The actual cost, the government now admits, is in the $2-billion range. Parliamentary budget officer Kevin Page will release a report this week that might show the actual amount to be very substantially higher.
Legislation that increases Canada's inmate population is, inevitably, costly.
Among various new and proposed 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 marijuana plants. The new legislation will include a mandatory six-month sentence for people convicted of growing as few as five pot plants.
Last year, I testified before the Senate about an earlier version of this legislation. I argued that mandatory jail should not apply to drug offenders who grow marijuana for personal, as opposed to commercial, use. I also pointed out there is a serious issue about who would pay for the inevitable increase in prison populations.
Canada's federal system provides for both federal and provincial prisons.
Surprisingly, perhaps, the division between the federal and provincial systems 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 criminal law is set by the federal government. Hence, a federal legislative change that increases the number of offenders sentenced to a six-month stay in custody -- as with the proposed marijuana law -- sends offenders to jails paid for by the provinces.
Federal criminal legislation creating mandatory sentences of anything less than two years generates an immediate provincial liability. The federal government gets credit for new legislation, but doesn't have to pay for it.
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 increases federal costs somewhat, but, since most accused ultimately serve less than two years in custody, the changes serve mainly to increase the number of people in provincial custody.
Claims these changes will be neutral because more prisoners will be sent to the federal system from the provincial system ring hollow.
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 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 is problematic for that reason, consider also that all those awaiting trial are doing so in provincial institutions paid for by the provinces.
My own view is that much of the recent "tough on crime" legislation is wrongheaded. There are better ways to deal with crime than a reflexive imposition of prison. Drug treatment, especially for drug users, is a cheaper and more effective way to reduce drug addiction than sending drug users to jail. 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 certainly will.
James Morton is a Toronto lawyer and deputy chair of the national council of presidents for the Liberal Party of Canada.