On February 2, 2007, Hunter admitted misconduct to a law society disciplinary panel and was suspended from the practice of law for sixty days.
NANCY MOORE of Boston University School of Law, a leading U.S. commentator on legal ethics, has written that “there can be no dispute that sex with clients is a serious problem for the legal profession.”26 Moore recognizes that there are strong arguments against an outright ban. Opponents argue that the problem can be addressed through existing rules, such as those governing conflicts of interest; that a ban may violate the right to privacy of clients and lawyers; and, what may be the most powerful argument of all, that sex with clients is “perfectly okay” in some situations.
But Moore replies that there are important advantages to what she calls a “bright-line black letter” rule prohibiting sex with clients. Such a rule, she believes, provides necessary protection for the majority of clients who are significantly at risk and whose lawyers are likely to mistakenly conclude that their relationship is one of the “good ones.” It protects well-intentioned lawyers by alerting them to the dangers of sexual relationships with clients and the serious possibility of discipline if the relationship goes sour and the client complains. And it puts clients on notice that such conduct by their lawyer is unethical. Jim Hodgson, a senior Canadian litigator and former president of the Advocates’ Society, who has represented lawyers accused of sexual impropriety, puts it succinctly: “Forget all that argument about what’s personal life and what’s professional life. No sex with clients is the best rule. It is very clear. It’s a rule that, in the end, will save everybody an awful lot of trouble.”27 Mark Joseph, we may remember, wished there had been such a rule.28
Few subjects are more fraught than love and sex. Few circumstances are more complicated than those involving romantic and sexual relationships. And, accordingly, few issues confronting the legal profession are more difficult that the issue of lawyer-client sex. Does this difficulty argue for the simple solution, a sweeping ban on lawyer-client relationships designed to remove the issue from the agenda? Or is a case-by-case approach preferable, one that applies the accepted test of conflict of interest to particular facts, finding some relationships acceptable and others not, and attempting to standardize penalties for the unacceptable as it goes along? Many lawyers support a vague approach, arguing that, in the tradition of the common law, individual facts are what count. A general prohibition fails to distinguish between wildly different situations, for example, between the client who is a vulnerable and poorly educated juvenile, and one who is a sophisticated and well-educated vice-president of a large corporation expecting to be wined and dined.
The Canadian legal profession has no clear rule about how to deal with lawyers who have sex with clients. The few disciplinary cases of the last decade or so have focused on conflict of interest in a muddled sort of way, and have imposed widely differing penalties on lawyers found lubricious. Only three provinces address the issue in their rules of conduct, and then only in passing. The Ontario bar flexed its muscles and proposed a sex ban, but changed its mind. A ban put before the Canadian Bar Association was treated with derision by its members. More generally, there seems to be growing resistance to the ever-expanding concept of “professional misconduct,” and to the idea that law societies should be policemen of lawyers’ lives, supplementing if not supplanting everything from the teachings of the church to the strictures of the criminal law.
EIGHT
AN ORDINARY MAN
Agnew Johnston
John Andrew Agnew Johnston, known as “Agnew,” was born to an Establishment family in a small city where he grew up, practised law, married, and had a child. For a while, he enjoyed middle-class success and the happiness of an ordinary man. Then, as a result of unexceptional weaknesses in his character, unhappy circumstances, and a series of bad judgments, his happy and successful life came to an end, and was replaced by crisis and catastrophe. Beset by marital problems, drinking too much, unable to think straight, he started using young prostitutes, and became a suspect in the murder of one of them. The Establishment, drawing together to protect itself from lurid accusations, abandoned Agnew and sent him on his way.
AGNEW JOHNSTON was born in Fort William, Ontario, on October 15, 1952.1 In those days, the cities of Fort William and Port Arthur, separated by just a few miles and with a combined population of about eighty thousand, were uneasy rivals. The rivalry ended in 1970 when the provincial government forced them to amalgamate into a single city, Thunder Bay. When Agnew was a small boy, his father, the Reverend Dr. Agnew Herbert Johnston, would sometimes, for an outing, take him by ferry from Port Arthur to Fort William, and then back to Port Arthur by streetcar.
