Thank you very much.
Thank you for inviting me to appear before this committee today on behalf of the families of Kristen French and Leslie Mahaffy, whom I have had the honour and privilege to represent for the past 30 years. Appearing in public to speak to these issues is simply too painful and emotional for the families, and they have asked me to speak on their behalf.
My representation of the families over the past 30 years informs the opinions that I'm going to share with you today. This includes guiding them through the criminal justice system, Bernardo's trial, and battling the media and certain members of the public, who unsuccessfully tried to gain access to the Bernardo-Homolka videotapes.
This was an enormous undertaking, which itself included the need for me to painstakingly review the videotapes and prepare a chart describing every frame of the videotapes and the corresponding words. This fact alone is perhaps the most significant fact that will inform some of the opinions I give today and perhaps the answers to some of your questions, because that was a very difficult process, reviewing the videotapes. This was necessary for the particular argument that we advanced at the time of the videotape motion.
We were also involved in the plea resolution involving Karla Homolka and made efforts to have Karla Homolka's plea resolution set aside, because we believed that she breached it. We dealt with a little-known potential plea bargain for Paul Bernardo to second-degree murder, which we stopped, even though it would have avoided the trial altogether and avoided the excruciating videotape issue.
We were involved in the successful gating application to keep Karla Homolka in jail for her entire 12-year sentence. We went to Joliette, Quebec, at the conclusion of her sentence, to impose post-sentence conditions on Karla Homolka, pursuant to sections 810.1 and 810.2 of the Criminal Code. During that particular process, Karla Homolka chose to stare me down in court, and I saw for myself the evilness in her eyes 12 years later, which was identical to what I saw in the videotapes.
We were involved in the appeal process. We were involved in the bone-chilling discussions we had after Bernardo was convicted and had exhausted all of his appeal routes, which led us to obtain an order to destroy the videotapes, the crime scene pictures, the autopsy photographs and the steel circular saw that he used to dismember Leslie Mahaffy. We had everything destroyed.
Now we're involved in Mr. Bernardo's parole hearings. We're currently before the Supreme Court of Canada, with the assistance of the Toronto Police Association, on a leave application regarding the families' Access to Information Act request for the records of Paul Bernardo and other offenders who murdered police officers, which is what they rely upon to persuade the Parole Board to grant them parole and what Correctional Service Canada and the Parole Board need to discharge their legislative public safety mandate.
As I said just a moment ago, all of this will inform what I have to share with you this morning, but I know this. On these issues, the public interest and the victims' interests are fully aligned—but for the grace of God go I.
With the exception of a public loonie campaign 30 years ago, which I had nothing to do with, all of my work for the families has been and continues to be pro bono. Helping these families free of charge is a far greater reward than all the money in the world.
The families wanted me to share a number of points with you.
First, all they seek is justice. They don't seek revenge. They don't seek retribution. They accept that Paul Bernardo was entitled to full constitutional protections—the right to be presumed innocent, the right to a fair trial—and he got both. They accept that Mr. Bernardo is entitled to humane treatment in jail and that he has the right to seek release on parole.
The question, though, that must be answered is this: What is justice for a convicted sadistic sexual psychopath who committed the most unspeakable crimes known to humankind and who was sentenced to life in prison and, additionally, was designated a dangerous offender? He is an offender who, after 30 years in prison, right up to his transfer—as found by two different panels of the Parole Board—had no remorse, no empathy, no insight, and was not treatable.
I wish all of you could see—and this is part of our application before the Supreme Court of Canada—or even listen to the audio recording of Paul Bernardo's testimony. It would go a long way toward people understanding who this person is.
In designating Paul Bernardo as a dangerous offender, the learned trial judge, who was one of the most distinguished and experienced judges in the country, Associate Chief Justice LeSage—as he was then; he later became our chief justice—recounting the unspeakable, sadistic brutality Bernardo inflicted on two innocent, defenceless teenage girls and so many others, said this to Mr. Bernardo: “You require [jail], in my view, for the rest of your natural life.... You are sexually sadistic psychopath. The likelihood of you being treated is remote in the extreme.”
