Victim Privacy and the Open Court Principle

Chapter Five: Perspectives (cont'd)

Access to proceedings (cont'd)

From an open court perspective, the trial judge's reasons are not strong. Kovacs J. did not attach significant value to freedom of the press or to the public's access to information about the trial, including the opportunity to debate the justness of Homolka's sentence. Moreover, in assuming that publicity would jeopardize the fairness of Bernardo's trial, he failed to consider whether alterative measures, such as a change of venue, could obviate the need for an exception to open court. Finally, it should be noted that his publication ban and exclusion order predated the Supreme Court's decisions in C.B.C. v. Dagenais and C.B.C. v. New Bruswick (Re: R. v. Carson) , both of which set onerous standards under the Charter to justify exceptions to the open court principle. [cdvii]

At the time, the ban and closed hearing were enormously controversial. As Frank Davey explained, the judge's order was "perhaps, from the point of view of public knowledge, the most unfortunate moment in Ontario history for the imposition of such a ban." [cdviii] The dynamics at play, including the media's role, led to a public perception of the case as "an enormous collection of deceits and concealments." [cdix] For instance, the victims' families were perceived as being concerned with "unjustly protecting their privacy"; it looked as though the police were determined to keep the media and the public "from finding out about even inconsequential information"; it appeared that the police and Crown were making deals "against the public's back"; and it was widely held that Homolka received an "unjustly light sentence." [cdx] Yet Davey is most critical of the media, which he characterized as behaving in a self-serving manner throughout:

Arguably, it was not the ban itself that might cause disrespect of the court system, but the reception of the ban in the media. The media have a large role in controlling what issues the public is encouraged to see as important… In the debate over the publicity ban, the media were the only public institutions to publicize and criticize the judge's order… Without the media's repeated writing about their own indignation about the order … that is, without the media making themselves the story-much of the debate of the ban would not have occurred. [cdxi]

Nor did subsequent events restore confidence in Homolka's sentence or the judicial orders that shielded details about the offences and her participation in them from public scrutiny. Some time after her sentence had been imposed, videotapes documenting the crimes committed against Mahaffy and French were surrendered to the Crown by defence counsel for Bernardo. The discovery of this evidence altered the entire complexion of the case. First, the video footage uncovered a surviving but previously unknown victim, Jane Doe, and revealed the events leading up to Tammy Homolka's death. Second, tapes that proved Bernardo's sexual offences rendered the Crown's case less dependent on Homolka's direct evidence against him. Moreover, footage which recorded her willing participation in the commission of those offences undercut any claim that Homolka had been an unwilling participant and helpless victim of spousal abuse. Not surprisingly, these revelations rendered the sentence which was imposed at her hearing even more suspect, and not the least because it did not include punishment for the offences she committed against Jane Doe and her own sister.

Third, the discovery of the videotapes subjected the victims' families to untold agony, and brought them into the proceedings which led up to and followed the Bernardo trial. The order by Kovacs J. had the effect, though not the purpose, of protecting the privacy and dignity of the victims' families. Yet the publication ban was temporary and would expire at the conclusion of Bernardo's trial. [cdxii] In the ordinary course, however, the tapes would be entered as evidence and played in open court at those proceedings. Faced with that prospect, the families pressed the courts to protect them and their deceased daughters from the public violation of their privacy and dignity.

Prior to the Bernardo trial, the Crown brought an application under s.486(1) of the Criminal Code to exclude the public from the courtroom during its presentation of the videotape evidence. While members of the media opposed it, the families of the deceased victims supported the Crown's application. First, it was necessary for them to secure status as intervenors in the process. Ordinarily, third parties are not permitted to participate in criminal proceedings, and though the status of third parties, including victims, has changed under the Charter , the criminal trial remains a contest between the accused and the Crown. [cdxiii]

Through their counsel, the families maintained that their constitutional rights would be violated if the tapes were shown to the public. The difficulty was that if the victims' families were granted standing in Bernardo's case, it might be difficult to refuse other crime victims similar status. [cdxiv] LeSage A.C.J.O.C., who would later preside over the jury trial, noted that, "in general victims and parents of victims do not have a right to intervenor status in a criminal trial." [cdxv] Even so, he granted the Mahaffy and French families' requests, "as an indulgence", and on the strength of the "unique and different perspective" they would have to offer. [cdxvi] Emphasizing that it was rare for the Court to grant third parties such status, he did so because the circumstances of the case were "so strikingly unusual". [cdxvii]

On its merits, the Crown's s.486 application posed a difficult question. The case for access to the proceedings, including the video evidence, could hardly have been more compelling. That evidence documented the relationship between Homolka and Bernardo, and proved their respective roles in the commission of multiple sexual offences. And, if the purpose of the evidence was to establish Bernardo's guilt, the degree of Homolka's complicity in the offences, including murder, and the legitimacy of the Crown's "bargain" with her, remained contentious. From that perspective, the adage that, "pictures don't lie," seemed to offer some hope of getting at the truth of what happened. In this instance, however, the fair trial rationale could not provide a cover for victim privacy, as it had at the Homolka proceedings. Parenthetically, it should be noted that questions surrounding the videotape were decided before the Supreme Court's decision in C.B.C. (Re: R. v. Carson) , which identified the protection of privacy as a permissible reason for excluding the public from the courtroom.