Agnew’s father graduated from Osgoode Hall Law School in Toronto and articled with a trust company, but quickly gave up the law to become a Presbyterian minister. He was minister of St. Andrew’s Church in Thunder Bay for fifty-three years. In 1973, he was elected the ninety-ninth moderator of the General Assembly of the Presbyterian Church in Canada. He served for a time as chairman of the board of education in Fort William (a school in Thunder Bay is named after him). The Reverend Johnston never completely lost interest in legal matters, and once was chairman of the discipline committee of Ontario’s Board of Funeral Services, which regulates the practices of the province’s funeral directors. Agnew’s father was named after Agnew’s great-uncle, William Agnew Johnston, who was Chief Justice of Kansas from 1903 until 1935, a fact that Agnew still refers to with pride.
In 1975, Agnew graduated with a bachelor of arts degree from Thunder Bay’s Lakehead University. He majored in history, a lifelong interest. “I should have been a historian,” he says. Knowing that being a historian was not a job, but that he could make a living as a lawyer, he went to Osgoode Hall Law School, where he was an average student. He graduated in 1978 and went home to Thunder Bay, where he articled for Alfred Petrone, a Thunder Bay criminal defence lawyer. He worked in Petrone’s law office for ten years. In 1979, he married Amy Evelyn Gertz, and in 1982 their daughter, Anne, was born. Things seemed to be going well for Johnston. He was a rising professional, settled in his personal life and respected in the community. He started doing part-time Crown attorney work, which he liked. In 1990, he left Alfred Petrone’s office to become a full-time assistant Crown attorney.
But there was growing trouble. In 1985, Johnston’s wife, Amy, left him, taking their daughter, Anne, with her. Johnston’s attempts to gain custody of his daughter were unsuccessful. In October 1987, Johnston’s much-loved father died, at the age of eighty. In 1988, Johnston struck up a relationship with Sheilagh Warren. Eventually they bought a house together, on Selkirk Street in the old Fort William part of Thunder Bay, but by 1992 the relationship had collapsed. Johnston became depressed and started drinking a lot. And then, one morning during the winter of 1992/93 (he does not remember exactly when), at the provincial courthouse where he was appearing as a Crown attorney, Johnston met Stephanie Edwards, an eighteen-yearold prostitute whom he later described as beautiful and charismatic. Stephanie was in court that morning as a “support person” for an accused, bumped into Johnston, asked him for advice and reassurance, and later, as a gesture of gratitude, bought him a coffee.
Johnston says that Stephanie came on to him, and he thought, “Why not?” They started having sex. It is not clear whether Johnston realized at the beginning that Stephanie was a prostitute, but it was not long before she started asking for money. In the summer of 1993, Stephanie Edwards’s brother broke into Johnston’s house (why he did so is not apparent) and was arrested. Stephanie called Johnston and told him that if he didn’t get her brother out of jail, she was going to tell everyone that he used underage hookers. Johnston denies that he helped Stephanie’s brother in any way.
The rumours, whether started by Stephanie or by someone else, began in 1993. It was said that Johnston was a regular customer of prostitutes under the age of eighteen, picking girls up on Simpson Street, the notorious For
t William “track.” (The Criminal Code makes it a crime to pay for sex with someone younger than eighteen.) The rumours said that Stephanie was blackmailing Johnston. The police, half-heartedly, began an investigation, but it went nowhere. Meanwhile, despite the gossip, Johnston’s life seemed to be settling down. In September 1993, he married Michelle. “Michelle was beautiful,” he said many years later. “She was the only woman I ever really loved.”
And then Stephanie Edwards, the prostitute whom Johnston also thought beautiful, was murdered. In January 1994, her frozen body, torn apart by wolves, was found in a snowbank. “There were more people at her funeral than there were at my father’s,” Johnston said. Years later he admitted that when he heard about Stephanie’s murder, his first feeling was one of relief. But the relief was temporary. Because of the rumours, particularly those of blackmail, he quickly became a prime suspect. Perhaps, the Thunder Bay police conjectured, Johnston killed Stephanie to ensure her silence.
