Tough on Crime but on the Provincial Dime

The cost of new Federal crime legislation is high, much higher that previously announced. Bill C-25, limiting the credit offenders receive for pre-trial custody was supposed to cost around $90 million. The actual cost, the government now admits, is in the $2 billion range.

Legislation that increases Canada’s inmate population is, inevitably, costly.

Among various criminal law reforms, the Federal government is bringing back a bill that would impose mandatory minimum sentences on people convicted of growing small numbers of marihuana plants. Justice Minister Rob Nicholson suggested that the new legislation will include a mandatory six month sentence for people convicted of growing as few as five marijuana plants.

Last year I testified before the Senate on an earlier version on this legislation. I argued that mandatory jail should not apply to drug offenders who grow marihuana for personal, as opposed to commercial, use. I also pointed out that a serious issue raised by this proposal relates to who would pay for the increase in prisons and their inmates.

Canada’s federal system provides for both federal and provincial prisons. Surprisingly, perhaps, the division between the federal and provincial system is not based on who breached what laws (say provincial offenders going to provincial jails) but rather on the length of sentence. Anyone held pending a trial or sentenced to less than two years in custody goes to a provincial jail; longer sentences are served in a federal institution.

Another aspect of Canada’s federal system is that all criminal law is set by the federal government. Hence, a federal legislative change that increases the number of offenders sentenced to six month custody – as with the proposed marihuana law – sends offenders to jails paid for by the provinces.

As mentioned above, changes to the bail system have limited the credit to be given for pretrial custody. The result of this change will be to expand the number of people sentenced to jail following conviction and to lengthen the time they serve once convicted. This increase Federal costs somewhat but since most accused ultimately serve less than two years the changes serve mainly to increase the number of people in provincial custody.

More generally, “tough on crime” policies have had the effect of increasing pretrial custody – bail is more difficult to obtain. Correctional facilities in the provinces are experiencing ever-increasing numbers of accused being held in pretrial custody, to the point where the population in awaiting trial now exceeds the population in sentenced custody. Ignoring the fact that those awaiting trial are still presumed innocent and so the increase in numbers in problematic, all those awaiting trial are doing so in provincial institutions paid for by the provinces.

We know the cost of crime bills is high – several American states have started releasing low level drug offenders (the sort the federal government proposes to put in jail in Canada) to save money. What is less often realized is that the bulk of these new costs come out of Provincial coffers. Federal changes impose costs on cash strapped Provinces who will have to find cuts in education, healthcare or somewhere in order to put potheads in prison.

My own view is that much of the recent “tough on crime” legislation is wrongheaded There are more effective and cheaper ways to deal with crime than a reflexive imposition of prison. Regardless, the true costs of crime legislation, who will pay and how such payment will affect other programs must be acknowledged.

Crime doesn’t pay – but the taxpayer will.