Law Times

Law Times • apriL 12, 2010 Get set for building boom government has launched into the biggest jail-building boom this country has ever seen. The government's plan to put more P people behind bars and keep them in longer under harsher conditions with less chance of getting parole is going to cost Canadian taxpayers plenty. For three weeks now, the true cost of the tough-on-crime agenda has been leaking out in dribs. The Globe and Mail reported the total budget for Corrections Canada would be $3.1 billion next year, up 27 per cent from this year at a time of sup- posed government austerity. Public Safety Minister Vic Toews predicts "longer periods of time in federal custody" will mean more cells and bigger jails. But he won't say how many new prisoners are expected. It all depends on what charges Crown pros- ecutors choose to bring to court and the sentences judges choose to hand out. But there will be more inmates. On any given day last year, there were 13,287 prisoners in federal jails and 8,726 convicts out on supervised leave or parole. It costs $101,000 a year to keep a prisoner in a federal jail, only $79,000 a year in a provincial facility, and just $23,500 for community supervision, which is a bargain but nothing like be- ing in the care of a social worker at just $14,000 a year. Lawyers and criminal justice ex- perts say the new laws could double the number of inmates in federal jails. Those new convicts coming out of our courts will be doing more than just vis- iting jail. This isn't Monopoly. This year, the Harper government is spending $329.4 million on prison buildings. Last year, it was $230.8 mil- lion. That's a 43-per-cent increase. The Harper prison-building boom is on. It began the day he came into power. Four years ago, the federal government was still spending only $88.5 million a year on its jails. Now at $329.4 mil- lion, that's a 367-per-cent increase over four years. Prison construction is one lucrative business to be in these days. Back in 2006 was what the Harper people call the soft-on-crime days. By comparison, today we're almost into the no-crime days. Crime rates have been going down steadily for 26 years, according to num- bers supplied by police and the courts to Statistics Canada. But Conservative MPs reject those figures as inaccurate. Manitoba Conservative MP Shelly Glover, who used to be a police ser- geant, says we shouldn't trust Statistics Canada. There is an invisible figure of unreported crime, she points out. She should know, of course, because she kept track of crime while she was on the beat in her hometown. On Evan Solomon's CBC TV show on April 1, Conservative MP Ed Fast took up the same line. Fast said: "First of all, crime rates reported by Statistics Canada are ma- nipulated by those who want to make this a politically partisan issue." Violent crimes, at least those that concern him, have all gone up, he said, adding he wants fellow MPs to go to Abbotsford, B.C., with its high murder rime Minis- ter Stephen Ha r p e r ' s The Hill By Richard Cleroux rate, to speak to the police chief. New Democrat MP Don Davies said the Conserva- tives' rejection of Statistics Canada in- formation and their use of "invisible" and unverifiable sta- tistics are a "complete absurdity." Liberal MP Mark Holland said that when he asked Toews where he was getting his statistics from, the minis- ter replied, "the Vancouver Board of Trade." For his part, Holland insisted the organization isn't a reliable source for crime statistics. By chance, Carleton University doctoral student Justin Piché got his hands on a secret report recently show- ing $2.8 billion of prison construction being planned by the Harper govern- ment, including 22 new jails and addi- tions to 11 existing facilities. The report said it would cost an- other $315 million a year to run these prisons. The best economic news is that the Harper government would have to hire 6,000 new guards and other prison staff. That's a 25-per-cent increase. Eng- land may be a nation of shopkeepers, but Canada could be turning into a na- tion of jail guards. The prison construction plan was deliberately exempted from this year's national budget freeze despite Finance Minister Jim Flaherty's promise that all departmental spending increases are off the table. Toews insists there will be no new penitentiaries, only additions to existing institutions and more double-bunking with people living two to a cell. Conservatives consider double- bunking a great way for prisoners to make new friends while serving time in jail. Toews said not all prisoners will be double-bunked. Inmates with mental disorders will continue to remain in isolation or segregated from the rest of the prison population. Toews ex- plained that while solitary confinement is sometimes necessary for the protec- tion of the inmate, staff, and other pris- oners, jails "should not be relied on to provide treatment for mental illness." Very mentally ill prisoners will go to mental hospitals. In a Canadian Press article two weeks ago, Harper was reported as ac- cusing professors of trying to "pacify" Canadians with stories about decreasing crime rates. He trusts his gut instincts more than academic research and sees jail mainly as a means to protect peo- ple, not for rehabilitating prisoners. That could explain why Corrections Canada is spending 97 per cent of its budget on security and only three per cent on rehabilitation. Harper points to public support as justification for what he's doing. His former chief of staff, Ian Brodie, told an audience at McGill University last year that every time academics and professors criticized the Conservatives' tough-on-crime agenda, "politically it helped us tremendously because we never had to deal with whether tough- on-crime works." LT Richard Cleroux is