The Harper government's recent changes to the Criminal Code - the introduction of new minimum sentences; the increase in minimum sentences for some crimes; and the abolition of house arrest for others - is likely to increase the provinces' cost of administering justice across this country by hundreds of million - or billions - of dollars per year.
This is because all of these changes mean more jails; more programming; and more beds. In the case of P.E.I., our smallest province, the cost is estimated to be at least $32 million per year.
This raises the question of why the provinces have to absorb the additional costs when it is the federal government who made the changes that necessitated the increase in spending on the criminal justice system in the first place, changes that some believe will have lead to little to no change in the crime rate.
For the answer, one need not look any further than our own Constitution.
The Constitution Act, 1867 states that, while the Federal Government has jurisdiction over Criminal Law and Procedure by section 91(27) of the Constitution Act, 1867, meaning only it can pass criminal law, the Provinces by section 92(14) have jurisdiction over the Administration of Justice in their territories. The latter section, in effect, makes the provinces responsible for the cost of administering justice.
While the changes themselves admittedly came about through the Federal Government's exercise of its criminal law power, the administering of those changes is still solely a Provincial matter.
In constitutional law terms, there is a division of powers between our federal and provincial governments. Nowhere is this interplay more evident than in the criminal law sphere.
Despite this division of powers, as has occurred in the case of P.E.I., cash-strapped provinces can request additional funds from the Federal Government to try and cope with the significant increase in costs.
- Robert Tanha, Toronto
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