The tides of justice

There were noble aims behinad the establishment of the "public" court. Have these objectives been compromised by the "tabloid" court?

By Nancy Toran-Harbin

A great deal of controversy has arisen as a result of the partial publication ban imposed in the trial of Karla Homolka.(f.1) In the forefront are such issues as freedom of the press, the public's access to the judicial forum, and the rights and protections of the accused. The murder of two young girls calls for a re-examination of competing needs of the victims of violence; the victims' families and friends; the victims' community; the public; and the accused. We need to review some basic tenets respecting the balance of rights and freedoms. How can the justice system treat fairly those persons who unwittingly become enmeshed in the criminal justice system? To prevent wide spread vigilantism, citizens must have a confidence that their society's institutions can protect them from crime and also redress wrongdoing.

Public access to trials is considered a right. Media interests claim that the public's "right to know it all" is inalienable. Historically, the reasoning supporting the principle of a public court includes a number of noble motives. Public access has helped keep courts "clean" and has protected litigants. Public scrutiny has informed communities of dangers and offenders within their midst. Informing a small community of an offender's identity and crimes alerts that community to be wary. Public scrutiny also prevents situations that are still rife in totalitarian regimes wherein many accused go "missing" and where "kangaroo" courts are the order of the day. Finally, public access materially assists the facilitation of an accused's right to a fair trial. But times change. Today the goriest details of atrocities are now available, live and in living color, at the flick of switch. With "virtual reality technology" on the horizon, we will soon be able to experience the sensory "feel" of being immersed within almost any situation. The electronic circus will enable us to lounge before our viewing screens while "feeling" as if we were at the scene of a serious crime as both perpetrator and victim. Is this technology appropriate or desirable for the reporting of the criminal justice system? The public court became an established institution before today's technology was contemplated. Have the goals and protections which were the nobleaims of the public court been compromised by the "tabloid court"? If so, can the public interest be protected in the absence of a public court, so as to avoid the brutality of the "tabloid court"?

There is a new recognition of the pressing need to address the short and long term impact of violent crime upon victims. It is now accepted that damage is not confined to the victim's family and intimate circle. A larger constellation of individuals can be harmed: the peers, friends, and acquaintances of victims and their families.

According to Statistics Canada, between 1981 and 1991 violent crime increased 65%. How many lives have been permanently touched by violent crime? The needs of this population are a legitimate concern. Therapists tell us that after the offence, the trauma victims only begin their long journey of recovery. They may come to regard their contact with the justice system as further victimization, added phases of the unremitting trauma. Many suffer symptoms like those experienced by prisoners of war. Victims of violent crimes share a common nightmare and many feel they are in a bottomless pit.

In recognition of their needs, a number of law enforcement agencies are trying to reduce further trauma. They have established special teams to deal with victims and their families, trying to reduce the ongoing damage.

The day before the Homulka trial began, at the invitation of Debbie Mahaffy, I attended the Faces of Violence Memorial Conference. The delegates were primarily surviving family members of murder victims. As the founder of FACE, (Family Abuse Crisis Exchange), I am familiar with some of the problems of the victims of violence. No words, however, can describe what it is like to be amid hundreds of persons whose loved ones have been brutally ripped from their lives. The pain was palpable at that gathering. Some of these families lost members over 30 years ago, yet continue to feel the trauma.

Many speakers said that their contact with the criminal justice system had increased their suffering. One recurring theme was their distress over the celebrity status achieved by perpetrators. Having the most intimate, grisly details of their loved ones' demise splashed throughout the media exacerbates the pain of living through a murder trial. Their agony increases in the streets, where they sense that everyone knows the personal details, and that the situation borders on prurient voyeurism. Victims of crime can assist the justice system's evolution by raising a number of thought-provoking issues. Had Leslie Mahaffy or Kristen French survived, some of the details at trial would not have been published, for it is accepted that restrictions are necessary for the victim's protection. It is also accepted that such restrictions do not compromise the accused's right to a fair trial. Further, such restrictions do not compromise other values promoted by the open court system.

Had these girls lived, they as victims and their families as secondary victims, would have been spared much glaring publicity. Since these children did not survive, their families have not only lost their children forever, but have had their lives placed under the public microscope. Since we agree that the accused would have been assured a fair trial had the girls lived, notwithstanding restrictions on publication, can we not also agree that the trial might be equally fair with equivalent restrictions, even though the girls did not survive?

In the most active area of free speech and press litigation under the Charter, our courts have ruled in the most powerful terms that the public, including the press, has a constitutional right to attend court proceedings, as well as a constitutional right to freely report to others what has transpired there, subject only to narrow limits."(f.2) Before the Homolka trial, many horrifying aspects of the case were widely known. The public was aware that these children had been abducted, held, sexually violated, and murdered. The public was aware that Leslie Mahaffy had been dismembered and that portions of her body had been encased in cement and dumped in Lake Gibson. The public was aware that Kristen French's nude body was disposed of in a ditch. What principle of justice will be served through publicizing additional details?

Restricting publicity surrounding minute details of, for example, sexual assaults, is not tantamount to a closed court. Prior to the early 1950s reputable journalists exercised considerable restraint in reporting minute details of violent crime. Televised accounts were non-existent. The accused's right to a fair trial does not appear to have been compromised. Currently in particular circumstances, (such as for example when a victim is defined as a "youth") restriction of certain aspects of a case have been deemed a reasonable limit.

Publicity surrounding details of these crimes may in fact prove harmful to the victims' friends and thecommunity at large. When a young person dies, the peers tend to be deeply affected. School counsellors help students cope with their feelings, but publicity about the details will prolong their distress.

Worse yet, publicizing graphic details may put the public at risk by serving as a blueprint for individuals with deviant or antisocial inclinations. Publicity surrounding details of what one newspaper referred to as "extraordinary measures taken to conceal evidence" could potentially provide an extremely effective training manual for someone determined to "get it right the next time."

Our judiciary is expected to have the wisdom of Solomon when handling mutually exclusive interests. It must promote humane treatment of victims of crime while preserving the rights and freedoms of a democratic society. At the Faces of Violence Conference a group of teens performed an impressionist dance to Eric Clapton's "Tears in Heaven." Let us all work together to reduce the tears on earth.

1 The author does not intend to either endorse or criticize the Judgment of Mr. Justice Kovacs, nor does the author comment upon particulars of the Judgement.

2 M. D. Leprofsky, A Time of Transitions, (1992) Vol. 26, No. 2 L.S. of U.C. Gaz at 166.

The author is a barrister and solicitor.

Peace Magazine Nov-Dec 1993

Peace Magazine Nov-Dec 1993, page 20. Some rights reserved.

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