Fixing prison transfer process

Ottawa’s controversial transfers of high-profile inmates raises plenty of legitimate concerns but the federal Conservatives’ chief criticism isn’t one of them.

The issue first arose last year, when notorious murderer and rapist Paul Bernardo was quietly transferred from the maximum security Millhaven penitentiary to the medium-security La Macaza Institution.

Ottawa’s secretive approach to the transfer was particularly galling: Although the law permits the Correctional Service of Canada to inform victims of the reasons for the transfer, the service refused to provide them to Tim Danson, who represents the families of the girls murdered by Bernardo.

Danson was instead only informed of the transfer after it happened, which suggests that the service values offenders’ privacy rights over the rights of victims and their families.

Last week, the issue was back in the news, with the Toronto Sun reporting that Bernardo wasn’t the first high-profile inmate subject to a clandestine transfer. Luka Magnotta, who recorded and posted online his brutal murder of international student Jun Lin, was transferred to La Macaza nine months before Bernardo, yet we’re only learning about it nearly two years after the fact.

The Lin family supposedly learned of the transfer earlier, as the Correctional Service told Global News that victims “receive timely notification of matters such as transfers.” But there’s no evidence they were treated any better than the families of Bernardo’s victims.

Fortunately, the Bernardo affair led to a review of the transfer decision, which concluded that the service could engage in “more proactive and meaningful discussions with victims,” and it recommended establishing a committee to facilitate that engagement.

Marco Mendicino, who was public safety minister at the time, added that engagement should occur before transfers are made, and to that end he directed the service to consider an updated victim impact statement as part of the transfer decision-making process.

These are positive developments, but with the Magnotta case reigniting the controversy, it’s time for a broader discussion of the transfer process, including how we can better balance offenders’ and victims’ rights and restore the public’s confidence in the justice system.

The federal Conservatives could and should be part of this conversation, but they have instead chosen to foment outrage by claiming that prisons have become carefree country clubs under Liberal policies, especially Bill C-83. The bill, which was passed in 2019 and designed to end solitary confinement, mandated that inmates be housed in the “least restrictive environment” consistent with protecting the public and prison staff and inmates.

Conservative Leader Pierre Poilievre charged that Bill C-83 was responsible for the Bernardo transfer. That charges was directly contradicted by a spokesperson for Public Safety Canada who told The Canadian Press that the transfer would have occurred under the pre-Bill C-83 version of the law, which permitted the Correctional Service to impose “necessary restrictions” on inmates.

If that weren’t enough, the “least restrictive” standard wasn’t dreamt up by the Liberals. It was, in fact, included when the law — the Corrections and Conditional Release Act — was first passed in 1992 by Brian Mulroney’s Progressive Conservative government.

In 2012, Stephen Harper’s Conservative government amended the law with the “necessary restrictions” wording, which means Bill C-83 merely restored the language introduced by a conservative government.

And if that still weren’t enough, consider this: Inmates don’t suddenly lose their rights when they pass through the prison entrance. Certainly, imprisonment results in limitations on certain rights, but the Constitution places the onus on the government to prove those limitations impair — or restrict — the rights as little as possible.

The “least restrictive” principle is therefore derived from the Constitution, and is firmly embedded in Canadian law, including in roughly 70 statutes and regulations. That alone is good reason to maintain the standard, especially when there’s no evidence it was responsible for the Bernardo or Magnotta transfers.

Nonetheless, much as he did with the Bernardo transfer, Poilievre was quick to blame the Magnotta transfer on Bill C-83. That might improve his political fortunes, but it won’t help victims or anyone else. The only thing that will is an honest, sincere discussion about improving the transfer process. And all parties, including the Conservatives, owe it to Canadians to participate.