NEWS RELEASE

(From Timothy Danson, Counsel for the French and Mahaffy Families)

On July 18, 2023, I had a lengthy telephone discussion with CSC Commissioner, Anne Kelly,
concerning the details of the CSC review into the transfer of Paul Bernardo from Millhaven
Institution to La Macaza Institution on May 29, 2023. Following my conversation with the
Commissioner, I had a telephone conversation with the Minister of Public Safety, The Honourable
Marco Mendicino. Both these discussions were very constructive and we agreed to continue our
discussions once I had an opportunity to read and fully digest the Report and review it with the
families. We are grateful to the Commissioner and the Minister for taking the time to speak with
us and to continue the discussion.

I did receive an embargoed copy of the Report yesterday, later in the afternoon. I have also
provided a copy of the Report to the Mahaffy and French families, however we have not yet had a
chance to review it together. Due to court filing deadlines, I have only been able to undertake a
preliminary review of the Report. I need more time to do the Report justice.

While I am not in a position to fully respond at this time, I do have some preliminary observations
which are subject to change following a full review of the Report with the families, and further
discussions with the Commissioner and Minister:

1. We do not accept that Paul Bernardo should have been transferred to a medium security
facility on the basis of the reasons stated in the Report and at today’s news conference. We
believe that Paul Bernardo should be in a maximum security prison. We agree with the
learned trial judge, The Honourable Patrick LeSage ACJO (as he then was), when he told
Mr. Bernardo “The behaviour restraints that you require is jail. You require it, in my
view, for the rest of your natural life … You are a sexually sadistic psychopath. The
likelihood of you being treated is remote in the extreme”. Nothing has changed in this
regard over the past 30 years.

2. We will need more time to access the Reports’ findings that the transfer was done in
accordance with all applicable laws and policies. Even if it was (which is not admitted or
accepted at this time), then the law and policies must be changed. As the government has
already said publicly, the decision to transfer Paul Bernardo from maximum security to
medium security, was “shocking” and “incomprehensible”. The families accept this
government’s position to be genuine and sincere. No law that is “shocking” and
“incomprensible” can stand and must be changed to address the specific challenges
regarding Canada’s most dangerous offenders.

3. CSC’s heavy reliance on s. 28 of the CCRA and the requirement that the choice of
penitentiary, must be the “least restrictive” for the offender, is misplaced. The “least
restrictive” principle is a principle of general application. It cannot be applied
mechanically to all offenders. This is an area that requires legislative refinement and
adjustment as it relates to Canada’s most dangerous offenders. There cannot be a one fits
all criteria.
 -2-

4. It must be rememberd that sentencing is the means by which society communicates its
moral values. That equally applies to prison placement. The punishment aspect of Mr.
Bernardo’s sentence does not appear to have been factored into the transfer decision. This
is wrong and may require legislative change.

5. While the Report is focused on the transfer, and not parole, it is useful to keep in mind that
parole is a statutory privilege and not a right. The Parole Board has twice found that Paul
Bernardo has no remorse, empathy or insight into his crimes. He has his third parole
hearing in November. CSC ought to have waited until after Mr. Bernardo’s next parole
hearing before considering the appropriateness of any transfer. Sadistic sexual
psychopaths who have not exhibited any remorse, empathy or insight into their
unspeakable crimes, after being incarcerated for over 28 years, as determined by PBC at
Mr. Bernardo’s last two parole hearings, should never be transferred to a medium security
prison.

6. Justifying the transfer on the basis of Mr. Bernardo’s recent full integration with other
offenders on his range seems weak and does not take into account many other overriding
factors.

7. The redactions in Annex D appear to be inappropriate.

8. Hallmarks of psychopathy are that the offender is cunning, deceptive, manipulative, a liar,
callous, glib, grandiose, narcissistic and often intelligent. They learn how to manipulate
the system and the various tests being applied to them. Therefore, a very different criteria
must be applied to such individuals.