Playing the tapes in open court could only be experienced by the Mahaffy and French families as a cruel and even a barbaric act. Thus, the Crown submitted that the failure to recognize the distress of the victims, including the families, would adversely affect the perception of the administration of justice, which is referred to in s.486(1) as one of the permissible exceptions to openness. Without accepting that the deceased victims or their families could assert Charter claims, LeSage A.C.J.O.C. forged a compromise between the demands of open justice and victim privacy. Specifically, he decided that the audio portions of the videotapes would be played in open court, but that their visual images would be shown only to the jurors, lawyers, the accused, the judge, and any Court staff whose presence at the proceedings was required. In doing so, his analysis was based more on the harm their publication would cause than on the privacy of the families. Specifically, he stated:

… I am satisfied that the harm that flows from the public display of this videotape far exceeds any benefit that will flow from the exposure of sexual assault and child pornography. When I refer to harm , I am not suggesting that individual members of the public need to be protected from the harm that may flow from viewing these videotapes… By harm , I am referring to the injury that most likely will be occasioned upon the surviving members of these three young girls if the videos are played in open Court. The families will suffer tremendous psychological, emotional and mental injury if the evidence, as the Crowndescribed it … is publicly displayed . [cdxviii]

Unsatisfied with that result, the families sought and were denied leave to appeal that decision to the Supreme Court of Canada. [cdxix] They did succeed, however, in obtaining an order, in subsequent proceedings, that the videotapes be returned to the Attorney General for destruction, when no longer required for the due administration of justice. [cdxx] On further appeal, the Ontario Court of Appeal rejected their submission that s.486(1) is unconstitutional and held there was "no room" to attack its validity on the basis that it treats openness as the rule and exclusion as the exception. [cdxxi] As Moldauer J.A. noted, there is a difference between a person's right to engage in certain conduct, such as child pornography, and the public's right of access to observe conduct captured on videotape and tendered as an exhibit in court proceedings. [cdxxii] In any case, the appellate court did not disturb the trial judge's destruction order. Accordingly, the final stage in the videotape saga occurred when the families of the victims witnessed the incineration of the videotapes late in December 2001. [cdxxiii]

One way of assessing the way competing demands were resolved in the Homolka-Bernardo proceedings is to ask, in hindsight, how the deleterious consequences for open court and the salutary benefits for victim privacy compare. [cdxxiv] That question of final proportionality between the reason for the exception and the harm to open court is a key consideration in the Supreme Court's Dagenais , C.B.C. (Re: R. v. Carson) , and Mentuck doctrines. The benefits which accrued from the exceptions to open court throughout the proceedings are relatively straightforward; the Homolka exclusion order and publication ban, the Bernardo videotape order, and the order which led to the destruction of the tapes provided the families of the victims who were videotaped a degree of privacy within the criminal justice system which they ordinarily would not have received. At the same time, their interests were not absolutely protected. The Homolka publication ban was lifted once the Bernardo trial ended. Moreover, the families sought not only to deny the public access to the audio and visual portions of the tapes but also, to exclude the public from the courtroom when witness testimony disclosed any statements made by the victims on tape. As seen above, LeSage A.C.J.O.C. was not prepared to go that far.

The deleterious consequences for the open court principle are more difficult to assess. It can be argued that the Kovacs order had limited consequences because the ban on information was temporary. From that perspective, the public's access to information about the justice system was merely delayed. At the same time, there can be little doubt that the publication ban and exclusion order had a negative impact on the public's confidence in the integrity and legitimacy of the police investigation, the Crown's plea bargain, and the Homolka trial itself. That gap in confidence widened once the tapes were discovered, and to this day, the wisdom of such extensive limits on information about the Homolka proceedings remains open to serious question. Meanwhile, the salutary benefits of these orders, which were aimed at protecting Bernardo's right to a fair trial, could well have been achieved by alternative measures including a change of venue, jury screening, and instructions to the jury. Kovacs J. did not seriously entertain any of those measures. Absent the video evidence, which would not appear until later, it is questionable whether the privacy and dignity of the victims and their families were compelling enough to warrant exceptions to open court on the scale of the Kovacs publication ban and exclusion orders. Under the existing doctrine, Kovacs J. was right in concluding that the answer was no; and, even under the subsequent criteria of C.B.C. v. New Brunswick (Re: R. v. Carson) , the issue is debatable.

