Tim Sargent’s recent Hub DeepDive into productivity is a great primer on how economists calculate productivity and how immigration affects it. But the article reminds us that by describing things with economic terms we can lose sight of what we really care about. Economic thinking that centres people over statistics might lead us to different conclusions.

Despite the piece’s title (“Who benefits from Canadian immigration? Hint: it’s not Canadian workers”), it’s not obvious that Canadian workers are hurt by higher immigration. Instead, immigration may have postponed a policy reckoning.

Sargent explains why temporary foreign workers might reduce labour productivity. Labour productivity is an average (value created per hour worked by all workers). Technically, overall productivity is brought down by all workers with fewer skills, experience, and connections (what economists call human capital). This is true for both temporary foreign workers and Canadian teenagers taking their first job.

We can get into trouble if we do what economists call “targeting an indicator.” Productivity is a valuable economic indicator because high productivity helps economies grow. Growing economies provide the things people need at prices they can afford. But it does not follow that forcing up average productivity automatically leads to growth.

Remember why productivity matters. Canada would not be better off if we boosted productivity by outlawing unskilled labour. The “productivity” measure would go up because the remaining workers would all have higher productivity—but we’d lose a tremendous amount of economic activity. We would all be poorer. We would get a temporary boost in the indicator at the cost of economic production.

No one is recommending that we eliminate unskilled labour. But worries about the effect of temporary foreign workers on labour productivity make similar assumptions.

Here’s one problem with those assumptions. With enough new workers, low productivity per worker can still add up to economic growth. The Globe and Mail’s Andrew Coyne has been shouting from the rooftops that Canada’s economy is barely growing. It is barely growing despite the added output from many more immigrant workers. Cutting new, low-productivity workers might technically boost productivity. But it would almost certainly do so at the expense of growth and maybe even make us poorer. Economic growth is needed not just to pay for social programs. Economic growth also produces the goods and services that we need from the private sector.

Productivity was already falling before immigration increased or the temporary foreign worker program expanded. Coyne points out that the productivity gap between Canada and the United States has been growing since the turn of the century. Increasing productivity by blocking low-skilled foreign workers isn’t going to fix this problem. Technical tinkering isn’t going to make up for the lost growth we can get from simply throwing workers at the problem.

Sargent also provides valuable context about immigrant productivity. He explains that new immigrants typically have lower productivity, but it rises as they become established. Once they have been in Canada for ten years, they are almost as productive as a native-born Canadian. This is important!

Recently, Ontario Premier Doug Ford announced that statistics will be kept about how judges and justices of the peace (JPs) decide bail cases. According to the premier, judges are “always independent, but who holds them accountable?” Critics countered that the plan threatens judicial independence and the rule of law, and that appeals and a separate complaints process (through the Ontario Judicial Council) are appropriate accountability mechanisms.

How should we navigate this tension between accountability and independence and improve bail decision-making? Below, I argue for various measures, including the public release of better aggregate data on bail, while providing JPs and judges (and their chief administrators) individual statistics about bail decision-making (and other performance metrics).

Currently, a gap exists in the feedback given to judges. Appeals are relatively rare, given the volume of decisions made by JPs and trial judges. And, complaints only proceed through the judicial council when judges are credibly alleged to have acted unethically or engaged in fairly egregious behaviour. Missing is the regular and systematic feedback that many of us receive in our work. Feedback around communication, efficiency, knowledge, effectiveness, and the treatment of others.

Compared to other occupations, however, things get tricky when proposing to assess JPs and judges on the substantive outcome of their decisions and in making individual feedback public. On the one hand, it could provide enhanced accountability and perhaps influence decision-making such that bail decisions are more in line with public opinion—and public trust is crucial for independent courts.

On the other hand, I have concerns about JPs and judges being influenced by the pressure of public opinion—and possibly by more targeted intimidation. This could undermine the protection that courts afford individual liberty, including the presumption of innocence. The problem would be exacerbated if only superficial statistics were provided (and without qualitative context or examples) so that the public lacks appreciation of some of the complexity and nuances that decision-makers face in criminal justice.

My preference would be to further reform bail laws such that the rules that guide the bail process make it less likely that repeat offenders, especially violent ones, are granted bail. The Criminal Code should also increase the obligations of judges and JPs to justify their release decisions for repeat and violent offenders. If we want JPs and judges to decide cases in a particular way, they should be guided by law, as passed by democratically elected legislators who are directly accountable to the public.

But the Criminal Code is within the federal jurisdiction. What should provinces do now? First, collect better statistics in criminal justice, including how many individuals are denied bail, what conditions are placed on bail releases, how many individuals on bail commit crimes (and what kind of crimes), and how many individuals denied bail are acquitted or have charges stayed. Appropriate contextual statistics, such as criminal history and demographic characteristics of the accused, need to be collected as well.

Second, all JPs and judges, regardless of court or area of the law, should receive periodic feedback (based on surveys and court statistics) about their communication skills, management of the court (and staff), treatment of parties before the court, fairness, efficiency, and knowledge of the law. Aggregate results should be released to the public, and individual results given to the judge and their chief administrative judge. Similarly, in the specific context of bail decisions, statistical data (as described above) should be released to the public.

Providing the public with some examples of bail cases could help highlight the difficult trade-offs often involved in making decisions. Individual rates and outcomes (including both offending while on bail and stays/acquittals after denial of bail) should be provided to the judge and their chief administrator but not be made publicly available. JPs and judges would understand the trends around bail and where their decision-making fits within this broader pattern.

Third, to help JPs and judges make the best decisions possible, better information systems need to be in place to ensure that JPs and judges have complete information about the accused when making decisions. Fourth, Crowns should be encouraged (and funded) to appeal bail decisions that threaten public safety.

Finally, it would be okay during the appointment process for governments to consider how a prospective JP or judge might be inclined to lean in criminal law matters. An interest in the ideology of a candidate should not dovetail with partisanship or patronage, nor should it overwhelm other important considerations, such as diversity (both demographically and in terms of professional background and legal training); however, it is a legitimate consideration in the overall assessment of candidates.