Lawyers Gone Bad

by Philip Slayton

  On June 24, Frank Sargent, a provincial court judge in Thunder Bay, was listening to a local news broadcast on the radio and heard about the Lichtenfeld affidavit. He quickly got a copy. On June 25 or 26, Peter Ross, Johnston’s lawyer, was appearing before Judge Sargent in another case. Judge Sargent took Ross aside and spoke to him. It is not certain what passed between them, but in one version, which the Ontario Court of Appeal later accepted, Sargent told Ross that, since the Lichtenfeld affidavit did not name particular members of the judiciary, in effect all judges in the region were being accused of frequenting underage prostitutes. Ross, said Sargent, could not appear before him until the Johnston stay motion had been dealt with.

  Ross was severely shaken by the meeting with Judge Sargent. When the new hearing for a stay in the Johnston case started, in the middle of the afternoon of June 26, 1996, he sought an adjournment.7 An impatient Justice Then, saying that there had already been too many delays, refused an adjournment and, after Lichtenfeld appeared as a witness, dismissed the motion for a stay, holding that the new evidence did not support an allegation of selective prosecution.

  And so, at the beginning of July 1996, Johnston’s trial, before Justice Then, finally began. John Ibbitson wrote in The Vancouver Sun:8

  As a big old Lincoln prowls past in the night, a prostitute dressed neck to thigh in flaming-red imitation patent leather curses the city that brought Agnew Johnston to trial.

  “It’s crazy!” she screams. “Why are they picking on Agnew? What’s he ever done wrong?”

  … The Agnew Johnston affair is about far more than a local lawyer who may or may not have strayed. In a pre-trial hearing, a Thunder Bay constable testified to having seen a number of prominent citizens—including local politicians, judges, business leaders and teachers—with women down on Simpson Street in the city’s red-light district.

  Now people in this city of 114,000, which has long thought of its large red-light district as the price of being a port, are wondering just how much a part of their culture prostitution has become.

  The family of the murdered prostitute Stephanie Edwards sat through the entire trial.

  The first witness for the prosecution was Candus Chopp, a twenty-year-old butcher, who in the summer of 1992 had been a seventeen-year-old prostitute working Simpson Street. Candus described two incidents with Johnston. Once she gave him oral sex in his Jeep Cherokee and was paid $50. Two weeks later Johnston picked her and Kim Gavin up in the Jeep, and drove them to his mother’s cottage on Lake Superior. (Kim, another underage prostitute, was Candus’s roommate.) At the cottage, for $700, Kim performed oral sex on Johnston, while Candus, topless, watched. Kim, who was the second prosecution witness, corroborated Candus’s account, and testified that she had sex with Johnston for money at his house on about ten occasions, sometimes with other underage prostitutes present.

  The third witness, Shannon Kuchiak, gave evidence that she first met Johnston when he prosecuted a rape trial in which she was the complainant:

  Kuchiak: I met him at the courthouse. He was acting as my lawyer trying to put this guy in jail. But he didn’t.

  Ian Scott, Counsel for the Crown: Alright. And how old were you at the time you met him at the courthouse?

  Kuchiak: I believe I was 15.

  Shannon testified that later Johnston paid her $400 to spend the night at his house, but her boyfriend (later killed in a traffic accident) suddenly arrived and took her home.

  Scott: Were any words exchanged between your boyfriend and Mr. Johnston?

  Kuchiak: I think my boyfriend had a few choice words. Like I remember him being very mad. But Agnew didn’t say a word.

  The fourth witness was Linda Vlassoff, who although a prostitute at the relevant times, was not underage. Linda gave evidence about two occasions when she and Kim Gavin had sex with Johnston at his house. Finally, Tanya Belmore testified about going to Johnston’s house for sex, with Stephanie Edwards, in 1993 when she was fifteen years old.

  Next, sergeants Roger Dobson and Milan Vilcek of the Thunder Bay police testified about the statement Johnston gave as part of the Stephanie Edwards murder investigation. After protests by defence lawyer Ross, the statement was admitted into evidence. In it, Johnston admitted that he had sex with underage prostitutes, including Stephanie.

