Public Safety Committee on Dec. 4th, 2023

[Tim Danson]

I prefer the former language.

To be clear and to be consistent, I don't have a problem with “least restrictive” as it relates to the majority of offenders with fixed sentences—I know I'm repeating myself on that—but you cannot apply that criteria to Canada's most dangerous offenders. There have to be entirely different criteria that have, as their number one principle, punishment. That's why I'm saying, at least in the case of Paul Bernardo, that we actually have two Parole Board findings about how dangerous he remains. Transferring someone who doesn't illustrate one iota of remorse, empathy or insight....

When you talk about “least restrictive”, what does that mean in a practical sense to these particular types of offenders? Why should someone who commits an offence, which as I say.... Thank God the videotapes were destroyed. If you just saw the cruelty, the sadistic brutality of these offences, the horror.... Thirty years later it still gets me emotional.

To think that we're talking about the least restrictive punishment for this person, that it has any reality, this is what Canadians will not tolerate. They will tolerate all kinds of progressive remedies and rehabilitation and programs for the majority, but not for people like this. Therefore, “least restrictive” is dangerous because it sanitizes the brutality of what's happened in cases like this.

[Rachael Thomas, Conservative, Lethbridge, AB]

Thank you for responding to that.

In one of the other comments that you made in your opening remarks, you asked the question, “How can something that is 'shocking and incomprehensible' remain the law of this great country?” Of course, in asking that question you're referencing something that was said by the former public safety minister when he supposedly found out that Mr. Bernardo was being transferred. He said that it was shocking and incomprehensible. Now, we later found out that actually that was misleading. He had known since March. He had known for quite some time before the transfer actually took place in June. Nevertheless, you make this statement that, if it is in fact shocking and incomprehensible, then why would we allow that law to stay on the books?

Mr. Danson, if you had to propose one change, the one that we should start with in order to make our system more robust and in favour of victims, what might that be?

[Tim Danson]

That would be to establish legislatively a different criterion and regime for the Paul Bernardos of the world. That's where you start. I'd be more than happy to help with the particulars of that. That's where it has to start.

We have to stop treating all offenders the same and using the same criteria. As I say, the “least restrictive” is the least restrictive for some who commits a non-violent, white-collar crime, yet that's the same criteria we'd use for a sadistic psychopath. It just defies common sense. We have to have a separate regime for these individuals, while obviously having due regard for constitutional criteria. That must be the starting point for bringing some sense to this process.

[Rachael Thomas, Conservative, Lethbridge, AB]

Thank you.

In your expert opinion, do you believe that it's possible to make that differentiation in the law?

[Tim Danson]

It's easy.

[Rachael Thomas, Conservative, Lethbridge, AB]

Thank you very much.

[The Chair, Liberal, Heath MacDonald]

Thank you, Mrs. Thomas.

Now, we're moving on to Mr. Gaheer, please.

[Iqwinder Gaheer, Liberal, Mississauga—Malton, ON]

Thank you, Chair.

Mr. Danson, I echo the comments that have been made by the committee so far in thanking you for your participation before the committee.

We received correspondence to the committee on October 5 from St. Catharines' city council. It called on the federal government to review the guidelines for transferring dangerous offenders who show no remorse or empathy for their crimes to medium-security prisons. In your capacity as a lawyer, would you agree with this request and why?

[Tim Danson]

I would agree, because the current system is broken. It's not responsive to the gravity of the offence. That's why I've said repeatedly that we need to bring in an entirely different regime for these particular offenders.

[Iqwinder Gaheer, Liberal, Mississauga—Malton, ON]

How would that regime be different? Could you go into detail regarding that?

[Tim Danson]

Are you talking about the difference in the regime for the purposes of transferring from max to medium?

[Iqwinder Gaheer, Liberal, Mississauga—Malton, ON]

It's specifically for the individuals who show no visible signs of remorse or empathy for the crimes that they've committed.

[Tim Danson]

My view on that is that, if the evidence—as in this case—as found by the Parole Board, is that the offender has no remorse and no insight, then he cannot be even considered for a transfer out of maximum security. It's just absurd to think that they somehow get a benefit after, in this case, 30 years in prison. Having no insight...?

I'm telling you.... Again, I don't mean to repeat myself. It's why we have this leave application before the Supreme Court of Canada. The entire country should listen to the public audio recordings of Paul Bernardo's evidence at both parole hearings. He talks about what he did to my clients like all of us would talk about the weather. When he's asked by the Parole Board, “Why did you have to inflict such pain?” he says, “They weren't doing what I asked them to do, so what do you expect me to do?” This is the evidence. We're transferring this guy to medium security? That's what I'm talking about. They're sanitizing the brutality of what he did.

There was no remorse, no insight, no empathy, nothing. That's the hallmark of psychopathy. You don't get transferred into medium security. You don't get a favour. You don't get a benefit. You don't get the extra freedom that you get in medium security.

[Iqwinder Gaheer, Liberal, Mississauga—Malton, ON]

Thank you. This is obviously a very difficult topic. We thank you for your testimony.

You've indicated to the committee that more information, including parole hearing records, should be shared with victims so they can prepare proper, more meaningful victim impact statements. These files could, however, include psychiatric assessments and disciplinary records.

Could you explain to the committee why you think this information is needed for victims to share their concerns?

[Tim Danson]

That's an important question from our perspective, because we're met all the time with, “Under the Privacy Act, this is very personal information, so we can't share with you the psychiatric and psychological reports that have been generated with respect to a particular offender.”

