Delegated Statutory Authority - Can Trudeau REALLY Put Bernardo Back in Millhaven?

 So the newest 'scandal' is that Paul Bernardo, basically the epitome of evil within the Canadian context, has been reclassified into a medium security institution.

Poilievre thinks this is outrageous, and that the government should just pass a regulation saying that a 'class' of offenders that captures Bernardo - say, 'multiple murderers' - automatically and always get maximum security classification.

So let's look at this: Is it possible?

Short answer is 'probably not'. It's a pretty superficial and simplistic understanding of Ministerial powers.

The Framework

We start here with the Corrections and Conditional Release Act, which governs our prison administration. Section 29.1 allows the Commissioner of Corrections to classify different institutions as maximum, medium, minimum, or multi-level security, and directs the CSC to assign classifications to each inmate, in accordance with the directions in the regulations. They have to give reasons for their decision.

Section 96(z.6) authorizes the Governor in Council (think: Cabinet) to make regulations "respecting the assignment to inmates of security classifications and subclassifications under section 30 and setting out the factors to be considered in determining the security classification and subclassification."

So that's it, right? Cabinet has the authority to set the factors; so they can just say "criminals convicted of multiple murders get this classifcation", can't they?

Not that simple. Regulations are subject to a bunch of constraints, including the interpretation of the governing statute, and constitutional considerations. We'll come back to this.

The Existing Factors

Classification of prisoners has almost nothing to do with severity of the crime. Maximum security prisons are more restrictive and have fewer privileges than lower security prisons, but that's about maintaining security, and NOT about maintaining harsher conditions of incarceration.

To reinforce this point, sentencing judges have no power over security classifications: If a sentence is, for example, 5 years, then whether that 5 years is served in max, medium, or min security...is up to the CSC.

So the CSC looks at several factors:

1. The seriousness of the offence committed by the inmate;
2. Outstanding charges against the inmate;
3. Performance and behaviour during the sentence;
4. Social and criminal history, including dangerous offender designations;
5. Physical or mental illnesses of the inmate;
6. Potential for violent behaviour; and
7. Continued involvement in criminal activities.

When the CSC is looking at these factors, the question they're asking isn't "how serious a punishment is deserved". Rather, the questions are further set out in the regulations, being (a) the probability of escape and risk to the safety of the public in the event of an escape; and (b) the requirements for supervision and control within the penitentiary.

On the whole, the framework is pretty clear: Security classifications aren't, and probably can't be, about the harsher punishment. They're a means to an end - of maintaining control and security within the institution.

Consistency with the Statutory Scheme

So let's look again at the regulation-making power: Can the executive direct the CSC to make certain decisions?

There are no fewer than three central problems with the approach suggested by Poilievre:

The CSC is the Statutory Decision-Maker

The plain language of the statute contemplates that Cabinet will set factors for the consideration of the CSC. It doesn't obviously suggest that Cabinet is entitled to tell them how to weigh those factors, or, more particularly, to set determinative factors that would deprive the CSC of any decision-making authority at all in certain cases.

That interpretation would fly in the face of the language of the statute, which explicitly contemplates a procedurally fair decision-making process involving the CSC.

The Purpose is Improper

Supposing, for a moment, that the Minister does have the authority to coopt the CSC's decision-making authority and to decide that certain types of cases should be decided a certain way, the Minister's discretion wouldn't be unlimited; it would have to be exercised in keeping with the purposes and overall scheme of the Act.

To use the 'maximum security' framework as a punitive one, rather than a security-driven one, would contort the purpose of the classification.

So if the Minister were to do what Poilievre suggests - telling the CSC that we don't care how the other factors land; we just think that multiple murders deserve maximum security - it would be a reviewable decision on that basis.

All Sorts of Charter Problems

The moment you start talking about using the CCR Act as a way of modifying the severity of a sentence, you're into a minefield of constitutional concerns.

Let's start with the obvious: Trying to give somebody a more severe sentence, retroactively, runs directly into s.11(i) of the Charter, which entitles an offender to the 'lesser punishment' in cases where the sentence changes after the crime was committed. You can't just pass a law or regulation saying, "I don't think that person got a harsh enough penalty; let's make it harsher." Well, at least, you can't make it retroactive.

This issue may be less of a concern for future multiple murderers, but you couldn't expect changes to the treatment of people already in jail on that basis.

More broadly, though, there are s.12 concerns (cruel and unusual punishment) here: Poilievre is effectively suggesting using a CCR Regulation to increase the mandatory minimum sentence severity for multiple murderers. Messing with incarceration conditions is probably at a pretty high exposure when it comes to s.12, but the broader consequences also need to be considered.

Security classification can be, directly and indirectly, a factor in parole review: Parole boards want to be satisfied that the person can be reintegrated into social environments and doesn't need the close supervision of a penitentiary. That's tough to establish in a highly-restrictive maximum security context.

So by refusing to ever let a multiple murderer into a more integrative setting, you're making it harder for them to get bail. Which might not seem like a problem, if we start with the assumption that, well, multiple murders shouldn't get bail...

...but you can't make that a RULE. The Supreme Court of Canada recently confirmed that for us. We might have a bail system that's objectively reasonable and makes it REALLY unlikely that multiple murderers will ever walk free, but you still (eventually) have to let them TRY to get bail.

Conclusions

So there are a few problems here: The CCR Act isn't the right statute to use to make sentences harsher; making sentences harsher wouldn't have an impact on those already in the system; and making sentences harsher in this way very likely runs into Charter issues.

All in all, Poilievre's suggestion contorts the language and intention of the statute and runs into serious constitutional concerns.

*****

Dennis Buchanan is a lawyer practicing labour and employment law and civil litigation in Edmonton, Alberta.

This post does not contain legal advice, but only general legal information.  It does not create a solicitor-client relationship with any readers.  If you have a legal issue or potential issue, please consult a lawyer.