A gruesome murder case puts Canada's approach to pretrial publicity under fire
 

Mr. Justice Patrick Galligan was losing it. Tall, slim, and silver-maned, sufficiently distinguished-looking to serve as a poster figure for the group he has served for four years, the Ontario Court of Appeals, Galligan's temper had been slipping for the last half-hour.

The object of his ire was Patricia Jackson, a lawyer appearing before the court on behalf of the Thomson newspaper group. The longer she talked the more provoked he became.

Which is more important, Galligan asked, interrupting her, the media's right to publish, or a fair trial for a man accused of murder? Two murders he might have added; two very gruesome murders.

In a strange way Galligan was almost prescient, his questions pre-dating by only a few months the O.J. Simpson saga that would set unthought of new records for the amount of publicity that could be devoted to a criminal case. But that would be in the United States, where it had always been claimed that an impartial jury was a given and a fair trial was possible no matter how much publicity was attached to a crime, and this was Canada, where the judiciary does not operate by the same set of groundrules.

Jackson, her train of thought broken, mumbled an answer Galligan considered inadequate.

The judge shook his head and repeated the question. Again Jackson's response failed to mollify him.

Whipping his gold-framed half-glasses off his nose, Galligan leaned threateningly across the high bench and glared at the hapless lawyer. What if a jury cannot be picked because of the publicity? Galligan persisted, his voice rising. "What happens then?" he yelled. "Just answer that question!"

Jackson, taken aback by the judge's demeanor, shrugged. Who can say, she replied. Who can tell about that until it actually occurs?

Galligan stared at her, screwing up his mouth in disgust. She was wasting the court's time, he growled. Her case would be better served if she would simply shut up and sit down.

The silence that descended over the tiny, second floor courtroom in Toronto's 150-year-old Osgoode Hall was ominous. Jackson, temporarily at a loss for words, shuffled her notes. A dozen other lawyers waiting to press similar arguments before the five-member court glanced uneasily at each other. This was Canada, they seemed to say to each other. Canadian judges don't act like that.

That much was true. Canadian judges, who are addressed almost obsequiously as "m'lord" and "m'lady," are usually models of propriety. In Canadian courtrooms, where courtesy is commonly accorded almost spiritual status, justices and lawyers alike wear long, dark robes and starched, white, swallow-tailed bibs. Lawyers wishing to call the court's attention to their written briefs pepper their discourse with allusions to "my respectful submission" and refer to their opponents, whom they may otherwise detest, as "my friend." When spectators have to leave those normally hushed chambers they pause in the aisle, face the bench, and deferentially bow their heads, much as Roman Catholics genuflect when leaving the church.

Good manners, rational argument, and judicious hearings are hallmarks of the Canadian judicial system. Those are definite pluses. On the other hand, the Canadian judicial system is considered by many to be overburdened with tradition, bureaucracy, and paternalism and cloaked too heavily in secret. All Canadian judges are selected by the government and the public is given little if any information about the character, background, or politics of the appointees. In the United States, in contrast, all state judges are elected. Federal judges are appointed but they have to go through a confirmation process under which a candidate's credentials can be examined and the potential jurist can be questioned. No such procedure exists in Canada.

But the method of selecting judges or debate on courtroom manners was not what brought Jackson and her colleagues into the Toronto courtroom in the middle of a frigid winter. What they wanted was a ruling from the five-member court overturning a trial judge's order, a decree that they felt was unfair, unnecessary, and perhaps unconstitutional. At the heart of their plea was an attack on a practice as entrenched in the Canadian jurisprudential system as the tradition of wearing robes: the custom of banning.

A time-honored procedure inherited from the British without equivalent in this country, banning is a way Canadian judges have found of dealing with controversy. If a case, either criminal or civil, seems destined to provoke an undue number of headlines or take up an inordinate amount of time on tv and radio broadcasts, Canadian judges have traditionally used banning to control what gets printed or aired. An order prohibiting dissemination of court-related material effectively shuts off publicity because violators, i.e., reporters, can be charged with contempt and thrown in jail.

