The co-founders of Livent Inc. have turned to dozens of powerful friends in the entertainment and business worlds to try to win conditional sentences in their long-running fraud case, arguing that the judge should not heed the Crown's request for jail terms of eight to 10 years.
Lawyers for Garth Drabinsky and Myron Gottlieb tabled thick volumes of testimonial letters yesterday provided by relatives, friends and luminaries the two men worked with during their long careers. The letters laud the accomplishments of the two men and urge the court to impose lenient sentences.
Letters of support for Mr. Drabinsky came from such stars as actor Christopher Plummer, writer E.L. Doctorow, director Harold Prince and painter Alex Colville. Mr. Gottlieb's submission included letters from Four Seasons founder Isadore Sharp, former broadcasting executive Douglas Bassett and philanthropist Seymour Schulich.
"This is the only side of Garth Drabinsky that I know - Garth the optimist, the inventor, the achiever, who, lest we forget, has never ceased to stimulate the arts and contribute to the culture of his own country with such ferocity and such conviction," Mr. Plummer wrote in his submission.
Mr. Drabinsky, 60, and Mr. Gottlieb, 65, were convicted of fraud and forgery in March after Madam Justice Mary Lou Benotto ruled they systematically manipulated the financial statements of the live theatre company in the 1990s. Judge Benotto concluded the men knew the books were doctored each year between 1993 and 1998 as Livent reported soaring profits.
Under sentencing guidelines in 1998, when the crimes occurred, the two counts of fraud each carry a maximum jail term of 10 years while the maximum sentence for forgery is 14 years.
On the first day of a two-day sentencing hearing, Crown attorney Alex Hrybinsky urged the judge to impose prison terms of eight to 10 years on the two men, arguing that the fraud at Livent was "enormous" and continued every quarter between 1993 and 1998.
"It was by no means a one-time event or a lapse in judgment," he said.
Mr. Hrybinsky said the two men were in positions of trust as officers of a publicly traded company, which is an aggravating factor in sentencing, and argued that they have shown no remorse since the crimes occurred.
He also cautioned the judge not to be swayed by the position of the two men in the entertainment or business communities, noting that courts have long held that social status should not be considered a mitigating factor in frauds because it is often a necessary condition to carry out the crime.
But such a warning did not deter defence lawyers from highlighting the status of both men in Canada's entertainment and business communities. Many celebrities who wrote letters on behalf of Mr. Drabinsky, for example, praised his role in developing the arts in Canada.
Martha Henry, a noted Canadian actress who is a staple of the annual Stratford Festival in Ontario, said Mr. Drabinsky is a larger-than-life hero who has "put us on the map." She urged Judge Benotto to impose a lenient sentence.
"Garth will, and should, live to flourish again," Ms. Henry wrote.
Mr. Drabinsky's lawyer, Edward Greenspan, suggested the judge should impose a two-year conditional sentence, which could include one year of house arrest, followed by a three-year probationary period. He said Judge Benotto should consider that Mr. Drabinsky was not motivated by greed but by a desire to keep the company operating, and did not sell any of his Livent shares to enrich himself before the company's collapse in 1998.
Mr. Greenspan said a prison sentence would be "more punitive" for Mr. Drabinsky because of a childhood bout of polio, which has left him walking with a severe limp. "It has a genuine impact on where he serves his sentence," Mr. Greenspan argued.
He filed several doctors' reports noting that Mr. Drabinsky suffers from chronic pain because of post-polio syndrome, which has left him with almost total paralysis of his left leg. One doctor's report said Mr. Drabinsky uses multiple analgesic and muscle relaxant medications and that he also relies on massage therapy, periods of bed rest and cortisone injections. He also suffers from bursitis, back spasms and arthritis, and has difficulty walking even short distances.
Mr. Greenspan said Mr. Drabinsky has significant mobility problems that could not be accommodated in prison. For example, the lawyer said Mr. Drabinsky must sleep on a special mattress and has difficulty walking up stairs or on slippery surfaces; he could not carry a tray in a cafeteria or shower in a room without hand rails to support himself.
Mr. Greenspan also said the Livent case has had a devastating financial impact on Mr. Drabinsky and forced him to sell or pledge his entire extensive collection of Canadian art to cover legal costs.
Mr. Gottlieb's lawyer, Brian Greenspan, is expected to make his sentencing submissions today but has said he will also seek a conditional sentence for his client.
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Testimonials
"I've always thought [Mr. Drabinsky]was that all-too-rare breed of creative producer - imaginative, supportive and generous to his actors and creative staff and stagehands. ... I regret that he has been prevented from working in the theatre. I truly believe his absence represents a loss to the artists and their projects that his courageous decisions provided."
Director Harold Prince
"There is a life history here of someone raising himself by his own bootstraps to the pinnacle of his profession. That [Mr. Drabinsky]has, after years of visionary theatrical entrepreneurship, come to this, I cannot view as anything less than a personal tragedy."
Writer E.L. Doctorow
"As one who has enjoyed a personal friendship with Myron for more than 40 years, I find the conduct in question to be completely out of character. ... I have always known Myron to be an honest man, well respected in the business community and having a strong sense of decency, fairness and concern for others."
Four Seasons founder
Isadore Sharp
"I respect Myron as a man of integrity who has done much to help others, often unsolicited, and he did so at all times in a humble manner and without ever seeking public recognition."
Former broadcasting executive
Douglas Bassett
Janet McFarland