Review into the transfer of an inmate from Millhaven institution to La Macaza institution on May 29, 2023

Executive summary

Within the Correctional Service of Canada (CSC), incarcerated offenders are classified as minimum, medium or maximum security in accordance with the Corrections and Conditional Release Act (CCRA). Following initial security classification, a security level review is to be completed at least once every two years for offenders classified at maximum or medium, as per Commissioner’s Directive (CD) 710-6. Security reviews are informed by professional judgement of an offender’s Institutional Adjustment, Escape Risk, and Public Safety Risk, in conjunction with the results of CSC’s actuarial tool, namely the Security Reclassification Scale (SRS). Periodic security reviews are undertaken in adherence with the ‘least restrictive’ principle in section 28 of the CCRA, which states that “the Service shall take all reasonable steps to ensure that the penitentiary in which [offenders] are confined is one that provides them with the least restrictive environment for [the] person,” while taking into account the kind of custody and control necessary for public safety, the safety and security of the institution, as well as offender profile and need factors.

The purpose of this case review is to examine the recent transfer of PAUL BERNARDO from Millhaven Institution to La Macaza Institution on 2023-05-29. The focus is on policy compliance in regard to: the appropriateness of the offender’s security classification; the appropriateness of the transfer to medium security; victim considerations and notifications; High Profile Offender notifications; and any other relevant factors.

The sources used in this review included: offender case documents from the Offender Management System (OMS); materials sent to registered victims as provided by the Communications and Engagement Sector (National Headquarters (NHQ)); and correspondence and additional materials pertaining to information sharing and case planning provided by Millhaven Institution and Ontario Regional Headquarters (RHQ). In addition, consultations were held with representatives of the Communications and Engagement Sector (NHQ), the Correctional Operations and Programs Sector (NHQ), Millhaven Institution, and Ontario RHQ to seek clarification on the interpretation of relevant policies and to gather additional case facts.

For background, BERNARDO is serving a life sentence as a Dangerous Offender for First Degree Murder (x2), Kidnap – Unlawfully Confine (x2), Aggravated Sexual Assault (x2), and Indignity to a Dead Body. The index offences relate to the abduction, sexual assaults, and murders of Kristen French and Leslie Mahaffy. There were several other offences that were stayed in this case; such offences were tied to the death of Tammy Homolka, the sexual assaults of “Jane Doe,” and the sexual assaults tied to the “Scarborough Rapist” case. The offender’s sentence commenced in 1995-09-01; he has passed his parole eligibility dates and has been denied parole on two occasions. He is identified as a High Profile offender, meaning he is “an offender whose offence dynamics elicited or have a potential to elicit a community reaction in the form of significant public and/or media interest” as per CD-701.

Case documents reveal the offender remained classified as maximum security between 1995 and 2023. The SRS was applied 14 times between 1999 and 2022 (approximately every two years, as required by CD-710-6). In each instance, the SRS produced a score corresponding with medium. In all cases but for the most recent instance (2022-11-08), the final security level decision was maximum, thereby representing an ‘override’ from the SRS score.

File information indicates that much of his incarceration has been marked by extremely restricted and controlled interactions with other offenders. Such measures were prompted by safety threats to the offender because of his High Profile status and the nature of his offences. Results of the actuarial tool used in conjunction with professional assessment to review offender security level, the SRS, were ‘overridden’ from medium in accordance with professional judgment since 1999. Case documents indicate that such overrides were explained in terms of the ongoing and significant measures that were required to manage the offender’s safety, rather than behavioural concerns. Across records, the institutional behaviour of the offender is described as generally conformist. The offender’s Case Management Team (CMT) has worked for many years to facilitate the offender’s integration within the inmate population.

The offender applied for a transfer to Bath Institution (a medium security facility) in June of 2022. His security level was reviewed, and results of the SRS (medium) were overridden in accordance with professional judgement, as it was determined the offender remained a maximum security offender. His failure to integrate within the inmate population and the ongoing measures that were required to manage his safety (e.g., individualized protocols) were decisive factors. As a result, it was felt that Bath Institution was not an appropriate option, and the transfer was not supported by his CMT and was denied by decision-makers.

