CANADA

Cloud of doubt

Lawyers threaten further delay in the Bernardo trial

D’ARCY JENISH May 1 1995
CANADA

Cloud of doubt

Lawyers threaten further delay in the Bernardo trial

D’ARCY JENISH May 1 1995

Cloud of doubt

Lawyers threaten further delay in the Bernardo trial

It was the judicial equivalent of a pregame warm-up. But before it was over, Crown and defence lawyers were already exchanging sharp verbal jabs. The lawyers spent three days in a St. Catharines, Ont., courtroom last week arguing about the admissibility of evidence in the trial of 30-year-old Paul Bernardo, a former accountant charged with first-degree murder in the sex slayings of two southern Ontario schoolgirls. Although jury selection is scheduled to begin on May 1 in Toronto, Bernardo’s principal defence lawyer, John Rosen, argued that the oftendelayed trial may have to be stopped, temporarily at least, because of a procedural wrangle over the indictments—documents signed by Ontario Attorney-General Marion Boyd outlining the charges against Bernardo. But Crown attorney Ray Houlahan dismissed Rosen’s arguments, saying that they were “frivolous and of no merit whatsoever.” Nevertheless, Rosen left a cloud of uncertainty hanging over what is expected to be one of the most sensational trials in Canadian history. Mr. Justice Patrick LeSage reserved his judgment on the defence motion. But if he sides with Rosen and decides that the indictments are invalid, that could potentially cause a lengthy delay in the trial. At the same time, however, LeSage did turn down a defence request to have Bernardo’s 24-year-old ex-wife, Karla Homolka, testify in the absence of a jury to determine the admissibility of some of her evidence. Homolka, who is serving concurrent 12-year sentences for manslaughter for her role in the slayings of 14-year-old Leslie Mahaffy and 15-year-old Kristen French, is expected to be a key prosecution witness.

Bernardo’s trial for the June, 1991, murder of Mahaffy and the murder of French 10 months later actually began last May. It was delayed for several months when his first lawyer, Ken Murray, withdrew from the case in September. And last week, Rosen insisted that the indictments against Bernardo contain serious technical defects.

The documents were prepared between late March and early May, 1994, after Boyd took the unusual step of sending Bernardo directly to trial without a preliminary hearing. Draft copies of the indictments contained notes, apparently in Boyd’s handwriting, stipulating that the defence be given “reasonable access to important witnesses provided questioning is done in a timely and reasonable manner.” Those conditions were not included in the final copies that were filed with the court. “It seems to me,” Rosen told LeSage, “that somebody has been playing fast and loose with the rules.”

In his reply, Houlahan said that nothing of the sort had occurred. He insisted that he and his associates followed Boyd’s instructions and gave former

Bernardo defence lawyer Murray adequate time to examine key Crown witnesses. He also provided LeSage with lengthy correspondence between himself and Murray dealing with access to witnesses. Houlahan pointed out that Murray and an associate cross-examined Homolka under oath at the Prison For Women in Kingston, Ont., on three occasions totalling 6V2 days over a twomonth period in mid-1994. And he dismissed the defence motion as “nothing more than a publicity-seeking ploy on the eve of trial.” Still, it raised further questions about a case that is already rife with controversy.

D’ARCY JENISH

in St. Catharines