On February 10, 1994, the police interviewed Johnston. A few days later, Thunder Bay street people, who believed he’d killed Stephanie, marched up and down outside the courthouse carrying a coffin with his name on it. But it was quickly apparent to the police that Johnston was innocent. For one thing, he was at his stepdaughter’s birthday party at the time Stephanie was probably murdered. In March, the police arrested Robert Wayne Valey Jr. for the crime, and in 1995 Valey was convicted. But rumours about Johnston persisted. A prostitute friend of Stephanie’s, who was visiting Toronto around the time of the arrest, went to The Globe and Mail with a story of murder, cover-up, and the use of underage hookers by prominent citizens of Thunder Bay. On March 30, The Globe sent Henry Hess, the paper’s national police reporter, to Thunder Bay to investigate. Hess tracked Johnston to a motel in Kenora, where he was prosecuting an Anglican priest charged with indecently assaulting Aboriginal youths, but Johnston refused to say anything. Johnston waited with trepidation for The Globe’s story to appear. Two months went by and nothing happened. Johnston heaved another sigh of relief. Perhaps the nightmare was over. Life with Michelle was good.
In June 1994, Johnston went to Ottawa to attend his daughter Anne’s dance recital. (That was the last time he ever saw Anne.) A few days later, he went on a business trip to the small community of Armstrong, 240 kilometres north of Thunder Bay. When he arrived back at Thunder Bay airport, a colleague met him, holding the latest edition of the Thunder Bay Post, a weekly tabloid. The Post reported that an unnamed Crown attorney was under police investigation for sex crimes. Now The Globe and Mail, which for unknown reasons had not yet published the story, went ahead and did so, perhaps feeling that its hand had been forced by the little weekly newspaper. On June 21, a story by Hess, buried on page 8 of the news section, began, “He holds a position of the utmost public trust…. Four teen-aged girls say he paid them for sexual services while they were minors.…”2 (It wasn’t long before the stories about Agnew Johnston moved to The Globe’s front page.)
Now under considerable pressure, the Thunder Bay police reopened the investigation into Johnston that they had abandoned the year before. In the Ontario legislature, questions about what was going on were asked of Marion Boyd, the Attorney General. Johnston was put on paid leave from his job. On August 15, he was arrested and charged with five counts of obtaining, and one of attempting to obtain, the sexual services for consideration of a person under the age of eighteen, contrary to s. 212(4) of the Criminal Code. He was released on bail subject to normal conditions, including a curfew, a requirement that he not consume or possess alcohol, and that he report to the Balmoral Street Police Station every Wednesday. Of the requirement that he report to the Balmoral Street Police Station, Johnston later commented, “What goes around comes around. When I was a Crown, I always asked for that bail condition. It’s tough to get to Balmoral Street. There’s no public transport there. If you don’t have a car, you have to walk for blocks, and that’s miserable in the winter, trudging through the snow and wind. They—we—could have named a police station that’s easier to get to.”
Enveloped by rumour and speculation, waiting for his trial, suspended from his job, his reputation already ruined, Johnston entered a deep depression and began to drink heavily again, breaching one of his bail conditions. He said later that he was “afraid to go out, afraid to look people in the eye. The only time I went out was to go to the liquor store. I stayed home. I watched Jerry Springer on TV. My mind was addled.” In January 1995, Johnston’s lawyer, Robert Topp, negotiated a deal with the Crown: If Johnston pleaded guilty to one charge, the Crown would be satisfied with a conditional discharge. But Johnston, not thinking straight (as he later admitted), and not wanting to admit anything while his ailing mother, Christine Johnston, was still alive, refused the offer and fired Topp. Ian Scott, the Crown attorney charged with prosecuting Johnston (not to be confused with his namesake who was once Ontario’s Attorney General), was amazed.3 Johnston later agreed that he had made a terrible mistake not accepting the Crown’s offer.
