Bernardo, as someone who in sentencing parlance would be considered “the worst offender in the worst circumstances,” is understandably an appropriate recipient of the public’s contempt. And the ongoing anger and pain felt by the victims’ families is beyond reproach. What is problematic, however, are government officials opportunistically feigning indignation and perpetuating ignorance about a system operating the way it was designed to.
Before addressing the trouble with these types of reactions by lawmakers, it is useful to briefly outline the basis on which classification decisions are made.
Federal prisons are operated by the Correctional Service of Canada (CSC) and fall within the purview of the Public Safety Canada. Their statutory foundation is the Corrections and Conditional Release Act (CCRA), as well as the accompanying Corrections and Conditional Release Regulations (CCRR) and a set of administrative rules known as Commissioner’s Directives (CD). All aspects of carceral life are impacted by these three sources of law and policy.
Section 3 of the CCRA states that “the purpose of the federal correctional system is to contribute to the maintenance of a just, peaceful and safe society,” and purports to accomplish this by:
(a) carrying out sentences imposed by courts through the safe and humane custody and supervision of offenders; and
(b) assisting the rehabilitation of offenders and their reintegration into the community as law-abiding citizens through the provision of programs in penitentiaries and in the community.
Although s. 4(c) of the CCRA states that “the Service uses the least restrictive measures consistent with the protection of society, staff members and offenders,” s. 3.1 makes it clear that “the protection of society is the paramount consideration for the Service in the corrections process.”
A prisoner’s security rating is classified as being maximum, medium or minimum. The classification process is multifaceted, but is guided in significant part by the relevant considerations set out in s. 17 of the CCRR, including (but not limited to) the seriousness of the offence committed, the prisoner’s performance and behaviour under sentence, their social and criminal history, whether they are designated as a dangerous offender, the presence of mental illness or disorder and their potential for violence.
Section 18 of the CCRR, and CD 705-7 (titled Security Classification and Penitentiary Placement) provide that a prisoner shall be classified as maximum security where the prisoner is assessed by CSC as “presenting a high probability of escape and a high risk to the safety of the public in the event of escape,” or as “requiring a high degree of supervision and control within the penitentiary.” In contrast, a prisoner is classified as medium security where the prisoner is assessed by CSC as “presenting a low to moderate probability of escape and a moderate risk to the safety of the public in the event of escape,” or as “requiring a moderate degree of supervision and control within the penitentiary.” CSC is required to give prisoners reasons for their initial security classification and any subsequent changes to it.
Minister Mendicino presumably has a detailed understanding of how the prison system works and how classification decisions are made. The minister knows (or ought to know) that it is not uncommon for a prisoner — even one convicted of terrible crimes — to cascade from one security classification to another after nearly three decades in custody. The legislated purpose of security classifications is not one of retribution but of administration. Furthermore, classification to a medium security prison does not mean that a person serving a life sentence will be released imminently or at all.
When the minister and others ignore or obfuscate such information, we lose an important opportunity for straightforward public education and engagement on these and other aspects of Canada’s prison system. But the practice of prioritizing a speculative qualm with classification over known classification issues of a systemic nature is long-standing. For example, over the last decade the federal prison ombudsman which is the Office of the Correctional Investigator (OCI) has repeatedly made findings that even though Black prisoners are on average less likely to reoffend, they remain “overrepresented in maximum security and underrepresented in minimum security.”
They are also confined to maximum security for longer periods than other demographic groups. This significantly and adversely impacts access to rehabilitative correctional programming, educational opportunities and institutional employment. Furthermore, the OCI has also found that “Though only one in five Black persons had an identified gang affiliation, discriminatory and prejudicial attitudes by some CSC staff often meant that those without a gang affiliation were labelled and treated as such.” The auditor general of Canada and the Standing Senate Committee on Human Rights have made similar findings. Notwithstanding this, no meaningful reforms have been implemented by Public Safety Canada, even though the OCI has pointedly stated that “CSC must systematically examine security classification at admission to minimize unconscious bias, discriminatory practices, and systemic barriers (e.g., access to correctional programming, frequent changes in POs, and long periods without POs) for Black individuals seeking to cascade.”
It is not uncommon for government officials to amplify political rhetoric about prisons over a meaningful discussion of the legal framework that determines how and why they operate as they do. Nor is the practice inadvertent. In fact, it serves a number of purposes, such as cultivating an appearance of responsiveness, quelling public discontent and curbing critical thought and dialogue on controversial issues. While this may yield benefits for the government of the day, it is ultimately detrimental to a public left uninformed about how carceral systems work. This is aggravated further when rhetoric extends dangerously beyond media soapboxes to shape prison law and policy in a manner that is reactionary rather than evidence-based.
What should concern the public is when government officials act expeditiously on the basis of speculation to interfere in classification decisions about a single notorious prisoner (ostensibly one with no realistic chance of release), but concomitantly refuse to take action on the well-established over-securitization and systemic discrimination impacting wide segments of the prison population. This approach to carceral issues makes us none the safer. To the contrary, it maintains a false sense of security among the public and reinforces the disadvantage faced by many prisoners who will one day be released and reintegrate in society. This is the price that we pay for such political posturing. And it is one that we will ultimately learn we cannot afford.
Shane Martínez is a criminal defence and human rights lawyer at Martínez Law, and an adjunct professor of Prison Law, Policy & Reform at Osgoode Hall Law School. He can be found on Twitter @martinezdefence.
The opinions expressed are those of the author(s) and do not necessarily reflect the views of the author's firm, its clients, Law360 Canada, LexisNexis Canada, or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.
Interested in writing for us? To learn more about how you can add your voice to Law360 Canada contact Analysis Editor Peter Carter at Peter.Carter@lexisnexis.ca or call 647-776-6740.