John Rosen on Defence of Paul Bernardo “Much has been written about the videotapes, the failure of the police to find them and the horrific nature of their contents. But nothing has ever been said about the impact of the tapes on the lawyers. After taking possession of the tapes, [Clayton] Ruby and I met at his home to view them for the first time. We played the VHS tapes so as not to damage the originals. We also fast-forwarded through most parts. Our intention was to get an understanding of what was depicted so we could assess my legal, professional and ethical obligations. “In truth though, the images depicted shook me to the core. At one point, I needed to stop and excuse myself for a few moments. The images were deeply disturbing and the implications were obvious. How was I going to defend this case in the face of these tapes? What would prevent the jury from coming over the boards at me for having the gall to advance any defence for this accused? Moreover, I am a father myself – what would my own family think of me? How was I going to survive a trial with my health and reputation intact? “I could have avoided my responsibilities by claiming I was a witness to the chain of custody of the tapes. But what would that have said about the twenty-five years of my life that, at that point in time, I had dedicated to the criminal law? After a moment’s hesitation, I decided to set aside my personal feelings and interests and get on with the job at hand.”
Foreword by Honourable Patrick LeSage “I have seen the effect of crime on many parts of the community; first and foremost the victims of crime and their families, but also police officers, medics, witnesses, court staff, the lawyers, the jurors and the judges and yes, even the families of the perpetrators. I have spoken to judges who previously unbeknownst to me had suffered deeply from the effects of a case or cases, be it the trauma flowing from the details of the crime, to the impact of having to view child pornography, to living in a smaller community where lawyers, judges and police find themselves always in the public eye, even outside the courtroom.”
PART I: Politics and Transborder Donald Bayne. “Mike Duffy: Trial By Media in a Post-Truth World.” “Moments before he went on television, Senator Duffy pleaded with PMO insider and confidante to the Prime Minister, Ray Novak, saying, ‘Ray, I did nothing wrong. If I take a dive for my leader when I am innocent, then I am totally at the mercy of the opposition.’ This plea fell on deaf PMO ears and insiders emailed one another with notes like, ‘I appreciate the work this team did on this. One down, two to go (and one out)’; ‘Yay this is fun’; and ‘Sweet’.”
Brian H. Greenspan. “The Eagle Has Landed: The Eagleson Transborder Resolution” “The public fervour against Alan Eagleson led by Russ Conway and his cadre of supporters, most vociferously Carl Brewer and Bobby Orr, had always been offset by a subdued and more private list of Eagleson loyalists and admirers including Bob Gainey, Bobby Clarke, Marcel Dionne, as well as a distinguished group of former politicians and judges. I had always felt confident that my list of All-Stars would eventually outperform and outlast their All-Stars. Following the announcement of the Canadian charges, Paul Kelly was inundated with demands for speedy justice. At the same time I was bombarded with protestations of Alan’s innocence and demands for his ultimate vindication.”
David Bright QC. “Justice Delayed: A Story of Complacency” “When MacIntosh was taken before the presiding Justice in India, he indicated that he was not contesting his return to Canada, but needed time to wind up his affairs. He had been living in India for many years and had a household of furnishings that required disposal, as well a duty to his employer to turn over the office to a successor. Indeed he was given time, but he was accompanied everywhere by armed Indian police. During the nights and non-business times, he was housed in the infamous Tihar Jail, which is a vast penal colony in Delhi. It is equipped to handle some 5,200 prisoners, however, at the time of MacIntosh’s incarceration, some 10,500 were housed there. Conditions were abhorrent. MacIntosh slept and sat on a wet, concrete floor, with a variety of other prisoners incarcerated for serious crimes. He had to purchase his own food. The so-called dormitory area was visited by rodents and vermin, and snakes were a common sight.”