The deleterious consequences of derogating from the open court principle to protect victim privacy, in the case of the videotape order, may seem modest. As LeSage A.C.J.O.C. stressed, "it is not necessary", for there to be an open trial, that "the public gallery be shown the graphic display of one of the victims lying in the bathtub whilst the accused attempts to defecate and actually urinates on her head and face." [cdxxv] Given that members of the press and public could hear the evidence, he concluded that it was not essential for anyone but the principals, including members of the jury, to view the tape. Yet LeSage A.C.J.O.C. did concede that, "it is difficult to rationalize why the verbal, but not the pictorial, images may be publicly displayed." [cdxxvi] The answer he gave was that "traditionally we do not display, for public viewing, photographs of dead bodies, close-up photographs of wounds, photographs of autopsies, photographs of exhumations, and similar type evidence". [cdxxvii] The analogies he relied on are not perfect, though, because the examples he listed simply documented the consequences of violent crime. Unlike the Bernardo videos, photos of wounds and autopsies do not constitute proof of a crime's commission. In any case, the question before LeSage A.C.J.O.C. was not whether access to the tapes fell within traditional practices, but whether a different answer was required by the Charter 's constitutionalization of open court.

Sparing the families further and undue suffering was compassionate in the circumstances. The video order also spared public suffering, and avoided implicating the criminal justice system in the unwilling distribution of child pornography. Still it left broader and important questions of principle unanswered. Primary among is the definition of a victim, and whether the secondary victims of a crime can advance rights in their own name. If there is no doubt that the commission of a single crime can create several victims, the problem is one of deciding which ones and how many should be granted standing in the criminal justice system. In that, it quickly and unavoidably becomes subjective to draw comparisons between victims and the relative degrees of harm they suffer. The Bernardo video order is defended as an exception to open court which, by virtue of its circumstances, was unprecedented. Once created, however, precedent seeks the company of analogous circumstances, and rarely remains a solitary and isolated decision. In any case, to limit the video order to a once in a lifetime case privileges the victims of the Mahaffy and French tragedies, and excludes other victims whose privacy and dignity interests might be as profoundly harmed. Then again, should the Bernardo video order be see as a precedent for the protection of victims, including the secondary victims of crime, the consequences for the open court principle would be quite troubling. This is the dilemma that arises when compassion for the victims of crime is in conflict with the demands of principle.

Conclusion

Open court and victim privacy unavoidably come into conflict, and choosing between the two is not easy. To some, it may seem that the derogations from openness which are required to protect victim privacy are minimal, and are readily outweighed by the equities which run in favour of those unfortunate enough to be a crime victim, and especially a victim of sexual assault. From that perspective, demanding the right to publish a victim's name or to see the Bernardo videotapes suggest an attachment to the open court principle that is needlessly scrupulous. As these pages have shown, however, there are compelling reasons why the pre- and post- Charter tradition in Canada claims strong adherence to that principle.

At the same time, victim privacy imposes costs on the system. By singling sexual assault complainants out for distinctive treatment (among a few others), such rules raise fairness and equality concerns. Moreover, secrecy in any aspect of criminal justice can erode confidence in the legitimacy of the system. Protecting the privacy of some victims also leaves unanswered the status of others, as well as of secondary victims who may also have suffered horribly. At present, the statute law and jurisprudence have not established a clear rationale or set of guidelines to address the issue of victim privacy. In the case of sexual assault, it is assumed that anonymity is linked to law enforcement. Yet the Court relied on chronic under reporting in Canadian Newspapers and Adams without addressing privacy as an entitlement in its own right. How anonymity has affected reporting, and whether sexual assaults raise distinctive privacy issues, regardless of law enforcement concerns or the persistence of past prejudices, are questions which should be asked and answered.

By way of postscript, two developments which arose since the Chapter was written should be mentioned. First, on the issue of victim anonymity, it is noteworthy that Simon and Shuster has scheduled the publication of the book, I Am the Central Park Jogger, in April. The identity of the jogger who was brutally assaulted and left for dead has never been disclosed, but now the victim, whose name is Pimsleur, has come forward. Second, the publication of Stephen Williams', Karla: A Pact with the Devil, in English Canada has revived the contest between the French and Mahaffy families, and those who are of the opinion that the accountability issues in the Homolka plea bargain remain inadequately canvassed. [cdxxviii] The victims' families complained, in particular, about two photographs, one of which showed the cement blocks that encase Leslie Mahaffy's body, and the other, which showed Jane Doe with Homolka, albeit with a black bar across her eyes. In this instance, their point may have moral force, but it is without legal foundation.