TORONTO - The graphic photos and videos documenting the crimes of Col. Russell Williams should be preserved to ensure the convicted killer and sex offender isn't one day set free, legal experts say.
As the former commander of Canada's largest air force base was led off Thursday to begin two concurrent sentences of life in prison with no chance of parole for 25 years, the burning question of how best to handle the most disturbing evidence of his actions was put off for another day.
Prosecutors say they will destroy the Nissan Pathfinder that tied Williams to the murder of Jessica Lloyd, but plan to wait a while before discussing the possibility of destroying the photo and video evidence, which includes recordings of the two sex assaults and the killing of Cpl. Marie-France Comeau.
Destroying the evidence would be a bad idea, warn legal experts who say the images could one day prevent Williams from being granted parole, or from engaging in fancy legal footwork to secure a new trial.
John Rosen, a Toronto-based criminal lawyer who once defended notorious sex killer Paul Bernardo, said it's unlikely Williams would mount an appeal of his convictions, given the fact that he pleaded guilty and appeared resigned to spending the rest of his life behind bars.
But just because a scenario is unlikely doesn't mean it can't happen, warned Rosen. Williams could change his mind at any time, he said.
"What if Mr. Williams wakes up one day and says, 'Wow, I just got railroaded by my lawyer,' and hires another lawyer?" Rosen said.
"Even if you think it's open and shut, the court would be obliged to consider the appeal."
Two sets of evidence are at play, since the rules are different for exhibits that comprise part of the formal court record, as opposed to evidence that investigators used to build a case, but did not present formally.
Rosen said evidence shown during the plea and sentencing hearings must stay in court custody for the minimum 30-day appeal period — and there's always the possibility of an extension being granted. Those exhibits are usually returned to the lawyer who submitted them, and held indefinitely.
Once the appeal windows are closed, evidence that was not shown in court — such as the video recordings of Williams' crimes — can be destroyed at the discretion of the legal team.
Prosecutors don't usually exercise that right, said Rosen. Instead, they choose to put the evidence into storage in case it's needed at a later date. Police say Williams' computer, which contains the incriminating images, will remain under lock and key until a formal decision is made.
Since the Crown did not present the videos as evidence at the hearings, they likely could be destroyed without much legal wrangling. But that doesn't mean it's a good idea, Rosen warned.
"I would be reluctant to destroy original evidence because we don't know what's coming in the future."
James Morton, a professor at York University's Osgoode Hall law school in Toronto, described a scenario in which prosecutors would one day regret having destroyed vital evidence.
"Let's look ahead 25 years," Morton said.
"(Williams has) survived, he's been a model prisoner, he's expressed complete remorse, and we're now looking at this (elderly) person who's spent the past 25 years reading the Bible. This video, and the related evidence, is the sort of thing the parole board would look at and say, 'Yes, we could grant parole, but we're not going to.'"
The images could also be used to refute an insanity defence should Williams ever try to mount one, Morton added. Appeals are often filed well after the official deadline has expired, he said.
It's not the first time Canadian jurisprudence has wrestled with the contentious issue of graphic video evidence.
In 1995, when Bernardo was convicted of two counts of first-degree murder in the sex killings of schoolgirls Kristen French and Leslie Mahaffy, videotaped recordings of the assaults comprised key evidence that not only sealed Bernardo's fate, but exposed his ex-wife, Karla Homolka, as a willing accomplice and participant.
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