As a method for regulating public knowledge of judicial matters, banning was rejected by our founding fathers. They insured that no similar process was adopted in this country by guaranteeing both the right of a free and unhampered press and a fair trial in the Bill of Rights. "In this country," explained well-known First Amendment lawyer Floyd Abrams of Cahill Gordon & Reindel in New York, attempts at prior restraints are virtually always unconstitutional. We do not entrust judges or any other government officials with the power to say what may or may not be printed and what information may be withheld from the public."

Until two years ago, Canadians, like the British, had no similar guarantees. But, on April 15, 1992, Canadians adopted a Charter of Rights and Freedoms that spells out many of the same liberties already guaranteed to Americans. Section 2 (b) of the Charter, for example, lists "freedom of the press and other media of communication" as a "fundamental freedom."

Just as our Bill of Rights has separate provisions for freedom of the press and the guarantee of a fair trial, so does the Canadian document. Section 11 (d) of the Charter guarantees as a "legal right" the prerogative of a "fair and public hearing by an independent and impartial tribunal."

While the wording of the American Bill of Rights and the Canadian Charter are remarkably alike, it is the interpretation that differs. In the United States, "fair trial" and "free press" are not conflicting ideals. "There is no doubt," added Abrams, "that there can be a free press/fair trial issue, but here we take steps to make sure a (non-prejudicial) jury can be found. There is extensive voir dire, change of venue, or even, in some cases, a postponement of trial. These are devices that cushion the impact of the information. What we do not say," he added, emphasizing the negative, "is that fair trial is important and a free press is not."

While such a system has worked with surprising effectiveness in the United States, the Canadian judiciary, as evidenced by comments from three of the five members on the Ontario appeals court and the actions of a host of lower court judges across the country, takes a decidedly different view.

According to statistics from the Canadian Daily Newspaper Association, eight banning orders were issued in 1982. In 1987, the number jumped to thirty-three. After that, they seemed to decline slightly, levelling off at about fifteen in 1993. But that decrease may be only illusionary. The association admits it records only instances in which the banning order is challenged. In an untold number of cases, news organizations apparently accept the prohibitions limiting publication without a struggle, probably because they don't want to spend time or money on a losing battle. In 1992, fifteen banning orders were disputed in court and nine of the decisions -- 60 percent -- went against the media. In the six months preceding the appeals court hearing, judges in widely separated regions of the country, including the one whose order was being contested, slapped bans on information in cases ranging from a sexual assault in British Columbia to a civil suit in New Brunswick involving two wealthy families. A banning order from a judge in western Canada was so restrictive that media were prohibited from disclosing whether the case was criminal or civil.

The adoption of the Charter was only the first step toward a full guarantee of freedoms for Canadians. The next step is up to the courts, which must interpret the new law and work out an accommodation between groups with apparently conflicting claims, a process accomplished in this country through two centuries of litigation. The hope of making headway toward this goal was one of the major reasons Jackson and her colleagues were appearing before the openly hostile appeals court.

In the short term, Jackson's client, Thomson Newspapers Ltd., which owns a number of newspapers scattered across Canada, and five other Toronto-based newsgathering or disseminating organizations -- the Star, the Globe & Mail, the Sun, the Canadian Broadcasting Corp., and Rogers Cablesystems Inc. -- were seeking relief from a banning order issued last summer by a judge in rural Ontario Province, Justice Francis Kovacs.

In substance, the media coalition claimed that Kovacs overstepped his bounds and allowed the national penchant for courtroom secrecy and censorship to go too far by issuing an order prohibiting publication of virtually all information dealing with the salacious saga of a young accountant-in-training named Paul Teale and his beautiful, blonde wife, Karla.

The Teales, both in their twenties, were an attractive, upwardly mobile couple who lived in a spacious, expensive rental house in a tony neighborhood along the south shore of Lake Ontario. He had a college degree and professed to be seeking a business career; she had a weak spot for animals and worked as a veterinarian's assistant. Under normal circumstances they would have melded anonymously into the yuppie subculture blossoming in that region of southern Canada near Niagara Falls. But the Teales were not a usual couple.