Following this decision, in July of 2022, the offender worked with the senior management team and Security Intelligence department at Millhaven Institution to develop a plan for institutional integration. These efforts were part of an institutional management strategy to establish cohorts within the (REDACTED) unit at Millhaven Institution, with the underlying goal of alleviating subpopulation pressures, and to provide a less restrictive environment for offenders. The strategy enabled compatible offenders on ranges (REDACTED) and (REDACTED) to attend health care, programs, school, and yard as a cohort. In July of 2022, the offender “fully integrated” on his range, which represented a new development in the case.

After integrating on his unit, the offender, in consultation with his CMT, applied for transfer to La Macaza Institution, a medium security facility in Quebec. La Macaza Institution was deemed by the CMT to be compatible with the offender’s profile, as the institution can accommodate High Profile offenders as well as offenders serving time for sexual offences. Information provided to the Review Committee indicated that, after the offender had applied for a transfer, (REDACTED) the Office of the Correctional Investigator (OCI) initiated informal discussions concerning his security classification, to ensure compliance with the ‘least restrictive measures’ principle and legal requirements, as per the CCRA. Concerned with extended timelines, the OCI engaged in regular follow up on the progression of the application and decision-making process with the Warden and Deputy Warden of Millhaven Institution.

In November of 2022, BERNARDO obtained support from his CMT to transfer to La Macaza Institution due to the recent demonstration of his ability to integrate on his range. Specifically, the CMT determined that the recent “full integration” justified a reduction in the offender’s Institutional Adjustment rating (one of three factors analyzed in the assessment of security classification), the factor that had previous hindered a medium security designation. The Assessment for Decision, prepared by the CMT, recommended the offender’s security level be set at medium, and that a transfer to La Macaza Institution be approved. The overarching rationale of the document was that the offender’s “full integration” meant the concerns noted in regard to the negative decision in June of 2022 had been addressed. It was noted that La Macaza Institution would not provide BERNARDO with any increased access to the community, as he would be housed behind a secure, controlled perimeter and his movements and associations would be regulated and monitored. Additionally, it was noted, La Macaza offers programming suited to BERNARDO’S program needs, specifically the Sex Offender Maintenance Program.

The Review Committee examined the Assessment for Decision relating to the security reclassification and transfer in reference to the relevant policy frameworks, particularly CD-705-7, CD-710-6, CD-710-2 and Guidelines (GL) 710-2-3. A critical analysis revealed that certain elements identified in these policies were not covered or not fully covered. Verbal consultations were held with the Correctional Operations and Program divisions, who informed that components of the report outlines in the noted CDs that are not applicable to the case do not need to be referenced in the Assessment for Decision; therefore, it is possible that some areas not covered were deemed not to be relevant to the assessment.

The Review Committee, however, felt certain elements that were not covered were applicable to the case, and/or that more detailed rationales were warranted in certain areas within the Assessment for Decision. In particular, the Review Committee contemplated whether the four month period of integration was sufficient to begin the process of reassessing the offender’s security requirements. This matter was discussed with staff at Millhaven Institution and Ontario RHQ. Information provided by staff, as well as documented across different case documents,revealed that the offender’s recent integration within his range on (REDACTED) unit was, in fact, part of a longer-term strategy that was preceded by a series of steps over many years, including smallerscale forms of integration that involved the offender associating with a small number of offenders. Staff involved in the case commented that, during these steps towards integration, there was consistency in terms of the absence of behavioural or security concerns. They reinforced that this most recent step in integration precluded the ongoing rationale that resulted in a continued maximum classification, namely that the offender remained not integrated within the institution. Additionally, between July of 2022 and May of 2023, there were no documented incidents or behavioural concerns while the offender was integrated on his range at Millhaven Institution.

