TOUGH-ON-CRIME APPROACH CARRIES A HEFTY PRICE TAG

The Conservative government's "tough-on-crime" agenda has consequences
Ottawa must face. A prominent Ontario Court of Appeal judge has done
us all a service by noting, in a recent speech, that our heavily
burdened justice system is becoming less efficient.

Justice Marc Rosenberg prudently acknowledged that it's up to
Parliament, not judges, "to respond to public anxiety about crime."
But then he did his duty by noting that Ottawa's "increasingly
punitive approach" makes it harder to avoid "unjust
punishments."

Each step the government takes toward more mandatory sentences, longer
sentences, less judicial discretion, and the like, means a greater
burden on the system, causing court delays and prison overcrowding.
"On any day in Canada," the judge said, "we have more people in
pre-trial custody than (are) actually serving sentences" in a ratio of
60:40. Aboriginal adults, just 3 per cent of the population, are
"almost 20 per cent of the remand population."

With so many Canadians in remand, "constitutional guarantees of the
presumption of innocence and reasonable bail seem illusory ... yet the
debate in Canada seems largely focused on (whether) credit for
pre-trial custody should be 1:1 or 2:1 ... Onerous pre-trial custody
itself is taken as ... an inevitable consequence of our system."

He also expressed concern about legal aid. (Ontario legal aid lawyers
have been refusing major criminal cases, in a pay dispute.) In this he
was echoing Chief Justice of Canada Beverley McLachlin's concerns,
expressed in a speech last winter, about backlogs, legal aid, and
access to the courts across Canada,

McLachlin has also called for more mental-health courts. The U.S. has
more than 150 such courts; studies reportedly show that they can
reduce recidivism and improve efficiency. Rosenberg repeated that
call, and also praised drug-treatment courts, which exist in Ontario
and the western provinces, and Canada's few "Gladue" courts, which
apply special consideration for some aboriginal offenders, as required
by a 1998 Supreme Court decision.

Politicians must tackle these concerns about the robustness of our
system. Specialized courts, and more judges, prosecutors, courtrooms,
and support staff are all needed.

There's a prison problem, too. "Tough on crime" policies will further
crowd our provincial jails and federal prisons, which already house
108 people per 100,000 Canadians. That's well below the shocking U.S.
figure of 762, but outside Britain (at about 153), no European country
is nearly as high.

A study group report to Public Safety Minister Stockwell Day in 2007
noted that many of our prisons are 100 years old, and that more
prisoners than ever are designated for maximum security. The
government gave the prison service an extra $122 million this year,
but the study's recommendations included new prison compounds at $750
million each. That's part of the price of getting tough on crime.

Crime rates have been falling. If voters really want to "get tougher"
on crime, they can do so, but not for free. Canadians pride ourselves
on the rule of law, administered in a fair justice system. But
inefficiency and overload are impairing that fairness. Criminal
justice must operate effectively, or it's not really justice at all.