Does this deserve three years in prison?

By Aaron Wherry - Tuesday, February 14, 2012 at 11:20 AM - 0 Comments

An Ontario judge rejects a three-year mandatory minimum for a first-time offender as unconstitutional.

Smickle was alone in his cousin’s apartment at 2 a.m. on March 9, 2009, taking pictures of himself to post on his Facebook page. He was wearing boxer shorts, a white tank top and sunglasses and posing with a loaded handgun to look “cool,” Molloy found.

Unbeknownst to him, members of the Toronto police Emergency Task Force were amassing outside to execute a search warrant in relation to Smickle’s cousin, who they believed had illegal firearms.

The minimum in question was introduced by the Harper government in 2008. The McGuinty government stands by its support for mandatory minimums. Roy McMurtry, Edward Greenspan and Anthony Doob lament the incoherence of Conservative crime policy.

Writing past wrongs

By Colin Campbell - Friday, August 28, 2009 at 4:19 PM - 5 Comments

Convicted killer Colin Thatcher’s new book, Final Appeal: Anatomy of a Frame, carries a curious warning on the back cover. In a space typically reserved for gushing praise from fellow authors or reviewers, lawyer Edward Greenspan writes: “Thatcher was convicted and punished. He has served his time. If you think Colin Thatcher should not profit from his book, simply do not buy it.”

The quote chosen by the publisher to market the book is telling. Whether or not Thatcher, who spent 22 years in prison for the murder of his ex-wife, and is now out on parole, should make any money from his book when it goes on sale next month has become a contentious issue. And in Saskatchewan, it will likely end up in court as the first test of a new law aimed at preventing criminals—specifically Thatcher—from making any profit from telling their stories. Continue…

Does Drabinsky's sentence send the intended signal?

By Anne Kingston - Thursday, August 6, 2009 at 9:29 AM - 2 Comments

Madam Justice Mary Lou Benotto took her time this morning articulating her decision to sentence Garth Drabinsky and Myron Gottlieb to jail. The long-time business partners faced a maximum of 14 years on two counts of fraud and 10 years for forgery for bilking investors of $500 million while running Livent, the now-defunct theatrical empire  known for mounting such lavish spectacles as Phantom of the Opera, Ragtime and Kiss of the Spider Woman. Drabinsky, who Benotto called “the main person in charge,” was sentenced to four years on the first count of fraud, seven years on the second to be served concurrently. Gottlieb was handed four years on the first charge, six on the second to be served concurrently. The forgery count was stayed.

The clock ticked away—from 10:10 am to 10:45 am—as the judge outlined the sophisticated, systemic fraud, concluding that Livent’s “corporate culture was one of dishonesty.” She reviewed the sentencing arguments: the Crown proposed eight to 10 years in jail; defense lawyers Edward Greenspan and Brian Greenspan countered with a request for conditional sentences or house arrest. The Greenspan brothers even had the cojones to suggest the convicted felons could repay their societal debt by embarking on a university circuit speaking tour—Gottlieb advising students on business ethics and Drabinsky inspiring the next generation of cultural entrepreneurs—a proposal so ludicrous it could inspire theatrical parody, especially since neither has publicly expressed one shred of remorse for the crimes. Again and again, the judge made it clear it was the duty of the court to “denounce such conduct” and to “send a signal” to the business community which “must be put on notice,” she said, adding that the failure to do so “fosters cynicism and erodes public confidence in stock markets.”

Throughout her address, the judge appeared measured, deftly flicking on every argument and counter-argument to the point it wasn’t clear exactly where she’d end up. She invoked sentencing precedents in similar cases. A fellow judge was quoted on the subject of fairness: “Compassion must neither be stifled or allowed to take control.”  Yet what seeped through was the view that Drabinsky and Gottlieb were far more civilized white-collar perps than the vulgar bunch south of the border. Back in March, when she delivered her verdict, Justice Benotto claimed the Livent con wasn’t motivated by “pure greed;” she repeated that today. By that, she means the proceeds from the crime weren’t spent on gauche gold latrines or vulgar bling or other material extravagances enjoyed by Tyco and Enron executives. Rather, Drabinsky and Gottlieb mastermined the massive fraud to keep the company afloat in its grandiose style, which of course conferred glory and social stature on them. Livent was a “legitimate” business, Benotto pointed out, which is true, though its financials were anything but. It was never set up as a scam, she added, alluding to that money-grubbing Ponzi schemer Bernie Madoff. who’s serving a 150-year sentence.

