Open letter to CSC Commissioner on Bernardo transfer

Editorial note: The following is a submitted open letter addressed to Correctional Service of Canada (CSC) Commissioner Anne Kelly regarding the transfer of inmate Paul Bernardo from Millhaven Institution to Lacaza Institution. Entitled ‘An Open Letter to The Commissioner to Contribute to an Informed Public Discussion About A Critically Important Public Institution,’ the letter is authored by Timothy Danson, lawyer for the families of two of Bernardo’s victims, Leslie Mahaffy and Kristen French, and dated Friday, Jun. 9, 2023. The views and opinions expressed do not necessarily reflect those of Kingstonist.

Dear Commissioner Kelly:

We are counsel for the French and Mahaffy families and the Estates of Kristen French and Leslie Mahaffy. As you know, the families were shocked by the news that Paul Bernardo was transferred from a maximum-security prison (Millhaven) to a medium security prison (La Macaza) without explanation or advanced notice. They have asked that I write this letter to you. Thank you for taking the time yesterday to speak to Donna French directly. That was very much appreciated. This said, a serious public discussion is necessary and hopefully this letter will contribute to that discussion. Accordingly, the families have instructed us to write this letter to you as an open letter to the public as well.

As you know, Paul Bernardo was convicted of the murder of Leslie Mahaffy and Kristen French and sentenced to life in prison. He was also declared a dangerous offender. In declaring Mr. Bernardo a dangerous offender, the learned trial judge, The Honourable Patrick LeSage, A.C.J.O. (as he then was), made the following findings: “…I dare say that all of the people in Ontario and perhaps Canada have felt… the revulsion of the crimes which you have committed Mr. Bernardo.” The French and Mahaffy families “…are the ones that suffered the pain and interminable suffering…”. The Associate Chief Justice concluded that Mr. Bernardo should spend the “rest of [his] natural life in prison” and that he had “no right ever to be released.” His Honour held that “Everyone here, everyone in this courthouse, everyone in this city, everyone in this province, everyone in this country knows that you are a dangerous offender…”. Justice LeSage further stated that Bernardo’s crimes were “of such a brutal nature as to compel the conclusion that your behaviour in the future is unlikely to be inhibited by normal standards of behavioural restraint… The behavioural 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.”

Justice LeSage was considered to be one of the most distinguished, skilled, experienced and compassionate trial judges in the country. Based on the overwhelming expert evidence before him, the Crown proved, beyond a reasonable doubt, that Paul Bernardo was a “sexually sadistic psychopath” and murderer requiring the dangerous offender designation. Evil is too kind of a word for Paul Bernardo. The powerfully considered words and judgment of Justice LeSage clearly were not considered in the decision to transfer Paul Bernardo to a medium security institution, nor were the findings of the Parole Board of Canada (“PBC”) at Mr. Bernardo’s 2018 and 2021 parole hearings.

In its decision of October 17, 2018, denying Paul Bernardo parole, the PBC noted, inter alia, that the “psychiatrist concluded that you [Bernardo] have deviant sexual interests and you met the diagnostic criteria for Sexual Sadism, Voyeurism, and Paraphilia not otherwise specified. Additionally, you demonstrated traits of a personality disorder that the psychiatrist opined met the criteria for Narcissistic Personality Disorder. He further opined that you met the requirements for a diagnosis of psychopathy… The psychiatrist was pessimistic about your treatment options”. The PBC also noted that other psychiatrists concurred with previous diagnosis of Sexual Sadism and Psychopathy, thereby representing a “significant risk for re-offending.” They felt that treatment would be unsuccessful given Mr. Bernardo’s “personality characteristics and sexual pathology.”

The PBC noted in its October 17, 2018, decision that the Spousal Assault Risk Assessments confirmed that Mr. Bernardo was at “a high risk for violence against a domestic partner.” The Board noted that Bernardo justified inflicting pain, including forcing painful unwanted violent intercourse, on his victims to gain dominance, control and compliance. Bernardo was found to be “callous, glib, grandiose, cunning, deceptive, manipulative and a liar.” Further, the Board found that Bernardo had a complete lack of understanding of the impact of his offending and violent and sadistic behaviour.

Psychopaths like Paul Bernardo know exactly what they are doing. Bernardo fully appreciated the nature and consequences of his actions. The problem was that he enjoyed it. Bernardo had an uncontrollable need for exercising power and control over innocent children and women with unspeakable sadistic brutality. He got a thrill out of terrorizing his victims and inflicting unspeakable pain and suffering on them. He videotaped sadistic attacks for his personal entertainment. In the face of this, CSC transferred Mr. Bernardo to medium security.

