Public Safety Committee on Dec. 4th, 2023

[Tim Danson]

Again, as I said in my opening, the evidence that was before Associate Chief Justice LeSage at the trial, and at the dangerous offender application—and it's the same evidence that was, 25 years later and more, before the Parole Board—is that this is the hallmark of psychopathy. They are deceptive. They're cunning. They're manipulative. To have a criterion that doesn't take that into account and doesn't take into account what they learn from the various programs that are administered to them, and what they learn from parole hearing to parole hearing, is simply naive.

Thank God the majority of offenders in Canada serving federal penitentiary sentences are not psychopaths, but again, this is why you can't have a one-size-fits-all. You have to have an entirely different criterion for these particular types of offenders. It's critical.

[Doug Shipley, Conservative, Barrie—Springwater—Oro-Medonte, ON]

Thank you.

This will probably be my last question, Mr. Danson.

You have mentioned many times that the parole process is harmful for the French and Mahaffy families, given that they need to testify and provide victim impact statements every two years, even though Paul Bernardo is serving an indeterminate sentence.

Can you speak to the reforms you would like to see to ensure that the parole process for dangerous offenders with indeterminate sentences prioritizes victims' rights?

[Tim Danson]

I could tell you that every time we get ready for a parole hearing, it is gut-wrenching for the families when we prepare their victim impact statements. In the case of the French and Mahaffy families, we prepare very comprehensive victim impact statements.

What happens is that, as a general rule, parole hearings happen every two years. The reality is that, for the families, you finish one parole hearing and the two years go by very fast. It's very difficult to revisit this every two years.

As a matter of law, they're entitled to a parole hearing on an annual basis—once a year—and then the Parole Board has six months to process that and, as a matter of practice, it just works out to every two years.

In my view, and we'll use Paul Bernardo as an example, he's now had two parole hearings, but after the first parole hearing, maybe after the second parole hearing, there has to be a shift, particularly when there's a finding that he has no insight, no remorse—

[The Chair, Liberal, Heath MacDonald]

Thank you, Mr. Danson.

We'll continue, and hopefully you can pick up on those comments as we go to later rounds.

Next up is Ms. O'Connell, please.

[Jennifer O'Connell, Liberal, Pickering—Uxbridge, ON]

Thank you, Mr. Chair.

Thank you, Mr. Danson, for being here. I'm sorry for the technical difficulties last week.

I think it's really important that your clients', the families, voices are represented through you. I really appreciate having the opportunity to hear this testimony.

First of all, I want to also acknowledge and thank you for speaking about what happened during the trial. As someone from Pickering, right next door to Scarborough, I remember all too well the failure in policing for women. Your bringing it up here is part of the first time that we've talked about it, so I thank you for that because it's an important piece that has been lost in a lot of this debate. Thank you for raising that as well. It's something that is still frustrating for me all these years later.

In terms of the issue at hand, you spoke about changing the laws. We have a private member's bill before us that would change the laws for anyone who's designated a dangerous offender, and there are 921 of them. They would be in maximum security, if the bill passes, for the entirety of their sentence. However, that would mean people not criminally responsible, people who might be able to benefit from programming.... That would mean an overrepresentation of indigenous and Black offenders. There are people with determined or fixed sentences, as you spoke about.

I found your testimony interesting in that it focused on fixed sentences versus indeterminate, and that may be an area that, one, would be constitutionally something that might not be as heavily challenged—I don't know—but, two, would not create the one-size-fits-all on the reverse, where you have those who may one day be released because they are on a fixed sentence, which is certainly not the case of Paul Bernardo.

Do you have additional thoughts on the classifications for those without fixed sentences and how that could be a better application for changing the laws?

[Tim Danson]

There has to be a clear distinction between indeterminate sentences and people found not criminally responsible. Of course, there's an entirely different regime and review panel that deals with those individuals. It's important that be maintained, but that can't be confused with the indeterminate sentences that come from a dangerous offender application, where the criteria, as you all know, for a dangerous offender is exceptionally high. Often you see it in a situation like we have here, where Mr. Bernardo has been convicted of two accounts of first-degree murder and many other offences, and then, in addition, has been declared a dangerous offender and, therefore, has an indeterminate sentence.

