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Saturday, May 24, 2003

Shoot the Messenger, Burn the Evidence

Christie Blatchford 

The murders of Leslie Mahaffy and Kristen French have always been considered special cases, and I use special in the way that it has come to be used in the modern world -- as a euphemism to describe those deemed deserving of extraordinary, meaning particularly gentle, treatment.

Initially, this happened in a rather genuine way, largely in the public imagination.

It was born in the horrific nature of the crimes committed upon the two young women; in their tender years and innate vulnerability; in their parents' profound decency and palpable agony, and in the then relatively novel nature of the videotaped evidence which documented the girls' torture at the hands of their abductors and rapists, the scary pair of Paul Bernardo and Karla Homolka.

This spirit -- of goodwill toward the Mahaffy and French families and outrage at their daughters' murders -- then morphed into a series of unprecedented Ontario court and Ontario government decisions which, taken together or separately, look more ill-advised with each passing day.

The most recent of these is the prosecution of author Stephen Williams, who last week was forced by court order to hand over some of his files -- he has written two books about Bernardo-Homolka -- to the Ontario Superior Court of Justice where, like virtually everything else of import in this case, they were promptly sealed.

Mr. Williams appears to have made a mistake by briefly posting on his Web site some material banned from publication by earlier court orders, including a dated picture of one of the couple's rape victims, known only as "Jane Doe," and allegedly the names of some of the women who were raped by Bernardo when he was on the prowl in Toronto.

When informed that he was allegedly breaching an order -- and to be fair, there are so many of these, some of the orders themselves under seal, that keeping them straight is a full-time job -- Mr. Williams immediately shut down the site until the offending material could be removed.

But the Crown, alerted by an April 30 story about Mr. Williams' plan to post documents on his Web site, had the excuse it needed: Prosecutors sought a seizure order and also charged him criminally with violating the publication ban and breaching the court order.

This, in my own jaded view, was but the pretext.

More significant is the climate which has always permeated this case, the heavy hand which is applied to anyone who does not meekly surrender important freedoms in the name of these special victims -- and Mr. Williams is one of this small group -- and the fact that the author is perhaps the harshest critic of the very Crown office now prosecuting him.

Strip his new book, Karla, A Pact with the Devil, of the self-aggrandizing bits, and what is left is a pretty ruthless indictment of the way the Bernardo-Homolka case was handled by some of the province's top Crown law officers and certainly by the head of the joint task force which ran the police investigation. It is clear Mr. Williams had a copy of what's called the "Crown brief" -- basically, the entire police and prosecution file -- as well as unprecedented access to all of Homolka's psychological records, given to him by the man who was the first psychiatrist who treated her, the late Dr. Hans Arndt.

Remarkably, Mr. Williams also managed to establish an instructive correspondence with Homolka, who, of course, unlike her ex, will soon be leaving prison.

In ruling that he must surrender the Crown brief to the court, Mr. Justice Robert Blair suggested this was not a "case of pure [free] speech" because the contested Web site posting was "at least somewhat in aid of the sale of his books," said Crown briefs are not "to be bandied about willy nilly in the public domain," and said he found it "hard to conceive of any way in which Mr. Williams could have come into possession of the contents of the Crown brief in any lawful manner."

Well, golly, I can come up with a couple of lawful ways off the top of my tiny pointed head: Mr. Williams might have been given a copy, as Dr. Arndt gave him his files, by a member of the prosecutorial or defence teams or by the police officers who may have had access to the brief. As Eddie Greenspan, who is defending Mr. Williams on the criminal charges, said last week, "There isn't a book written on crime in the history of this country, or a documentary, or a docudrama, in the entire body of this literature, which doesn't start with the writer having an idea -- and step one is to get the Crown brief."

Lest we forget: The sweeping publication ban imposed upon Homolka's controversial plea bargain trial saw American reporters and the public barred from the courtroom, and everything but the bare bones of the plea banned.

The publication ruling that followed at Bernardo's trial was better crafted but still unusual -- the worst of the videotapes were never allowed to be seen by the public or press.

Two of those peripherally connected but most vigorously prosecuted were Bernardo's first lawyer, Ken Murray, who had discovered the hidden tapes the police missed and was charged with obstructing justice for holding on to them, and, guess who, Mr. Williams, charged with breaching a court order with his first book when police concluded he must have seen the banned videos.

Mr. Murray was acquitted, but not before he was publicly vilified. The Crown abandoned the charges against Mr. Williams -- though not before seeing he was publicly punished -- by piously claiming a trial would have caused the French and Mahaffy families distress.

And, perhaps most stunning, in December of 2001, at a secret ceremony at a location never disclosed, the videotapes and a whole whack of other evidence from the case -- all of it from a public trial held in a public courtroom in a democratic country -- were incinerated with official state blessing in the presence of the two families and their lawyer Tim Danson, who was, as it happens, in court when Justice Blair recently issued his ruling.

The truth is, Mr. Williams' real offence was not in getting a copy of the Crown brief, or even to post material which may have been under ban on his Web site. It was A) to scrutinize the folks whose actions or ineptitude collectively led to the pact with the devil and B) to refuse to pay obeisance to the notion of victim, or in this case victims' families, as sacred objects.

© Copyright  2003 National Post

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