TORONTO--It all comes down to a matter of inches.
If the police officer searching behind a potlight in a bathroom of Paul Bernardo's house had been an inch or two taller, or if he had searched a little deeper into the cavity, the incriminating tapes of the rapes and torture of Kristen French and Leslie Mahaffy would have been found.
Thus concluded Mr. Justice Archie Campbell of the Ontario Court's General Division in his report this week on the police investigation of the Bernardo case. The report is critical of the turf war and the lack of communication between several police forces that hindered the search for the girls' killer and the so-called Scarborough rapist.
Judge Campbell said the course of events could have been significantly altered if police had found the tapes that showed Mr. Bernardo and Karla Homolka, then his wife, raping and beating Kristen, 15, of St. Catherines, and Leslie, 14, of Burlington.
With the tapes in hand, the Crown would not have needed to plea bargain with Ms. Homolka, Judge Campbell wrote in his report. Only after the plea bargain did she tell police about the videotapes.
In exchange for her testimony against Mr. Bernardo, Ms. Homolka was given a 12-year sentence for manslaughter for her role in the two teenagers' deaths. She will be eligible for parole next year.
The plea bargain provoked public rage and was the subject of an investigation by Patrick Galligan, a former judge of the Ontario Court of Appeal. In a report made public in March, Mr. Galligan concluded that the deal was necessary because police did not have much evidence against Mr. Bernardo.
Solicitor-General Robert Runciman said this week that Judge Campbell's findings of glaring flaws in the investigation will not lead to a reopening of Ms. Homolka's deal. "It's a closed case--as regrettable as most of us find it," he told a news conference.
The police failure to locate the videotapes enabled Mr. Bernardo's lawyer, Kenneth Murray, to retrieve them from the couple' house in the Port Dalhousie area of St. Catherines on May 6, 1993. Mr. Murray had gone to the house at his client's request and while there, received a call on his cellular phone from Mr. Bernardo.
Mr. Murray removed the tapes and held on to them until Sept. 12, 1994--by which time Ms. Homolka had her agreement--when he turned them over to John Rosen, who replaced him as Mr. Bernardo's lawyer. Ten days later, Mr. Rosen handed the tapes over to police. Mr. Murray is currently under investigation by the Law Society of Upper Canada in connection with his handling of the tapes.
The Campbell report noted that according to published reports, Mr. Murray had to climb on top of a counter and the toilet and stick his arm up to his shoulder into the ceiling cavity to find the tapes.
Constable Michael Kershaw of the Green Ribbon Task Force, which investigated the Mahaffy and French cases, said he climbed a ladder, unscrewed the potlight and pulled it out so that it was hanging from a wire. He stuck his hand in, but there were flaps to get past and he could get his arm in only up to his elbow. He felt around without finding anything and was statisfied(sic) there was nothing there. Judge Campbell noted that the officer is 6 foot 2 to Mr. Murray's 6 foot 3 or 4.
That matter of inches made all the difference, but it did not exonerate the officer. "Constable Kershaw erred in failing to search the area more thoroughly," Judge Campbell concluded.
However, the failure in not finding the tapes is not Constable Kershaw's alone.
Judge Campbell cited the "strict" search warrant the task force obtained.
He said police were so afraid of having the results of their search challenged under the Charter of Rights and Freedoms that they obtained a "courtproof" warrant that specified exactly what they were searching for.
For instance, the warrant did not allow police to remove the 100 videotapes (not including the crucial tapes of Kristen and Leslie) and they had to look at them inside the house. It also precluded police, who had the Bernardo house under surveillance, from stopping Mr. Murray when he left with the tapes.
Police "had no grounds to believe that an officer of the court would remove from a murder scene real physical evidence hidden by the accused," Judge Campbell said.
He said the warrant had to be so exacting because police at that time had very little evidence against Mr. Bernardo. In fact, the evidence was so paper-thin that it was barely enough to get police inside the door of the Bayview Drive house.
The search--at 71 days likely the longest residential search in Canadian history--was an example of Charter chill, "a mindset that deters Crowns and police from doing sensible things because they fear their case will be thrown out of court on Charter grounds," Judge Campbell said.
The judge also noted that under the Charter, police
are bound by the principle of minimization in their searches:
Do as little damage as possible to a site. This principle
prevented police from tearing out the ceiling where the tapes
were hidden.
(text of article from July 13, 1996 Globe and
Mail)