Families of Bernardo victims want Supreme Court to grant access to parole hearing records

WARNING: This story contains content that readers may find disturbing.

The families of Paul Bernardo's victims want Canada's highest court to grant them access to the serial killer and rapist's parole hearing records, which could include documents like psychiatric assessments and discipline reports.

"We're trying to access these records because they contained very relevant information that was necessary for them to prepare proper and meaningful victim impact statements," Toronto-based lawyer Timothy Danson told CTVNews.ca.

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After being denied by two lower courts over Bernardo's privacy rights, Danson now wants the Supreme Court of Canada to hear the case.

"When you talk about Paul Bernardo, we're talking about the privacy rights of a sadistic sexual psychopath who is also designated a dangerous offender and is a multiple murderer," Danson said. "It's not just anybody in the prison system, we're talking about the worst of the worst."

Danson has long represented the families of Kristen French and Leslie Mahaffy pro bono. Bernardo is currently serving a life sentence for kidnapping, sexually assaulting and murdering the two teenagers near St. Catharines, Ont. in the early 1990s.

Bernardo was also convicted of manslaughter in the death of Tammy Homolka, the sister of this then-wife Karla Homolka, who served a 12-year sentence for her role in Bernardo's crimes and was controversially released in 2005. In late May, Bernardo's transfer from maximum to medium-security prison made headlines and sparked public outrage.

Bernardo, who has also admitted to sexually assaulting 14 other woman, became eligible for parole in 2018 after serving 25 years, but was denied. Held approximately every two years, his third parole hearing is expected in February 2024.

While parole board hearings and their final decisions are publicly accessible, recordings, evidence and exhibits from the hearings themselves are not released.

"I'm not sure how you advance the argument that these offenders have a privacy interest in critical documents that are filed and discussed and relied upon at a public parole hearing," Danson argued. "If this were a criminal trial or even a civil trial, the media, the public would be entitled to access those exhibits."

The French and Mahaffy families first tried to secure Bernardo's parole hearing records through freedom of information requests with the Parole Board of Canada and the Correctional Service of Canada. When the requests were denied on privacy grounds, they took their case to the Federal Court and then the Federal Court of Appeal, which both refused access.

In its July decision, the Federal Court of Appeal called the broad scope of the initial requests "a total invasion" of Bernardo's privacy interests.

"The information ranges from the trivial to the intensely personal, such as medical and psychiatric reports," the decision explained. "As indicated earlier in these reasons, the Families do not accept that the Offenders have any right to privacy at all, a proposition which cannot be accepted."

Personal information is legally protected in Canada by Section 19 of Canada's Access to Information Act and Section 8 of the Privacy Act. Both acts, however, allow for disclosure in certain cases of public interest. That's part of the argument Danson is making as he asks the Supreme Court of Canada to hear the families' appeal.

"If you read the decisions of the parole board, you will see that they reveal all kinds of what would otherwise be sensitive personal information about these offenders," Danson said. "In my view, when there's an access to information request for these kinds of materials, of course the public interest in transparency must outweigh the privacy interests of the offender."

Catherine Latimer, the executive director of the John Howard Society of Canada, a non-profit that advocates for criminal justice and prison reform told CTVNews.ca she disagrees with Danson's assessment.

"Federal prisoners have privacy rights," Latimer said. "Our position is that those need to be respected to avoid a disincentive to prisoners participating in programs and getting the help they need to prevent further criminality and victimization."

Latimer notes that under Section 26 of Canada's Corrections and Conditional Release Act, registered victims are able to access certain information about offenders, such as the reasons behind a prison transfer.

"(T)hat information is supposed to be shared in confidence," Latimer explained. "The limited exception should not result in an obliteration of a prisoner's privacy rights by making that information public."

It will likely take months before the Supreme Court decides if it will hear Danson's appeal. If it does, any decision will come well after Bernardo's next parole hearing in February, nearly 31 years after his initial arrest. If the appeal is rejected, it would spell the end of the years-long quest to reveal Bernardo's parole hearing records.

"At his last parole hearing he gave a 40-minute, is my best recollection, presentation," Danson recalled. "He talked about these unspeakable crimes against Kristen French and Leslie Mahaffy and the other victims like you and I will talk about the weather. So why can't the public have that information? Why can't they listen and hear for themselves?"