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Supreme Court ruling on Bernardo tapes sparks anger

Paul Bernardo now

Paul Bernardo sits in the back of a police cruiser as he leaves a hearing in St. Catharines, Ontario, April 5, 1994. Frank Gunn/CP

The Supreme Court of Canada refused yesterday to hear arguments about the future of videotapes from the Paul Bernardo case, a decision that left victims' rights groups enraged and frustrated.

The court decided against hearing the case, put forward by the families of Kristen French and Leslie Mahaffy, that the tapes of brutal assaults on their daughters should be sealed permanently.

It's the second time the court has turned the families down. It rejected a similar request during Mr. Bernardo's trial in 1995. The court, as usual, did not give reasons.

"This is a very sad day for most Canadians," said Priscilla De Villiers, president of CAVEAT, a national group that campaigns for a tougher approach to violent crimes. "The message that's been given in the grander sense . . . is that the courts will not protect us in the direst of circumstances.

"If there's anything that's repugnant to people in Canada it's the idea that we would give any societal acceptance to the notion of violent child pornography and why it should be made part of the public domain. . . . I would like our highest court to explain exactly why this should be. And what they've lost is a chance to define what the limits are in this country."

Canadians contributed $800,000 to fight the case in the courts, she said in an interview yesterday. "That should be a statement enough of concern that the people of this country feel about this issue, and yet this doesn't seem to bear any weight to even have the issue heard."

The families were appealing court rulings against them, including the refusal by the Supreme Court to hear the case in 1995.

Family members, some of whom have suffered health problems from anxiety over the tapes, wanted the court to rule that the videotapes should never have been admitted at Mr. Bernardo's trial and that they should never be viewed again.

Timothy Danson, lawyer for the families, could not be reached for comment.

When the tapes were discovered in 1994 in the bathroom ceiling of Mr. Bernardo's home, the Crown wanted to restrict public access to them, but did not ask that the public be barred entirely from the courtroom.

The families intervened, asking the judge to declare that the unrestricted showing of the tapes would infringe on their daughters' and their own Charter rights.

In May of 1995, the judge ruled that the public should not be excluded from the courtroom when the tapes were played, but said it would have access only to the sound. Only the judge, jury and lawyers watched the tapes, which showed Paul Bernardo and Karla. Homolka abusing the teens.

With yesterday's ruling, the tapes remain in a safety-deposit box, with access strictly controlled by the court.

In 1998, the Ontario Court of Appeal dismissed an appeal from the families that would have amended the Criminal Code and civil laws to ensure that exhibits containing child or coerced pornography must be sealed.

In a decision written by Mr. Justice Michael Moldaver, the court agreed that the prospect of the public gaining access to the tapes "has been more than the families can bear and the repercussions on them have been severe." However, any order restricting access should be left to the discretion of the judge conducting the proceeding.

The appeal-court ruling reflected the judge's belief that the tapes were already protected by very strict safeguards, according to lawyer Peter Jacobsen, who represented The Globe and Mail.

In effect, the Supreme Court yesterday supported the view that "we can trust our judges to exercise extreme caution in allowing these tapes to ever be used again, but that they were not going to close the door forever on that possibility because one never knows what circumstances might arise," Mr. Jacobsen said.

The parents have feared that the tapes would be viewed again when Mr. Bernardo, who was found guilty of murder, appeals his case or when he is eligible for parole.

But they may be seen much sooner by a lawyer representing a man who faces charges of illegally viewing them. This case, involving author Stephen Williams, is exactly what CAVEAT had predicted and dreaded, Ms. De Villiers said. Three years later the tapes are destroyed