CBC News listened to a recording of the serial killer's parole board hearing
Families of serial killer and rapist Paul Bernardo's victims are trying to convince the Supreme Court of Canada to give them access to his records in advance of future parole hearings.
For years, the families have been denied copies of documents used during Bernardo's parole hearings due to privacy law. Those documents includes psychological assessments, treatment records, case management reports and audio recordings of the hearings themselves, according to federal court documents.
The victims' families say they want access to the records so they can prepare "meaningful" victim impact statements. Their lawyer, Tim Danson, said they've seen Bernardo "manipulating the system" and lying about evidence at previous parole hearings.
"How is it that we have a public parole hearing and the evidence that is being presented at that hearing is somehow secret?" said Danson.
Danson said it's in the public interest for the documents to be released, so Canadians can decide if the system is working properly.
The Parole Board of Canada and the Correctional Service of Canada denied the families' access-to-information requests roughly five years ago. The Federal Court also turned them down. The Federal Court of Appeal upheld that decision in July when a judge concluded it would be a "total invasion" of offenders' privacy rights to release such records.
The appeal court judge also said the parole board is not an adjudicative tribunal and shouldn't be treated like an open court, where records are entered as exhibits that can be released to the public.
The move to ask Canada's highest court to rule on the case comes after victims' families were kept in the dark about Bernardo's controversial prison transfer back in the spring from a maximum to medium-security prison until the morning it happened.
Former public safety minister Marco Mendicino was shuffled out of the portfolio after CBC News reported that — although he said he wasn't briefed until after the transfer happened — his office was given three months' warning of the transfer.
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After a legal battle, CBC News was recently granted permission to listen to parole hearings for three notorious murderers — including Bernardo — under strict conditions. The Parole Board of Canada required that CBC News sign an undertaking that included a promise not to record or broadcast the audio.
CBC News reviewed more than seven hours of audio recordings over the phone.
The recordings delivered an avalanche of information at a rapid pace. The board members on the recordings also frequently cited portions of documents that only board members could see.
'A kick in the teeth'
The recordings show the extent to which victims' families have used their victim impact statements at previous parole hearings to speak out about their lack of access to those documents.
Debbie Mahaffy's daughter Leslie was in Grade 9 when she was abducted, sexually assaulted and killed by Bernardo and his then-wife Karla Homolka in 1991.
In 2018, Mahaffy described preparing for the parole hearing as "gut-wrenching for our family" because it involved reliving "the pain and horror."
She said all the evidence discussed at the hearing remains shrouded in secrecy, "which has a devastating impact on us."
"We are told Bernardo's privacy rights are more important than ours and the public interest," she told his parole hearing in 2018, according to an audio recording.
"Even though he seeks a public remedy at a public hearing where the threshold issued is public safety, this is a kick in the teeth for victims and loved ones."
Bernardo is serving a life sentence for the kidnapping, sexual assault and killing of Mahaffy and 15-year-old Kristen French in the 1990s. Bernardo was also convicted of manslaughter in the death of Tammy Homolka, his sister-in-law. Homolka served 12 years in prison for her role in those crimes. Bernardo, who was designated a dangerous offender, has admitted to sexually assaulting 14 other women.
CBC News also listened to a recording of designated dangerous offender Craig Munro's parole hearing in 2011. Munro was denied parole last year, 42 years after fatally shooting Toronto Police Const. Michael Sweet in 1980.
Sweet's family is also part of the legal fight for access to documents prior to parole hearings, along with the Toronto Police Association.
"Violent, murderous criminals such as Craig Munro should not have the right to be shielded under Canada's Privacy Act," said one of Sweet's family members, whose name was cut out of the recording. "It's ludicrous.
"We have no access to Craig Munro's files, nor does our lawyer, or even police services or its association."
Federal Court of Appeal Justice J.A. Pelletier said the families have argued that the offenders "lost their privacy rights in these records because of their violent and highly publicized offences."