In January, 1993, Karla, displaying a welter of ugly bruises, left Paul and announced that she planned to seek a divorce, claiming that he had beaten her with a flashlight. And, she added, it was not the first time in their eighteen-month-old marriage that he had physically abused her.

A few days later, Paul was charged with assault and quickly released on bail. But assault charges were only the beginning of his problems. Within six weeks much more serious charges were leveled. Apparently on the basis of details gleaned from Karla's lawyer-advised sessions with police, Paul was accused of forty-three rapes and sexual assaults in the Toronto suburb of Scarborough. And, even more shocking, both he and Karla were charged with abducting, torturing, and murdering two teenage girls.

Karla was the first to come to trial. Last summer she was brought into court in St. Catherines, a resort town of some 125,000 roughly halfway between Toronto and Buffalo. But before the proceeding got underway, the judge, Kovacs, issued a Canada-wide ban on almost any details that were likely to be disclosed during the trial.

Before gavelling the procedure to order, Kovacs emptied the courtroom of everyone but accredited Canadian news media. That meant American reporters and spectators from both sides of the border had to leave the room and remain outside. The only people allowed to remain, other than court officials, were Canadian reporters. Their presence was suffered only because Kovacs felt he could control their actions via the ban.

In his order, Kovacs told the newspeople what they could report and what they could not. Permitted were stories giving the results of the trial: whether Karla was convicted or acquitted, and the sentence.

Prohibited material included Karla's plea (whether she admitted guilt or proclaimed innocence), details of the murders outlined in a long statement read in the court (a statement drawn up jointly by the prosecutor and Karla's lawyer), and all testimony delivered by witnesses or members of the families of the two victims. That type of minutia, Kovacs proclaimed, would not become public record until Paul himself came into his court. To divulge it before then, he declared, would imperil Paul's right to a fair trial.

If it were not for one huge, overriding factor Kovacs's order may have been accepted, albeit grudgingly, by the Canadian media, just as they had accepted other banning orders in the past. However, the component that Kovacs failed to consider was the aggressiveness and resourcefulness of American reporters.

Ejected from the courtroom, they seethed and bided their time, quietly collecting information that had been hidden from them. In November, some five months after Karla's trial, the Washington Post's Toronto correspondent wrote a lengthy story exposing just the type of details that Kovacs had attempted to prevent being known, details that apparently were leaked either by Canadian reporters or someone connected to the court, details whose accuracy has never been attacked.

The story, which was widely reprinted in the United States, including newspapers in border cities such as Detroit and Buffalo, revealed how Paul and Karla allegedly snatched the two victims -- Leslie Mahaffy, a 14-year-old ninth grader, and Kristen French, a 15-year-old sophomore -- off the streets and took them to their well-appointed house, where they were kept alive for a considerable period and used as sex slaves before being killed. Leslie's body was dismembered, sunk into blocks of concrete, and dumped into a lake. Kristen's body was abandoned in a roadside ditch.

The story went further still, outlining still another death that had not been mentioned in the charges against either Paul or Karla, the retroactively mysterious demise of Karla's younger sister.

According to the Post, Karla, who fell in love with Paul in 1987 when she was 17 and still in high school, decided to "give" her younger sister to her lover as a Christmas present. It was December 1990, six months before Leslie was abducted and fourteen months before Kristen disappeared. At the time, Karla's sister, Tammy, was one week shy of her fifteenth birthday. Karla was 20 and Paul, 26. Using an anesthetic she smuggled out of the veterinary clinic where she worked, Karla allegedly spiked Tammy's eggnog. While the teenager was unconscious, the Post reported, Paul and Karla took turns having sex with her, videotaping each other in the act.

