New bill seeks to confine dangerous offenders like Bernardo to maximum security | Jeffrey Hartman

By Jeffrey Hartman

Law360 Canada (November 1, 2023, 11:39 AM EDT) --
Jeffrey Hartman
Jeffrey Hartman
Reverberations from Paul Bernardo’s May 2023 transfer to a medium security prison continue to be felt. Recently, in September 2023, Bernard Généreux rose in the House of Commons to introduce Bill C-351 which, if passed, will require all dangerous offenders to serve the entirety of their sentences in maximum security. Section 30 (1) of the Corrections and Conditional Release Act (CCRA) currently requires Correctional Service Canada (CSC) to classify all prisoners, including dangerous offenders, according to maximum, medium or minimum security risk. Bill C-351 would remove dangerous offenders from this classification scheme.

“Dangerous offender” is a legal designation and extreme form of punishment in Canadian criminal law. Section 753 (1) (a) of the Criminal Code requires a court to declare someone a dangerous offender where they are convicted of a violent or sexual offence and constitute an ongoing threat to the life, safety or physical or mental well-being of others. The declaration carries an indeterminate prison sentence, meaning there is no statutory release date and the person will remain in prison unless and until they can prove they are no longer an unmanageable public safety risk.

Bill C-351 should be controversial because it uses risk management to intensify punishment. Security and punishment are distinct concepts: imprisonment at any security level is the punishment whereas the security level is the risk management strategy. While a higher level of security may be perceived and experienced as more punitive because it entails a greater restriction on liberty, this is a consequence, not the purpose, of the security strategy. Applied specifically to dangerous offenders, it is the indeterminacy of the sentence that is the punishment. 

The public outcry over Bernardo’s transfer suggests that the majority of Canadians are unaware of the distinction between punishment and security. Really, why was the event notable to begin with? He was not released from prison, nor did he escape, and it is reasonable to assume he will never be released into the community. Moreover, prisoners including dangerous offenders are transferred between security levels all the time without any notoriety. Canadian politicians did little to educate the public and many fanned the flames. Marco Mendicino, then minister responsible for CSC, called the transfer “shocking and incomprehensible.” Doug Ford, a provincial premier with no jurisdiction over CSC, demanded the resignation or firing of CSC’s commissioner and advocated for Bernardo’s torture contrary to the law. The federal Conservative Party vowed to ensure Bernardo rots in maximum security if elected.

Implicit in the public and political discourse surrounding Bernardo’s transfer is the notion that the transfer constituted his gain and our loss. This transactional presumption is plain in Mr. Généreux’s introduction of Bill C-351 when he thanked a colleague for their “hard work in support of a justice system that puts victims first.” But this viewpoint does not make sense or, more incisively, is not supposed to make sense because Bernardo’s security classification is not his punishment.

Insight abounds from a legislative proposal and discourse that obscures the distinction between punishment and security. Why did Bernardo’s transfer cause such outrage, and why it is necessary to confine all dangerous offenders to maximum security? The answer, it would seem, is that punishment and security are artificial legal concepts which are indistinguishable in reality.

For Nietzsche, a criminal act creates a debtor-creditor relationship between the criminal and society: “every injury has its equivalent which can be paid in compensation, if only through the pain of the person who injures.” Punishment therefore is transactional in nature. This is easy to lose sight of in most cases because there is only one Paul Bernardo and there is broad consensus that he is the worst of the worst. In other words, he is so heavily indebted to Canadians that not even knowledge of his all but certain death in prison is adequate compensation.

We can thus begin to appreciate the true value of Bernardo’s life, and the true value of the dangerous offender designation. Foucault described the positive, reproductive function of power in modernity as making live and letting die in contrast to the premodern function of making die and letting live. The antithesis of fostering and reproducing desirable forms of life is neglecting and disallowing undesirable forms of life to the very edge of death. Bernardo must pay his debt in the only currency he has available: the daily, hourly, momentary extraction of the most pain and suffering possible. For Canadians, the edge of neglect and disallowance of life is the maximum security prison.   

We usually think about the criminal law and legal process as being calm, logical and reasonable. Bill C-351 is fascinating because it clearly exposes the rage embedded therein. Durkheim saw punishment as an emotional reaction to the violation of a shared value. The punishment expressed the public’s vengeance. While penal techniques and rationalizations change over time, the very essence of a practice does not. Bill C-351 helps us call into question the other objectives, such as rehabilitation and deterrence, that are said to be satisfied by imprisonment.  

Jeffrey Hartman is counsel at Lockyer Zaduk Zeeh. He is also earning a PhD in public safety at Memorial University.

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