Over the past two weeks significant controversy has arisen over the transfer of inmate Paul Bernardo from Millhaven maximum-security institution to a medium security facility at La Macaza, QC. The government has insisted that, due to the independence of the correctional services, there was nothing it could do to reverse the transfer.

But, as we will show, the government had options that may have kept Bernardo in a maximum security facility.

In the early 1990s, Bernardo was convicted of multiple murders and a series of rapes. He was handed a life sentence as well as a dangerous offender designation.

Section 30 of the Corrections and Conditional Release Act mandates that the Correctional Service of Canada (CSC) assign a security classification of maximum, medium, or minimum to each inmate. That assignment is determined by CSC in accordance with the factors set out in s. 17 of the CCRA Regulations. Those factors are:

(a) the seriousness of the offence committed by the inmate;

(b) any outstanding charges against the inmate;

(c) the inmate’s performance and behaviour while under sentence;

(d) the inmate’s social, criminal and, if available, young-offender history and any dangerous offender designation under the Criminal Code;

(e) any physical or mental illness or disorder suffered by the inmate;

(f) the inmate’s potential for violent behaviour; and

(g) the inmate’s continued involvement in criminal activities.

The government confirms that in March 2023, the Public Safety Minister’s Office and the Prime Minister’s Office received from CSC notice of the intended change in Bernardo’s classification. Despite having received ample notice of the transfer, neither the minister’s office nor PMO appeared to request further information regarding the basis of the change and no action was taken in respect of the proposed re-classification.

It is clear from the CCRA and related regulations that the Minister of Public Safety does not have the authority to give direction regarding the classification of individual inmates or the administration of the sentence of that inmate. However, that does not mean the minister and government had no options in this case.

The first and easiest option was for the minister to direct CSC to review the matter at that time and be prepared to provide detailed reasons regarding its assessment of Bernardo’s security classification. The minister could have determined that the public interest exception to the Privacy Act [s. 8(2)(m)] applied and directed that the review and reasons be provided to the families of Bernardo’s victims and made more generally available. This process alone would have generated a significant amount of reflection within CSC.

Further critical steps were available to the minister and government: rapidly amend the CCRA regulations to establish a rank order of the factors to be considered by CSC in assigning security classification. The government could have added two factors immediately after seriousness of the offence committed by the inmate. These would have been:

(a1) whether the inmate has been designated by the Court as a dangerous offender; and

(a2) the risk to the security and safety of the inmate, other inmates, or the institution;

Item (d) (above) would be amended so that it referred only to the “inmate’s social, criminal and, if available, young offender history.”

Amending regulations need not be a complicated exercise. Amendments to regulations are approved by the governor-in-council. This is usually done by the Treasury Board sitting as a sub-committee of cabinet. In the normal course, an amendment is submitted to Treasury Board twenty-three days prior to its consideration. However, on an urgent basis, amendments have been approved by any three cabinet ministers in a “walk-around” approach.

The PMO and minister’s office received notice of Bernardo’s proposed transfer at least two months prior to it happening. They had ample time to amend the regulations to allow CSC to assess the transfer under an enhanced set of criteria.

By requiring CSC to explicitly consider the factors in order of precedence and also consider the dangerous offender designation as the second factor, the approach outlined above would have acknowledged and respected the Court’s finding of fact that Bernardo’s personal characteristics and circumstances made him a danger to society.

Last week proved to be a major one for the Canadian news media. It started with significant layoffs across Bell Media’s news division including its flagship program CTV News. It ended with the imminent passage of Bill C-18 which mandates Meta and Google to compensate publishers for their online news content. Presumably the latter aims to minimize the risk of the former. The bigger risk however is that it further erodes the public’s trust in the media’s independence and undermines much-needed innovation in the sector. 

The case for Bill C-18 rests on different arguments about how the two big tech firms have come to dominate the digital advertising market and ostensibly benefit from the online content produced by journalistic outlets. But the underlying rationale is that the news media industry is in a precarious financial position and mandated agreements with Meta and Google would inject urgent resources into it. It’s not really much more complicated or sophisticated than that. 

Even its proponents tend to concede that the legislation has been conceived in crisis and that the short-term benefits of a cash infusion for the beleaguered sector have outweighed the long-term costs including second-order effects on the practice of journalism itself or the possible tensions between the interests of legacy media and independent upstarts. A cash-flow crunch, in other words, has come to trump the typical trade-offs inherent to the policymaking process. 

It is true that C-18 may help in the short term. The Parliamentary Budget Office estimates that the legislation could produce as much as $329 million in annual payments to eligible news media companies. 

The accompanying costs however shouldn’t be underestimated. One of the biggest may be to journalistic independence. The PBO’s estimates assume that the annual payments to news media businesses under the legislation will represent 30 percent of the cost of content creation. Yet that’s not the full scope of direct and indirect public subsidies to the industry. As Taylor Owen, a leading scholar on the internet and media, observes in a forthcoming episode of Hub Dialogues, the total level of support between the government and big tech companies could reach as much as 50 percent of total newsroom costs. 

There’s something perverse about the news media relying so much on two funding sources which it often and rightly finds itself scrutinizing: big government and big tech. The potential consequences for journalistic decision-making as well as the public trust are profound. It risks harming the industry’s capacity to hold governments and tech companies accountable and fundamentally changing its relationship with its readers and viewers. The long-term damage won’t be measured in dollars but rather in the diminution of the principles and values that underpin an independent media at the precise moment that we need them the most to push back against the rise of disinformation.

There’s also the inherent problem of the government adjudicating journalism. Journalists have long resisted calls for credentialization on the grounds that it compromises their independence. But government intervention into the industry essentially necessitates it. The government must make judgements about which organizations are eligible for public subsidies according to some criteria. Otherwise everyone with SubStack or a Twitter account could presumably lay claim to government support. The result is back-door credentialing that will henceforth place tremendous power in the hands of regulators over the practice of journalism in Canada. 

And then there are the risks to innovation and experimentation in the sector. We don’t diminish the painful consequences of the market disruption to the news media. It has been extremely challenging for media outlets and affected a lot of high-quality journalists. That’s regrettably intrinsic to Schumpeter’s notion of creative destruction. 

But the creative part of his famous formulation is now manifesting itself. We’re seeing some in the legacy media reconceptualize themselves and new upstarts testing out alternative business models. The process isn’t linear and there are inevitable setbacks. Still there’s reason for some optimism that although journalism will be paid for and function differently than it has in the past, it will ultimately come out the other end with renewed energy, dynamism, and purpose. 

Subsidizing the status quo risks distorting that process and locking in failed business models. Yes, it may help to keep some companies afloat for now. But it will also create perverse arbitrage opportunities for clever investors in the short term and discourage the types of structural changes that will be required for news media outlets to survive over the long term. 

The key point here is that while the short-termism inherent to Bill C-18 is somewhat understandable in light of ongoing challenges in the news media industry, it’s a poor basis for good public policy. We fear that the long-term costs will outweigh any short-term benefits. The biggest risk is that it may be too late by the time we find out.