At both parole hearings, the PBC found that Bernardo showed no remorse, insight or empathy. At his June 22, 2021, parole hearing, the PBC essentially adopted the findings and conclusions reached at the previous hearing, including sexual sadism, narcissistic personality disorder and psychopathy. At the June 22, 2021, hearing, PBC reviewed an August 17, 2015, psychiatric risk assessment which concluded that Paul Bernardo continued to represent “[a] high risk of sexual and violent behaviour. The clinician noted that you [Bernardo] still met the criteria for sexual sadism and narcissistic personality disorder… [and] continued to display psychopathic traits, such as arrogance, entitlement, and lack of empathy.” It was this psychiatrist’s opinion that “these conditions were not treatable.”

The PBC also referred to the most recent psychological risk assessment dated April 28, 2020, which confirmed that Mr. Bernardo had limited empathy and that it is “beyond debate that you [Bernardo] are a high-risk offender” and that the available “psychiatric and psychological assessments conclude that you remain at a high risk for sexual offending.” The simple truth is that there is no cure for sexual sadism and psychopathy. The psychiatrist who testified at Paul Bernardo’s dangerous offender hearing and who provided a subsequent report a decade later to CSC/PBC was correct when he testified that Paul Bernardo was not treatable.

We urge you to listen to the audio recordings of both of Paul Bernardo’s parole hearings. They are chilling and deeply disturbing. He is Exhibit ‘A’ as he speaks about his unspeakable crimes like normal people talk about the weather. This man is a monster, devoid of even a scintilla of humanity, decency, remorse or empathy. At the same time, he is skillfully cunning and manipulative. Given the opportunity, he will offend again – violently, brutally and sadistically. The recordings of Mr. Bernardo’s October 17, 2018, and June 22, 2021, parole hearings should be released to the public so that Canadians can judge for themselves the reasonableness of CSC’s decision to transfer Bernardo from a maximum security to a medium security facility. Let Canadians, whom you serve, judge CSC’s justification for the transfer against the objective evidence. Justice must be carried out in a transparent manner – not in secret.

Respectfully, I am not interested in abstract theoretical discussions about possible rehabilitation of someone who can never be rehabilitated. Even as recent as Mr. Bernardo’s June 22, 2021, parole hearing, 30 years after the murder of Leslie Mahaffy and 29 years after the murder of Kristen French, Mr. Bernardo remained unchanged. It has only been two years since his last parole hearing. No one can suggest that in the last two years, Mr. Bernardo has been able to affect a miraculous rehabilitation within a maximum-security federal penitentiary, which he could not achieve in the first 28 years.

This is not a subject that I am comfortable discussing for a variety of personal reasons, but I cannot help but to reflect on the content of the Bernardo/Homolka videotapes, which unfortunately are embedded deep in every fibre of my soul and continue to haunt me. No human being can view the images and hear the utterly unspeakable acts of sadistic brutality on two defenceless, beautiful teenage girls and not conclude, as did Justice LeSage, that Mr. Bernardo must remain in a maximum-security federal penitentiary for the rest of his life.

While principles of rehabilitation are critical and apply to 99 per cent of the federal prison population, they do not to the remaining 1 per cent, like Paul Bernardo, who are beyond rehabilitation. The system can neither pretend, nor play games. Absent a compelling explanation, it would appear that CSC is trying to assist Mr. Bernardo with his parole eligibility by cascading him through the system from maximum to medium and then minimum security and then out the door on parole.

Even under the sentencing principles stated in s. 718 of the Criminal Code of Canada, the first principle is punishment – to denounce unlawful conduct and the harm brought to victims or to the community that is caused by unlawful conduct. The second principle is to deter the offender and other persons from committing offences. The third principal is to separate offenders from society, where necessary. While the fourth principle is to assist in rehabilitating offenders where realistic, the first three sentencing principles prevail. As questioned above, what has Mr. Bernardo achieved in the last two years that he was incapable of achieving in the previous 28 to 30 years? There is no cure for psychopathy.

Other sentencing principles include increasing a sentence to account for any relevant aggravating circumstances relating to the offence or the offender (see s. 718.2 of the Criminal Code of Canada). The aggravating circumstances for Mr. Bernardo are endlessly horrific.

I wish to address the CSC news release where it was stated that “[p]rior to the transfer and immediately after, CSC provided information and updates to all registered victims about the offender.” As counsel for the families and Kristen and Leslie through their Estates for the past 30 years, I can advise that I was not informed of the transfer “prior” to it happening. When I was notified, it was a fait accompli – the transfer had already been completed that day.

When notified of the aforesaid statement, I first tried to access my own telephone records and messages. May 29, 2023 was an exceptionally busy day for me and I was not available in the morning. I see that a completely routine, absolutely non-descript voicemail message was left for me at 9:06 a.m. A second voicemail message was left for me at 1:48 p.m. that same day, also non- descript – literally “that CSC had some information for me.” I have been unable to confirm my outgoing calls for May 29 as of this moment, but my recollection is that I returned the call relatively shortly thereafter. At this point I had learned that Paul Bernardo had been transferred from Millhaven to La Macaza. None of my relevant questions could be answered due to Mr. Bernardo’s privacy rights. I did express my objections, but at the same time I recognized that the person I was speaking to was just the messenger doing her job.

