Law Times

LAW TIMES / APRIL 21, 2008 A Say that outside and I'll sue t least once a sitting in the Ontario legis- lature, someone will rise in their seat and make a remark that offends a person on the other side. That person will then say something like: "Repeat that outside and I'll sue you." Normally, nothing results. But not always. Prime Minister Stephen Harp- Queen's Park Inside By Derek Nelson er's decision to sue the federal Lib- eral party for libel has rekindled the question of whether a politi- cian who feels he or she has been defamed by another politician should bring suit. Of course, because it is Harp- er, much of the media have been berating him for reacting at all, implying ulterior motives for his decision rather than the possibil- ity that he just might feel offended at being labelled a criminal on a Liberal party web site. Former provincial Health minister Tony Clement cer- tainly felt that way when to- day's premier Dalton McGuinty called him "corrupt," in legisla- tive debate in 1999. Criminal Code offences. (As an aside, from a free speech Both accusations involve perspective, it is worthy of note that modern convention seems to absolve from suits the media that repeat the alleged defamations.) Like Harper, Clement initial- ly sought only a withdrawal and an apology. But when McGuinty repeat- ed the corruption comment to the media a few weeks later, Clement sued. There are a couple of interest- ing comparisons in the two cases that could prove illuminating should Harper's suit ever make it before a judge. McGuinty filed a statement of v. McGuinty, where Superior Court Justice William Somers rejected McGuinty's assertion in motions that repeating his state- ments about Clement far from the legislature was in the public interest and therefore protected by privilege. "The public may well have being no suggestion of malice, I would hold that the alleged de- famatory statements were uttered on an occasion of qualified privi- lege," he wrote. Fast forward to Clement COMMENT PAGE 7 Lake Pleasant bodies case F ifteen years ago, in the first edition of my book on le- gal ethics, I wrote about a notorious case that had been tried 20 years before, which had become known as the Lake Pleas- ant bodies case. In 2007, one of the protagonists, Frank Armani, a by-then retired lawyer from Syracuse, N.Y., spoke at a panel discussion at the American Bar Association's national conference on professional responsibility. He filled in some gaps in the story of the case, which is worth retelling. Armani and his co- counsel, Francis Belge, were appointed by the court to represent Robert Garrow, who was charged with the murder of a teenage boy, Philip Domblewski. Garrow told Armani and Bel- that interest, but I am aware of no duty on a politician . . . to appear on a radio or television talk show to express his views. Neither do I consider that the appearance of [McGuinty] on a radio or televi- sion talk show, some three weeks after the legislative debate, to be a situation similar in law to a scrum adjacent to the legislature, as pleaded by the defendant," he wrote. Accepting such a defence by McGuinty would be granting him "some form of generic qualified privilege in all of his political ut- terances," the judge said. But in a time when television does cover the House, could a Lib- eral web site repeating the words of its MPs perhaps be covered by qualified privilege? "public interest" be broader now than almost 30 years ago? On the other hand, do we as And might the standards for v. Goyer (1979), where an On- tario court threw out a judgment against a then-federal cabinet minister who made allegations about the reasons for a senior civil servant's demotion. He had made the comments in defence claiming qualified privi- lege for his corruption allegations because they were similar to the remarks he made in the legislature, where absolute privilege reigns. Musings out of Ottawa seem to suggest the Liberals will be mounting the same kind of de- fence: that they were just repeat- ing on their web site about Harp- er and the Cadman affair what was said in the libel-proof House of Commons. The definitive case is Stopforth a country want to go as far as the United States, where New York Times v. Sullivan basically gave free speech by, for, and about public figures exemption from libel law unless malice was involved? Or is it still important that some lines be drawn in the sand when reputation is in- volved, particularly when it in- volves — as with both Clement and Harper — accusations of criminal activity? In the end, in 2001, McGuinty the House and repeated them out- side in one of those crazed media pile-ons known as "scrums." This was in the days before tele- vision in the House, and the judge said the "electorate, as represented by the media, has a real and bona fide interest in the demotion of a senior civil servant for an alleged dereliction of duty. It would want to know if the reasons given in the House were the real and only rea- sons for the demotion. "The appellant had a corre- sponding public duty and inter- est in satisfying that interest of the electorate. Accordingly, there offered a written and verbal apol- ogy to Clement and withdrew his accusation before the matter reached a decision. Clement then withdrew his lawsuit. Some people thought Clement should have continued it, on the grounds that there should be legal limits to political mudslinging. But like most politicians, all of whom put up with infinite abuse for relatively poor financial returns and less respect, a withdrawal of the accusation of being a crook satisfied him. Harper appears to have the same approach. It's highly unlikely any or- dinary citizen would be so generous. LT Derek Nelson is a freelance writer who spent 19 years at Queen's Park. His e-mail is jugurtha@rogers. com rebuffed the approach. Armani and Belge then ad- vised Garrow to plead not guilty by reason of insanity. Armani had lined up several witnesses, such as Garrow's parole officer, but had decided not to call Garrow to testify. On the Mon- day of the second week of trial, Armani was late arriving at court. Upon entering the courtroom he was astonished to see Garrow, who had been called by Belge, in The Profession By Gavin MacKenzie ge that he indeed killed Philip, and that he also killed two teen- age girls who had been reported missing — Alicia Hauck of Syra- cuse and Susan Petz, of Skokie, Ill., who had been camping in the woods in