FTD_Vol34_No3_web

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LEGAL AID
UPDATE
Tom
Bryson
Proportionality in the Criminal
Justice System or the Invasion of
the Garbagemen
I am supposed to write about legal
aid, but an article I recently read has
grabbed my attention, so I thought I
would share my thoughts.
Proportionality is one of those buzz
words, like “transparency” and “stakeholders,”
that is so loved by government
bureaucrats. Proportionality
calls for an assessment of “cost
weighed against benefit received” as
the proper measure of a program’s
worth. That assessment seems to be
particularly relevant in a time of limited
government funding. But it calls
for a very careful identification and
analysis of how the idea of “benefits”
is defined, who receives the “benefits,”
and the overall importance of
the program.
Debates on proportionality or utility
have become common in assessing
policies and costs in the health care
sector. For instance, intensive care
units (ICU) were designed to treat the
profoundly ill in hopes of restoring
vitality quickly through use of the
most up to date diagnostic techniques
and tools applied by a highly educated
team of health specialists from
many fields. Yet ICU beds are generally
occupied by profoundly ill, but
very aged patients. The most costly
treatment is provided with at best a
hope of stabilizing what limited vitality
those patients have for their very
limited life span remaining. From a
policy standpoint, is that benefit proportionate
to that use of costly equipment
and talent? Is the social value of
life inversely related to age? Are these
the proper questions? On a more personal
level, after an elderly and ill
patient is transferred from the emergency
department to the ICU, the
family is usually first asked about
“Any orders?” Please do not think the
medical staff is offering to get the
family coffee from the Tim Horton’s
outlet downstairs in the hospital. That
nurse wants to know if the family
agrees that there be a “Do Not
Resuscitate” order. The patient has
hardly warmed the bed in the ICU
when someone is already planning an
exit strategy! A little harsh, but true,
and often not unreasonable.
Policy debates of proportionality
often take on an ethical (or at least
moralistic) flavour in considering or
justifying unequal allocation of
resources. For instance, we have all
been taught to believe that an
unhealthy lifestyle of smoking or
abusing alcohol would increase one’s
risk of needing expensive health
treatment at an earlier age or requiring
expensive treatments that could
have otherwise been avoided altogether.
In a publicly funded health
system, should all have equal access
to the benefits of that program, or is
the person who recklessly adopts an
unhealthy lifestyle despite warnings
less entitled to the best medical care?
Should moral blameworthiness play a
role in the allocation of social services
which are publicly funded?
This leads me to advise you of the
work of the Steering Committee on
Justice Efficiencies and Access to
Justice, and in particular it’s
“Proportionality Discussion Paper”
(found at http://justice.gc.ca/eng/esccde/index.html).
The Paper was distributed
with a two page covering letter
from Lori Sterling, Associate
Deputy Minister, Department of
Justice of Canada, advising that the
Committee was created in 2003 by
Federal, Provincial and Territorial
Ministers responsible for justice to
make recommendations for the efficient
and effective operation of the
criminal justice. In that covering letter
the thorny issue is addressed as follows:
The Steering Committee acknowledges
that the full protection of the Charter is
necessary and strict rules of evidence
are appropriate to ensure fairness to a
person charged with a serious criminal
offence, particularly where the person’s
liberty is in jeopardy. However, we feel
it is necessary to ponder the following
question: Is this protection necessary
and appropriate with respect to every
offence, no matter how serious the
nature of the offence or how serious the
consequences upon conviction? Is this a
proportionate response?
Somehow I imagine the members of
this Committee rejoicing over the various
“tough on crime” measures of the
Harper Government, and even dreaming
of those happy days of yore when
a length of rope put an end to the risk
of those embarrassing and expensive
wrongful conviction claims. But what
to do about those reports of ever
lengthening criminal trials and the
ever increasing costs of our criminal
justice system? Why the answer is
obvious: “Although the drafters of the
original Criminal Code made procedural
rules proportionate to the seri-
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