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
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
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
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
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 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
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:
- 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