The real federalism problem with crime legislation

In November 1983, Elijah Askov and three others were charged in connection with a plot to extort money from a man who ran a business supplying exotic dancers to Ontario strip clubs. Their case was plagued by delays from the start; nearly three years after the men’s arrest, and two years after their preliminary hearing, Askov and his co-defendants had not yet had their day in court. The Supreme Court of Canada was eventually asked to interpret the Charter guarantee to “be tried within a reasonable time.” And in its then-controversial Askov decision, the Court put a stop to the proceedings, giving birth to the modern and frequently employed practice of throwing out criminal charges based on unreasonable delay.

That Askov didn’t mean an end to unreasonable delays makes it hard for the provinces to mount a credible case against the federal government as it proposes sweeping changes to the Criminal Code. The Conservatives’ controversial omnibus crime bill has sparked a flurry of attacks for its substance, including its introduction of American-style mandatory-minimum sentencing. Quebec, Ontario and now Newfoundland have also introduced a new ground of opposition—the impact the federal government’s “tough new measures” will have on provincial balance sheets. It’s not clear, though, why voters should believe Ottawa is doing anything worse than adding to a problem the provinces had a hand in creating.

Scott Stinson, writing in the National Post, goes so far as to call the developing standoff the “next big fight about federalism.” The reality is that this is a very old federalism problem.  The issue lies in the division of powers between “criminal law”—a federal power—and the “administration of justice,” which falls to the provinces.  Sentencing provisions fall within the criminal law power, and have always been under the ultimate control of the federal government.  So also with the appointment of Superior Court judges who hear the most serious criminal cases.  But operating the justice system—including paying provincial court judges, the police, and crown attorneys, as well running detention centres and prisons for those sentenced to less than two years incarceration—has fallen to the provinces since confederation.

So mandatory minimums aren’t really a constitutional problem, at least in the division of powers sense (expect, of course, a variety of Charter challenges, but not true federalism attacks). But they can be expected to have a huge impact on the administration of provincially run services and facilities. The federalism problem, then, is that both levels of government can twiddle their thumbs while blaming the other for the inefficiencies in the system and, in some cases, the appalling overcrowding of courthouses and provincially-run jails and detention centres, all while facing virtually no risk of voter backlash. It’s not just that voters don’t vote on the pragmatic issues associated with the justice system.  They don’t know which elections they should be voting in if they care at all.

Askov came out of the notoriously-backlogged Brampton courthouse, in the heart of Peel region northwest of Toronto. The Supreme Court found that the situation in Peel had been “in a deplorable state for many years,” and observed that “something is terribly wrong.”  Part of the problem, the Court found, was the population explosion in Brampton and the other surrounding suburbs of Toronto, as well as the volume of drug cases associated with nearby Pearson International Airport.

Despite the obvious incentive to properly equip the system, not much has changed.  In a 2005 decision, Madam Justice Bonnie Wein issued a rare judicial cri de coeur, in her reasons on yet another delay (or “11(b)”) application.  “In Askov, in 1988, Peel was described as the worst jurisdiction for delay before trial north of the Rio Grande,” she held. “Today it might be compared to New Orleans’ Ninth Ward: breaches in the dikes are being poorly patched while water begins to pour over top,” adding that, “A stay of charges on the basis of 11(b) is, anecdotally at least, a daily occurrence in the provincial court in this courthouse.”

But resource issues weren’t the only problem in the Askov days; under the tough leadership of long-time head Peel Crown Attorney Leo McGuigan, Peel Crowns were reluctant to enter into guilty-plea agreements. It even earned the nickname “No-Deal Peel” among defence lawyers trying to plead their clients guilty in exchange for a reduced sentence.

The mandatory minimum sentencing provisions in the crime bill, in particular, are an effort to impose the old “No-Deal Peel” ethos nationwide. By depriving judges of discretion on sentence, and depriving Crown Attorneys the latitude to negotiate, the only sensible move for an accused person in a case with a mandatory minimum attached to it is to fight every issue, every step of the way. Multiply that by the number of accused in the already-overtaxed justice system, and you can begin to see why “breaches in the dikes” might start to spread from notorious regions like Peel into relatively well-functioning regions elsewhere in Canada.

Of course, it’s not certain that this will be the outcome. What is certain is that, in the absence of a massive injection of funding, the already-taxed system will simply find new valves to release the pressure. Some charges will not be laid, or will be withdrawn. Plea negotiations will shift away from horse-trading on sentence, and towards trying to plead guilty to a different charge that does not attract a mandatory minimum. If that doesn’t work, the trial docket will simply lengthen, with more and more serious charges thrown out for delay—accompanied, from time to time, by eruptions of judicial exasperation that repeatedly pass unnoticed. The charges awaiting trial will continue to pack the detention centres (or result in a spike in the proportion of accused persons receiving bail); and the convictions that survive will exacerbate crowding in provincial jails— however “super” they may be. There is, in short, no reason to expect a result that meets the stated objective of “cracking down” on crime simply because of federal legislation.

So the federal government gets to use its criminal law power to gain a consequence-free image as tough on law and order issues, while the provinces can elude responsibility for funding the “administration of justice” by pointing the finger at the people who brought us the bill. The real federalism problem is that no one has to take responsibility for the system as a whole.

Brendan van Niejenhuis is a partner at Stockwoods LLP Barristers in Toronto. His law practice consists largely of civil and regulatory litigation, and occasional criminal cases.