In that sense, the two regimes must be treated completely differently. Quite frankly, if they weren't treated differently, it would be unconstitutional.

[Jennifer O'Connell, Liberal, Pickering—Uxbridge, ON]

Thank you.

You spoke in your testimony about.... You raised questions about how CSC came to this conclusion, and you kind of questioned that process.

Could you perhaps elaborate on some of your concerns of how they were, I think you said—I'm sorry; I didn't write it down exactly, and I don't want to put words in your mouth—checking off the boxes or the test that was done? Can you maybe elaborate a little more on your concerns around CSC's classification process?

[Tim Danson]

This is notwithstanding the fact that they think their criteria can differentiate between a Paul Bernardo—people with life sentences—and someone who has a fixed sentence.

My experience has been as a matter of practice. What I have experienced and witnessed is that they actually keep them all in the same category, and they do not make a distinction. That applies to their belief in rehabilitation. Let's be clear that rehabilitation and working with offenders with fixed sentences, who are ultimately going to get out, is critical. There must be the resources that allow Correctional Service Canada to carry out these important rehabilitation programs.

As I keep saying, you have to draw a hard line between the overwhelming majority of offenders with these fixed sentences and the Paul Bernardos of the world. As I said, one of the key sentencing principles in the Criminal Code under section 718 is punishment. When you commit the most serious of offences, you should be faced with the most serious of consequences. In my view, for someone like Paul Bernardo, that's spending the rest of his life in maximum security.

It seems they seem to forget. Maybe I'm at an advantage—or maybe it's a disadvantage—for having unfortunately had to do what I had to do with the video tapes. For anyone who actually understands what this man did, it's so horrific. When the experts are telling you that he's beyond treatment, that doesn't mean that you don't give him the treatment programs that exist in maximum-security penitentiaries, but you don't move him into medium security.

Notwithstanding that they say they would never move him into minimum security, in my experience, over time, there is a cascading effect that is of deep concern. In my view, it is the punishment side, and sending that message for, fortunately, a very few number of offenders, that has to take priority.

[Jennifer O'Connell, Liberal, Pickering—Uxbridge, ON]

Thank you.

[The Chair, Liberal, Heath MacDonald]

Thank you, Mr. Danson and Ms. O'Connell.

We're going to move on to Monsieur Fortin, please.

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

Thank you, Mr. Chair.

Mr. Danson, thank you for being here and for shedding light on the reality of victims of crime.

In Paul Bernardo's case, it goes without saying that we're all stunned by the type of crime he committed. Through you, Mr. Danson, I would like to extend my deepest condolences to the families of the victims. I can't imagine the pain they're going through.

Having said that, we're looking at changing the rules that are in place. Correct me if I'm wrong, but the most important part of your testimony is that, in some cases, such as the one before us, the least restrictive sentence principle shouldn't apply. Instead, a severe punishment, such as a life sentence, should be imposed.

However, you told us that you believe in rehabilitation. You said that, in the majority of cases, it takes a lot of effort and money to ensure that criminals who end up behind bars have a chance of being rehabilitated, so that they are no longer a danger to public safety when they are released.

All of this leads me to ask you the following question. There are cases in which rehabilitation is possible and in which the least restrictive sentence should be imposed. However, there are also cases, like Bernardo's, where rehabilitation isn't possible and where people must be kept behind bars in the public interest. Where do we draw the line?

[Tim Danson]

I agree with basically everything you say. I believe and the families believe in rehabilitation for offenders. To your question about where we draw the line, we draw the line with offenders such as Paul Bernardo. We draw the line with people who murder children and who are sadistic sexual psychopaths. As I said earlier, thank God that they are the minority of offenders, but they are who ones who grab public attention. They are the ones who cause the public to devaluate its confidence in the administration of justice. That's why I say that it is important to draw the line.

For me, the direct answer to your question is that we draw the line with sex offenders such as Paul Bernardo. It may be that, because they are a minority of offenders and the ones that the public is most frightened of, these decisions should not be administrative. Maybe these should be decisions of the Parole Board itself. There may be a hearing at the Parole Board where it decides whether or not this particular offender is appropriate for a transfer to medium security. It shouldn't be done behind closed doors. It should be done publicly and transparently, so the public can evaluate whether or not the process is working properly. If Paul Bernardo has earned the right to be transferred from maximum to medium, then let that be at an open public parole hearing. Let people hear the evidence.

