CANADA

Private grief, public interest

D’ARCY JENISH April 17 1995
CANADA

Private grief, public interest

D’ARCY JENISH April 17 1995

Private grief, public interest

CANADA

The accused, 30-year-old Paul Bernardo, spent two days in the prisoner's box last week, his suits sharply pressed, his hair stylishly clipped and blow-dried-and his feet shackled. Bernardo, who is charged with first-degree murder in the brutal sex slayings of Leslie Mahaffy, 14, and Kristen French, 15, shuffled frequently, scribbled notes to his lawyer and listened atten tively to legal arguments about whether the news media and the public should have access to videotape evidence that will be presented during his trial, expected to be one of the most sensational murder cases in Canadian history. A few feet to Bernardo's left sat the parents of the victims, who had anneared in the St. Catharines,

Ont., courtroom to watch their lawyers argue that the tapes should never be made public. “Some things are simply right, and some things are simply wrong,” Tim Danson, a Toronto lawyer representing the families, told the court. “Viewing of these tapes when it’s not absolutely necessary is simply wrong.”

At the conclusion of the hearing, Justice Patrick LeSage said he will likely wait until a jury has been selected, possibly in early May, and witnesses have testified, before making a decision on who could see the tapes. He added that he wants to assess the progress of the trial, as well as the legal arguments of the families, the Crown and the four major news organizations—

The Toronto Star, The Toronto Sun, Thomson Newspapers (publishers of The Globe and Mail) and the CBC— which want the tapes shown openly in court. The defence agrees that the tapes should be made public, on the grounds that a completely open courtroom is the only way to ensure that Bernardo receives a fair trial. But Tony Bryant, one of the lawyers representing Bernardo, strongly objected to last week’s hearing, in which both the families and media organizations were granted special intervenor status. “It’s time to get these people out of the courtroom and get back to the trial of Mr. Bernardo,” Bryant told LeSage. “It’s time for the Crown to present its case and prove its charges.”

The hearing opened with arguments from Crown attorney Ray Houlahan, who suggested the public and the media should be allowed to remain in the courtroom while the videotapes are presented, but not permitted to see or hear them. He proposed that Bernardo, Crown and defence lawyers, LeSage and the jury watch the tapes on television monitors that would be turned away from the public gallery. They would also wear earphones so that any dialogue would be audible only to them. Houlahan said the public would have ample opportunity to learn about the contents of the tapes from his opening remarks to the jury. He also pointed out that Bernardo’s former wife, Karla Homolka, who is serving concurrent 12-year sentences for manslaughter in the deaths of Mahaffy and French, will likely have to describe the contents of the tapes when she testifies for the Crown, and when the defence cross-examines her. “All of this will be heard by the public,” said Houlahan. “What more do the public and the media need?” While Houlahan presented the Crown position in a dry, even tone, Danson stated the case for the families with energy and emotion. When he described the contents of the tapes—which cannot be discussed because of a court-imposed publication ban—Debbie Mahaffy and Donna French, the mothers of the two dead girls, both sobbed quietly. Danson based his case on constitutional arguments, maintaining first that the privacy rights of the families would be violated

Who should see the videotapes in the Bernardo murder trial?

by a public display of the tapes. He also told the court their right to religious freedom, guaranteed under the Charter of Rights and Freedoms, would be compromised because they would not be able to honor the memories of their daughters, as prescribed by their Christian faith.

Furthermore, Danson said the families also want to block the public from hearing testimony in which any of the dialogue from the tapes is quoted or discussed, which would mean clearing the courtroom at times. “You have a really significant hurdle to overcome,” LeSage told Danson at one point. ‘The court would have to be closed for virtually all of the cross-examination of Karla Homolka.”

The families were also represented in court by Kathleen Mahoney, a University of Calgary law professor and an expert on constitutional issues and child pornography. She told LeSage the media’s right to freedom of expression, which might be limited by any restriction on access to the tapes, must be weighed against the rights of women and children to protection from potentially harmful material. University of Michigan law professor Catherine MacKinnon, a well-known anti-pornography activist who had previously viewed the tapes in a private screening arranged by the Crown, presented an affidavit in support of the families. She attended the first day of the hearing but did not testify.

Predictably, media lawyers objected to any restriction on access to the tapes. Peter Jacobsen, who represented the three newspapers, said the Crown and the families were proposing a permanent publication ban on key evidence, which could leave the public with many unanswered questions about the crimes. CBC lawyer Dan Henry raised another possibility. “What if the jury sees the tapes, which the public has no access to, and decides the defence has merit?” Henry asked. “What if they refuse to find him guilty of first-degree murder and find him guilty of something less? Given the rumors they’ve heard, the public would have great trouble with that.” But whatever LeSage decides, he must somehow balance the grief of the families, the rights of the accused and the interest of the public.

D’ARCY JENISH