upstate New York. Garrow told Armani and Belge where the bodies were buried. They searched for and found Alicia's in a cemetery, Susan's in a mine shaft. Belge took photographs of them, and moved Susan's skull several feet to place it near the rest of her re- mains. They did not report their discovery to the police. The community exerted pressure on Armani and Belge to reveal whatever Garrow had told them. But they didn't wa- ver; at least, not then. They took seriously the oath they had taken when they were ad- mitted to the bar to protect their client's confidences. This must have been par- the witness stand. Garrow testi- fied about the murders of Alicia Hauck and Susan Petz. Later, Armani and Belge went out one evening and had a few drinks. "I exploded," Armani told the ABA conference, "and we ended up in a fist fight." Armani wound up with a black eye. Garrow was convicted of ticularly hard for Armani, whose daughter Dorina was a classmate of Alicia Hauck's sisters at Bishop Ludden High School. Armani himself knew Alicia's father, who worked at the courthouse. "I had known Mr. Hauck from calen- dar call," Armani told the ABA professional responsibility con- ference. "Prior to calendar call a bunch of us would get together and have coffee down in the cafe- teria in the courthouse basement. Mr. Hauck was employed there. So I knew him that way. They lived in our neighbourhood too, and went to the same church I did. He' want to talk to me, and I'd sneak out the back door, or I would not see him. I knew I couldn't trust myself with him." Susan Petz's father also came to speak to Armani. He travelled 1,000 miles from his home in Illi- nois because he' d stop in the office and ulation linking Garrow to Susan's disappearance. He pleaded with Armani to tell him whether he knew if Susan was alive. Armani did not tell the dis- traught parent sitting across from him where his daughter was bur- ied, or even that she was dead. Armani and Belge met with d learned of spec- Philip Domblewski's murder. He was sentenced to 35 years to life in prison. It became apparent that for more than six months Armani and Belge had kept to themselves their knowledge of the deaths of Alicia Hauck and Susan Petz. Armani and Belge defended their actions at a press confer- ence. The parents of the victims and the community in which they practised were furious with them. Friends and colleagues deserted them. Their practices dried up. There were calls for their disbarment, and a grand jury was convened to consider bringing criminal charges against them. Belge, who had moved Susan Petz's skull, was indicted. There were also death threats against Armani and Belge and their families. Garrow escaped from pris- on. At that point Armani as- sisted the police to find him by providing information he had acquired from Garrow, origi- nally at least, in confidence. At the ABA conference Armani explained why, after maintain- ing his client's secrets under such extraordinary pressure, he ultimately divulged this one. During Garrow's trial Ar- Armed with the information Armani had given them, the police found Garrow in a field. Garrow jumped up and started shooting at the officers as they were coming at him, and the of- ficers returned the gunfire. Gar- row was killed. During the uproar in the community that followed the disclosure that Armani and Bel- ge had kept to themselves their knowledge of the deaths of Alicia Hauck and Susan Petz, Armani's mother asked him if he was insane, protecting confidences told to him by a se- rial murderer. Armani analogized his obliga- tion to that of a priest who learns of a parish- ioner's secrets in a confessional. "But Frank," his mother replied, "you're not a priest." At the ABA conference Ar- mani was asked whether he was tempted to say to Garrow when he started to tell him about the two other killings, "I don't want to know any more about this." "No," he replied. "When prosecutors and offered to pro- vide information about two unsolved murders as part of a plea bargain. The prosecutors www.lawtimesnews.com mani's teenage daughter Dorina — Alicia Hauck's sisters' class- mate (who later became a lawyer herself) — came to the court- room to see her father. Garrow turned and looked at her and said, "Nice to see you again, Dorina." Since Gar- row had never met Dorina, it suddenly became chillingly ap- parent that he might have been stalking her. By the time Garrow escaped, he had sued Armani. "I was on a death list," Armani said. "And my family was threatened. Nothing goes before that . . . I felt that my primary duty to society and to my family was to get him recaptured and locked up to serve his sentence. He and I had parted company when he threatened my life." you're in, you're in." Tellingly, he added, almost as an after- thought, "Plus the excitement of it, you know." Everyone involved in the case suffered. The pain of the Hauck and Petz families is unimaginable. The local tourism-based economy of the Lake Pleasant community was devastated; people think twice about going camping where there may be a deranged killer on the loose. The public was appalled. Garrow was convict- ed and sentenced to 35 years to life, then was killed in the shootout. He was not aided in the slightest by his counsel's silence. Belge was indicted, and though he was eventually exoner- ated, his law practice and that of Armani were practically ruined. So was their peace of mind. At the ABA conference, Ar- mani was asked how he felt when he learned that Garrow was dead. "It was one great re- lief," he responded. "Terrible, but that's my honest answer. It was a relief. I'm no hero." A law professor in attendance begged to differ. "I've been teach- ing about you for over 20 years," he said to Armani. "The students I have taught about you have learned more from that story about what it means to be a law- yer than from everything else I have told them." It was time to wrap up the panel discussion. "Honestly, I have to say, I don' have very many heroes who are lawyers," the program chairwom- an said. "But if I had to make a list," she added, "you're right at the top, Frank. So thank you." "Thank you," Armani replied. t "You're too kind." LT Gavin MacKenzie is the trea- surer of the Law Society of Upper Canada, a partner at Heenan Blai- kie LLP, and the author of Law- yers and Ethics: Professional Re- sponsibility and Discipline. His e-mail is gmackenzie@heenan.ca

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