Months went by. Early in September 1995, Johnston received three letters with bad news: His suspension from his job as a Crown attorney was now without pay (he was finally fired on October 28, 1996, following his conviction); his bank refused to renew the mortgage on his house (the mortgage was renewed when Johnston found a guarantor); and the Law Society of Upper Canada was preparing to take disciplinary action against him (for breaching the condition of his bail that he not consume or possess alcohol). A few days later, Johnston tried to kill himself with an overdose of medication and alcohol. There was a suicide note, and a loaded gun was found in his house. A few days later, drunk, Johnston tried again. Michelle called the police, and they found Johnston dishevelled and bleeding, with the house in disarray.
Intense media interest in the story continued. On October 7, 1995, The Globe and Mail published a front-page story by Estanislao Oziewicz about “unusual circumstances” besetting the Johnston case “as it winds its way through the court system.”4 The newspaper suggested that the media had been “stonewalled” in various ways—for example, a hearing was moved from one courtroom to another without the media being told. The article continued:
People who live here sometimes describe Thunder Bay as a city that still acts like a town. Some say that includes occasionally winking at the peccadilloes of the privileged or powerful.
“Old Thunder Bay covers up for each other,” commented one woman who has been here for the past decade.
Various court-related officials in Thunder Bay are known to be sympathetic to what they consider to be Mr Johnston’s plight.…
This week, one official described Mr Johnston as a cultured, intelligent man, interested in military artifacts and antiques who was beset by tragedy brought on by allegations made by prostitutes.
Right from the start, Johnston argued that he was being treated unfairly. Why had he been singled out? Why hadn’t the police charged other prominent citizens of Thunder Bay who, as the police and many other people knew, patronized underage prostitutes? In March 1996, Johnston’s new defence counsel, Peter Ross (Ross was the fourth, but not the last, lawyer Johnston engaged), sought a stay of proceedings. Charging only Johnston, he argued, constituted selective prosecution, which is an abuse of process that violates the Charter of Rights. Most unusually, during some of the pretrial proceedings dealing with the selective prosecution argument, lawyers representing unnamed third parties were present; these “third parties” were apparently prominent citizens of Thunder Bay, anxious to keep their names out of the record. One of these lawyers, from Toronto, later said that, once he sized the situation up, he got out of town quickly. “Hell,” he said, “just by being there I was attracting attention, which was exactly the opposite of what my client wanted!” Ian Scott, the Crown attorney prosecuting Johnston, later said, “The whole town was freaking out. Who was going to be named? The case was creating havoc in Thunder Bay. It was a cancer.” Justice Then, a former Toronto Crown attorney who was to p
reside over Johnston’s trial, rejected the application for a stay:5
It is troubling that the police have not appeared, on the evidence, to be vigorous in enforcing 212(4). However, it does not follow that even if the police have turned a blind eye to this offence in the past, and even if such conduct can amount to neglect of duty, that such police conduct can vitiate the present charges unless it can be shown that the present charges have been laid in bad faith or for improper motives. This, in my opinion, the applicant has not shown, nor has an improper or discriminating exercise of discretion been demonstrated by the mere fact that other prominent citizens, who have been implicated, have as yet not been charged.
In late June, Ross tried once more to get a stay based on selective prosecution, this time relying on an affidavit sworn on June 21 by a Thunder Bay police officer called André Lichtenfeld. Lichtenfeld had telephoned Ross and had offered to help in Johnston’s case. In his affidavit, Lichtenfeld said, “I have personally seen prominent individuals in the community, including members of the judiciary and other prominent citizens on Simpson Street.” He said, “It was in fact general knowledge throughout members of the uniformed branch of the Thunder Bay Police Department that members of the judiciary were seen on Simpson Street apparently making use of the services of the prostitutes, as well as other prominent citizens.” The Lichtenfeld affidavit continued: Johnston later said of Lichtenfeld that he “breached the ‘blue wall’ to try and help me, and … has been pilloried and pursued by his superiors … ever since.”6
If you were well known, you wouldn’t get charged and if you were just an average citizen you might well get charged. It seems to me it is a question of “who knows who” and the situation “You don’t charge him”.… In my view, it is grossly unfair for Agnew Johnston to be prosecuted where others in the same and similar position are not being prosecuted under similar circumstances.
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