I then contacted the families to determine if they had been notified of the decision prior to Mr. Bernardo being transferred from a maximum-security penitentiary to a medium-security penitentiary. By “prior to the transfer,” I do not mean the actual day of the transfer or while Mr. Bernardo was on route. To be credible, the advanced notice would had to have occurred days before or at the latest the day prior. Yet apparently, the Frenches were advised on the morning of Mr. Bernardo’s transfer without any explanation. That is, they were not advised that he was being transferred from a maximum-security penitentiary to a medium-security penitentiary – rather in the morning of May 29, 2023, they were advised that Mr. Bernardo was being transferred and by early to mid-afternoon, they were told that the transfer had been completed. Ms. Mahaffy was left with the distinct impression that the transfer had already taken place, or at best was imminent.

Regardless, the decision had been made. It was a fait accompli and there was nothing anyone could do about it. The decision to delay informing myself as counsel and the families until the day of the transfer and while the transfer was in progress, is, with respect, troubling. Given my role as counsel for the past three decades, it was incumbent of CSC to relay this critical development to me in a timely manner so that I could inform the families. This was not regular administrative news. A development of such pivotal importance came as a shock to the families and ought to have been processed through counsel. Had anyone considered that this transfer was done just over two weeks prior to the anniversary date of Leslie Mahaffy’s abduction and murder? Does anyone at CSC appreciate the devastating grief experienced by the Mahaffy family at this time of year? While the timing could not have been worse, to affect such a transfer without any explanation under the cloak of protecting privacy rights of the person who sadistically and brutally sexually tortured their daughters before murdering them, is beyond comprehension.

As stated above, as counsel for the families, my discussion with CSC took place after the transfer, not prior to. This aside, if the families were informed of the transfer in the morning of May 29, with it being completed by early afternoon of the same day, assuming that Mr. Bernardo was transferred in a secure vehicle and considering the distance between the two prisons, Mr. Bernardo was likely already in transit. Therefore, to issue a news release that the families (but not their lawyer) were informed “prior” to the transfer is misleading and disingenuous. Further, CSC had to know or ought to have known that trial/appellate lawyers like me are busy and often in court, and therefore leaving it to the day of the transfer to contact counsel was highly problematic.

We would therefore appreciate answers to the following questions:

1. Who were the persons that were involved in the decision-making process to transfer Paul Bernardo?
2. Who ultimately made the decision – who had to sign off?
3. If you were not part of the decision-making process and you were unaware of the decision, how could such a decision with significant implications be kept from you?
4. What exact time did Mr. Bernardo depart from Millhaven?
5. What exact time did Mr. Bernardo arrive at La Macaza?

Based on media reports and CSC statements, I am assuming that references to the offender’s privacy rights relates to ss. 8(1) and (2) of the Privacy Act. Subsection 8(2)(m)(i) authorizes you to disclose the information where, in the opinion of the head of the institution, “the public interest in disclosure clearly outweighs any invasion of privacy that could result from the disclosure.” If this is the section that you are relying upon, we ask whether this analysis was undertaken prior to the transfer and if so, we would respectfully request a copy of CSC’s analysis under this subsection. We also need to know if CSC applied the “invasion-of-privacy” test stated in the Treasury Board Secretariat’s Use and Disclosure of Personal Information for the purpose of its ss. 8(2)(m)(i) analysis. Our view is that that is unlawful, is in contrary to the Privacy Act, the CCRA and s. 2(b) of the Charter. Members of the public have a right to information pertaining to public institutions, without which public confidence in the integrity of the administration of justice will be undermined. In my extensive experience in multiple cases, CSC and PBC play mere lip service to the s. 8(2)(m)(i) analysis, with the result that in 100 per cent of the cases, the decision favours the offender’s privacy rights over the public interest.

We urge you to restore public confidence in the correctional system and the administration of justice by rescinding the transfer order and return Mr. Bernardo to Millhaven. He is Canada’s most notorious and dangerous serial killer who must face the full consequences of his sadistic and cowardly acts. This will also spare the families the need to travel to La Macaza (Quebec) rather than to Millhaven (Ontario) for Mr. Bernardo’s upcoming November 2023 parole hearing. Mr. French is 92 years of age, and this would be a significant burden.

We would be pleased to discuss this at your convenience. We understand that Ms. French provided you with the writer’s cell phone number.

Thank you for your time and consideration.

Yours very truly,

DANSON RECHT LLP Per:
Timothy S. B. Danson

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