Well, that doesn’t explain why it was illegal to even mention the plea bargain existed or the person who received it.
And Paul Bernardo insisted on a trial even though he was as guilty as it was possible to be… because he wanted the world to know she was just as guilty. (As was pointed out in the trial, the one they deliberately kidnapped was her type, not his.)
Funny, they did the same thing with the girl charged in the Tori Stafford murder - the headline on the CBC was that there was a plea bargain, but they could not report anything about it or who it was given to. Makes no sense.
Of course there, the police were convinced Tori’s mother was guilty and were busy setting up a “Mr. Big” sting on her before they found the real culprits.
The publication ban was to ensure a fair trial for Bernardo.
Homolka pled guilty prior to Bernardo’s trial. All the details of her case were subject to the ban until after his trial was over, to ensure that the jury pool would not be contaminated by the information about the case.
Once the Bernardo trial was over, the ban expired.
The Homolka case is fascinating. It’s my understanding that the defense lawyer had the tapes, and knew of their contents, but never turned them over to the Crown until the trial was over. Why wasn’t he charged with obstruction of justice, or even being an accessory to murder? (Or was he?)
The first lawyer for Bernardo retrieved the tapes from the Bernardo/Homolka house, after the police finished a 71 day long search and did not find them. He sat on them for several months, then decided to withdraw from the case.
Bernardo’s new lawyer was a more experienced criminal lawyer. He reviewed the tapes and concluded he had to turn them over to the police, which he did.
Bernardo’s first lawyer was charged with obstruction but acquitted. My understanding is that his defence was that he had always planned to introduce the tapes into evidence to challenge Homolka’s version of events and show that she was equally involved. Turning them over to the police would have prejudiced his client’s right to full answer and defence.
While the court did not approve of that approach, it accepted that he was not concealing evidence per se and therefore the lawyer’s explanation was a defence to the criminal charge. (My recollection - I read the case a long time ago but not recently.)
The lawyer also faced discipline from the Law Society, which concluded that there had been enough uncertainty on the correct approach to take to this issue that the lawyer should not be disciplined. Amendments to lawyers’ Codes of Professional Conduct deal more expressly with this issue.
The tapes were introduced at trial by the Crown. The audio was only available to the judge, jury, counsel and Bernardo. Members of the public could see the horrible things on the tapes but did not hear the audio of the victims. The judge reached that approach as a compromise between the open court principle and the need to respect the victims and their families.
After all appeal periods lapsed, the court ordered the tapes destroyed.
It was the emergence of the tapes which has caused the outrage about Homolka’s plea bargain. She was aware that they existed but did not advise the police and the Crown. Some have argued that her conduct breached the terms of the plea bargain. However, the commission of inquiry found that she had not been obliged to reveal the evidence, and therefore had not breached the agreement. In any event, she had pled guilty and been sentenced. Under Canadian criminal law, there were no grounds to re-open that plea and sentence.
Also, Bernardo’s lawyer went and retrieved the videotapes under his client’s instruction. The police had torn the house apart looking for evidence, but did not find the tapes hidden in the ceiling through a light fixture.
Bernardo instructed his lawyer to retrieve and keep but not look at the tapes, and did not say what was on them. IIRC the lawyer obeyed his client’s wishes for several months, then had someone else watch them and give him a summary. At that point if I recall, he withdrew from the case and sought his own legal advice.
But generally, (perhaps Piper can correct me or clarify) a lawyer for the defense is not obliged to tell the prosecution about evidence relating to his client’s case. The crown does have to tell the defense, because the crown has much greater resources - police investigators, access to confidential files, etc.
The tapes showed that contrary to Karla’s claim, she was a willing participant, not a battered wife forced to go along, as she claimed. It also revealed another victim drugged and raped during a visit; which Karla completely “forgot” to mention despite the fact a plea deal requires full complete and honest cooperation. The Crown passed up on the opportunity to use this to cancel the deal.
All in all, a fascinating case all around.
But to get back to the OP - 10 years for rape and killing two or three girls may not be harsh enough, but it sure isn’t “getting away with it on a technicality”.
That’s correct. The Crown has instituted criminal proceedings against an individual, which may result in the individual losing their liberty. The Crown therefore has a constitutional obligation to give complete disclosure of its case to the accused. Since the accused has a right to remain silent, they generally do not have any disclosure obligations, subject to a few matters like expert evidence reports.
The problem with that argument is that the Crown did not learn in time:
• Bernardo’s first lawyer, found the tapes in May 1993.
• later in May, 1993, Homolka and the Crown signed the agreement.