  Dobson: Agnew as you’ll appreciate we’ve talked to most of the street people Stephanie’s associations some of them also implicated you as being involved in a sexual activity with them Can you comment on that [sic]

  Johnston: I was at that time Stephanie often would bring someone else over with her and ah I don’t know their names and I haven’t seen them before but that was about three months in my life when that was going on.… [sic]

  Finally, Johnston took the stand. At the end of the relatively brief examination by his lawyer, Peter Ross, the following exchange occurred:

  Ross: Mr. Johnston, you know that there are five counts before the Court?

  Johnston: Yes.

  Ross: Each one of them alleging either that you did obtain sexual services for consideration from persons under the age of 18 or you attempted to do so?

  Johnston: Yes.

  Ross: Are you guilty of any of those?

  Johnston: No, I am not.

  In his cross-examination, Ian Scott made much of Johnston’s admission, in his statement to the police about Stephanie Edwards, that he had had sex with underage prostitutes. Johnston replied to Scott that he had lied in his statement. He said that he had been afraid of being considered a murder suspect. He had wanted the police to think that, as a customer of a number of underage prostitutes, he had no particular reason to single out and kill one of them.

  Scott: Well, like what’s in it for you to mislead the police about this?

  Johnston: Because I think, and I’ve certainly given this a lot of thought, my feeling is, I was trying to convey that Stephanie Edwards was just one of a number, and so why should she have any particular hold over me. Because I was scared about being a leading candidate in her murder.

  Scott: I see. So, you thought it would defuse the prospect of you as a suspect in the murder by suggesting that there might have been a bunch of other prostitutes over at your house?

  Johnston: I suppose.

  Scott: Well, you tell me. I mean, you were there. I wasn’t there.

  Johnston: I don’t know, Mr. Scott, I don’t know. I’ve had to live with this statement for two years, too. And I know what’s there. I’ve read it and re-read it. It’s like that hanging curve ball if you want to have back.

  Scott: Oh, I’m sure you’d like to have it back. Because I’m going to suggest to you that the answer you gave to the police was absolutely dead true.

  Johnston: It was not dead true. It wasn’t then and it isn’t now.…

  Scott: Just help me with why telling the police, lying to the police that you had hookers in your house helps you in terms of your alibi with respect to a crime that you didn’t commit. Just help me with this.

  Johnston: My feeling is, looking back at it, that I was trying to convey that she was one of a number of hookers and that I would have no particular reason to kill her.

  Ian Scott later said that Johnston presented well as a witness; he was, said Scott, “mellifluous,” and a “superb liar.”

  On September 20, Justice Then gave his verdict. Johnston was acquitted on one count because his accuser, although subpoenaed, did not appear. The missing witness was the hooker who had originally gone to The Globe and Mail with the Agnew Johnston story; the Crown did not chase after her because she was caring for a child who was ill with leukemia (and later died). He was acquitted on the counts involving Candus Chopp and Tanya Belmore because Justice Then found Chopp and Belmore to be persons of “unsavoury character” and their evidence not credible. But he was convicted on the counts relating to Kim Gavin (obtaining the services of an underage prostitute) and Shannon Kuchiak (attempting to obtain the services of an underage prostitute). On the issue of Johnsto
n’s statement to the police investigating the murder of Stephanie Edwards, Then said, “I have no confidence whatever in Mr. Johnston’s explanation of the assertions made in his statement to the police. These explanations, in my opinion, are an affront to reason and common sense.” The judge rejected the defence submission that Johnston was the victim of a conspiracy by a close-knit group of prostitutes to accuse him of sex with underage prostitutes because they blamed him in some way for Stephanie Edwards’s death. As Justice Then gave his verdict, Johnston’s wife, Michelle, shouted at him, “You are not God” and “Fuck you!” Police escorted her from the courtroom.