Benotto also gave weight to the dozens of supportive letters written on behalf of the convicted men by friends, family and luminaries from the business and arts worlds. That these glowing endorsements didn’t jibe with the fact that Drabinsky and Gottlieb are convicted fraudsters didn’t appear to trouble the judge: she quoted praise that Drabinsky was a “visionary, generous, kind, fair, honest and trustworthy” and Gottlieb was a “fair, decent, honest person” who is “well-respected in the business community.”

Not only did Drabinsky and Gottlieb make an artistic contribution, they made philanthropic ones, the judge pointed out, as benefactors of  Mount Sinai Hospital and the Hospital for Sick Children. Whether that money was theirs to give wasn’t questioned. Much was also made of the fact both men were surrounded by people who loved them—even that Drabinsky’s first wife, the mother of his two children, sent a character reference. Gottlieb’s 42-year marriage and “close-knit, devoted family” was mentioned.

Of Gottlieb, the judge was sympathetic, remarking that he had lost “everything of material value” and has been unable to earn a living since being charged in 2002, unlike Drabinsky who has been busy with other ventures, including the CBC reality show Triple Sensation which he produces and stars. Gottlieb’s family had even lost money investing in Livent, the judge remarked, as if this fact should ramp up the pathos. But what that detail reveals is the stunning arrogance at the core of the Livent fraud: so confident was one of its architects that it would never be detected that he had his family invest in the company.

Livent was not Canada’s biggest corporate fraud. But because of its cultural prominence (heightened ironically by the long-term con), it is the country’s highest-profile corporate fraud, one that extended into the U.S. where Livent’s inflated books damaged the ecology of Broadway and ultimately ruined lives of those caught in its fall-out.

The onus indeed was on Judge Benotto to send out a strong signal, one that suggests Canadian courts take white-collar crime seriously. Not sentencing Drabinsky and Gottlieb to jail wasn’t an option given legal precedent. Sentences of seven and six years are just shy of the halfway mark between the maximum and the non-sentence requested by the defense team. Which is fitting; the decision can be seen as a halfway sentence, a safe hedge.

No one expects the two will serve out their full sentences. In Canada, first-time offenders charged with non-violent crimes are eligible for parole after one-sixth of their sentence is served. That means Drabinsky could serve 14 months, Gottlieb one year. When—and if—they’ll get to jail is another matter. They’re now free on bail awaiting their appeal, which could take years. As they were escorted by police into temporary custody today, the long-time associates betrayed no emotion. But they had to know that it was the best possible ending they could hope for even if it was banal, offering little catharsis. It would never have been acceptable in a Livent production. But those days are long over, even though some of the illusion remains.

Mel Gibson's hand puppet, Dave Carroll's broken guitar, and "Shannon Tweed Day" in Oshawa

By Lianne George - Thursday, July 16, 2009 at 9:30 AM - 1 Comment

Kim Jong Ill?
So much mystery attends North Korea, Asia’s only Communist dynasty, and so fraught are the geopolitics of the region, that the merest sign of health trouble for its Dear Leader, Kim Jong Il, sets off international alarms. So it was this week when South Korea’s YTN television, citing Korean and Chinese intelligence sources, reported that the 67-year-old has pancreatic cancer and, at best, five years to live. In his recent appearances, Kim has looked gaunt, with thinning hair, a limp and an asymmetrical bent to his mouth, indications he’s not entirely recovered from a stroke last year. Renewed fear that Kim is not long for this world caused Seoul’s main stock index to plummet, so vexed are the markets by what his death could mean. Though he is said to have named his youngest son, the Swiss-educated Kim Jong Un, as his successor, there’s concern the installation of a weak leader still in his mid-20s will destabilize the regime and the region.

What’s wrong with being sexy?
Shannon Tweed, the Canadian adult-film star, has been denied recognition for such contributions to world cinema as Hard Vice and Indecent Behavior 3. But the acting mayor of Ottawa, Doug Thompson, issued a proclamation that this Wednesday would be “Shannon Tweed Day,” to celebrate the blond bombshell’s visit to the city where she lived in the 1970s. He soon rescinded the proclamation, however, admitting sheepishly that he “spoke to the media before the item had been fully vetted.” Tweed told the Ottawa Citizen that she had “no hard feelings” about the rejection, but bristled at a councilwoman’s suggestion that she is a porn actress: “I’ve done movies with love scenes,” said the star of Body Chemistry 4: Full Exposure and Cannibal Women in the Avocado Jungle of Death, “but I’ve never had real sex on camera.” Oshawa, which recently finished first in an online contest hosted by KISS, doesn’t care either way. Oshawa city councillor Robert Lutczyk, who headed up the spring contest effort, promised a “Shannon Tweed Day” in Oshawa if she and the band come through town this fall. “I’ll be there,” said Tweed. “I’ll be there.” Continue…