9. One of the arguments used for why an offender must be held in a maximum security prison
is because they may attack a prison guard or inmate and therefore they have to be managed
until the behaviour has stabilized. The argument is that since neither of those concerns
applied to Paul Bernardo, a tranfer to a medium security prison was justified. There are
many rebuttles to this, but one point needs to be made in response to this argument – Paul
Bernardo is a coward. He would never attack a prison guard or another inmate. He only
attacks innocent, defenceless, vulnerable teenage girls and young women. So, this criteria
has no application to Paul Bernardo, and ignores his high level of dangerousness. Paul
Bernardo sexually and sadistically tortured and terrorized two teenage girls with
unspeakable brutality. There is no cure or treatment for sadistic, sexual, psychopathy. We
should not pretend otherwise. These types of decisions should not be made administratively
for such offenders. This is for the Parole Board. This may require legislative change.

We also have some preliminary comments about the Privacy Act.

The public release of the Report and today’s news conference provides important information over
which CSC had previously asserted a privacy interest on behalf of serial murderer and rapist, Paul
Bernardo. Had this information made public prior to the transfer or even at the time of the transfer,
the shock to Canadians and the mistrust this created toward our correctional system could have
been mitigated significantly, if not avoided altogether. Silence and secrecy results in distrust. The
privacy claim made by CSC was without merit, but at least this partial disclosure of information
 -3-

clearly demonstrates that it was in the public interest all along. This contributes to an informed
and necessary public debate.

The assertion of “privacy” by CSC and PBC as a justification for secrecy over transparency,
requires a larger public discussion. Section 8(2)(m)(i) of the Privacy Act requires government
officials to weigh the public interest in disclosure and transparency regarding the operation of
public institutions with (in this case) the particular privacy rights of Paul Bernardo. It is not a
“privacy” interest at large.

The Supreme Court of Canada has clearly stated that the Access to Information Act (“ATIA”) and
the Privacy Act (“PA”) must be read harmoniously. The ATIA incorporates all the rights protected
by s. 2(b) of the Charter – freedom of speech and the open justice principle.

Unfortunately, CSC/PBC have a reflex privacy shield that ensures secrecy and prevents
transparency that prevents these critically important public institutions from being held
accountable by Canadians. Under the pretext of protecting the offender’s privacy rights, they are
actually protecting themselves from being held accountable.

This is achieved by applying a self-serving, in-house, invasion-of-privacy test that has no statutory
or regulatory authority. The Commissioner stated at today’s news conference that this test has a
“high bar” before any disclosure can be made. She also stated that “exceptional circumstances”
are required before disclosure can be made. This is not the law. The invasion-of-privacy test has
an unlawful hard presumption against disclosure and states that any consideration in favour of
disclosure “must be used with a good deal of restraint”. Examples of when CSC and PBC might
find that the public interest will outweigh the privacy interest in question under the invasion-of-
privacy test is where the disclosure deals with natural disasters, hostile or terrorist acts, medical
emergencies or where a person’s life is at risk. As a result, in practice, there is no case where the
public interest in disclosure and transparency regarding important public institutions will ever
outweigh the privacy interests, even for a sadistic sexual psychopath like Paul Bernardo. This
invasion-of-privacy test used by CSC/PBC is completely antithetical to the constitutional right of
all Canadians to transparency in our justice system and the operation of government institutions.
Therefore, the decision of CSC to use Paul Bernardo’s privacy rights as a justification to deny the
French and Mahaffy families, the media and the general public from any relevant information
concerning Paul Bernardo’s transfer from maximum-security to medium security was not only ill-
advised, but also contrary to law. To the government’s credit, the Report and today’s news
conference does disclose important facts that it was not previously prepared to disclose based on
its hard knee-jerk and instinctive response in favour of secrecy over transparency. It is time for
the government to completely re-evaluate the need for transparency in our corrections/parole
system.

Thank you.

Timothy Danson
Counsel for the French and Mahaffy Families

Dated: July 20, 2023