(OTTAWA) Federal Conservatives say Canadians outraged by Paul Bernardo’s transfer to a medium-security prison should blame the Liberals for a law they pushed through.
Conservative leader Pierre Poilievre points to a law passed in 2019 that aimed to end solitary confinement (“the hole”), but which also amended the law on the country’s corrections system, to stipulate that inmates must be offered the environment with “the least custodial restrictions”.
The Liberal government has thus reversed a change that the Conservatives had made to this act seven years earlier, essentially reinstating the wording that had been there since the beginning of the Corrections and Conditional Release Act.
But the debate over this wording was not new at the time either. Mary Campbell, one of the creators of the law that governs the Canadian prison system, knows this well. She remembers that during her almost 30-year career, a federal government asked her to find a way to adjust the wording of the law a little.
“I was tasked with finding words other than ‘least custodial restrictions’,” Ms.me Campbell, a lawyer who retired in 2013 from her position as executive director of the Corrections and Criminal Justice Branch at the Department of Public Safety. “I spent a lot of time consulting dictionaries. »
But whatever wording is used, the law must respect a fundamental principle of the legal system, protected by the Constitution, which governments cannot escape, she said. “It’s on the same level as the ‘innocent until proven guilty’ principle. »
Anne Kelly, the commissioner of the Correctional Service of Canada, repeatedly referred to the principle of “least custodial restrictions” in reviewing her decision to transfer Bernardo from a maximum-security penitentiary in Ontario to a medium-security prison in Quebec.
PHOTO SPENCER COLBY, THE CANADIAN PRESS
Anne Kelly, Commissioner of the Correctional Service of Canada
Bernardo is serving a life sentence for the kidnapping, sexual assault and murder of teenage girls Kristen French and Leslie Mahaffy in the early 1990s. He has also been designated a dangerous offender.
2012 Act
When the Liberal government changed the Corrections and Conditional Release Act in 2019 – a law created by Brian Mulroney’s Progressive Conservatives – their addition of the phrase “least custodial restrictions” was intended to reverse the change made by Stephen Harper’s government in 2012.
The Conservatives were then delivering on a campaign promise by passing a crime bill that ushered in a series of tough-on-crime measures, including mandatory minimum sentences for certain drug offences, violent crimes and crimes against children.
Critics of their omnibus bill felt it could lead to an increase in prison populations and risk filling cells with more Indigenous and other marginalized Canadians, while failing to deliver on their promise to improve public safety – all at a higher cost to taxpayers.
One of the changes made by the Harper government’s bill was to adjust the wording of the Corrections Act away from saying that officials should provide “the least restrictive environment possible, having regard to the degree of custody and supervision necessary” for the safety of the public and the penitentiary. The Conservatives opted instead for the wording “necessary restrictions”.
The change followed a government-ordered review that found prison staff relied too heavily on the principle of ‘least restrictive’: it was argued that inmates should bear the burden of proof if they wanted relaxations.
“The wording has been changed slightly over the years, but it has never deviated from the essentials,” said Ms.me Campbell.
Yet groups like the Canadian Bar Association warned a parliamentary committee at the time that the new wording brought in by the Harper government was “not good enough as a constitutional standard.”
Howard Sapers, then Federal Overseer of Corrections, told MPs the change was concerning, given that it was “one of the golden rules of corrections”. He said his office relied on the principle to investigate “some of the most invasive practices in corrections”: inmates physically restrained and separated according to their security classifications.
Back to the original version
When the Liberals revisited the law in 2019 to address solitary confinement, they essentially restored the original wording, a reform hailed by the Bar Association.
Prisoners’ Legal Services in British Columbia also welcomed the decision, noting that inmates were unnecessarily kept in their cells for up to 23 hours a day.
Since being elected leader of the Conservative Party last fall, Pierre Poilievre has focused on crime, pointing the finger at the Liberals for their softness on offenders, at a time when Canadians are concerned about this issue. He seized on the transfer of Bernardo to illustrate this liberal tendency.
But although the wording of the law has changed over time, Ms.me Campbell argues that the principle that is at the heart of the law has not changed – and that principle played a role in Bernardo’s transfer.
“The Conservatives are absolutely right: of course it contributed to the transfer of Mr. Bernardo, because it is a principle that underlies all decisions. Not the only principle, but a fundamental principle: one that people should not be subjected to custodial or punitive measures or control beyond what is necessary for public safety,” she explained.
The review of the decision to transfer Bernardo said that over the past few years his behavior had qualified him more than a dozen times for a lower security classification.
But his requests to be moved to a medium-security prison were repeatedly denied, mostly because he hadn’t fully integrated with other inmates at his maximum-security facility, the report said. Once this problem was solved, the transfer took place.
Tim Danson, the attorney representing the Mahaffy and French families, said the “least restrictive” principle is designed to apply in the majority of cases. But a “legislative refinement” would be useful for the most dangerous offenders, like Bernardo, believes the lawyer.