However, when Tammy began regaining consciousness she started vomiting, a common reaction to anesthesia. She apparently breathed some of the vomitus into her lungs and asphyxiated. At the time, her death was ruled due to natural causes. But after police began investigating the Teales' alleged involvement in the deaths of Leslie and Kristen a local coroner ordered Tammy's body exhumed so forensic pathologists could take another look. Although the details of the tests were not revealed, apparently because of the ban, Paul was charged in May with manslaughter and aggravated sexual assault in connection with Tammy's death. He probably will not be tried on those charges until after he is tried for the two murders and the string of rapes.

The Post story exploded like a mortar shell in Canada. The details given in the Washington reporter's piece may have been known to the handful of Canadian reporters allowed to witness Karla's trial but the Canadian public had been denied that information because of Kovacs's order. All along the border, Canadians streamed into the United States to buy copies of local newspapers carrying reprints of the Post story. Many of them ran into trouble with customs officers when they tried to bring the papers home. That only added to the hysteria of those who wanted to know more of the shocking details. Significantly, the Post story broke a logjam and soon afterwards stories about the Teales began popping up with regularity in the United States.

Newsweek published an article on the case, but, in fear of violating the ban, the story was deleted from editions distributed in Canada. The New York Times published a carefully worded story. Several British newspapers carried not so carefully worded stories and they joined the Post on the banned list. The tabloid tv show, A Current Affair, devoted two programs to the case but ran headon into Canadian censorship. Talk show host Larry King chaired a panel discussion on the issue, focusing on the ban rather than on details of the crimes. Still, the program was broadcast with a time delay so Canadian relayers could delete possibly prohibited material. On the Canadian end, viewers were left staring at a blank screen for minutes on end.

This blitz of publicity prodded the Canadian media into action. Frustrated at not being able to report on crimes committed within its own borders, the media organized the coalition and filed its appeal.
 

Arguments on the challenge began on January 31 and lasted for four days. The first day and a half were devoted to a discussion over whether the court even had authority to hear the appeal. Reserving its decision on that question, pending possible action from the supreme court in a similar but distinct case, the appeals judges then agreed to hear another two and half days of testimony on the specifics of the Kovacs ban and how it allegedly was hampering the Canadian media.

As expected, each member of the coalition was represented by one or more lawyers. And, as the clock ticked relentlessly toward, and then exceeded, the deadline set by the appeals court to culminate the proceeding, these lawyers took turns explaining why, in each one's particular view, Kovacs's order should be dumped. In essence, the media attack was three-pronged.

Prong One: The media argued that Kovacs's order dealt with a subject of tremendous public interest not only in Canada but throughout much of the English speaking world. Rarely, in fact perhaps never before in recorded history, has a Canadian crime attracted such widespread attention. Nowadays, they argued, given the state of modern communications, the very particulars that Kovacs was trying to squelch were readily available to any Canadian with a rudimentary curiosity. Mail freely crosses the border, as do telephone and fax lines. U.S. newspapers and magazines are distributed in Canada. Radio and television signals span the boundary. Many Canadians who live along the border (eighty percent of Canadians live within 200 miles of the U.S.) can pick up U.S. tv stations with nothing more sophisticated than a rabbit ears antenna. For more electronically sophisticated Canadians there are computer bulletin boards and database services, such as CompuServe, which carry texts of American publications and news agency reports.

Prong Two: According to the coalition, the ban goes beyond the suppression of grisly details and reflects directly on how justice is administered in Canada. Through his order, the media argued, Kovacs preempted an examination of the judicial process. Although he allowed the media to publish the results of the trial -- Karla's conviction and the terms of her sentence -- he refused to let the media say (or even to speculate) if she had pleaded guilty. Although it has not been reported as fact because of the ban, Karla obviously engineered a plea bargain with prosecutors since her trial was completed in less than a day. It is generally believed that she was allowed to plead guilty in return for a promise to testify against her estranged husband, Paul. But the media would like the freedom to discuss this circumstance in an attempt to determine if Karla's light sentence was justified. Her sentencing order reads twelve years but she will be eligible for parole in four years and may be set free even sooner under Canada's early release program. The media would like to raise and to throw open for public debate the issue that the sentence may not be commensurate with the severity of the crimes.