• Homolka’s trial began in late June, 1993 and ended in July, 1993 with her guilty plea and sentence.
• A year later, in September 1994, Bernardo’s first lawyer quit and gave the tapes to Bernardo’s second lawyer. Within a month the second lawyer handed the tapes to the police.
• Bernardo’s trial began in May, 1995, two years after Homolka pled guilty. She testified in June, 1995.
So by the time the police first saw the tapes, it was over a year since she had pled guilty and been sentenced.
The retired Court of Appeal judge who reviewed the matter concluded that: (1) this case did not come within the very narrow range of cases where the Crown could repudiate a plea agreement; and (2) that once Homolka had pled guilty and been sentenced, there was no way to set that aside under the Criminal Code.
For the timeline of the case, see:
For the conclusion by the judge sitting as a commission of inquiry, see post 55 of this thread:
The jury is not in a position to make that judgement. They are not legal experts. They have not been instructed on the elements of a manslaughter charge. The defendant’s lawyers did not have an opportunity to challenge any of the elements.
Possibly, they had an adequate defence against a manslaughter charge. But since the charge was never made, they didn’t need to demonstrate that defence.
Those are fair points, but the overall point is that they weren’t even given the option of considering lesser offences. They were given the options of first degree or acquittal, even though in most cases, there are lesser included for first degree murder. It still seems odd to me, for reasons given above.
In common parlance, a technicality is just anything where the law allows a factually guilty person to get away without legal punishment.
The fact that so many lawyers don’t see this as a failure of the justice system is a huge reason why lawyers are characterized as being amoral or immoral. (The other bit one is the nature of adversarial system which inherently incentivizes stretching the truth to support your case. Though at least that’s a problem that ethical codes seem to actually try to compensate for.)
Yes, a more restrictive version of “technicality” is possible, but getting all rule lawyerly over what constitutes a technicality really misses the entire purpose. It’s still ultimately about the justice system failing to enact justice.
I would rather say a technicality is where the person seems(?) obviously guilty, but that fact does not get to be fully explored in court due to some aspect of the law. Statute of limitations, evidence excluded due to improper procedure, lost evidence, forensic lab procedure problems, charges do not meet the facts, etc. (I.e. charged with possession of stolen goods, technically “not in possession” due to some quirk of interpretation; chain of custody issues with evidence…)
We had a fellow charged with major theft from the company we worked with, whose case was throw out (in Canada) due to excessive time between charges and coming to trial - maybe 15 or 20 years ago. that would be a technicality.
I would not consider plea deals, or “not guilty” verdicts based on the full case (OJ Simpson) to be technicalities.
If your definition of a justice system is that it’s purpose is to convict and punish, then you may have a point.
But if the purpose of the justice system is to try people fairly, respecting the rights of the accused, and placing the onus on the state because it is the state that is trying to restrict the accused’s liberty by putting them in jail, or even in some jurisdictions, to kill them, then no, I don’t think you have a point at all.
The justice system has to balance the community interest in law enforcement/public protection with the rights of the individual accused.
Considering that in most of North America, a year to get to court is considered “reasonable”? OJ Simson, for example, wanted the fastest trial he could get, and it took a year. Canada is no better. (I had a traffic ticket and opted to fight it. It was 4 months before I got a court date, for 16 months after the offense. Then • they called out about half the names and dropped the charges.)
As a lawyer, you must remember the episode around 2000 where the Canadian Supreme Court made the same point about lengthy delays and then courts proceeded to cancel a large number of charges.
• Metro Sexual Assault Squad and Green Ribbon Task Force detectives arrested Bernardo on numerous charges on 17 February 1993
Oddly, nobody seems worked up about Bernardo not getting off on a technicality - sorry, being denied his constitutional rights. Sorry, they had a state’s evidence witness, they had quite a few pieces of the victims, and if that was not enough, they had DNA linking him to a number of rapes in Scarborough. It was the highest profile case of the decade. Yet it still took 26 months to bring him to trial?
The system is broken in Canada (and the USA - see the story about the innocent 15-year-old imprisoned in Rykers for 3 years because he refused to make a plea deal for a crime he did not commit.) The only response in Canada was to cancel the time-and-a-half for pre-trial time spent in jail by Law-and-order Harper because it made things too easy for people awaiting trial who were eventually found guilty. But of course, the broken system does not adversely impact lawyers, judges, or politicians, so it is allowed to continue.
Sorry - I knew I was out of order but my bad self over-rode any sense of self-control in the moment. I’ll go put my nose in the chalk circle on the blackboard.