a freelance reporter and columnist on Parliament Hill. His e-mail address is richardcleroux@rogers. com. O COMMENT Wage controls and the Ontario budget BY BARBARA NICHOLLS For Law Times ntario Finance Minister Dwight Duncan targeted deficit reduc- tion in his recent provincial budget. The government's plan is to cut the deficit in half in five years and elimi- nate it in eight years in part through a zero-per-cent wage increase for public sector employees. Unionized employ- ees will escape the immediate impact of wage control since it won't affect current collective agreements. The controls will come into play as existing agreements expire. It's interesting to note that the bud- get made no men- tion of a threatened imposition of mandatory unpaid days off through a reincarnation of so-called Rae Days. The government's decision to forego that option is interesting because Duncan had suggested that not only wage freezes, but also unpaid leave, were possibilities in the government's deficit reduction planning. But perhaps it wasn't just the un- popularity of the Rae Days that caused the government to back away. It's likely the government gave some consideration to the possible impact of the Supreme Court of Canada's 2007 Health Services and Support, Facilities Subsector Bargain- ing Association v. British Columbia deci- sion. Had Ontario introduced manda- tory unpaid leave, public service union leaders would have relied on the Health Services decision to challenge the govern- ment's legislation. The Health Services case arose fol- lowing legislated changes to the terms and conditions of employment for B.C. health-care workers. In 2002, the pro- vincial government introduced legisla- tion invalidating existing provisions in collective agreements, effectively ending good-faith collective bargaining on spe- cific labour issues. In response, union leaders brought a challenge under the Charter of Rights and Freedoms to the courts. It was in the context of this challenge that the Supreme Court recognized collective bargaining as a protected right under the Charter for the first time by rejecting the B.C. government's legislated restraints. As a result, the unilateral imposition of unpaid leave could amount to an interference with negotiated collective agreements and thus a violation of col- lective-bargaining rights. Now that Rae Days are off the table, will union leaders argue that the imposition of wage con- trols, even if obtained after the expiration of current agreements, similarly infringe on Charter rights? Editorial Correspondence COURT ACTION A LAST RESORT Threatening court action against school boards is probably the last and most effective tool for addressing issues of violence in schools. Violence in the schools has been a serious is- sue for years. I don't think school administrators are taking the issue as seriously as they should. Administrators and boards may get the message if they are not efficient in tackling the problem of violence in their schools. Comment posted on lawtimesnews.com by Robynatwell about "Small claims rules prompt lawsuits against local school boards" on March 29. www.lawtimesnews.com While it's clear the Health Services de- Speaker's Corner cision didn't necessarily sway the B.C. government from attempting to legislate some form of wage control, that wasn't necessarily the case with the federal gov- ernment. Last year, the federal Conser- vatives considered and then chose not to legislate a wage freeze or rollback. Pundits have suggested the government didn't want to gamble in the courts on the possible impact of the Health Services ruling. Given that Ontario's deficit has been growing at an admittedly alarming rate — currently sitting at $21 billion — has the province decided to take up the challenge of the Health Services case and take its chances in court? While the deci- sion is pivotal for the protection of collec- tive bargaining rights, some people would argue it hasn't completely shut the door on wage-control legislation. The Ontario gov- ernment could try to expand the reason- ableness and legislative-process exemptions in the Health Services ruling in order to support its right to implement wage con- trols. Further, the government's terminolo- gy seems to be a direct response to the case through, for example, its stipulation that it will "negotiate" a zero-per-cent increase with its unions. Yet, the right to bargain collectively on workplace issues in the labour rela- tions context is non-existent if govern- ment legislation has already determined the outcome. Is it possible the Supreme Court could expand the protections of the Health Services decision to include the provisions against legislated bad-faith bar- gaining? Or will a Charter challenge fail because no existing collective-agreement rights have been attacked and the Ontario government has indicated a willingness to negotiate even if the results of any talks include wage control? These are very interesting times. De- spite the attempt to water down wage controls in the budget plan, I anticipate a court challenge from the public service unions. There are strong arguments on both sides, meaning the Health Services decision will be in the middle of a tug of war as the government and unions pull it in both directions. As a result, the Su- preme Court may be revisiting the issue in the not-so-distant future. LT Perley-Robertson Hill & McDougall LLP partner Barbara Nicholls is a labour, employment, and human rights lawyer in Ottawa. She's also head of the firm's insurance law group, where she leads a team whose services include professional li- ability, personal injury actions, real estate, disability litigation, and the administra- tion of policies and annuities. PAGE 7

• Cover
• Clinic Cutbacks
• Building Boom
• Focus On Class Actions