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| John L. Hill |
Bernardo has been denied parole twice in the past for these murders. He was again refused day parole and unescorted temporary absences at a third hearing held at medium-security La Macaza Institution in Quebec on Nov. 26. He had also been convicted of manslaughter in the killing of his then-wife Karla Homolka’s 15-year-old sister, Tammy.
Indeed, this is an example of the type of criminal that former Crown Attorney and retired Ontario court judge Norm Douglas would see as someone who should be sentenced to life imprisonment without eligibility for parole, as he wrote in a recent Law360 Canada piece. In his capacity as a judge, Douglas would be familiar with hearing about the desperation of victims of crime after an accused has been found guilty. The impact of serious crime on victims deserves to be heard so that a judge can adequately evaluate the range of sentences to be imposed. Sentencing looks backward to the commission of the crime to assist in the imposition of a fit sentence. For first-degree murder, there is only one sentence: life imprisonment without eligibility for parole for 25 years. Loss of freedom is Canada’s penalty for serious crimes. A life sentence is what it says: loss of freedom for one’s life. Such criminals will be under state supervision for the rest of their lives. A grant of parole for “lifers” relaxes the degree of oversight the prisoner will experience.
The call for returning the death penalty or adopting a parole non-eligibility sentence fails to consider the expertise associated with the decision-making process of Parole Board of Canada members. Parole is forward-looking. It should not constantly look backward at the crime, as judges must do. The parole board’s members are adept at discerning if rehabilitation has made an offender a manageable risk in the community.
Listening to victims undoubtedly helps put the seriousness of criminal behaviour in context, but making the past the ultimate determinate of the future serves no purpose. It would remove any hope for a prisoner to one day experience life outside the walls. Without hope, there can be no rehabilitation. Continually whipping a dog will not produce an obedient animal; it will only induce more viciousness.
There is a constant call for “tough on crime” initiatives. It plays well politically. The parole board should be shielded from political intervention regarding proper decision-making. The Bernardo case suggests that victims can count on politicians’ support to issue public statements when they are dissatisfied with administrative procedures involved in the parole process. Fortunately, although political intervention has influenced the timing of hearings and adjusting security concerns for observers, there has been no evidence that the board members’ decisions have been tainted by such interference. Politics plays on people’s fear. What the parole board does rests on assessing risk that ensures public safety. The Parole Board has made mistakes in the past that have received extensive publicity. However, the track record of the vast majority of those who have been granted early release speaks to the exceptional ability of the risk assessment tools employed by board members.
Of course, there are always prisoners who cannot be rehabilitated and would be forever dangerous if released. Such people should remain in prison indefinitely. However, that decision is best made by the parole board and not by politicians, the media and the victims.
A more unfortunate aspect of the publicity that erupts when a notorious killer comes up for parole is that we lose sight of the focus of our criminal law. Whenever one breaches the criminal law, it is deemed a crime against society and not against the victim. Unlike in the United States, it is for the police and Crown Attorney to decide who shall be prosecuted even if a victim chooses not to “press charges.” Private prosecutions are infrequent. Crime is seen as a tear in the fabric of society deserving of a loss of freedom. The punishment is not intended as compensation for those injured. To think of it as such would make our criminal system of justice state-sponsored vigilantism.
John L. Hill practised and taught prison law until his retirement. He holds a J.D. from Queen’s and an LL.M. in constitutional law from Osgoode Hall. He is also the author of Pine Box Parole: Terry Fitzsimmons and the Quest to End Solitary Confinement (Durvile & UpRoute Books) and The Rest of the [True Crime] Story (AOS Publishing.). Contact him at johnlornehill@hotmail.com.
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