True Cases Boxed Set
John Rosen on Defence of Paul Bernardo, from Tough Crimes
Much has been written about the videotapes, the failure of the police to find them and the horrific nature of their contents. But nothing has ever been said about the impact of the tapes on the lawyers. After taking possession of the tapes, [Clayton] Ruby and I met at his home to view them for the first time. We played the VHS tapes so as not to damage the originals. We also fast-forwarded through most parts. Our intention was to get an understanding of what was depicted so we could assess my legal, professional and ethical obligations.In truth though, the images depicted shook me to the core. At one point, I needed to stop and excuse myself for a few moments. The images were deeply disturbing and the implications were obvious. How was I going to defend this case in the face of these tapes? What would prevent the jury from coming over the boards at me for having the gall to advance any defence for this accused? Moreover, I am a father myself – what would my own family think of me? How was I going to survive a trial with my health and reputation intact? I could have avoided my responsibilities by claiming I was a witness to the chain of custody of the tapes. But what would that have said about the twenty-five years of my life that, at that point in time, I had dedicated to the criminal law? After a moment’s hesitation, I decided to set aside my personal feelings and interests and get on with the job at hand.
Honourable Susan Lang “Flawed Forensic Evidence: The Motherisk Hair Analysis Independent Review” Overarching problems were rooted in the lack of adequate oversight by the Hospital. As a result, the Lab continued to test hair for forensic purposes before it even received clinical accreditation in 2011. Moreover, clinical accreditation related only to the Lab’s processes and did not assess the robustness or reliability of the hair tests. Sadly, the bottom line was that the Lab’s hair tests were flawed. They should not have been relied upon to make decisions in either child protection or criminal cases.
Honourable Nancy Morrison. “The Courage of Vicki” There was a mean shed in a nearby field. Small and old, a sometime pump house, it had a dirt floor, upright rough-hewn slats for walls, some barbed wire, broken pipes. Inside, feed for cattle. An old bathtub was outside, to be filled with water for the cattle. Its only door could not be seen from the grandmother’s farm. It was one of the places he took the child to rape her.
Honourable Lise Maisonneuve. “How to Shift a Culture” I understand that the readers of this book will be a varied lot, but I know that many women will read it pondering their futures in the criminal law arena. In this book, you’ll read many essays from experienced criminal lawyers — all women — who, despite the many challenges they faced in continuing and succeeding in their careers, persisted and, in turn, their contributions to the law have had important and positive impacts for both individuals specifically and society as a whole. They are examples for us all. In light of those stories, I see one of my roles as Chief Justice as encouraging women to follow in their footsteps. Part of that role involves encouraging and maintaining the gender diversity of our Court today as an administrative function as Chief Justice. But another part of my role is personal — telling my own story and the lessons I have learned and can share.
Honourable Danielle Côté: “Certainty? Certainly Not” A judge is ultimately alone when deciding a case and is always alert to the danger of a wrongful conviction. The truth is that not only is the judge alone, but if a wrongful verdict is rendered, also keenly aware that many may point out the judge as being a bad judge, incapable of rendering justice. Perfection is not possible. It is out of reach for human beings. A good judge is always trying to reach perfection. But is there certainty? Certainly not. But reaching for perfection helps me sleep at night.
Honourable Iona Jaffe. “The Toronto 18” Bound by his own sense of confidentiality, my colleague did not reveal any details. But he did make a gesture with one hand. He pointed down to the ground. I was clearly confused. He pointed to the ground again. It was at that moment, sitting in my office on the 35th floor of the Exchange Tower in Toronto, that it struck me. My colleague was pointing to the floor of the Exchange Tower. “This building is the target of the terrorist attack?” He just looked at me, and I knew I was right. To say I felt an instant sense of unease was an understatement. I wanted to leave the building of course, but my feelings of anxiety were mixed with feelings of guilt. I had knowledge and could leave the building if I wanted. But I could not share what I knew with anyone else in the building. Not yet. And I could not tell my family that the building to which I commuted everyday was apparently in the cross-hairs of a terrorist group.
Senator Kim Pate. “A Study in Discrimination and Inequity” When I was in the unit manager’s office at the end of the [prison] visit, the head of security interrupted our meeting to advise that he was planning to bring in the emergency response team. I asked why. He advised that the women on the segregation tier, the first range I visited that day, were rioting — screaming, yelling threats and banging the bars of their cells. I advised that I had been down there speaking with those women a few hours before and they were upset about the lack of programming and spiritual support — they were all Indigenous — but that they were working on a group grievance to address their issues. What was striking to me was what the head of security said: “Why don’t you take the baby down? I hear they like your baby.” I wondered, How serious could the risk be that the women posed if the head of security believed a baby could calm the situation?