  A sentencing hearing was held on November 19. Two witnesses were heard, Edward Burton, a former regional Crown attorney for the District of Thunder Bay, and Alfred Petrone, the long-time Thunder Bay lawyer who had employed Johnston before he became a Crown attorney.9 Burton testified to Johnston’s “exemplary character,” his excellent reputation, and his “warm, caring” nature. He talked about Johnston’s alcohol problem:

  He was, unquestionably, an alcoholic, and that is the only explanation I can offer for what he did. I know that he was at low-end in his life because of personal problems, family problems, and that this weighed on him. Being a decent caring sort of a person, I think the family problems got the better of him more so than they would most people. On top of that, being an alcoholic, it affected him, and he went out and did some pretty stupid things. It was an aberration in his life. It’s not the Agnew Johnston that I know, not the Agnew Johnston that 125,000 other people in this area know.

  Burton continued:

  There was a cabal of people in the area who had an agenda. They wanted to bring disrepute down upon the administration of justice, and they’ve largely succeeded, I can tell you. They enlisted the aid of the press, the local daily newspaper and the local tabloid weekly, and the Globe & Mail in Toronto even got a hand on the act [sic], and they have tried to bring a lot of pressure to bear on the administration of justice to have Mr Johnston charged with a variety of offences, including the murder of a young prostitute. And they’re apparently disappointed that he was never charged with that, but someone else was charged and convicted of that.

  Then Petrone testified:

  Today I still find him to be an honourable, decent, caring individual as of this very moment as I speak. He is the first to acknowledge that for a period of time those occurrences which he indulged in was morally reprehensible. He’s the first one to acknowledge that. That is not his true character. It is as a Dr. Jekyll and Hyde situation. If his father had not died at that point in time, if it was not a breakup of a relationship, and the combination of alcohol, at least that set of circumstances triggered alcohol. And that was the temporary demise of a superb honourable human being. Once that sickness is cured, once the abuse of alcohol evaporates, or if it has evaporated, we’re back to a very noble, honourable and decent friend. That’s his reputation that he enjoys in this community.

  Affidavit evidence was given by Dr. J. O’Doherty, chief of psychiatry at Mackellar General Hospital in Thunder Bay, who had treated Johnston in 1995 and had prepared a physician’s statement in 1996 in support of Johnston’s application for long-term disability payments. Dr. O’Doherty’s evidence was that Johnston suffered from a major depressive disorder with mild alcohol dependence; the depression, said Dr. O’Doherty, was recurrent and chronic, and would likely require treatment for the rest of Johnston’s life.

  On November 20, Justice Then sentenced Johnston to five months in jail—three months for the count involving Kim Gavin, and two months for the count relating to Shannon Kuchiak. His bail was continued pending an appeal. Johnston later said that at this point he made yet another mistake: “I should have served my time right away,” he said. “I should have done what Martha Stewart did, get it over with. I could have appealed anyway.”

  In June 1997, Johnston, on bail and waiting for his appeal to be heard, pleaded guilty to assaulting a woman and breaching a bail condition forbidding him to use alcohol (his third breach of that condition), and was sentenced to eighty-nine days in jail to be served on weekends. The woman told police that Johnston came to her house drunk, had more drinks, and then threw her to the floor, put her in a headlock, and sat on her chest. Johnston says that the woman was a prostitute who lured him to her house on the pretence that she had information that would help him, and then turned violent when he refused to give her any money. Michelle left Johnston in 2000. “She just couldn’t take it any more,” he said. Peter Ross, Johnston’s defence counsel at trial, died in March 1998.

  On September 6, 2000, the Ontario Court of Appeal dismissed Johnston’s appeal.10 The same day he reported to the Thunder Bay District Jail. The first two days he was in “the hole”—segregated from the general prison population, with the lights left on twenty-four hours a day. Then he was moved out of the hole and put to work in the laundry. He was treated all right by guards and inmates, he says. Jail was a tolerable experience. Johnston served ninety days.

