chapter twenty-five

Letter to the Editor:

“There is no sentence a judge can impose that would fully assuage the feelings of the victims, their families and the community at large in the case of my client, Peter Whitmore.

Every pedophile leaves, in his or her wake, varying amounts of sorrow, grief, anger, fear and frustration. In all cases, young lives are shattered or ruined and families are devastated and torn apart.

I suppose it’s a normal sentiment to wish the perpetrator is locked up forever, tortured, and even killed. The imposition of sentence, however, is governed by statute and fixed principle, not by emotional reaction. It does not measure the value of the victims either in absolute or in relative terms and it is not revenge.

The judge must impose a fit sentence, no more and no less. In this case the court will be asked to determine if pedophiles detained indefinitely should be managed by the Federal Correctional Services of Canada or the Provincial Ministry of Health in Saskatchewan.

I will remind the court of the fate of Joseph Fredricks when he was sent to prison rather than a hospital and argue that the dangerous offender designation is nothing more than a backdoor method of achieving capital punishment. (Fredricks, a convicted pedophile, was on parole from prison when he killed 11-year-old Christopher Stephenson in 1998).

In the United States, pedophiles are diverted to the mental health regimes. They are not criminalized. The American Sexually Violent Predator laws in the United States are civil, not criminal, mental health enactments. It’s a myth that other countries imprison their pedophiles in penitentiaries and criminalize the mentally ill.

Perhaps it’s time to do the same.”

–Dan Brodsky

•••••

He may have had an outside shot in a court of law. But Dan Brodsky’s campaign to convince Canadians his client was mentally ill was being rejected by the court of public opinion.

His letter-to-the-editor was published in several papers across the country.

“I don’t think this approach is going to work,” said Roz Prober, the co-founder of advocacy group Beyond Borders, which runs campaigns to end child-sex exploitation in 70 countries.

She said the very nature of Whitmore’s crimes proved he wasn’t too sick to be found criminally responsible.

“In the courts, the test is whether you knew right from wrong and no lawyer can prove that he is mentally ill – because the level of deception he went through to do it,” said Prober. “He knew what he was doing.”

•••••

AUGUST 18, 2006

Winnipeg Free Press OPINION PIECE – “Containing Sexual Predators”

By J.F. Conway, political sociologist, University of Regina.

The case of pedophile and sexual predator Peter Whitmore, who is accused of abducting and sexually assaulting two boys aged 10 and 14, has resulted in the usual public outcry for harsher measures to enhance public safety. Typically, such measures focus on the criminal justice system and involve demands for longer prison sentences and easier access to dangerous offender designations for convicted predators.

A case can be made that the criminal justice system cannot effectively deal with those suffering from dangerous sexual psychopathologies, either in changing the offender’s behaviour or in protecting future victims. I came to this conclusion in the mid-1960s when working as a psychologist intern at the Saskatchewan Penitentiary in Prince Albert.

One case, seared forever in my memory, led me to this conclusion, a conclusion that was confirmed for me by an examination of all the files of those convicted of violent sexual offences.

During my first summer, the penitentiary psychologist invited me to observe the “out-routine” for a violent rapist at the end of his sentence. The “out-routine” involved moving the inmate from his maximum security cell to a dormitory for the period leading up to his release. The inmate was assessed by the psychiatrist, the psychologist, and a classification officer. Interviews to assist with post-release planning were arranged with professionals from the John Howard Society, the Salvation Army, and Canada Manpower.

The inmate fit one of the classic profiles of the violent rapist, in his 30s at the time with a long record of sexual crimes from adolescence onward, each assault more serious and more violent than the last. In appearance he did not fit the stereotype of a violent rapist. He was slight in stature, extremely good-looking, and diffident and shy in manner. As a result, he found it easy to persuade women to trust him as he stalked them in preparation for his attack. When attacking his victims, he became increasingly violent in each case. After the last attack he was convicted of rape with violence. He repeatedly raped a woman while holding a knife at her throat. He was sentenced to eight years.

He was a very well-behaved inmate, working as a gardener in the warden’s yard (partly for his own protection from other inmates and partly because he was assessed as a non-flight risk). Repeated assessments by the psychiatrist, the psychologist and classification officers concluded he would reoffend upon release and fears were expressed the violence of his attacks would escalate. He refused all treatment. During the last few years of his sentence, many efforts were made by classification officers, the psychologist, and representatives of the National Parole Board to convince the inmate to take early, supervised release. Their reasoning was that since he continued to be at high risk to reoffend, early release under mandatory supervision would provide at least some measure of oversight. The inmate refused all offers for early release, preferring to serve out his full time so that, upon release, he was unencumbered by mandatory supervision.