Let's remember that what the Privacy Act says is that, if it is personal information and it is private, you have to weigh the public interest against the privacy interests of the particular offender. Let's understand that legally. Everyone throws up privacy rights, and they just ignore the law that requires there to be this evaluation, this proportionality, between the public interest to know and the offender's right to privacy.

Those very reports that you refer to, they are discussed openly at the parole hearings, so where's the privacy interest? I urge the committee to read both Parole Board decisions as they relate to Paul Bernardo and look at the incredible amount of personal information—as there should be—that is in their decisions, which are a matter of public record.

It's like closing the barn door after the horse has bolted. This is not personal, private information. This is part of the criminal justice system. This is part of a public parole hearing. This is asking for a public remedy.

Of course we should have access to the information rather than just trusting the Parole Board. In this case, they did a good job with Bernardo in the last two hearings, but the principle is transparency. The public has a right to see this evidence, just like like they did at the trial and at his dangerous offender application.

This notion that, because they are psychological records, psychiatric records or things of that nature, he's asking, as are other offenders similarly situated.... He's relying on that very evidence to persuade the Parole Board to let him out of jail to integrate with the public.

Does the public not have a right to know that evidence?

[The Chair, Liberal, Heath MacDonald]

Thank you, Mr. Danson.

We're going to move on to Mr. Baldinelli, please, for five minutes.

[Tony Baldinelli, Conservative, Niagara Falls, ON]

Thank you, Chair.

Again, thank you, Mr. Danson.

In earlier testimony, when you were speaking with my colleague Mrs. Thomas, you were talking about legislation and changes that we could make. You talked about different criteria, a regime that is needed for the Paul Bernardos of the world, and that all inmates cannot be treated the same. When she asked if it would be difficult to make that change, you indicated right away that it would be easy to make that type of change.

I was wondering if you could follow up. Do you have recommendations that you could share with us, share with this committee, on things that we could do to make some changes to improve our system?

[Tim Danson]

I'm happy to post this and submit some further submissions to answer that. I think I would start with defining the Paul Bernardos of the world, these sexual psychopaths, define what that is and the criteria that makes up a diagnosis of psychopathy. There's psychopathy and then there's sexual sadistic psychopathy. Define it. You start there, and you separate them from all other offenders.

That's why I said earlier that, if the Canadian public knew that these people are taken care of, they're safe from them and there's a rational criteria and system, they will open up their arms to rehabilitation and treatment for all other kinds of offenders.

In the limited time I can't do much more than that, but I think you start off by defining this criteria and separating it, and then the recommendations flow from that.

[Tony Baldinelli, Conservative, Niagara Falls, ON]

Perhaps you could submit something in writing to the committee to provide something more fulsome with regard to that. Again, thank you for that.

Also, I just want to follow up on this. In our previous committee hearing we had Benjamin Roebuck, who is the victims ombudsman. He mentioned the system that strikes the wrong balance between victims' rights and prisoners' privacy rights.

We had discussed the system and, for example, the transfer and whether or not the victims' families had any input or could provide statements for consideration, so that they are considered prior to a transfer ever being made. I wonder if you have some thoughts on that.

[Tim Danson]

I agree with him. I think that would be helpful, because in this case, of course, there was absolutely no input. We weren't even asked. It was just a fait accompli.

Again, on the whole notion of the transfer, the problem I have is more fundamental. There really does have to be what I characterize as a very different regime for these kinds of offenders. Because they are a minority of the federal inmate population, I don't think these should be administrative decisions. These may be something that the Parole Board could consider and give direction on if certain criteria are met. You have to know that the criteria they're using right now is defective.

I've talked to the commissioner as well. I've expressed this. How can you justify a transfer, as I've said repeatedly, when the Parole Board itself has determined, based on all the evidence, that the offender is beyond treatment at this stage and has no remorse, no empathy and no insight? They apply a criteria that they say they follow properly, but they nevertheless justified this transfer. Plus, I would repeat the earlier comments that I've made about the particular offence this person committed. That's why it's shocking and incomprehensible. That's how Canadians responded. Instinctively, it was shocking and incomprehensible.

This is so hard for the families. I think everybody on the committee and.... I've always tried, for the last 43 years, to be non-partisan on these issues because I think it is non-partisan. We're protecting people from dangerous people and dangerous offenders. That we can allow something that the former minister, the Prime Minister and other political leaders called “shocking and incomprehensible” and then leave it.... What do I, as their counsel, tell them? What is the answer to that question?

There is no answer. I take all the political leaders at face value as being genuine and sincere when they talk about this being shocking and incomprehensible. Then we turn around and ask what we are going to do about it. Hopefully your committee will do something about it, because it has to be changed. This is the type of stuff—

[The Chair, Liberal, Heath MacDonald]

Mr. Danson, that's a good point to end on. Thank you so much.

Mr. Fortin, go ahead, please, for two and a half minutes.

[Rhéal Fortin, Bloc, Rivière-du-Nord, QC]

I'm sorry, I thought it was the Conservatives' turn to speak.

Mr. Danson, since I only have two and a half minutes—

[The Chair, Liberal, Heath MacDonald]

It's actually my mistake. I admit to that mistake. It's actually the Liberal Party's turn.

[Rhéal Fortin, Bloc, Rivière-du-Nord, QC]

I don't mind if you give me five minutes. That's okay.

[Voices]

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