Can you imagine, as I said in my opening, rewarding Paul Bernardo with this type of transfer when two different panels of the Parole Board say that, after 30 years, he has no remorse, no empathy, no insight? That can't be justifiable. I would recommend that, for these types of offenders, these types of decisions should be made by the Parole Board and not done in secret internally and administratively by Correctional Service Canada.

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

Thank you.

Mr. Danson, I hear what you're saying about crimes of a sexual nature. Your perspective on transfers is another thing I'd like to come back to.

Am I to understand that you think Paul Bernardo is an exceptional case among sex offenders? I suspect—and correct me if I'm wrong—that not all sex offenders deserve the same treatment. From what I'm hearing, Paul Bernardo is an extreme case, and frankly, it's not hard for me to agree with you, because obviously we don't see this every day.

In terms of where the line is drawn, I'd like to know whether, in your opinion, all sex offenders should no longer be eligible for transfers or parole.

[Tim Danson]

No, again I draw a distinction even with sexual offenders, because, as we know, there is a full continuum. All sex offences are horrific, but there is a continuum from less serious to most serious. Obviously, there are a number of sex offenders who may be amenable to rehabilitation.

Again, it is a minority. I'm talking about sex offenders who are psychopaths and have committed murder or have committed egregious, sadistic physical harm on children and women. That's where I draw the line. That's why I say that it's an easy solution, because this is what the public sees. When the public sees that you treat someone like Paul Bernardo—and that the criteria are, in practice—just like everybody else, that brings cynicism and disrespect to the administration of justice. I think we can draw a hard line.

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

Thank you.

[The Chair, Liberal, Heath MacDonald]

Thank you, Mr. Danson.

Thank you, Mr. Fortin.

We're going to move on to Mr. Julian now.

[Peter Julian, NDP, New Westminster—Burnaby, BC]

Words can't describe the profound condolences that we all feel for the French and Mahaffy families.

Mr. Danson, I wanted to thank you profoundly for the work that you undertook to destroy the horrific videos that Bernardo made. I just can't imagine in today's social media environment what that would mean. Your work has been fundamental in preserving the dignity and memory of those daughters for those families. I'm sure it gives some small measure of peace in the absolutely horrific circumstances. Our profound thanks to you for that work.

We are studying now the system of transfer within the Correctional Service. We had Ms. Kelly from Correctional Service Canada. She came in and testified a week ago, saying that victim statements and statements from victims' families are taken into consideration, and at any time the victims can submit a new victim impact statement.

That says to me that the onus is on the victims' families to keep track of what the Correctional Service is doing. The onus is on the families to try to keep up to date, to ensure that the victim impact statements and victim statements are there. To what extent do you feel it is a disrespect to victims' families that the onus is on them?

Then we couple that with the fact that the Correctional Service doesn't provide the information that is so important on possible transfers. What is the impact on families when we have this double jeopardy of the onus being on the victims' families and the Correctional Service not informing them about transfers?

[Tim Danson]

Certainly the way they handled this case on the transfer was dreadful. We didn't find out until the transfer was in motion and actually happening. We were not given any opportunity to respond. I take it that was probably very calculated and deliberate, and that's unfortunate.

The only time that they really prepare victim impact statements is when getting ready for the parole hearings. That, as I said, is a gut-wrenching process for them. It takes them back to day one. It's very difficult.

It's also why we have this access to information application, which is now currently on a leave application to the Supreme Court of Canada. Correctional Service Canada says that everything is private and you're not entitled to anything, even though that's not the law. Let me just back up by saying that we need this information to prepare proper victim impact statements and to make sure that the evidence is out there to make a determination—whether it's a transfer or a parole application.

These are—like parole hearings—public hearings. These offenders are asking for a public remedy. They've asked to be relieved from the full consequences of their life sentence and to be reintegrated back into the community. This is a public hearing. They're asking for a public remedy, yet Correctional Service Canada and the Parole Board throw up the privacy rights of these offenders. Anyone who has attended these parole hearings knows that the most detailed personal information comes out at these hearings. This notion of not sharing the relevant information for an informed decision in a constitutional democracy, where the public has a right to know so it can evaluate whether the government institutions are conducted properly.... It requires transparency.

