Playing political card over Bernardo transfer disrespectful of rule of law | John L. Hill

By John L. Hill

Law360 Canada (June 5, 2023, 2:13 PM EDT) --
John Hill
John L. Hill
A decision by the Correctional Service of Canada (CSC) to transfer an inmate from higher to lower security is not unusual, especially if an inmate is progressing in completing a correctional plan designed to address criminogenic factors.

A transfer is never interpreted as a green light for parole. Sometimes a transfer is made to protect an inmate who may have committed crimes that would put that inmate’s safety in danger if there was continued imprisonment at an institution. Usually, there is a presumption of regularity. CSC is deemed to be professional and makes the proper decisions in a timely manner so that the public is protected while an inmate completes his or her sentence under the least restrictive conditions possible.

Sometimes mistakes are made. A prime example is the situation that occurred when murderer Michael McGray was rewarded for providing CSC staff with information on other offenders by being transferred from maximum-security Kent Institution in British Columbia to medium-security at Mountain Institution. There he murdered cellmate Jeremy Phillips who was just days away from being released.

Transfers are ordinary and seldom explained. Our system understands that people are capable of rehabilitation. It also recognizes that inmates simply “age out” of violent behaviour over time. It could be that an inmate was being threatened by fellow inmates and needed to be transferred for the prisoner’s own protection. It is therefore incomprehensible why there is so much concern for a reported transfer of Paul Bernardo from Millhaven Institution in Ontario to medium-security La Macaza Institution near Mont-Tremblant, Que., on April 29.

Bernardo spent 29 years in prison, first at Kingston Penitentiary and, after its closure, the past 10 years at Millhaven Institution just west of Kingston. Both are maximum-security institutions. La Macaza is a medium-security, largely French-speaking, institution. CSC has cited privacy reasons in denying Toronto lawyer Tim Danson’s request for reasons for the transfer. Danson for years has been an outspoken advocate for the families of Bernardo’s crimes. Bernardo was convicted of kidnapping, sexually assaulting, and murdering Kristen French, 15, and Leslie Mahaffy, 14. He was also declared a dangerous offender and given an indeterminate sentence.

On CBC’s Metro Morning on June 5, Danson once again lashed out at CSC saying that a decrease in security for Bernardo causes revictimization for the families of the murdered girls. He also claims the transfer makes it harder for the families to attend scheduled parole hearings due to the increased distances. Most shocking was the suggestion that CSC was manufacturing a scenario that would justify the Parole Board of Canada releasing Bernardo. Danson argued that these underhanded moves jeopardize the faith Canadians have in our institutions.

Perhaps Danson cannot accept that such moves are not out of the ordinary and indeed are to be expected as a long-term offender ages in the system and completes correctional programming. Danson’s rhetoric would not be so disturbing except that Canada’s Minister of Public Safety, Marco Mendicino, played the political card and undermined officials in a department he oversees. He told the press that the decision to transfer Bernardo out of maximum was “shocking and incomprehensible.” 

“Our thoughts are with the families of Kristen French and Leslie Mahaffy, and all those affected by these horrific crimes. We stand with them, and all Canadians who are rightfully appalled by this move,” he stated. “Having devoted my career as a federal prosecutor to protecting our communities, I have reiterated my firm expectation that CSC take a victim-centred and trauma-informed approach in these cases.”

It would be proper for the minister to question his top officials to ensure a mistake such as what happened in the McGray situation was not reoccurring. However, it is nothing short of political interference should the minister direct the decision-making authority vested in his officials. If CSC decision-makers are abiding by the rule of law and acting within their limits in ordering the transfer, political interference by the minister is far more problematic than any complaint of Danson.

What Canadians should be “rightfully appalled” about is turning what appears to be a justifiable administrative decision into a political football. If we allow the minister of public safety to interfere as he appears willing to do, we will be living in a society no longer governed by the rule of law but in a police state obliging the whims of the powerful for political popularity.

John L. Hill practised and taught prison law until his retirement. He holds a J.D. from Queen’s and LL.M. in constitutional law from Osgoode Hall. He is also the author of Pine Box Parole: Terry Fitzsimmons and the Quest to End Solitary Confinement (Durvile & UpRoute Books). Contact him at

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