November 5, 1999
The law is an ass - when it puts a killer's privacy before the public interestBy Rosie Dimanno
THE TORONTO STAR doesn't break the law. Not even when the law is an ass.
And rarely in the history of Canadian jurisprudence has the ass brayed as loudly as it has in its protection of Karla Homolka.
One might almost say the killer has seduced the courts.
There was a tide of public revulsion after readers learned from The Star on Wednesday that Homolka has asked for temporary escorted pass privileges and been refused by the warden of Joliette prison. Homolka is appealing that decision.
The details, insofar as space and deadline time pressures allowed, were published by The Star - including the observations and conclusions of psychological and counselling experts who'd interviewed Homolka in jail.
But Wednesday evening, about 8 p.m., the Star received a phone call and a fax transmission from Homolka's Montreal-based lawyer, Pascal Lescarbeau, pointing out that all the material in his client's appeal file had been placed under a publication ban. This ban was issued by Richard Morneau, a prothonotary - defined in my dictionary as a notary or chief clerk of a court of law - which was obtained under Federal Court Rules.
This development required Star reporters to hastily rewrite their stories in order to get as much information into the paper as possible without breaking the ban. Other stories were spiked entirely. All this, despite the fact they had published the same information only 24 hours earlier.
It's a disingenuous process, forced upon us, to pretend that we no longer knew what we'd definitively known the day before. Furthermore, it has required the Star's ombudsman and lawyer to review tons of letters to the editor, bristling with outrage toward this woman, who was complicit in the death of three teenagers, including her own baby sister. The ban, by our understanding, extends to such letters if the authors make specific reference to material already published but now protected.
By law, the media is supposed to receive proper notification of a proposed publication ban. This allows us to dispatch lawyers to court, if we choose, to argue against such an order.
But this did not happen here. The Star never received prior notification. Nor, to my knowledge, did any other media outlet.
Also, how is any media outlet supposed to know about a publication ban if it hasn't been notified of its existence? Lescarbeau told The Star yesterday that he faxed this information to various news agencies. Yet The Toronto Sun, for one, quoted phrases from the banned material. I have no way of knowing whether The Sun was citing from the original documents - whether the paper had even obtained the material before the court stopped making it available - or whether it was quoting from stories already published in The Star.
If the latter, does that make The Sun guilty of violating the ban? I suspect not. Anyone can publish details of Homolka's life behind bars and her case assessments if that information is obtained from sources other than the banned documents.
That's why, for instance, The Star's managing editor, Mary Deanne Shears, came back to the office on Wednesday night from a social function to go over our copy line by line. When did you know this? How did you know this? Any detail directly obtained from the banned material was excised. It was a painstaking and time-consuming process against a looming deadline - but that's our problem.
The Sun's lawyer, Alan Shanoff, told The Star yesterday that his paper does not breach publication bans either. Like The Star, The Sun will bring a motion objecting to a publication ban as situations warrant.
``I wasn't aware that The Sun had breached any publication ban,'' said Shanoff, who only heard of it yesterday morning. The Sun had not been notified of its existence.
The publication ban, as written, is quite confusing, Shanoff points out, particularly since it refers, technically, to a ``non-publication ban,'' which, literally, could be interpreted as a ban against non-publication. But Shanoff was confident that what The Sun published yesterday did not violate the order, most especially since ``the genie was already out of the bottle; so much of (the information) was already in the public domain.''
It should be pointed out that Homolka's lawyer, Lescarbeau, was not the one who asked for a publication ban. This action was taken, apparently, by the federal court after somebody realized that Homolka's case - including the assessment documents - had been published in The Star.
Such personal documents are usually confidential, under the federal Access to Information and Privacy act. But, once Homolka filed her appeal, Corrections Canada was required to defend itself, which entailed filing those personal documents with the court. At that point, either Corrections Canada or Homolka's lawyer could have got an order to seal the file. They didn't. And The Toronto Star, following a tip, obtained those documents. We still have them.
In response, the federal court obtained the publication ban.
So now we all have to pretend that the Homolka material was never in the public domain - even though other newspapers might choose to quote liberally from stories published in Wednesday's Star.
``I don't accept that this file should be sealed,'' says Bert Bruser, The Star's lawyer. ``The court didn't give us a chance, and it should have, to come and make these arguments.''
The most compelling argument against a ban, of course, is the public interest, the public right to know. There is no denying society's profound interest in The Life and Times of Karla Homolka, most particular her attempts at some form of freedom. Says Bruser: ``That really outweighs the privacy interests of Karla Homolka, convicted killer.''
And let's not forget the controversial background to all of this.
Karla Homolka pleaded guilty to manslaughter in the deaths of Kristen French and Leslie Mahaffy. She received a 12-year sentence - a gentle penance not commensurate with her crimes (which included the drugging and raping of her younger sister, Tammy, who died after choking on her own vomit).
This was all part of Homolka's infamous sweetheart deal, by which she appeared as the prosecution's main witness against her ex-husband at his murder trial. And this was necessitated because police had not yet come into possession of the videotapes depicting the gruesome and repeated assaults.
Homolka's trial was practically vacuum-sealed. Mr. Justice Francis Kovacs ruled that Canadian reporters could sit in on the proceedings but not write or even speak about what transpired. Because Americans writing for U.S.-based papers would not be subject to penalties for defying the ban, Kovacs kicked them out of the courtroom. And, to prevent reporters from passing themselves off as curious citizens, the public was banished as well.
All this, allegedly, to protect Paul Bernardo's right to a fair trial - despite the fact his own lawyer had dropped his motion to suppress coverage of Homolka's manslaughter trial.
It took two years before what was heard in that courtroom became public.
Bernardo's interests were paramount - the court would have you believe.
Now Homolka's privacy is paramount - the court would have you believe.
Rosie DiManno usually appears Monday, Wednesday, Friday and Saturday. E-mail: email@example.com
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