Friday, February 26, 1999A young killer gets kid-glove treatment
Special hearing may set murderer free after just 29 months
He may be the luckiest young killer in Canada, and if his luck continues to hold, he could end up serving only 29 months for the vicious murder of an elderly Holocaust survivor he stabbed nine times in the throat in broad daylight.
Now 22, the tall, heavyset man was in Ontario Court yesterday with his lawyer, Paul Cooper, to set a date for a hearing in May that will be the very first of its kind in the province and probably in all of Canada.
The hearing is unprecedented because it will take place at the General Division level -- the highest -- of Ontario's courts and will set the standard to be followed by the lower courts, where such proceedings have always been held.
If successful, it will mean the man, who can't be identified under the provisions of the Young Offenders Act under which he was convicted, would have been in custody for less than half of what was then the maximum sentence for young murderers -- a penalty so laughable it outraged the Canadian public and led to the federal government eventually doubling it in 1995.
Given the man's great good fortune thus far -- he was able to reap huge benefits and suffer none of the tougher punishment when Ottawa changed the rules for young killers -- those close to the case are worried he could also win this round.
As one source said, "This guy's got horseshoes coming out his ass."
The man was less than six months shy of his 18th birthday when he killed Hungarian-born Bernard Bimbi, a family friend who used to say that he had been "next up" for the gas chamber and would have died if the Second World War hadn't ended when it did. A cab fleet owner who ran his business out of a garage in west-end downtown Toronto, Mr. Bimbi was 62 when, one Thursday afternoon in the fall of 1993, the young man he knew so well lured him to a locked area and stabbed him.
As Mr. Bimbi lay dying, bleeding from the neck, the young man dragged him some distance away and almost sliced off one of his baby fingers in order to remove a $30,000 diamond ring, leading The Toronto Sun to label the man "the pinky-ring killer."
At that time -- 1993 -- the maximum penalty for murder for young offenders was five years less a day, three of it in closed custody, two years less a day under what's called "conditional supervision."
The Crown could apply, as it can now, to have a young person transferred to adult court -- where the sentence for a young person convicted of murder was then life in jail, with no parole eligibility for between five and 10 years -- and did so in this case.
But in those days, the onus was on the Crown to prove that the young offender should be transferred to adult court, and they failed with the Bimbi case, which was then bounced back to the Young Offender courts in late 1994.
Then, in 1995, under growing pressure to toughen up penalties for young criminals, the federal government toughened the Young Offenders Act for the second time in three years, doubling the maximum penalty for first-degree murder to 10 years and making it easier for 16- and 17-year-olds accused of it to be transferred to adult court.
But, because the maximum sentences were now more than five years, the Canadian Charter of Rights and Freedoms also kicked in, guaranteeing young offenders facing such a serious prison sentence the right to a preliminary hearing and a trial by judge and jury.
There was, of course, a downside for accused young killers in this too: Not only were the penalties doubled, but also the onus for being transferred to adult court shifted to the accused, who now had to prove why his trial should not be heard in what could be called "real" court.
But Mr. Bimbi's killer managed, through lucky timing, to turn the changes into solely a good-news story for him: He got the preliminary hearing and the trial by judge and jury guaranteed by the new rules, but faced only the five-year maximum, not the 10, of the old rules, and didn't have to show why he shouldn't be moved to adult court.
He even won bail while awaiting trial, a condition of which was that he attend school.
But because the bail conditions weren't spelled out in detail, when authorities discovered he was showing up at school only for the morning head count, and then disappearing, and tried to argue that he was breaching his bail and should be held in custody, a judge tossed out the application, saying his bail didn't specify that he had to actually be in classes every day of the week.
Now, though he has been in custody only since being convicted of first-degree murder on Dec. 12, 1996 -- about 26 months, or 10 short of the supposedly mandatory three years in custody -- he has made what's known as a Section 28 application.
These hearings are basically sentencing reviews. Under this section of the Young Offenders Act, anyone sentenced to more than a year in jail is automatically entitled to a "review of disposition," as the proceeding is properly called, and must demonstrate that he has "made sufficient progress to justify" a reduction in sentence.
This means what will be at issue at the hearing is not the nature of the crime -- what the trial judge called in this case "a deliberate, brutal, callous" murder -- but rather the man's alleged rehabilitation while in custody.
Routinely held in provincial court, no Section 28 hearing has ever been held at the General Division level before, with all the attendant precedent-setting implications such higher-court decisions carry. Because the proceeding is brand-new, Mr. Cooper, the man's lawyer, assistant Crown attorney Kenna Dalrymple, and Mr. Justice Robert Blair, who was the original trial judge, are still trying to work out the details.
Yesterday, Judge Blair set May 31 and June 1 as the dates for the hearing.
At the time of the man's sentencing, Mr. Bimbi's only child, Evelyn, railed against the legislation that allowed her father's killer to get off so lightly and described Mr. Bimbi as "a living angel."
Toronto Police were led to the young man because of his size-13 Fila brand hightop running shoes.
The jury, which took only four hours to convict him, heard that on the floor of the garage, the man's footprints were found in dust leading to the body, and in blood leading away from it.
Ironically, the man hasn't put a foot wrong since.
Christie Blatchford can be contacted at email@example.com
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