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Hill Dispatches: Crime bill - "Like it or lump it, provinces!"

In the great Canadian tradition, the debate over crime and what to do about it has now become a source of federal-provincial discord.

The two largest provinces (that account for well over half the Canadian population), and a number of other provinces, object to the federal government passing legislation that places significant financial burdens on them.

In this case, the legislation is the so-called omnibus crime bill, which would, among other measures, impose some new, mandatory minimum sentences (including one for cultivating a small number of marijuana plants).

These new criminal measures will almost certainly entail a greater burden on the courts and the prison system.

The power to pass laws; the duty to pay the bills

In the Canadian federal system, criminal justice is a strange, shared area of jurisdiction.

A few federal systems are based entirely on the so-called intertwined principle.

Germany is one such case.

There, the federal government legislates, in fields such as health and education, and the state governments implement that legislation. Thus, the two orders of government are, quite literally, intertwined. They are forced to work things out, together, on a myriad of daily, operational matters.

As a rule, Canada does not work that way.

Here, the government that has the power to pass laws usually has to take financial responsibility for putting those laws into practice. We have provincial jurisdiction and federal jurisdiction and, mostly, they are quite distinct.

Federal involvement in provincial jurisdiction through negotiation

In the post World War Two period the Canadian federal government did start spending in a number of provincial fields for the purpose of creating something approaching a modern welfare state. But it got into those areas through negotiations with the provinces, not unilateral fiat.

However, in Canada, criminal law and its enforcement is an area where one order of government does get to pass laws and the other gets stuck with the bill!

The BNA act specifies that the code of criminal law itself is entirely within federal jurisdiction (unlike the USA, where many states have the death penalty, while some do not). The Canadian constitution says that it is up to the federal government alone to decide what a crime is and how crimes are to be sanctioned

The constitution also decrees that the provinces are responsible for: "the Establishment, Maintenance, and Management of Public and Reformatory Prisons in and for the Province" as well as the "Administration of Justice in the Province, including the Constitution, Maintenance, and Organization of Provincial Courts."

This means that in practice the provinces are largely responsible for police services and have a significant piece of responsibility for courts and prisons.

For some reason, the drafters of the constitution, more than 140 years ago, decided to carve up responsibilities and powers for crime and what we've come to call "law and order" in that complicated, intertwined way.

The strict letter of the BNA Act

So, in one sense, the prime minister is right when he says the provinces will have to do "their constitutional duty" when it comes to upholding and enforcing new federal criminal laws, regardless of the cost.

Strictly speaking, the federal government does not have to consult the provinces on criminal code matters. It can do whatever it pleases. And the provinces are constitutionally obliged to enforce the laws the federal government passes, whether they like them or not. That is the letter of the BNA Act.

Little federal money for provincial cops or jails

Now, the Conservatives are being disingenuous when they try to have it both ways.

On the one hand, they tell the provinces they have to accept mandatory minimum sentences and any other criminal provisions the federal government might pass, and just deal with them. Then, on the other hand, they try to argue that these new measures will not impose such a great financial burden on the provinces, in any case.

The federal government, the Conservatives say, makes generous transfer payments to the provinces, which the latter can use to offset increased law enforcement and incarceration costs.

The Conservatives neglect to mention that those federal transfers (however generous they may be -- or not) are primarily for health and social services, not police and prisons. There are virtually no earmarked federal-provincial transfers for the administration of criminal justice.

Federal "loyalty and comity"

And there is another aspect to all this that the prime minister seems to miss when he argues that the provinces simply have to "do their duty" and that he does not have to pay attention to their concerns.

That is the notion that, over and above the formal precepts of a constitution, a federal system will only work fairly or effectively if all the governments embrace a "federal spirit" of compromise and mutual respect.

Folks who care about federalism, around the world, use two phrases to capture that notion: "federal loyalty" and "federal comity."

American scholar John Kincaid defines those two key qualities this way:
"Federal loyalty is the moral commitment to work together to achieve the objectives and fulfill the needs of the federal polity."

"Federal comity is the willingness to compromise, exercise forbearance, and understand the point of view of others."

No federal constitution -- least of all the BNA Act -- is supposed to be a rigid rule book that all must blindly obey. In practice, a healthy federation works through collaboration, negotiation and compromise.

Whose concerns count?

But before any of that can happen, the federal and provincial governments have to be willing to listen to each other. Right now we have a classic dialogue of the deaf.

Every time the Opposition mentions that many provinces take vigorous exception to the omnibus bill the Conservatives point out that New Brunswick and Manitoba support the bill -- the suggestion being that 20-odd million people in Quebec and Ontario somehow don't count.

And besides, the prime minister argues, we won a majority of seats in the last election and our voters knew we planned to bring in these tough, new laws.

What happened to a "community of communities"?

Ironically, Canada's Conservatives (in the days when they were still Progressive Conservatives) once liked to fashion themselves as the "true" federalists. The Liberals and New Democrats, they used to say, are always looking to grab more power for the federal government, without regard for the provinces.

Joe Clark's famous phrase for the (Progressive) Conservative approach was that Canada should be "a community of communities."

What sort of phrase might the current Conservatives use for their idea of federalism?
How about: "Like it or lump it!"
Or, "Our way, or the highway!"
Or, better yet: "We won a majority, so nyah-nyah-nyah to you!"

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