Judges are said to be learned in the law. Our Charter of Rights and Freedoms proclaims that Canada is founded upon principles that recognize the rule of law, along with the supremacy of God.

But often governments, like the one in office in Ottawa today, find it difficult to use the word "law" without appending "order" to it.

And when judges use their discretion to temper laws with justice, governments decide that they show a lack of appreciation for order that must be addressed.

That, I assume, is the reason why the government under the care and control of Stephen Harper is so determined to improve the uniformity of sentences that judges impose for certain crimes, and to legislate greater assurance that their punishments "fit" the crimes that people are guilty of having committed.

Lawyers have raised alarms for a long time about the dangers presented by legislators binding the courts by setting mandatory minimum sentences and limiting their authority to prescribe conditional sentences instead of incarceration.

Bill C-10, entitled the Safe Streets and Communities Act, would increase mandatory minimum sentences and limit further the ability of judges to impose conditional sentences. The Canadian Bar Association has warned parliamentarians that these aspects of the bill, now before the Senate, can result in "unjust" sentences.

How can it be "unjust" to sentence to incarceration those who have committed crimes that Parliament has deemed serious enough to require incarceration? Well, the CBA explains why in its brief to legislators.

It boils down to the determination of the Conservative government to punish criminal behaviour instead of trying to prevent it in the first place or to rehabilitate those guilty of it.

Increasingly, the brief says, judges are losing the ability to keep the mentally ill from imprisonment - a reason prison guards oppose C-10.

Incarceration of an income-earning parent visits poverty and other risks upon children. The poor, aboriginals and visible minorities, who already are "over-represented" in the prison population, will suffer further if judges no longer have the discretion to impose sentences other than imprisonment.

Of course, to those intent only on finding a punishment to fit the crime, the conditions that lead to criminal behaviour really don't matter. Neither does the rehabilitation of offenders who eventually will return to the streets and communities that the law seeks to keep safe.

The bar association isn't alone in forecasting the great expense of locking people up. So are provincial governments that will have to provide the increased prison accommodation and the resources to prosecute and try offenders who will have less incentive to plead guilty.

But I'll bet the cost of providing the programs that offenders really need and alleviating the conditions that lead to criminal behaviour, particularly those affecting youth, aboriginals and the mentally ill, would be far greater.

That's why governments at all levels are loath to pick up that tab. At the same time, of course, they're reluctant to provide the policing that their neglect makes more necessary and the judges before whom offenders parade.

That sorry parade never reaches Parliament. Those who make the law never see it. They have no idea of what motivates a particular offender to break the law. They can't conceive of an offence having particular circumstances.

Accordingly, they may conclude in their one-size-fits-all minds that one sentence fits all offenders.

It must have come as a shock to Conservatives to hear the bar association argue that judges must have discretion to impose sentences that "fit" the circumstances and the offender in question.

It must gall them to read that the legal profession, which must work with what legislators give it, think that judges must be able to "craft" a sentence that achieves a balance between what the offender deserves and what the community needs - between the criminal and the victims.

"Focusing on denunciation and deterrence to the exclusion of other legitimate sentencing principles will often lead to injustice," says the bar.

Removing discretion from judges will leave them to pronounce only Shakespeare's "wise saws and modern instances."

It will reduce a vital judicial function to the status of obiter dicta, a statement made by a judge that is relevant to the case but not binding.

cruachan@shaw.ca