The psychologist’s final assessment, written after a number of clinical interviews and a battery of psychological tests, was scary. The inmate was suffering from an untreated deeply rooted sexual psychopathology that led to a pattern of sexual gratification realized only through the violent rape of women. The inmate would inevitably rape again and his future assaults, given the pattern of escalating violence, could result in the death of his victim. Both the psychiatrist and the classification officer reached substantially the same conclusion in their reports. I protested that surely we shouldn’t release him under the circumstances because we could be sentencing some woman to death. Yes, we shouldn’t, the psychologist sadly noted, but under the law, we had no choice.

The inmate was released. Within days he was the most wanted man in Canada. He travelled to Edmonton where he gained entry to the apartment of two nurses (or student nurses, I can’t recall). He raped the two women repeatedly and then cut their throats. He was quickly identified because one of the cuts wasn’t deep enough, the blood coagulated, and one woman survived to identify him from his mug shot. Last I heard, he was serving life with no chance of parole in Millhaven.

What had this sexual predator learned as a result of his harsh, eight-year sentence? He learned that henceforth he would kill his victim in order to avoid incarceration. And this was too often the pattern of the criminal justice system at the time because of its nature. Dangerous sexual predators could only be incarcerated for life after they had murdered a victim. Later, the Criminal Code of Canada was amended to allow the Crown to seek a dangerous offender designation, resulting effectively in a life sentence, but such designations are difficult to obtain. Section 810 was also added to the Criminal Code requiring that those sexual predators deemed a threat could have conditions imposed upon them even though they had served their full sentence. This has proven ineffective, as the Whitmore case demonstrates (Whitmore was under Sec. 810). In the absence of complete surveillance, a determined sexual predator under Sec. 810 can easily reoffend, and perhaps even get away with it, at least for a time.

The criminal justice system operates on a number of premises. First, the system takes Bentham’s utilitarian view that humans are importantly motivated by rationally seeking pleasure and avoiding pain. Hence, the theory of deterrence, i.e., if a behaviour, no matter how temporarily gratifying, results in enough pain, and then it will not be repeated. Thus, a jail term will convince an offender not to reoffend. Further, others will be deterred from the forbidden behaviour by witnessing the pain inflicted on those who cross the line. Second, the criminal justice system assumes individuals take action after making a rational calculation, given their circumstances, that the behaviour will pay off. Thus, a poor person might rationally calculate that it is worth the risk to steal rather than suffer destitution. A jail sentence, or the threat of a jail sentence, might convince him/her to change that calculation of benefits and risk.

Such an approach is hopeless when dealing with those suffering from dangerous sexual psychopathology. Such people are not rational. They are mentally disturbed, at least psycho-sexually. They do not fit the technical requirements under the law for an insanity defence, since they know what they are doing is wrong and unlawful, and they often carefully calculate their actions in order to avoid detection. But they are not sane. The motivating forces behind their behaviour are rooted in madness and delusion, and the behaviour itself is not that of a sane person.

Those suffering from dangerous sexual psycho-pathologies, after a trial confirming their guilt, should be committed by court order to a highly secure psychiatric institution for treatment. Such individuals should only be released when a panel of experts on sexual psychopathologies declares they are no longer a danger to the public. And such release should require continuing monitoring and the powers to recommit upon threatened relapse. This approach would both secure the safety of the public and ensure appropriate psychiatric treatment for those suffering from the malady.

Since Whitmore’s first conviction in 1993, involving assaults on four boys, there have been five subsequent victims of this predator that we know of – an eight-year-old girl in Guelph, Ont., a 13-year-old boy in Toronto, a five-year-old boy in B.C. He has been accused of assaulting the 10- and 14-year-old boys in Saskatchewan. There may be more charges, stemming from his time in Newfoundland. All these subsequent alleged victims would have been spared the experience had Whitmore been committed in 1993 to a secure psychiatric institution. That is where he belongs until he is cured of his dangerous sexual psychopathology.

