Why key evidence in McArthur case may never be seen by the public
Killer must consent to release of police interviews, conducted years before he was caught
Convicted serial killer Bruce McArthur was twice questioned by Toronto police years before he was arrested and charged in the deaths of eight men. Both interviews were videotaped, capturing what the murderer said to evade police suspicion.
But the decision about whether these videos will be publicly released rests with McArthur himself.
The Star filed requests under the Freedom of Information Act for access to both videos: of a November 2013 interview when McArthur was questioned as a witness in the disappearances of his first three victims, and of a June 2016 interview after a man accused McArthur of strangling him during a sexual encounter in the killer’s van.
In both cases, McArthur was released and then went on to kill more men.
The Star’s requests have been denied by the Toronto police access and privacy division, which said, in part, that the disclosure of the videos would constitute an “unjustified invasion of another person’s privacy.”
“As you have not provided the consent of Mr. Bruce McArthur, a decision has been made to deny access to the video,” a privacy adjudicator wrote in a recent letter.
Asimilar ruling was made by Ontario’s Ministry of the Solicitor General, which recently denied a separate freedom of information request for McArthur’s 2003 probation file, prepared following his conviction for a violent assault on another man with a metal pipe in 2001. The file contains a seven-page document authored by McArthur that details his life, from youth up to the time of the assault.
The denials are far from surprising. Information and privacy experts say requests for personal criminal files put two important principles at loggerheads: individual privacy rights versus the public interest of transparency. The tension is particularly fraught in such a high-profile case as McArthur’s, which has raised questions about how a serial killer could go undetected for years.
“It’s not only about McArthur,” said Halifax-based lawyer David Fraser, a leading Canadian privacy expert. “It’s also about, did the cops do an adequate job of actually investigating and dealing with this?”
McArthur declined to speak to the Star or to receive a letter outlining its request for his consent to release his interview videos. The Star is appealing the decisions to Ontario’s privacy commissioner.
An independent civilian review — led by former Ontario Court of Appeal justice Gloria Epstein — is currently examining the Toronto police handling of missing person cases, including those of the men now known to be McArthur’s victims and others connected to Toronto’s Gay Village.
The review is scrutinizing an array of police practices and policies during missing person probes, and will examine whether some past investigations may have been “tainted by systemic bias or discrimination,” Epstein said last year. (Since McArthur’s arrest, Toronto police have established a missing persons unit.)
Following McArthur’s guilty plea and conviction for eight counts of first-degree murder, Epstein has been granted further access to the files involving McArthur, giving her greater latitude to examine all aspects of prior investigations, including any other opportunities to identify him a person of interest or suspect.
That means Epstein’s probe is likely to review the videos and documents the Star has asked to see — but, because they are being provided on a confidential basis, those files will not be made public through the review. Mark Sandler, a lawyer for the review, said Epstein can instead provide summaries of the documents and files that have been handed over — including videos — in her written report, which will be publicly released upon completion.
Sandler said he could not provide specifics about what files have been provided to the review, but said it has accessed a “broad range,” including 60,000 documents provided by police. Review staff have also begun interviewing specific officers.
Earlier this year, then attorney general Caroline Mulroney said the Ontario government would not call a public inquiry into the McArthur case. An inquiry is a venue where exhibits are filed publicly and witnesses are called in a setting akin to court, although it’s not guaranteed that every relevant document, video or other piece of evidence would be made public. Similar to the review process, all evidence is initially provided to the parties on a confidential basis.
A coroner’s inquest could also be called in the McArthur case, another possible venue that would result in a court-like hearing involving witnesses and public exhibits. But a spokesperson for the chief coroner for Ontario said an inquest is not currently being contemplated. As it stands, there is no clear mechanism for the interview tapes and McArthur’s letter in the probation file to see daylight. Fraser said in highprofile murder cases, the public has become accustomed to “every single shred of evidence” becoming part of the public record through the trial process. McArthur’s guilty plea avoided a trial — something sentencing Justice John McMahon noted was a blessing because it averted the release of traumatizing and graphic evidence, including the post-mortem images McArthur took of his victims.
But the evidence submitted to the court following a plea is “curated to a degree,” and parts of the investigative file aren’t made public, Fraser said. The freedom of information process is intended to be another way to get access to files held by governmental agencies — but it’s unlikely that records will be released if the request involves accessing information about another individual that’s considered private. Citizens, including those charged with or convicted of a crime, have “a right to some degree of privacy,” said Brian Beamish, Ontario’s information and privacy commissioner. The law is based on both individual and societal interests — for instance, someone’s right to a fair trial or to have a legitimate chance at reintegration into society.
“These rights are, of course, not absolute, and in particular situations, the right to privacy may give way to a public interest in disclosure of the information,” Beamish said in an email.
One factor to consider “is whether disclosure is necessary for the purpose of examining the actions of government and other public sector organizations,” Beamish said.
But determining what constitutes an exceptional circumstance — such as where public interest overrides — can be both challenging and “a slippery slope,” said Fraser. He also noted that the privacy defence can sometimes be a tool when government agencies such as the police “are inclined to not allow information out” in order to avoid greater scrutiny.
“One needs to be skeptical sometimes about the motives that might be at play in these decisions,” Fraser said.
It’s possible that one of the videos might be made public this fall, through Sgt. Paul Gauthier’s police disciplinary hearing connected to the 2016 assault allegations made against McArthur. Gauthier was one of the investigating officers after a man called police alleging McArthur attempted to strangle him in the back of his van during a sexual encounter. McArthur gave a videotaped statement to the police saying he thought the man “wanted it rough,” and he was released with no charges. Gauthier is charged under Ontario’s Police Services Act with neglect of duty and insubordination for allegedly failing to videotape the statement from the complainant — a written statement was taken instead — and for neglecting to photograph the man’s injuries. He has denied any wrongdoing.
Alexandra Ciobotaru, the police prosecutor on the case, could not be reached for comment on whether the McArthur interview video might be made an exhibit during the hearing.
McArthur admitted to killing eight men between 2010 and 2017. In 2012, police formed a task force dubbed Project Houston that investigated the disappearances of three men from Toronto’s Gay Village, who we now know were McArthur’s first victims. The project closed 18 months later after police did not uncover any criminal evidence. McArthur was later caught by a Toronto police task force dubbed Project Prism, which probed the disappearances of the men now known to be McArthur’s final two victims.
Toronto police Chief Mark Saunders has acknowledged that “the public has some questions” about the force’s handling of the McArthur case. He has said he supports Epstein’s review, noting the service has to “continually evolve … to get better at what we do through improved policies, procedures, training or any other thing.”
A full review, such as the one being conducted by Epstein, is the “best way to get some understanding” of what went wrong and where improvements need to be made, said Lorimer Schenher, a former Vancouver Police Department detective.
Schenher was a lead investigator on Vancouver’s missing women investigation and wrote a book about the failings of police during the probe that ultimately caught serial killer Robert Pickton. He stressed the importance of a thorough review — and, where possible, public release — of pertinent files and information connected to the case.
“One of the best things that came from our colossal screwup was that (Vancouver police) undertook a very, very vigorous audit of their missing person section,” which resulted in a complete restructuring of the section, beefed-up resources and increased oversight.
Epstein’s review will be released in January 2021.
“In particular situations, the right to privacy may give way to a public interest in disclosure of the information.” BRIAN BEAMISH INFORMATION AND PRIVACY COMMISSIONER