Having carefully reviewed case documents and decisions and consulted with staff at Millhaven Institution and Ontario RHQ, the Review Committee concluded the security classification decision on 2023-02-13 corresponding with a medium designation, and the transfer decision on 2023-03-27 approving transfer to La Macaza Institution, were completed in compliance with the legal and policy frameworks of the CCRA, CD-705-7, CD-710-6, CD-710-2 and GL-710-2-3.

With respect to the manner victims were informed of the offender’s transfer on 2023-05-29, information from the Victim Services Module and additional correspondence records were analyzed by the Review Committee. Notification to victims of the offender’s transfer was initiated on the day of the transfer. On the morning of 2023-05-29, prior to the transfer, “heads up” notifications were made by phone to the victims (though not all registered victims were immediately reached). The Victims Services Unit informed the Review Committee that “heads up” calls are not required by policy, however, they were done in this case given the High Profile nature and extreme sensitivity of the case. On the afternoon of 2023-05-29, following the transfer of the offender, registered victims were contacted by phone again to be informed that the offender had been transferred to La Macaza Institution, and that the general reason for the transfer was “reassessed security requirements.” The Victims Services Officer also answered questions from victims that emerged around characteristics of medium security settings. In addition to the notification phone calls, the victims were also sent a letter (either by mail or through the victim portal, depending on their documented preference) notifying them of the transfer on 2023-05-29.

The Review Committee carefully analyzed the existing policy framework surrounding victim notification, including CD-784 and associated “Transfer Notification Tool.” With respect to informing registered victims of a transfer from maximum to medium security, the policy holds that information to be shared with victims includes: the name and location of the new institution; the reason for the transfer; and the date of the transfer. With respect to the timing of notification, in instances involving a transfer to a medium or maximum security institution, the institution is to notify the Victim Services Unit as soon as the offender has been transferred. The Victim Services Unit in turn informs the victim “the day that the offender was placed or transferred or as soon as possible afterward.” Thus, notification in the case at hand met the requirements with respect to the timeframe of notification and the type of information that was communicated.

While advanced notification (prior to the day of the transfer) was not required by policy, the Review Committee contemplated if more proactive engagement with the victims would have nonetheless been permissible by policy. In particular, the Review Committee raised the question of whether general information pertaining to a possible transfer could have been shared with the victims, without compromising operational safety, when they were provided with a Correctional Plan Progress Report in March of 2023. The Review Committee additionally wondered if the current case could have warranted designation as an “exceptional circumstance” as per CD-784^{Footnote 1}, though legal interpretation is warranted in this regard.

Overall, the Review Committee concluded there was likely an option to have had more proactive and meaningful discussions with victims in a manner that still adhered to the Privacy Act and established protocols. The Review Committee felt this approach would have been in greater alignment with the spirit of the Canadian Statement of Basic Principles of Justice for Victims of Crime, including the principle that victims are to be treated with “courtesy, compassion, and respect.”

Regarding information sharing across CSC, review of correspondence and other records revealed ongoing communication between Millhaven Institution, Regional Headquarters, and National Headquarters relating to the offender’s possible/pending transfer dating back to November of 2022. This included adherence to information sharing protocols as required by CD-701 with respect to cases involving offenders with a “High Profile” flag. Although there is no requirement under CD-701 for notifying the Minister of Public Safety of the transfer of a High Profile offender, the Review Committee learned that CSC did inform the Minister’s Office about the offender’s pending transfer on 2023-03-02 and 2023-05-25, as well as the Office of the Privy Council on 2023-03-02, 2023-05-25, and 2023-05-26.

In light of the findings of this review, it is recommended that, as soon as possible, the Commissioner establishes a multi-disciplinary working committee to enhance policies and practices surrounding victim engagement and notification within the Correctional Service of Canada. Underpinning this recommendation is an acknowledgement that the victim notification process can have profound impacts on victims, including the potential for re-traumatization. Several areas of focus are suggested for review and action, which are outlined in the recommendation section of this report.