The third prong -- and the one that really makes the current situation so unusual -- is that the prohibition was levied and is being maintained despite the objections of the very person it allegedly is designed to protect: Paul Teale.

Kovacs said he issued the ban on Karla's proceedings in order to insure a fair trial for Paul. Once Paul goes on trial, most of the details revealed at Karla's proceeding would become public record. By his comments during the hearing, Chief Justice Charles Dubin, who won renown as a criminal defense lawyer before being appointed to the appeals bench twenty years ago, seemed to find no fault with Kovacs's reasoning. Taking the position that a judge knows best what the public needs to know and when it needs to know it, Dubin repeatedly corrected media lawyers who referred to Kovacs's order as a "ban," pointing out that Kovacs's decree was more a "deferral" of publication than a "prohibition" on publication.

This contention, however, was challenged by Paul's lawyer, Timothy Breen, who argued that his client cannot get a fair trail if the public is left with the impression, as it is as a result of the ban, that Paul was the prime mover in the murders and that Karla, seemingly expiated by the light sentence she received, was hardly more than an innocent bystander. In that regard, Breen asserted, Paul has already been condemned as the principal villain simply because of what the public does not know. The result, he averred, is that the public is more likely to be prejudiced against his client because of the ban than they would if free publication of Karla's role were to be allowed.

In response, Dubin announced his inclination to view Teale's position with more than a jot of skepticism. After all, he reminded Breen, Teale had not always been opposed to an information taboo. Early on, another of Paul's lawyers supported Karla's request. However, Dubin failed to acknowledge that Paul had opposed the ban in a hearing held before Karla was tried and before Kovacs issued his order. In other words, Paul may have been in favor of a ban at first glance but quickly changed his mind and remains in opposition to it even today.

The members of the court who seemingly support the ban -- Dubin, Galligan and Justice John Brooke -- correctly pointed out that the system makes no provision for locking Paul into his position. Even though he may be against a ban now he could change his mind at a later date and then the government would be in a real dilemma vis a vis the fair trial issue. The implication was made that Paul may even be using his opposition as part of his pre-trial strategy. If the ban is lifted and the details of Karla's trial are publicized, along with whatever else enterprising reporters may be able to dig up, Paul might later claim that the widespread publicity prejudiced his right to a fair trial.

The entire question of securing a jury for Paul's trial seemed to particularly preoccupy Justice Galligan, who came to the appeals bench with experience both as a criminal defense lawyer and as a trial court judge. It could well be, Galligan argued, that if the media were to be allowed to run wild in the Teale case it might be impossible to strike a jury to hear the charges against Paul.

That argument is hard to understand in this country where opposing lawyers always manage to seat a jury no matter how much publicity is given a case. Witness the Rodney King trials in California, or the trial of the survivors of the Branch Davidian cult which was underway in San Antonio when this was written. In that case, the trial judge announced after the jury was struck that three members of the original panel claimed never to have heard of the Waco shootout despite the massive publicity it received.

Actually, the Canadian system of jury selection is sufficiently unlike ours to justify Galligan's concern. Voir dire, the basic process of questioning potential jurors, is radically different in Canada. In this country, prosecutors and defense attorneys, as well as the judge, vigorously and aggressively question members of the jury venire, the panel from which a jury eventually will be chosen. This is not the case in Canada.

Typically, when a jury is being selected for a criminal trial in Canada, potential panel members are asked, as they are in this country, if they have knowledge of the incident. If a juror says yes, he or she is then asked if that intelligence has led to an opinion. If the potential juror responds affirmatively, the next question reflects to objectivity: Can the potential juror put aside personal opinion and enter the proceeding without prejudice?