This is very difficult for the families. As I said, this matter is now on a leave application before the Supreme Court of Canada. Hopefully, leave will be granted and we can get some clarity from our highest court with respect to these issues.

[Peter Julian, NDP, New Westminster—Burnaby, BC]

Thank you for that answer.

We also had testimony from correctional officers, their union and the Union of Safety and Justice Employees. Often the prison guards and others may be aware of the kind of behaviour that a psychopath like Paul Bernardo would exhibit. As you mentioned, it is easy to manipulate certain tests, particularly if they're predictable. It is less easy to manipulate what is the daily behaviour of the inmate.

Do you believe that there needs to be a vast consultation, even within the institution, to ensure that we don't have psychopaths with psychopathic tendencies trying to manipulate tests, and so we actually get a better sense of how that inmate is behaving in prison, and that this needs to be a criterion that is considered before there's any sort of attempt to transfer that inmate?

[Tim Danson]

I agree with that completely. It's also why I say, with these particular types of offenders, that maybe this is something that should ultimately be determined by the Parole Board and not administratively by Correctional Service Canada.

For sure, it has to be considered, but we need transparency. We don't have transparency at all. They gave us nothing on our access to information requests, based on the privacy rights of Paul Bernardo, in this case, and the privacy rights of two other offenders who murdered police officers—one who was executed.

Transparency is the quintessential soul of our justice system and our democracy. We need more transparency.

[Peter Julian, NDP, New Westminster—Burnaby, BC]

Are there other things that you believe we need to be considering in terms of the French and Mahaffy families, things that would have made this process less traumatic for them, things that would have given them more of a measure of peace? Are there other things you can recommend to us?

[Tim Danson]

Certainly, in this particular case, it would've been much easier for them if they'd had advance notice and an opportunity to voice an opinion, even if it was quietly behind the scenes. However, to be told, effectively, after the fact of the transfer was a kick in the gut for them. It was just horrific.

[The Chair, Liberal, Heath MacDonald]

Thank you, Mr. Danson.

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

[Tony Baldinelli, Conservative, Niagara Falls, ON]

Thank you, Mr. Chair.

Thank you, Mr. Danson, for being here. Thank you for your steadfast advocacy in support of the French and Mahaffy families throughout all these years.

Mr. Danson, you made reference to Justice LeSage in your opening, who spoke of the likelihood of Bernardo being treated as remote in the extreme.

Last week, Commissioner Anne Kelly was here. In defending her decision, not only at the news conference, she repeated last week that the fact that Bernardo has been transferred does not negate the fact that he is a psychopath.

As well last week, my Liberal colleague Mr. McKinnon also tried to defend this decision, saying, in speaking with Ms. Kelly, “I notice a common thread in questions from my Conservative colleagues. There seems to be, still, an impression that somehow the reclassification of Mr. Bernardo to medium security is somehow a mitigation of his sentence. Can you tell me if the pillows are softer in medium security?”

Mr. Danson, you said that this decision sends the wrong message. It sanitizes the full brutality of the crimes. I fully agree with you. I feel that it brings, for my constituents at home and for the families, the administration of our justice system and our corrections system into disrepute. It leads to the question, and they simply ask, “Who does the justice system serve?”

I'm just wondering if you can comment on some of that.

[Tim Danson]

The glib comment about pillows is.... If I shared that with the families, that would be gut-wrenching for them. That would be a shock to them—to make light of this by talking about whether the pillows are softer or harder in medium security versus maximum security.

To suggest that transferring Bernardo to medium security does not disconnect us from the fact that he is a psychopath, to me, is just words. The fact of the matter is that he will have a lot more freedom and a lot more rights in medium security.

That's why I said earlier that the fact that the perimeter security may be the same for maximum security and medium security is irrelevant to me. This is not a discussion as to whether Paul Bernardo is going to escape from a federal penitentiary. However, he definitely has more rights, and the justification seems to be that there are more treatment programs. However, the evidence, even found by the Parole Board, is that he's not treatable.

Again, I apologize for repeating this, but it does not take into account the sheer brutality of what this man did and that the punishment side of the sentencing principles must prevail in this case.

That's my short answer to your question.