Lisa Kerr is an associate professor at Queen’s University’s Faculty of Law.
At the heart of public and political outrage at the transfer of Paul Bernardo from a maximum to a medium-security prison is a view that he should be subjected to the most onerous conditions possible, for the entirety of his sentence. Virtually all Canadians seem to agree that the serial murderer and sex offender deserves this fate, and understandably so.
But Canadian prison law does not allow prisoners to be classified as maximum security on a permanent basis. Prison lawyers and penologists have correctly observed that this kind of approach to incarceration would be contrary to the legislative rules and constitutional principles that govern decision-making for prison sentences in Canada.
In response to Mr. Bernardo’s transfer, Conservative Party Leader Pierre Poilievre has promised a new approach to sentencing that would dictate – even decades in advance – how a particular class of offenders should be housed for their entire imprisonment. Such a change would create a number of difficulties for Canada’s federal prison service, which already struggles to appropriately house a complex population with intense programming, security and health care needs. It would also be vulnerable to the challenge that it violates the Charter of Rights and Freedoms, which protects the residual liberties that prisoners retain.
The backlash to Mr. Bernardo’s transfer rests on a presumption that his punishment has been somehow alleviated or reduced. In the public imagination, we equate harsher punishment with a higher security level. But that is not necessarily so. What matters more than the label is how an individual prisoner experiences incarceration.
The Correctional Service of Canada explains that maximum security means that “movement, association and privileges are very restricted.” Medium security has “the same security safeguards.” The difference is that medium institutions encourage inmates to be “more responsible for day-to-day life,” and to “take responsibility for their actions, and co-operate with each other.” There may well be aspects of these expectations that some inmates would rather avoid.
Mr. Bernardo has been segregated in maximum security for almost his entire sentence. He would have had a private cell, very limited programming, and virtually no responsibilities. Drawing from what I have seen in similar, highly restrictive penal settings, I expect that he slept a lot and watched an enormous amount of television.
Life in medium security will present different challenges. While the rationale of the transfer decision has not been publicly released, it seems clear it was done in order to expose Mr. Bernardo to correctional programming. The institution that now imprisons him is known to offer sex offender treatment. The law that governs CSC dictates that its central purpose is to contribute to the rehabilitation of offenders. This means moving offenders to settings in which they can be held accountable.
For Mr. Bernardo, the transfer means he will have to actually do some work each day. He will be exposed to teachings about the origins and harms of his sadistic behaviour, and he will have to cope with the prisoner society in a way that he has, for decades, largely been able to avoid. I have no idea whether his life will be better or worse, but that is exactly my point. Politicians are telling us he got an upgrade, but the reality is often far more complex. For some prisoners, accountability may be more difficult to bear than isolation and idleness.
The question of release from incarceration is an entirely different one. That decision is handled by the Parole Board of Canada, and the focus is exclusively on public safety. While notorious prisoners like Mr. Bernardo have no realistic prospect of release, the prison service still has an obligation to provide appropriate programs to him. CSC attempting to follow its own law and policy in the case of Mr. Bernardo should be seen as an achievement, not an outrage. Anyone familiar with the pace and culture of prison decision-making knows Mr. Bernardo will never get to minimum security, let alone release. He is approaching 60, the average age of death for those who have spent their adult life incarcerated.
Prison affects individuals in profoundly different ways according to their personalities, desires, vulnerabilities and background experiences. The question of security classification is just one variable, and not necessarily the most meaningful one, in determining the severity of the day-to-day realities of serving a prison sentence.
Prison officials know this truth well. In attempting to end the use of solitary confinement in Canada, prisons have struggled with inmates who request this form of extreme isolation. For some, segregation is an easier way to do time. The punitive depths of various forms of imprisonment are hard to predict or control, and harder still to understand from the outside.