review; and they oversaw a budget
of approximately $12 million annually. What they did, and what they
do, is in no way unimportant or trivial. Finally, my observations did not
reveal a lack of self-control. In fact, I always sought to be precise
and meticulous about my comments. I and many others wanted to see
him separated from his post and, as noted, he eventually was by the
Legislature. This was achieved not through reckless criticisms, or
statements that lacked self-control. It was achieved by being factual,
temperate and focusing on a subject that was of considerable
importance to Ontario. The mandate of the Ontario Ombudsman is to
receive complaints about problems and assess/address them, not to
create problems.

4.
The leading case with respect to criticism of tribunals remains
R. v. Kopyto. In that 1987 case, the Ontario Court of Appeal, per Cory.,
J.A., stated: A democracy cannot exist without the freedom to express
new ideas and to put forward opinions about the functioning of public
institutions. Because of their very importance in a democratic society
the courts are bound to be the subject of comment and criticism, not
all of which will be sweetly reasoned. Statements of a sincerely held
belief on a matter of public interest, even if intemperately worded, so
long as they are not obscene or criminally libelous, should, as a
general rule, come within the protection afforded by s. 2 (b) of the
Charter. The Office of the Ombudsman is a public institution wielding
great power and one which, because its decisions cannot be appealed
or reviewed, must always be the subject of comment and criticism.
How else are taxpayers and citizens to ensure that it conducts itself in
an appropriate fashion? [See R. v. Kopyto, 1987 CanLII 176 (ON CA).]
5.
Finally, there is no evidence of conduct unbecoming a barrister
or a solicitor that my comments were petty, intemperate and
unsupported that warrants an investigation under the Law Society
Act. My postings on my personal web site did not and do not pertain to
professional legal practice or to the provision of legal services to the
public. On its very first page, the web site clearly identifies me as a
journalist and author as well as a lawyer, but only a mischief-maker
would take the view that my postings are anything other than
journalistic in nature. As such, they are clearly protected by s. 2 of the
Charter, the case law and common sense. By opening an inquiry into
this matter, the Law Society of Upper Canada is inviting an avalanche
of similar complaints from fringe elements. This will create a
dangerous precedent, and is akin to encouraging Strategic Litigation
Against Public Participation (SLAPP) suits. It is worth noting that the
Government of Ontarios Bill 52, The Protection of Public Participation
Act, seeks to protect freedom of speech on matters of public interest
and is designed to allow the public to participate more freely in public
discussions without fear of retribution. By pursuing this spurious
complaint, the Law Society risks doing precisely the opposite. It will set
a precedent from which the Law Society of Upper Canada, and its
members, will not recover.

D.

Allegation: Posting of Personal Information

1.

For some years now, I have permitted comments on my

postings on my web site. I always endeavour to ensure they are not

obscene, defamatory or in poor taste. The rules are found in a posting
titled Comment Rules on the web site.
2.
I also endeavour to give the widest possible latitude to wellfounded comments about public officials, elected or otherwise. In fact,
this is the principal reason why I believe I attract approximately 3.5
million views every year: I provide a forum for commentary about the
public actions of people who wield power in society. Among other
things, I believe this helps to improve our democracy.
3.
I sometimes receive criticisms about things I have written, or
which others have written, on my web site. I review each complaint
carefully, and take action. In this case, I never received a complaint
not one from Mr. Marin or any other person about my web site.
Instead, I only received a copy of Mr. Marins May 8, 2015 email to all
of his staff from an anonymous member of that same staff. In it, he
dismisses me and goes on to actually encourage the staff at the Office
of the Ombudsman to feel free to use a search engine to read all of
the comments I and others had made. I fail to understand how the
Office of the Ombudsman can now claim I have hurt the legal
profession and the administration of justice how I have been petty,
intemperate or unsupported when Mr. Marin himself was actively and
enthusiastically encouraging all of his staff to feel free to read what I
and others had written. Either they objected to my web site, or they
did not. But they cannot encourage their staff to feel free to read it
on May 8 and then just three days later make a complaint about it
to the Law Society of Upper Canada. That makes no sense.
4.
Alternatively, it was always open to Mr. Marin and his offended
colleagues to bring an action against me based in libel, paid for out of
their own pockets. I note that they have not done so in the case.
Instead, they have made use of public resources to pursue what is,
clearly, a private complaint about a private individual.
5.
Finally, and notwithstanding the above, I have reviewed the
complaint against me carefully. While I stand by all of the points made
above, I also wish to be fair. As such, as a gesture of good will, I have
removed all of the offending comments under my postings pending the
outcome of this investigation.
I repeat my request that a public hearing be held in this matter, as I
believe a dangerous precedent has been set, and there are many
supportive individuals and free speech organizations who wish to lend
me their support. I look forward to hearing from you in this regard, and

thank you for giving me extra time to respond to a complaint that is

frivolous, vexatious and wildly unconstitutional.
Sincerely,

Warren Kinsella,
Writer.
Attach.