Protective Justice for Whom?

"They talk about the privacy interests of these guys, but these are notorious crimes, they're public crimes. There's nothing private about this."

 "In my view, when people convicted of first-degree murder apply for parole and are asking to be relieved from the consequences of their life sentence and their criminal acts to be released into the public, they waive their privacy rights."

"All of a sudden, Paul Bernardo comes up and says, 'Well, I want out, I've been rehabilitated, I'm good'. Why should the public be denied the full evidentiary record that he and the parole board rely upon to make that decision?"

"We just have to take the parole board's word that they're doing it correctly. Well, that's not how the freedom of the press and freedom of speech works in a democratic society."

"The way to hold government institutions accountable is by transparency and openness and we think that this is a principle of fundamental importance."

Tim Danson, veteran Toronto lawyer representing families of victims and the Toronto Police Association 

Tim Danson, representing the Mahaffy and French families, talks with Kristen French's parents Donna and Doug after a parole hearing for Paul Bernardo.  Ian MacAlpine/The Whig-Standard/Postmedia

 

The case of Paul Bernardo is one of a horrific predatory sexual sadist, a man whose night-time prowls resulted in the rapes of a rising number of victims, raising fear levels to a high decibel of terror in Ontario in the early 1990s of a serial rapist on the loose. He went on to kidnap, rape and murder schoolgirls Kristen French, 15, and Leslie Mahaffi, 14, tormenting them before murdering them. then went on to cause the death of his wife Karla Homolka's 15-year-old sister, with his wife's help. He is serving a life sentence and has repeatedly sought parole.

The second case that Mr. Danson is representing is that of Craig Munro who in 1980 with his brother were robbing a Toronto bar, when Constable Michael Sweet attempted to intervene. The brothers shot the policeman in the chest and left him to agonizingly bleed to death, while he pleaded for medical help, while being mocked by Munro. Munro was given temporary prison absences in 2012, was caught smoking crack while at a halfway house and hiring a prostitute; he too has bid for parole.

Families of the murdered people attend each of these parole hearings determined to see that the killers of their loved ones are denied the parole they seek. When preparing themselves for the parole hearings, the families requested information on the two inmates from the Parole Board of Canada and the Correctional Service of Canada, but were refused access to the information. They turned for intervention to the Federal Court, only to have the federal government oppose their move.

During ordinary court trials, documents given a judge or jury and allied evidence meant to weigh the guilt or innocence of an accused is routinely publicly released. Occasionally third party personal information is redacted or a publication ban placed on victim information, but evidence heard in open court is generally available to be scrutinized. "It shouldn't be any different in parole hearings", pointed out Mr. Danson reasonably.

Lawyer Danson delineated inmate records of those under supervision; serving life sentences and dangerous offenders requesting release, to be available for public scrutiny. However, he spoke to deaf ears. Justice Glennys McVeigh failed to accept the arguments the families of the victims put forth. This week her decision was released, supporting government lawyers who fought to maintain secret records rather than release them to the families. One of the government's arguments was that the inmates involved failed to give their consent for release of the information.

Justice McVeigh dismissed the constitutional right to the information claimed by the victim families, reasoning it was her impression that parole board hearings, not judicial or quasi-judicial proceedings did not merit being treated as if they were. And nor did she accept that the open court principle of presumption of openness would apply to parole hearings. To add insult to injury, the federal government feels the families must pay government legal costs for the privacy of the killers; $19,142.27.

The government rationale per their lawyers being that the families were not in pursuit of public interest litigation but rather a personal pursuit: "Their personal motivation is to use the information sought to make statements to the parole board", went the government argument. A point of view that runs completely counter to what the public good represents; when the judicial rights of one are denied, it extends outward to the entire community.

 

Karen (Sweet) Fraser, left, widow of Toronto police constable Michael Sweet, and their three daughters attend a 2010 press conference to announce changes they wanted to the parole system after Sweet’s killer was granted unescorted prison absences. Photo by National Post file photo

"I was very surprised the government asked for costs -- my clients have suffered enough."

"I think it's going to end up in the Supreme Court of Canada."

Tim Danson, reputed veteran Toronto lawyer