Closing the loopholes

Jun. 1, 2005. 12:13 PM

We should set strict administrative or legislative limits on the sweetness of deals available for accomplices to acts such as murder, argues Toronto law professor Alan Young

There are things I can't remember and there are things I choose to forget. I have tried to cast aside the disturbing memories of the Paul Bernardo/Karla Homolka murders, but, unlike most murder stories, this one refuses to die.


Now after 12 short years in prison, Homolka has returned to the spotlight. Her comeback tour is making headlines and in the process she retains a perverse, celebrity status.


The fascination with Homolka cannot simply be explained away as just another manifestation of a twisted popular culture obsessed with tales of the macabre. The fascination is fuelled by the overwhelming feeling that a grave injustice has been left to fester. When justice is properly served a sense of closure can be achieved, but when the quest for justice is derailed the story of infamy will live for eternity. Most people believed Homolka escaped justice.


I attended the 1995 Bernardo trial on a daily basis solely because I had been hired by CTV to provide legal commentary on the nightly news. Most of the time the trial was like a slow guilty plea.


To many people, it really didn't matter if Bernardo or his wife, Homolka, had pulled the ligature that caused the death of two young women. They knew it was one or the other. This couple had already kidnapped, raped and sodomized these women together, so did it really make a significant moral difference who was actually responsible for the final killing?


Back in 1995, my disdain for Homolka prompted me to prepare a legal memorandum requesting that government officials give serious consideration to the possibility of rescinding her plea bargain arrangement. My basis was that she had perpetrated a fraud by failing to disclose to police the full extent of her complicity in Bernardo's crime spree.


The judge appointed to review the propriety of the deal did not agree with my position. He believed that Homolka's sporadic and incomplete disclosure was a result of amnesia and post-traumatic stress syndrome.


From my perspective, Homolka's strong performance on the witness stand undercut the claim that she was more victim than criminal. She appeared to have a cunning and beguiling intelligence and everything I have read about her, and by her, left the distinct impression that she was very much in control of her destiny throughout the whole sordid affair.


Nonetheless, the decision was made in 1996 to let her deal stand and we have to learn to live with the injustice.


Now that Homolka has served her sentence, public officials are trying to find some mechanism to control this woman's re-entry into the community. Apparently, these officials believe her to be a continuing danger, despite the fact that at Bernardo's trial prosecutors tried to paint a picture of her as a battered spouse, a victim, an unwilling participant in all manner of evil.


Nobody really knows if this woman is a menace. At the trial, one psychiatric assessment of her character I heard proposed was that she is a "diagnostic mystery."


Nonetheless, prosecutors are seeking preventive peace bonds to restrict her life on the assertion that she poses a continuing risk to the community. This is not entirely unreasonable, but I do think their actions are also animated by the overwhelming sense of injustice that keeps the memory of this case alive for an enraged community.


As much as it pains me to see Homolka reclaim her freedom at 35, the injustice of her grossly inadequate sentence cannot be rectified 12 years after the fact by applying for peace bonds and restraining orders.


Perhaps a modest amount of control can be secured in seeking these court orders. But any attempt to impose significant intrusions upon her life would be a distasteful form of double punishment.


She has served her sentence. She has paid her debt to society in the eyes of the law. What is the point of having codified laws and a specific term of sentence if public officials can get another kick at the can long after the game is over because they did not play their best hand first time around?


Perhaps a court can legally impose a residency requirement and a condition of periodic reporting, but otherwise she should be left alone. I do not say this out of misplaced compassion for Homolka, but out of a respect for the rule of law.


Although little can be done to set the record straight in 2005, it is puzzling to me that legal professionals never discuss how to prevent similar injustices from recurring.


For some reason, lawyers and judges seem to think that analyzing the mistakes made in the resolution of this case will call into question the profession's sacred cow of plea bargaining. Addressing the Homolka injustice would not require the abolition of this morally problematic practice, but it would require some regulation of this activity.


The profession seems to like the unbridled discretion that underlies plea negotiations and the entire sentencing process, and this may be why no efforts are being made to prevent a recurrence of this tragic case.


Here may be a simple solution to prevent another Homolka situation.


In a plea bargaining world we will always have to do deals with accomplices to get at some murderers. So we should set administrative or legislative limits on the sweetness of the deals that would be available for the accomplice.


The rule could be that a party to murder who becomes a Crown witness can never receive a sentence of fewer than 15 years.


Homolka would still deal because this is better than a life sentence.


Or how about a rule that requires consecutive, and not concurrent sentences, for each death caused? Under this regime, Homolka would have received a sentence in excess of 20 years instead of 12 years running concurrently.


If our system had fixed rules and guidelines for sentencing that bore some relationship to actual guilt, then accomplices like Homolka would have less leverage in bargaining.


If the law would take away some of the vast discretion vested in public officials, accomplices would have no choice but to take lousy deals.


There may be many simple solutions to curb the worst excesses of plea bargaining in cold-blooded murder cases, and even in obscure, run-of-the-mill criminal cases.


But the silence of the government and the legal profession since the Homolka deal was upheld shows that our politicians and legal professionals like the world of criminal justice just the way it is.


Alan Young is a law professor, criminal lawyer and author of Justice Defiled: Perverts, Potheads, Serial Killers & Lawyers (Key Porter).