On McClintic healing lodge transfer, Goodale cannot ‘give specific directions’ to reverse move: memo

EXTENDED: Father of Tori Stafford speaks up against relocation of Terri-Lynne McClintic
Rodney Stafford says Terri-Lynne McClintic doesn't deserve to be moved to a lower-security Indigenous healing lodge as she's shown no desire for rehabilitation. Mark Carcasole speaks with Stafford in Woodstock.

Public Safety Minister Ralph Goodale does not have the authority to intervene and reverse the transfer of a convicted child-killer whose family says she lied about her heritage to get into an aboriginal healing lodge.

That is the opinion from Department of Justice lawyers in a memo obtained by Global News which was prepared for the minister and lays out whether he can intervene in the transfer of Terri-Lynne McClintic, who is serving a life sentence for the 2009 murder of Tori Stafford.

READ MORE: ‘There is no expectation of proof’ for offenders seeking transfer to Aboriginal healing lodges

The Conservatives have pointed to language in two key laws over recent days — Section 6 the CCRA and Section 5 of the Public Safety and Emergency Preparedness Act — that state the minister for public safety is “responsible for” Correctional Service Canada and that its commissioner operates “under the direction of the Minister” to argue that Goodale can and should intervene to reverse the transfer.

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Not so, federal lawyers cautioned.

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“Although there are no express statutory limitations set out in the CCRA [Corrections and Conditional Release Act] on the Minister’s authority to provide direction to CSC, his authority is nevertheless limited by a number of constitutional, statutory and common law practices,” wrote the assistant deputy attorney general responsible for the public safety, defence and immigration portfolio.

That individual said the language in both laws does not mean that the minister can intervene in specific cases.

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Rather, the existing wording means that he is “responsible for seeing that CSC operates within established policy” and that his ability to give “directions” is limited to CSC’s “strategic objectives, priorities and goals,” though may also extend to “clarify or set standards for reporting requirements or accountability.”

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“This is particularly important for sensitive or controversial matters,” the assistant deputy attorney general notes.

“The Minister cannot, however, provide specific direction in a particular case or on a CSC officer’s decision where the law authorizes specifically named classes of officials (eg: CSC ‘officers’) but not the Minister to make the decision,” the individual wrote.

“For example, decisions whether to transfer an offender from one prison to another or hold an inmate in segregation in a particular prison, are specifically given in the CCRA to CSC officials. They are often highly factual decisions and can best be made by the officer who has dealt with and has had the opportunity to examine the individual in question.”

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“The Minister may not, without express statutory authority, give specific directions in respect of such a decision,” the assistant deputy attorney general continued.

READ MORE: Corrections official stands by decision to transfer McClintic to healing lodge

Sections 28, 29 and 30 of the CCRA state that the power to both transfer an offender and decide on the security classification of them lies with the CSC.

A review of the transfer decision and policy was ordered by Goodale on Wednesday.

Correctional Service of Canada commissioner Anne Kelly told a committee on Thursday she was proceeding with that direction.

She told reporters afterwards she was “comfortable” with the decision but would implement any changes she is asked to once the review wraps up.

READ MORE: Transfer of Tori Stafford’s killer to aboriginal healing lodge will be reviewed; victim’s father slams transfer

News of McClintic’s transfer from prison to a healing lodge intended for aboriginal offenders in Saskatchewan emerged earlier this week after the family of the child she helped her then-boyfriend Michael Raffety kidnap, rape and bludgeon to death came forward to slam the decision.

Tori Stafford’s father, Rodney Stafford, told 980 CFPL Global News Radio in London the decision to allow her to move to a facility without fences and designed to prepare offenders to reintegrate with society made no sense given McClintic has served less than half of the time before she will be eligible for parole.

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“It’s making people question what’s wrong with the justice system. It’s not right,” he said.

“Anybody who takes a vulnerable person’s life … they shouldn’t have the opportunity to be in a freaking healing lodge less than 10 years into a 25-year sentence.”

In order to get into a healing lodge, offenders can self-identify as aboriginal and do not have to prove ties to a First Nations, Metis or Inuit community.

A federal official told Global News on Wednesday that McClintic was aboriginal.

But a family member of McClintic’s spoke with Global News on Thursday and said she made that up.

“This is made up,” the family member said. “It’s all crap.”

A second source also told Global News that McClintic self-identified as aboriginal.