  He was disbarred in January 2001, following a hearing that he did not attend, for conduct unbecoming a barrister and solicitor.11 The Law Society of Upper Canada panel said this: “Clients need to be able to trust their lawyers, both as individuals and as members of the legal profession, and young persons need to be able to trust adults and those in positions of trust. The actions and misconduct of this lawyer strike so strongly to the quick of the essence of the legal profession that no other penalty is appropriate or available.” Johnston appealed his disbarment to a law society appeal panel on the grounds that at the original hearing his counsel did not plead his case adequately; the appeal panel dismissed the appeal, saying that his complaint about counsel didn’t really matter since disbarment was the only suitable punishment given the “abhorrent nature of the member’s misconduct.”12

  When I went to see him in the winter of 2005, Johnston was surviving on payments he received from the Ontario Disability Support Program, a government scheme for people who have substantial physical or mental impairment and have very little money. Since 1998, he had lived in what was once Alf Petrone’s law office, in the old Lyceum Theatre on Cumberland Street in downtown Port Arthur, across the street from the Prince Arthur Hotel and near the old railway station and Lake Superior. In the window of his room, facing out toward the street, was a poster for Johnston’s favourite football team, the Green Bay Packers.

  Johnston was pudgy. He had a bushy beard, wore jeans, and sported a Green Bay Packers baseball cap. He drove an old Jeep Cherokee (not the one mentioned in his trial). He was edgy and emotional, and, if he was upset, sometimes (he told me) wouldn’t eat for several days. “My mother called it the MacKay stomach,” he said (MacKay was his mother’s maiden name). He said he read a lot, particularly history, and “watched much too much television.” He tried not to think about what happened to him. When I saw him, he had a girlfriend, Debby, but they didn’t live together. Debby is four years older than he is. He had some friends that stick by him, like Alf Petrone and Ed Burton. He had a dog. Occasionally he helped out at a law office down the street, answering the telephone. He hoped to do some paralegal work.

  Johnston still has ambitions. He asked me, “Do you think I could get readmitted to the bar? I’m thinking I’d like to move further north and do legal aid for Natives.” Perhaps he could get readmitted. He said that he doesn’t drink much anymore. He lives quietly. He has a stable relationship with Debby. He has friends in Thunder Bay’s legal community who will support him. The crisis he created for the Thunder Bay elite is forgotten. Northern Aboriginal people could use his help.

  The law society described Johnston’s conduct as abhorrent. Alf Petrone, who has seen it all in many years of practising criminal law in Thunder Bay, described Johnston as an “honourable, decent, caring individual.” Who is right? Perhaps both are right, in this tawdry tale of an ordinary man.

  NINE

  A LONELY TIME

  Michael Bomek

 
Lawyer Michael Bomek was sued by his parents over a mortgage swindle, went to prison for sexually assaulting men who were his clients, ran a hot dog stand when he got out of jail, sold marijuana as well as frankfurters, pleaded guilty to drug charges, and then was convicted of fresh sex crimes, including ones involving children. But, once upon a time, he was an admired defence lawyer who upset the RCMP by his vigorous advocacy on behalf of the Cree of northern Saskatchewan, and who competed aggressively with lawyers in the small northern Manitoba town of Flin Flon, where he practised law after leaving Winnipeg. Some see Bomek, charming and articulate, as the classic psychopath, others, as a vulnerable and misunderstood man persecuted by homophobes, by cops angry at having their racist behaviour attacked, and by small-town lawyers whose comfortable lives were disturbed by a flamboyant outsider.

  ON TUESDAY, SEPTEMBER 17, 2002, Michael Bomek, dressed in lawyer’s robes, was leaving the courtroom in the northern Saskatchewan town of Pelican Narrows, where he had just appeared on behalf of a client. Suddenly, the RCMP appeared, arrested him, put him in handcuffs and took him away.1

  Two days later he appeared in provincial court in Prince Albert, flown there from Pelican Narrows in an RCMP plane. He was charged with seven counts of sexual assault, two of obstructing justice, three of communicating for the purposes of prostitution or obtaining sexual services, and five of attempting to procure illicit sexual intercourse. The complainants were clients or former clients of Bomek: all were men, all were Aboriginal, and all but one were between the ages of eighteen and twenty-two (the one exception was older). Most lived in Pelican Narrows, although some were from other northern Cree communities, such as Sandy Bay and Deschambault Lake.