In this country, potential jurors can be dismissed if the judge decides that there is "cause," i.e., prejudice. In Canada, there is no fervent questioning of veniremen and the decision is not left to the judge. Once a potential juror admits he or she has formed an opinion two "triers" are selected at random, either from the venire or from members already picked to serve on the jury, and they, rather than the judge, decide if the potential juror should be dismissed. As a result of this process, Canadian lawyers run through a lot more potential jurors and there are many more veniremen dismissed for cause. In highly publicized cases it is possible that so many could be rejected that it would be impossible to select a full panel. This was the fear articulated by Galligan and apparently supported at least by Dubin and Brooke. The only members of the court who appeared faintly sympathetic to the media arguments were the two junior justices, Marvin Catzman, who has been on the court less than five years, and Rosalie Abella, who was appointed only a year ago. Their comments, while not exactly supportive of the media arguments, were nevertheless less hostile than those of the other justices.
 

A ruling from the Ontario court, if there is one, could be months down the road. If the supreme court, which currently is reviewing an appeal to another banning order -- one dealing with a sexual assault case rather than a double murder -- overturns the trial judge's prohibition order the Ontario appeals court presumably would be forced to consider the Kovacs case. If the supreme court rejects the media appeal in the other case, the Ontario court would apparently be freed of any obligation to consider the Kovacs issue.

However, simply by filing the appeal, the media consortium indicated that they feel the banning issue has become critical and that some definitive guidelines are needed to bring the situation more into line with te Charter and our First Amendment. "The very notion of a judge directing the press not to print information to which it has access is anethma to hardcore First Amendment Principles," said Floyd Abrams, seemingly surprised that it is still an issue, especially when the order is "inherently unenforceable" because of modern communications. In any case, given the torpidity to which courts in both this country and Canada are prone, a final decision is improbable in the foreseeable future. What is more likely to happen is that Canadian trial courts will be emboldened by the justices's comments and be even more inclined to issue banning orders.

At the time of the appeals court hearing, it was a matter of intense speculation among those close to the case what would happen at Bernardo's preliminary hearing set for April 5. The consensus was that Kovacs would ban all reporters from the courtroom, which would have been a massive example of overkill since, under Canadian law, information revealed at a preliminary hearing is all but automatically banned in any case, regardless of any other ban that may be in place.

However, the issue never came up because late in March prosecutors invoked what is called "direct indictment" powers, which in effect, made the preliminary hearing moot and sent Bernardo directly to trial. But the word "trial" is used in its broad sense, which did not mean that taking of testimony would begin any time soon.

Starting in April, the trial judge, Justice Patrick LeSage, began hearing a long list of pre-trial arguments. Moving in jerks and starts, the pretrial hearing phase was still going when this article went to press and there was no indication when the taking of testimony would begin. Most officials estimated it would not be until mid-1995 but it could easily go beyond that, what with all the complicated maneuvering that was going on such as Bernardo switching lawyers and his new attorney asking for more time to prepare.

In the meantime, the ban continued in effect but it was beginning to wear a little around the edges. In May, an additional charge of manslaughter was filed against Paul in connection with the death of Karla's 15-year-old sister, Tammy, as well as three charges of sexual assault against unnamed victims. This set off a brief flurry in the Canadian press but reporters could do little.

Then, in October, Canada's weekly newsmagazine, Maclean's, published a story questioning whether the ban order was beginning to unravel. The story quoted a spokesman for an anti-ban group as saying he had been distributing information about Karla's trial and had even sent copies to the Ontario attorney general without repercussion. Also circulating surreptitiously was a comic book called "Killer Karla," and one Canadian writer said he planned to publish a book about Karla's trial, based on interviews with the family of one of the victims, in December. Maclean's quoted the writer, Brian O'Neill, as saying: ``I'm not thumbing my nose at anyone, it's just that the ban is not being enforced.''

But for the mainstream press, it was. And it probably will continue to be until testimony begins or the banning order is lifted, whichever comes first.

By then, even though the meager facts presented at Karla's abbreviated trial will be allowed to be published, the story will have lost its immediacy. "News," the media lawyers argued as a last-gap issue before the court, is an extremely perishable product. To be truly valuable, it has to be fresh. The zing that makes the Teale case a hot issue now will be hard to recapture in twelve to eighteen months. And that is precisely what the appeals court seems to be counting on.