Janet McFarland
TORONTO — From Wednesday's Globe and Mail Published on Wednesday, Jul. 08, 2009 12:00AM EDT Last updated on Thursday, Sep. 03, 2009 8:23AM EDT
Livent Inc. co-founders Garth Drabinsky and Myron Gottlieb could take to the stage on lecture tours to instruct and inspire university students as an alternative to serving time in prison for their fraud convictions, their lawyers told a Toronto court yesterday.
Edward Greenspan, who is representing Mr. Drabinsky, outlined a proposal for his client to visit theatre and performance students at as many as 64 universities and colleges across Canada as a condition of receiving a conditional sentence.
The lectures would count toward community service work that could be imposed on Mr. Drabinsky after he were to serve a two-year conditional sentence including a period of house arrest, his lawyer proposed.
"He would teach students the discipline of the craft, the enormous role that integrity and honesty play in the theatre, the importance of fulfilling contractual responsibilities [and] the avoidance of unethical conduct," Mr. Greenspan said.
Brian Greenspan, who is representing Mr. Gottlieb, also proposed yesterday that his client could lecture at six universities about business issues as part of his sentence.
Mr. Gottlieb's community service lectures could cover subjects such as corporate governance, entrepreneurship, shareholder rights and conflicts of interest. He is also prepared to do volunteer work at Mount Sinai Hospital in Toronto, his lawyer said.
Brian Greenspan said such work would be more valuable to the community than serving a jail sentence. He noted that Mr. Gottlieb would likely serve just one-sixth of a jail term before being eligible to move to a halfway house, and that the court could not impose community service work on top of a jail term.
"After one-third [of his sentence], he is fully paroled in the community without any sense of remedial justice or any sense of making a contribution back to the community," Mr. Gottlieb's lawyer said.
Madam Justice Mary Lou Benotto said she expects to sentence the two men Aug. 5. The Crown has asked for jail terms of eight to 10 years, while defence lawyers have instead proposed two-year conditional sentences, which would involve no jail time. The men could also face three years of probation, during which each could do up to 480 hours of community service work.
The two were convicted in March of two counts of fraud and one count of forgery after Judge Benotto ruled they systematically manipulated Livent's financial statements from 1993 to 1998 as the live theatre company reported soaring profits. Under sentencing guidelines at the time, the two counts of fraud carry a maximum jail term of 10 years while the maximum sentence for forgery is 14 years.
Crown attorney Alex Hrybinsky told the court yesterday that the sentencing proposals from the accused are "completely inappropriate." He said that in all the time he has worked on the Livent case, he "never imagined" it would result in a lecture series being imposed as a penalty. "What is being proposed here is not just out of the norm, it's a drastic departure from what's recognized as an appropriate sentence even for first offenders in large-scale breach-of-trust frauds such as we have here," Mr. Hrybinsky said.
He added that it is hard to imagine how such lectures would be appropriate restitution because the two men have never admitted responsibility, and have continued to blame former employees and others for the Livent fraud.
Mr. Hrybinsky said it is not similar to cases where remorseful drunk drivers are offered a chance to give public lectures on the devastation caused by impaired driving: "The accused in this case have never shown remorse or even recognition of what's been done."
Mr. Hrybinsky noted that the Ontario Court of Appeal has overturned conditional sentences imposed in a number of major fraud cases, replacing them with prison sentences. He said the court has made it clear that in major fraud cases, the deterrence aspect of jail sentences is "paramount."
Brian Greenspan urged Judge Benotto to consider the suffering Mr. Gottlieb has already faced. He has had to sell his former home and vacation property, and has fully mortgaged his current house, the lawyer said. Mr. Gottlieb has been virtually unable to find work since Livent's collapse and has had no income since late 2007.
Mr. Greenspan noted that some people who wrote letters of support for Mr. Gottlieb said he has "effectively" served terms of house arrest because of his constrained and even reclusive life.
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