•••••

REGINA, SASKATCHEWAN

SEPTEMBER 8, 2006

It’s been said that a person who represents themselves in court has a fool for a client. Either Peter Whitmore hadn’t heard that expression. Or he didn’t care.

Now more than a month after his arrest, Whitmore had apparently grown tired of watching long-time lawyer Dan Brodsky fail in his bid to secure Legal Aid funding.

“I’ll be acting on my own behalf,” Whitmore told provincial court Judge Linton Smith, reading from a written statement that Brodsky had helped him craft during phone conversations.

“You understand that’s unwise?” Smith asked.

“Yes,” Whitmore replied.

Whitmore then asked to set dates for a bail hearing and a preliminary hearing. Whitmore had been granted the services of two Saskatchewan legal-aid lawyers but was refusing to co-operate with them. He wanted Brodsky – or nobody.

Brodsky had been working for free up until now but said he needs a funding arrangement with the province before he agrees to travel to Saskatchewan and take on the case full-time.

He said he was willing to be paid the same fee as a legal-aid lawyer. But that offer was refused by legal aid.

Brodsky suggested his would-be client’s rights had been violated by the Crown’s refusal to turn over all of their evidence against Whitmore. He accused Saskatchewan justice officials of trying to gain a “tactical” advantage and suggested extreme measures were just around the corner.

“If this situation persists I will bring an application on Peter Whitmore’s behalf to stay the proceedings,” said Brodsky.

Outside court, Gerein told reporters there is case law in Saskatchewan that allows for certain restrictions to be put on how defendants receive disclosure of evidence while acting on their own behalf.

“Of course, anyone in Canada has the right to represent themselves if they so choose,” Gerein said. “But when it’s disclosure in a sensitive case, it’s open to the court to put certain controls on how that disclosure will be used and won’t be used, where it will be held and so on.”

A compromise was reached days later when justice officials agreed they would provide a copy of the evidence against Whitmore to Brodsky in Toronto, who would then advise his former client on an “unofficial” basis while he continued to be self-represented.

•••••

WHITEWOOD, SASKATCHEWAN

SEPTEMBER 16, 2006

They were mad as hell – and they weren’t going to suffer in silence.

Led by their vocal mayor, the nearly 1,000 residents of this tight-knit community announced they were banding together to call on the Canadian government to create stiffer penalties for pedophiles like the one who terrorized them.

The town of Whitewood had started a petition asking Ottawa for changes to legislation that would include mandatory electronic or other form of monitoring for pedophiles released from custody.

“I think it’s time that we can make it safe for our young people to be able to live normal lives,” Mayor Malcolm Green told reporters. “We’re asking to put stiffer penalties and better protection and more information in people’s hands than is available today.”

Green said the petition was launched because people in the town felt it was time for action.

“I think people get to the point where something just sparks and (they) say enough is enough and I think this incident has done that,” said the mayor.

•••••

SEPTEMBER 21, 2006

It was being dubbed as Canada’s three-strikes-and-you’re-out law. And after promising major changes were on the way following the Whitmore debacle, the federal government was ready to deal with specifics.

Justice Minister Vic Toews promised a new bill – dubbed C-2 – would be introduced to make it easier to designate three-time criminals as dangerous offenders and jail them indefinitely after a third serious conviction.

Opposition parties and other critics quickly decried the coming legislation as an affront to Canadian values of fair punishment and a violation of the Charter of Rights and Freedoms.

“It flies right in the face of Canadian criminal justice,” Louise Botham, president of the Criminal Lawyers Association, told the Winnipeg Free Press. “I don’t think it would withstand constitutional scrutiny.”

Unlike California’s famous three-strikes-you’re-out law, the proposed federal bill will not trigger an automatic life sentence for repeat offenders. What it would do is reverse the burden of proof in dangerous-offender hearings for people already found guilty of three violent crimes.

Malcolm Green said the legislation was music to the ears of his community and likely would have made a big difference in the case of Peter Whitmore.

“It’s probably a step in the right direction as far as we’re concerned,” he said.

Under the present system, someone convicted of a violent offence can be declared a dangerous offender after a court hearing initiated by Crown prosecutors.

The new legislation would make it much easier for judges to slap three-time offenders with the designation which brings an unlimited prison sentence, although offenders could still begin applying for parole after seven years.

“At present there is an onus on the prosecutors at all levels to demonstrate dangerous offender,” Toews said. “We feel that once a person has been convicted three times, a presumption should apply that the individual is dangerous because a court has found that individual to be so.”