Pelletier said the families filed access to information requests for "the production of every scrap of paper in the files maintained by Corrections Canada and the Parole Board in relation to Mr. Munro and Mr. Bernardo."
"It is apparent that, in the families' view, there was no zone of Mr. Bernardo's and Mr. Munro's institutional experience that was sheltered from disclosure," wrote Justice Pelletier in his judgment this past July.
"This is a total invasion of Mr. Munro's and Mr. Bernardo's privacy interests while they were in the custody of Corrections Canada or had applications before the Parole Board."
A 'voluminous file'
In the recordings heard by CBC News, parole board members described the massive size of the offenders' files. The file of offender Ethan MacLeod, formerly known as William Shrubsall, ran to 18,000 pages in 2018.
Shrubsall was designated a dangerous offender in 2001 for a string of violent crimes and sex assaults while he was living in Nova Scotia under a fake identity. He had fled Niagara Falls, N.Y., in 1996, where he had been on trial for the sexual assault of a teenage girl. After two decades incarcerated in Canada, he was extradited to serve time in the U.S.
Lead board member Suzanne Poirier said during a parole board hearing in 2018 that Bernardo also had a "very voluminous file" the board couldn't cover entirely during the hearing.
Poirier questioned Bernardo at length during that hearing by quoting directly from a "wide range" of documents collected during his 25 years in prison — including documents he'd written himself.
Poirier pointed to a 100-page biography Bernardo wrote around 2009. In it, he appears to object to efforts by his victims' families to keep him behind bars.
"I didn't agree with my victims using the considerable victim status power in their never release-no hope position tactics they push for," Poirier said, reading from Bernardo's autobiography.
"This has caused me … extra pain and suffering over and above the sentence. I do not like my victims for this. But like everyone else who only wishes me the worst, I otherwise don't care about them."
Responding to Poirier's questions, Bernardo acknowledged that his words sounded "absolutely horrible."
Bernardo said he wrote the autobiography after 16 years in solitary confinement, when he felt "degraded, humiliated." He said writing the autobiography was a requirement before he took part in a prison program that ultimately helped him.
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Poirier also questioned Bernardo's ability to receive unwelcome feedback, citing a series of complaints he has filed over the years.
"You said the program facilitator in 2018 should be charged with fraud," said Poirier. "You went as far as saying a program director in 2018 had cognitive distortions. You accuse your former [parole officer] of fabricating information."
In response, Bernardo said he sometimes feels misled and wronged but acknowledged he's not always right.
Parole hearing expected early in new year
Victims' families have been preparing for Bernardo's next parole hearing. It was supposed to take place in November but Danson said his clients have now been told to expect it in February.
He said his clients aren't likely to get a ruling from the Supreme Court before Bernardo's next parole hearing.
Danson said the delays in parole hearings create additional stress for the families, who are already struggling with having to attend hearings every two years.
"They're very anxious," he said. "Getting ready for the parole hearing and preparing victim impact statements are gut-wrenching for them.
"Everything comes back. It's as if the offence occurred recently. So feelings are raw."
Danson said it will take months for the Supreme Court to decide on his leave to appeal application. Before that happens, he said, the government will have to file its opposing brief.
He said his clients also want the parole hearing audio recordings broadcast publicly so that the public can understand how the parole system works.
"It's not just what [Bernardo] says but how he says it," he said. "He talks about these unspeakable crimes against Kristen French and Leslie Mahaffy and his other victims like normal people would talk about the weather.
"It's bone-chilling and you can't replicate that."
ABOUT THE AUTHOR
Ashley Burke is a senior reporter with the CBC's Parliamentary Bureau in Ottawa. She focuses on enterprise journalism for television, radio and digital platforms. She was recognized with the Charles Lynch Award and was a finalist for the Michener Award for her exclusive reporting on the toxic workplace at Rideau Hall. She has also uncovered allegations of sexual misconduct involving senior leaders in the Canadian military. You can reach her confidentially by email: email@example.com or https://www.cbc.ca/securedrop/
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