This article appeared in Consent #24 (December 1995)

 

Our Most Serious Consideration

- Gordon Domm

 

Gordon Domm is the retired Police Officer who defied the Karla Homolka Trial Publication Ban in late 1993 by distributing details from the foreign media about that trial. He was subsequently charged and convicted of two counts of Contempt of Court. He appealed these convictions. After accepting Domm's factum (written argument) as filed by his lawyer, the Ontario Appeal Court scheduled and confirmed his Appeal Hearing for Monday, February 19, 1996 to be held at Osgood Hall on University Avenue in Toronto. Domm is also the head of "Citizens' Coalition Favouring More Effective Criminal Sentences", based in Guelph Ontario.


THE KARLA HOMOLKA TRIAL BAN
AND SECRET PLEA BARGAIN

Our sacred and constitutional right to freedom of expression and open and accountable trials were both unnecessarily and unjustifiably curtailed by Justice Kovac's relentlessly enforced Homolka Trial Publication Ban. The appeal of my convictions is based not only on these grounds, but also on grounds that this was far too widesweeping a ban to meet the criminal law provisions for such bans.

I felt when I defied the ban --- and I feel even more strongly now since the horrendous revelations came out at Paul Bernardo's trial about the degree of Karla's involvement in these grisly crimes --- that the ban and the way Homolka's trial was handled limited proper public scrutiny of the appropriateness of her sentence and plea bargain. The end result was that Karla Homolka was able to get the lightest sentence of any convicted co-conspirator in any serial murder in history. Homolka's murders were among the most despicable and horrendous of all such serial murders, and this was known when her plea bargain was made.

I also feel that the NDP government of that day would never have pursued the enforcement of this ban during its government tenure if it hadn't been a convenient way to cover up Karla's degree of involvement, and to meet the public's demand that this case be solved quickly.

Over the past few months, our group's secretary, Jim Garrow, has been conducting extensive lobbying efforts before Senator Anne Cools urging her to take corrective measures to rectify the obvious miscarriage of justice in the sentencing of Karla Homolka.

On October 17, 1995, Senator Cools tabled Senate Bill S-11 which calls for Homolka's 12-year sentence to be replaced with a life sentence. Her bill is now in second reading debate stage in the Senate of Canada, and she is hopeful that this bill will pass in both the Senate and in the House of Commons. Where a miscarriage of justice is evident in a criminal sentencing, the Parliament of Canada does have the right and obligation to pass such a bill, and change the sentence.


PAUL BERNARDO'S SENTENCING

Although co-accomplice Paul Bernardo has been convicted of two counts of first degree murder, his punishment for the grisly murders fell far short of what it should have been to adequately protect society with certainty for a long enough period, or to adequately deter others who might be contemplating similar crimes.

Bernardo was sentenced on his two murder charges to one maximum life sentence with no chance of parole for 25 years, although he will be able to apply for judicial review in 15 years, and for pre-parole temporary absences in 12 years. In addition to three square meals a day and benefits, he will also be guaranteed a university education should he choose to apply for one (a guarantee that law-abiding citizens are not privy to).

On all his other numerous crimes, Bernardo has been designated a dangerous offender and given an indefinite sentence, but this will add no specific time to his life sentence. There really are no teeth to his indefinite sentence, which is actually referred to in the Criminal Code as an "indeterminate" sentence, not an "indefinite" sentence.

Section 761(1) of the Criminal Code of Canada says that persons like Paul Bernardo who are given indeterminate sentences and designated dangerous offenders shall forthwith after three years of custody, and again every two years of custody thereafter, be given a review by the Nation Parole Board to determine whether parole should be granted.

At this point in time we cannot possibly predict how many bleeding heart criminal sympathizers might sit on any future parole hearing for Paul Bernardo. They just might feel that he has been rehabilitated and therefore should be released on early parole.

If the court really wanted to be certain that Bernardo would be jailed for life under due process of law, they should have tried him on all the Scarborough rapes (with no plea bargains). For each conviction the judge could have sentenced him to maximum consecutive sentences with no parole until half of each sentence was served. If this didn't add up to more than 100 years of consecutive sentencing without parole, then the court could have added similar sentencing on each of the other crimes that Bernardo had already been convicted of, relative and in addition to the murders of Leslie MaHaffy and Kristen French, which he hadn't been sentenced for then. This cumulative sentencing would have ensured that he would have been put away for the rest of his natural life. The way they did it did not.

I realize that consecutive sentencing in serial crimes is not the practice in Canadian courts, but I do not believe that justice is well served by handing out concurrent sentences for convicted serial sex murderers like Paul Bernardo, especially when they mix murder with their sex crimes.

Of course, in Bernardo's case, if there had been full trials without guilty pleas on the Scarborough rapes, it is likely the apparent mishandling of these rape complaints by the police, the courts, and the government would have been exposed. I hope the real motivation for the Bernardo Plea Bargain on his sex crimes wasn't to hide these mistakes, but I do suspect that it was.

Perhaps an all-inclusive public inquiry would serve to clear the air about this perception, or to correct the mistakes made and hold the decision makers accountable. Such an inquiry might also clarify whether judges should consider giving consecutive sentences in serious cases such as this one.


EQUITY

Equity was one of the most important founding principles of our Criminal Justice System. Equity in criminal justice is defined in our Constitution as equal treatment before and under the law. Equity in criminal sentencing (the last major stage in the criminal justice process) means, or should mean, sentences relative to the severity of the crime and the degree of involvement of the offender.

Today, equity in sentencing has become more relative to the offender, the offender's grouping, the offender's character, and on how well he or she is represented by counsel. That's where we went wrong! That's why public confidence in our justice system has plummeted, and why it's effectiveness diminished. That's what must be corrected if we are to return to our once proud Justice System of the 1940's and 1950's when our citizens' safety was more assured and free from crime.

The basic causes for our loss of justice equity today are:

  • parole,
  • plea bargaining,
  • alternative sentencing,
  • weak-kneed toothless sentencing laws,
  • the Young Offenders Act, and
  • publication bans on trial evidence.

These six dangerous practices must be abolished. In their place, mandatory minimum to maximum sentences should be imposed for all serious crimes, especially for serious violent crimes. Our elected legislators could then be held accountable during their next re-election campaigns if they don't set appropriate sentencing ranges on our most serious crimes.

Hopefully, we will choose to move towards a more lawful society where law abiding citizens who want to live in peace can do so more safely. As we move towards the 21st century, I sincerely hope that all concerned Canadians in all walks of life will give these proposals their most serious consideration and input.