Toews conceded the Whitmore case played a part in the drafting of a new bill.

“I can’t comment on specific cases, but I can say we took a look at a number of cases to see whether or not this legislation would catch those kinds of situations,” Toews said.

•••••

After weeks of delays and public posturing, there was finally a sign of progress.

Dan Brodsky had lost his bid for public funding, and Whitmore was now reluctantly accepting the help of a pair of in-house Legal Aid lawyers.

A judge ruled there was no reason to drag the matter out any further.

The Crown had its case ready to go – and they would take the first major step in proving Whitmore’s guilty at a preliminary hearing set for early January.

•••••

JANUARY 6, 2007

It had been a dream vacation to Disneyland – but now the Munroe family had returned home to face a nightmarish situation.

After getting Adam prepared to face his attacker – including a guided tour of the courtroom in Regina – Larry and Paula had just learned the preliminary hearing was being adjourned.

It seems Whitmore’s desire to have Dan Brodsky act as his own lawyer had taken its toll on the two Legal Aid lawyers who had been thrown into the case. The men announced, on the eve of the important court hearing, that they were withdrawing their services based on a “fundamental loss of confidence” between them and their client.

Whitmore was now back to square one, once again representing himself.

Larry Munroe figured enough was enough – he was urging justice officials to order a direct indictment against Whitmore. Such a move would avoid the need for a preliminary hearing and move the case directly to trial. It would also mean the young victims only testify once.

The Crown has the authority to direct-indict without consent from the accused. They had been reluctant to take that step because they wanted to cover all the bases and make no mistakes in their prosecution.

Meanwhile, the Mason family was also stinging by the news. Kyle had been having a difficult time lately, including plenty of anger issues and wild mood swings.

He hadn’t been looking forward to testifying – but his mother thought she had finally convinced him things would be okay. Now she had to tell him, through tears, that it wasn’t going to happen. At least not yet. The waiting would continue.

“This is not a good thing that it’s going to drag on,” she said. “We just have to stay strong as a family and keep going.”

Brodsky was coy about the development but admitted Whitmore was frustrated by the legal situation. He suggested Whitmore might end up acting as his own lawyer after all.

Judge Linton Smith told Whitmore it would be “very foolish” to continue without counsel. And he warned these types of delays wouldn’t be allowed to continue.

•••••

REGINA, SASKATCHEWAN

JANUARY 12, 2007

Saskatchewan justice officials didn’t wait long to pull the trigger. Crown attorney Anthony Gerein consulted with senior management and got authorization for a direct indictment. They weren’t going to allow Whitmore to dictate the pace of the prosecution.

Whitmore was clearly upset at the development.

“How can I appeal the decision,” he asked in court.

Judge Carol Snell said he couldn’t.

“I’m not allowed to look at my disclosure, I’m not allowed to have a bail hearing, I’m not allowed to have a preliminary hearing,” Whitmore fumed while leaving the courtroom in the company of sheriff’s officers. “I have no rights in Saskatchewan.”

•••••

REGINA CORRECTIONAL CENTRE

Peter Whitmore’s frustration was beginning to manifest itself in bizarre, even dangerous, ways.

Guards inside the city’s holding cell had their hands full dealing with a pair of institutional incidents that left some wondering whether Whitmore actually might be mentally ill.

The first involved a series of cuts he made to his own stomach. Whitmore then defecated inside his cell and rubbed the feces into his wound. He was taken to the prison medical facility for treatment, bandaged up and then placed on suicide watch for several days.

Upon his return to the general jail population, Whitmore wasted little time before he launched a second attack on himself. This time he jabbed his scrotum with a ballpoint pen, breaking it off and leaving several small pieces embedded inside. He was rushed to hospital for surgery and put back on suicide watch.

The Regina Leader-Post learned of the incident, which was reported to be an attempted self-castration. As expected, the news generated plenty of buzz across Canada.

Inside the jail, some speculated Whitmore was just trying to create attention for himself and get out of segregation for a few days in exchange for a hospital trip.

Whitmore had once again been appointed a lawyer by the court and remained angry at the fact he couldn’t have Brodsky. While Merv Shaw declined to comment publicly on his new client’s well-being, Brodsky said it proved Whitmore wasn’t well and needed serious medical help.

But if Shaw was planning to use an insanity defence at trial, he wasn’t tipping his hand.