The federal government is anticipating a constitutional challenge over the mandatory minimum sentences it plans to impose as part of the omnibus crime bill, documents obtained by The Globe and Mail suggest.
A piece of the legislation will require judges to issue minimum sentences for some drug-related offences, a change that is expected to dramatically increase the number of people in provincial and federal prisons.
The change will also ratchet up pressure on the country's courts, as people who might otherwise plead guilty instead choose a trial to try to avoid the mandated time behind bars.
Documents tabled in Parliament by Justice Minister Rob Nicholson and Public Safety Minister Vic Toews earlier this year suggest that between 80 and 90 per cent of people who would have pleaded guilty to "serious drug offences" in the past would opt for a trial instead.
The documents refer to Bill S-10, legislation aimed at toughening sentences for drug offenders that was eventually bundled into the omnibus crime bill this fall.
"These developments would likely result in more and longer trials, increased complexity and increased costs for prosecutions," the documents state.
Jamie Chaffe, president of the Canadian Association of Crown Counsel, said the added pressure of the omnibus bill will come on the heels of previous justice legislation that is already straining the system.
"[The system]was struggling at best, and in many places across the country it is at a point of crisis," Mr. Chaffe said, adding the increased workload could result in more people having their charges stayed if it takes too long for their cases to go to trial.
"If the criminal justice system is not funded sufficiently to support the legislation, we can expect serious public safety consequences," he said.
An estimated 53 new employees would be required to handle the increased case load at the federal level, according to the government documents, at an added cost of $35.5-million over five years.
The documents also note that the mandatory minimum sentences for drug offences could face legal challenges once they become law. "It is expected that there will be constitutional challenges to these amendments," the documents state.
Bill Trudell, head of the Canadian Council of Criminal Defence Lawyers, said that if the mandatory minimum sentences are applied to people with mental illnesses or drug addictions, lawyers are likely to raise charter challenges.
"That's a scenario that will emerge but will emerge on case-by-case basis," he said.
A spokeswoman for Mr. Nicholson said the government isn't worried about a legal challenge. "Department of Justice officials always ensure that our legislation is drafted in a manner which will withstand constitutional scrutiny," Julie Di Mambro wrote in an e-mail on Monday.
She added the prosecution costs, as estimated by the federal documents, are included in an estimate of the bill's total cost to the federal government, which officials have pegged at $78.6-million over five years.
A Senate committee will begin its examination of the nine-part legislation in February, and Conservatives have said they hope the bill will pass in March of 2012.