How Paul Bernardo’s prison transfer renewed an old legal debate over just two words

The federal Conservatives say Canadians angry over Paul Bernardo’s move to a medium-security prison have a Liberal government law to blame.

Leader Pierre Poilievre points to a bill passed in 2019 that sought to end solitary confinement, which also amended the law governing Canada’s prisons to stipulate inmates should be held in the “least restrictive environment.”

The Liberal legislation reversed a change Conservatives had made seven years earlier, restoring language that had been there from the beginning.

The debate over that phrasing was not new then, either.

Just ask Mary Campbell, one of the minds behind the law that governs Canada’s prisons system. Over her almost 30-year career, Campbell said she recalled once being asked by a former federal government about whether there was a way to adjust the language.

“I was tasked with finding some words other than ‘least restrictive,'” said Campbell, a lawyer who retired from her role as director-general of the corrections and criminal justice directorate in the Public Safety Department in 2013.

“And I actually spent a lot of time perusing dictionaries.”

Campbell said regardless of the wording that is used, the language speaks to a fundamental and constitutionally protected principle of the justice system that governments cannot escape.

“It’s on the same level as innocent until proven guilty.”

Anne Kelly, the commissioner of the federal correctional service, repeatedly referred to the “least restrictive” principle in the review she released into its decision to transfer Bernardo from a maximum-security penitentiary in Ontario to a medium-security prison in Quebec.

Bernardo is serving an indeterminate life sentence for the kidnapping, sexual assault and murders of teenagers Kristen French and Leslie Mahaffy in the early 1990s and has been designated a dangerous offender.

When the Liberal government amended the Correctional and Conditional Release Act in 2019 — a law created by Brian Mulroney’s Progressive Conservatives — their addition of the term “least restrictive” was a reversal of a change made by the Conservative government of former prime minister Stephen Harper.

Back in 2012, Harper’s majority government fulfilled an election promise by passing a crime bill that ushered in a slew of tough on crime measures, including mandatory minimum sentences for certain drug offences, violent crimes and crimes committed against children.

Critics of the omnibus bill panned it because they said it was likely to lead to an increase of the prison population and risked filling cells with more Indigenous people and other marginalized Canadians while failing to deliver on a promise to improve public safety — all at a higher cost to taxpayers.

One of the changes Harper’s bill made was to adjust the phrasing of corrections law away from saying officials should use “the least restrictive measures consistent with the protection of the public, staff members and offenders.”

Conservatives instead brought in language that said offenders should be kept in prisons with the “necessary restrictions,” and federal corrections should use measures “limited to only what is necessary and  proportionate.”

The change followed a review ordered up by the government that concluded prison staff leaned too heavily on the “least restrictive” principle, and argued that inmates should instead be made to justify why they should gain privileges.

“The wording has been changed slightly over the years,” Campbell said.

“But the wording has never deviated from the fundamental.”

Still, groups like the Canadian Bar Association warned a parliamentary committee at the time that the new phrasing brought in by Harper’s government was “not good enough as a constitutional standard.”

Howard Sapers, the then-federal watchdog for corrections, told MPs that the change was concerning, given 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,” from prisoners being physically restrained and segregated to their security classifications.

When the Liberals revisited the law in 2019 to address the issue of solitary confinement, it restored the original wording, which the bar association welcomed.

The lawyers’ group said in a brief that some had noticed the shift toward greater prisoner accountability meant in some cases “requiring that prisoners earn even basic rights and privileges.”

The British Columbia-based Prisoners’ Legal Services also applauded the move, saying prisoners were being unnecessarily kept in their cells for up to 23 hours a day.

Since winning leadership of the Conservative party last fall, Poilievre has ratcheted up its focus on crime, pointing his finger at the Liberals for being too lenient with offenders at a time when Canadians are anxious about crime.

He has seized upon the Bernardo transfer as an example of that.

Campbell said although the law’s wording has changed over time, the principle at the heart of it has not — and it did play a role in Bernardo’s transfer.

“The Conservatives are absolutely right. Of course it contributed to Mr. Bernardo’s transfer, because it is a principle that underlies all decisions. Not the only principle, but a fundamental one,” she said.

“That people are not to be subjected to custodial or punitive or controlling measures beyond what is necessary for public safety.”

The review of Bernardo’s transfer decision said that in recent years, more than a dozen reviews stated his behaviour would qualify him for a lesser security classification.

But it said the main reason his requests to be moved into a medium-security prison were repeatedly denied was that he had not fully integrated with other inmates at his maximum-security institution. Once that issue was addressed, the transfer went through.

Tim Danson, the lawyer representing the Mahaffy and French families, said the “least restrictive” principle is designed to be broadly applied.

He argued that “legislative refinement” is warranted when it comes to the most dangerous offenders, like Bernardo.