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79 Judicature 249 (1995-1996)
Pretrial Prejudice in Canada: A Comparative Perspective on the Criminal Jury

handle is hein.journals/judica79 and id is 251 raw text is: Pretrial prejudice in Canada: a comparative perspective on the criminal jury A comparative analysis with another country makes possible a clearer view of the American jury and the risks and benefits of proposed reforms. by Neil Vidmar T he American criminal jury is under intense scrutiny and criticism, largely as a result of some highly publicized tri- als such as those of 0. J. Simpson, the Menendez brothers, and William Kennedy Smith. These trials have caused commentators to raise ques- tions about the effects of the mass me- dia in creating a climate of prejudice. They have also produced concerns about inherent general prejudices or biases that jurors may hold as a result of their racial, gender, or other identi- ties.' In many respects these trials are not representative of most criminal jury trials but, nevertheless, they have fostered consideration of a farrago of reforms including abolition of the unanimity rule and peremptory chal- lenges and expansion or contraction of voir dire. They have also engen- dered debate about sequestration of jurors, television in the courtroom, and constraints on lawyers. While empirical research rather than anecdote is needed to determine how serious and extensive these jury problems actually are,2 the impact of any reforms on the jury system and, in- deed, the whole criminal justice pro- cess should be simultaneously consid- ered. The parts of the system are interdependent: some rules and prac- tices are predicated on rules and prac- tices in other parts of the system. A comparative analysis with another This research was supported, in part, by the Josiah Trent Memorial Foundation at Duke University. The author is indebted to the Honorable Madam Justice Louise Charron of the Ontario Court of Ap- peal, Alan D. Gold, Barrister, Gold and Fuerst, Toronto, Professor Robert Mosteller, Duke Law School, and The Honorable Justice Henry Vogelsang of the Ontario Court ofJustice (General Division) for comments on an earlier draft of the article. The author takes full responsibility for er- rors and omissions. 1. See e.g., Curriden,Jury Reform, 81 A.B.A. JOUR- country can help us step back from the American jury, view this system inter- dependency more clearly, and criti- cally examine the risks and benefits of proposed reforms. This article provides an overview of the jury system of Canada, with par- ticular reference to the trial of Paul Bernardo. The Bernardo trial is inter- esting because it overlapped that of OJ. Simpson, involved not only mur- der but heinous acts that exceeded those in the Simpson case, and posed a serious threat to the integrity of the trial process. Against a backdrop of a series of rapes by the Scarborough rapist that terrorized a number of Toronto sub- urbs beginning in mid-1990, two teen- age girls, Linda Mahaffy and Kristen French, went missing in 1991 and 1992. Their sexually-abused bodies were subsequently found. Mahaffy's had been dismembered by a power saw, encased in cement, and dumped in a lake. Police were stymied until January, 1993, when a 23 year-old woman resid- ing in St. Catherines, Ontario, Karla Homolka, was severely beaten by her 29 year-old husband, Paul Bernardo. In the police investigation that fol- lowed she confessed that she had participated with Bernardo in the kid- naping, sexual enslavement, and deg- radation of the two teenagers. Homolka nevertheless insisted that NAL 72 (November, 1995); N.Y. Times, Nov. 6, 1995. 2. Law reform, including jury system reform, typically proceeds by anecdote rather than system- atic empirical analysis, see, e.g. Daniels and Martin, CIVILJURIEs AND THE POLITICS OF REFORM (1995); Saks, Do We Really Know Anything About the Behavior of the Tort System-and Why Not?, 140 PA. L. REV. 1147 (1992); Sanders and Joyce, Off to the Races: The 1980s Tort Crisis and the Law Reform Process, 27 Hous- TON L. REv. 207 (1990). Bernardo alone murdered the girls. She also eventually implicated Ber- nardo (and herself) in numerous other sexual crimes, including the drugging and rape of her younger sis- ter that accidentially resulted in the girl's death. The latter incident had been treated as a natural but unex- plained death. Finally, she also in- formed the authorities that the vic- tims' rapes and tortures, each occuring over several days, had been videotaped by Bernardo. Bernardo was arrested and charged as the Scarborough rapist in February, 1993, and later charged with kidnapping, rape, and murder. Canadian and U.S. media covered the story extensively and engaged in much speculation about the crimes, but police and prosecutors remained tight-lipped. After many searches of the couple's home police failed to find the videotapes. Thus, Homolka became the Crown's crucial witness against her husband, and a highly controversial plea bargain was struck. For her full cooperation and testimony Homolka would receive two 12-year sentences for manslaugh- ter, to be served concurrently. At her June, 1993 plea and sentencing trial the judge allowed Canadian media representatives to be present, but in an attempt to preserve the integrity of the Bernardo trial he drew upon NEIL VIDMAR is a professor of social science and law at Duke University School of Law. common law precedent to forbid them from publishing any details un- til the latter trial was completed. Despite the reporting ban, public ru- mors about the Homolka and Ber- March-April 1996 Volume 79, Number 5 Judicature 249

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