For offenders like Paul Bernardo, the overarching principle must be maximum punishment in a maximum-security penitentiary. The Supreme Court of Canada tells us that sentencing is the means by which society communicates its moral values. These types of offenders can still obtain the benefit of programs offered in maximum-security federal institutions. They are still entitled to regular parole hearings, but never should such an individual be rewarded with a transfer from maximum security to medium security, when at the time of the transfer, the offender still shows no remorse, no empathy and no insight into his crimes. The medical evidence was that he was beyond treatment.
It sends the wrong message. It sanitizes the full brutality of his unspeakable crimes. It's no answer that the perimeter security is the same as maximum security, that medium security offers better treatment programs for a person who cannot realistically be treated, or that by giving him more freedoms and privileges in medium security, he might be more manageable.
Offenders like Paul Bernardo, who commit the most unspeakable crimes known to humankind, must receive the most severe sentence our legal system permits. That means spending the rest of their natural lives in a maximum-security institution.
Leslie Mahaffy and Kristen French took their last breaths in utter horror at the hands of Paul Bernardo. Upon conviction, the only rights he has left are to remain alive—we don't have capital punishment and I don't believe in capital punishment, but that's one right he has—and to spend the rest of his life, humanely, in a maximum-security federal penitentiary.
The second point the families wanted me to bring to your attention is this. They have this question. Upon Mr. Bernardo's transfer, the Prime Minister of Canada, the then minister responsible and, I believe, other political leaders, properly described the transfer as “both shocking and incomprehensible”. Those are not my words nor the family's words, but the words of the Prime Minister and the minister.
Canadians were instinctively outraged. It offended all ethical and moral standards. It was wrong. Even if Correctional Service Canada followed the rules—which I have a lot of issues with but assuming it complied with all the rules and all the laws—this is the question the families have: How can something that is “shocking and incomprehensible” remain the law of this great country? If it's “shocking and incomprehensible”, then change the laws.
This is exactly what leads to public cynicism and disrespect for the administration of justice and the rule of law.
I will never forget, after the first day of argument on the videotape issue, a discussion I had with Donna French. The courtroom was packed and there was an army of media lawyers. Everybody was robed up; it was very official. There were motion records, factums and endless books of authority piled on counsel's tables, yet Donna French cut through all of this and said to me that she didn't understand, because we have a right to protect the dignity and memory of her daughter. She said that some things are right and some things are wrong, and this was wrong.
She was right, and this equally applies to Paul Bernardo's transfer. It was wrong.
This takes me to the families' third point.
In practice—and I've been doing this for 43 years—the system treats most offenders the same. We submit to you that you cannot treat offenders who receive fixed sentences the same way you treat offenders who receive life sentences or an indeterminate sentence, as was Bernardo's case because of his dangerous offender designation. There is no cure for psychopathy or worse—for sadistic sexual psychopathy. That is a medical fact.
If the public knew that there were tough but just laws for Canada's most dangerous offenders, they would embrace the full panoply of treatment and rehabilitation programs for the overwhelming majority of federal inmates.
These kinds of one-size-fits-all criteria—mechanically checking the boxes—cannot apply to Canada's most dangerous offenders. There must be a separate law for these people. Only in this way will Canadians have confidence in our justice system and embrace treatment programs for the vast majority of offenders.
The fourth point they wanted me to communicate to you is this: Reliance on section 28 of the Corrections and Conditional Release Act and the requirement that the choice of penitentiary must be the “least restrictive” for offenders is completely misplaced. This is appropriate for the vast majority of offenders who serve fixed sentences, but it is not appropriate for people serving life sentences for murder, or for people who have indeterminate sentences because they've been declared dangerous offenders. This distorts the sentence itself by substituting punishment for leniency. This may be better for a parole board than for administrative decisions. However, in my experience, this least restrictive principle has been more aptly applied to NCR offenders.
The fifth point they wanted me to communicate to you is this: One of the justifications for Paul Bernardo's transfer was that he did not represent a threat of attacks on prison guards or other inmates. This cannot be a criterion for offenders like Paul Bernardo. These types of sex offenders are cowards. Paul Bernardo is a coward. He would never attack a prison guard or another inmate. He would only attack innocent, defenceless, vulnerable teenage girls and young women. This criterion must be eliminated for offenders like Paul Bernardo.
The sixth point—
