Canada is a wonderful country to live in if you grow up in a loving home with two parents, study hard, work hard, and abide by the law. Canada is a not so wonderful country to live in if you grow up in a neglectful home with no parental guidance, no ability to study, no opportunity to work, and are unable to abide by the law because the law was not made with you in mind. In fact, the law was made to limit people like you from actively participating and succeeding in society. Neoliberal societies, like Canada, place the onus of success on the individual. The individual is held responsible for their own actions and is at blame for their misconduct. If they do not meet a minimum standard of well-being and adhere to the laws of the state, then they are deemed as “outliers” or worse, “criminals”, and are in need of state regulation and surveillance. As the adage says, “the punishment must fit the crime”. What happens when the crime is poverty? Or alcoholism? Or marginalization? What kind of punishments are available for crimes committed as a result of structural violence? According to the Harper government, mandatory punishments.

In 2013, “Bill C-37”, Increasing Offenders’ Accountability for Victims Act, S.C. 2013, c.11, was passed, making the victim fine surcharge mandatory to all persons convicted of a crime. In other words, if you are convicted a crime, not only are you subject to regulation, you are also subject to a mandatory fine. And, if you are convicted of more than one crime, then you are subject to a fine for all of the crimes for which you are convicted. Prior to Bill C-37, s.737(1) of the Criminal Code gave the court discretion, on an application by the offender, to exempt the offender from the surcharge due to undue hardship. Now, at first blush, requiring to pay a fee for committing a criminal offence does not seem too extreme – in fact, it almost seems agreeable. What complicates this neoliberal policy are the outliers – the criminals. It is no surprise that almost all of the cases we read in criminal law are concerned with individuals who come from impoverished, marginalized, and neglectful homes. Moreover, it is no surprise that these individuals have little education, have difficulty finding stable employment, and abuse drugs and alcohol. They are stuck in a “criminal ghetto” and are being punished in cruel and unusual ways for not meeting the minimum standard of well-being. This case analysis will examine the sentencing objectives in Canadian law by reviewing R.v. Michael and R.v. Tinker, and will analyze “Bill C-28” – the proposal to amend the Criminal Code in terms of restoring judicial discretion regarding imposing the mandatory victim surcharge – to provide a legal anthropological perspective on whether Bill C-28 will be an effective response to the problems created by the mandatory surcharge.

Canadian Sentencing Principles and Objectives

According to s.718.1 of the Code, the fundamental principle of sentencing is that, “A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender”. In other words, “the punishment must fit the crime”. Section 718 of the Criminal Code lays out the purpose of sentencing, which can be summarized as follows: denunciation, deterrence, rehabilitation, protection of the public, and responsibility. These sentencing objectives must accord with the overarching fundamental principle of sentencing as described above. Moreover, these sentencing objectives must also be Charter compliant; for the purposes of this case analysis, these sentencing objectives must specifically comply with s.12 “Everyone has the right not to be subjected to any cruel and unusual treatment or punishment”.

A Tale of Two Cases: R.v. Michael and R.v. Tinker

In Michael, the appellant, Shaun Michael, was convicted of nine separate offences on three separate occasions, including four breaches of court orders. He is an Inuit street person who grew up in a neglectful home. Both of his parents regularly abused alcohol. He witnessed his dad drunkenly beat up his mom and sister. He and his sister used to steal food in order to feed themselves. He moved to various cities while growing up and was bullied because of his native tongue and skin colour. He began drinking at the age of thirteen, moved from various group homes between the ages of thirteen and eighteen, and began smoking weed regularly. At eighteen, he moved in with his aunt, but that arrangement ended, and he began living on the streets and in shelters. He is not employed. He receives $250/month – a “street allowance” – which he uses to buy alcohol and drugs. All of his offences share the same pattern of him getting grossly intoxicated, becoming a nuisance, and committing minor assaults and damages to property when he is approached. Because Michael had nine convictions, he was subject to the mandatory surcharge nine times and was required to pay $900, $100/conviction. During Michael’s sentencing, Justice Paciocco decided that a sentence of four months in custody, two years of probation, and time in rehabilitation was already proportionate to the gravity of the offences and the degree of responsibility of Michael, and that the addition of a $900 surcharge “would be so crushing as to be grossly disproportionate”. In this case, Justice Paciocco did not impose the mandatory victim surcharge because to do so would violate s.718.1 of the Code and infringe upon Michael’s s.12 Charter rights.

Tinker was an Ontario Court of Appeal decision where the “Tinker appellants” – Tinker, Judge, Bondoc, and Mead – were all convicted of separate offences on separate occasions, but were sentenced at the same time. The sentencing judge did not impose the mandatory victim surcharge because in his view, to do so would offend the fundamental principle of sentencing and infringe on their s.12 Charter rights. Two other individuals – Eckstein and Laroque – were also part of the decision. Like in Justice Paciocco’s judgement, Justice Pardu also acknowledged that all of the appellants faced social hardship and identified as marginalized members of society. However, unlike Justice Paciocco, she was in favour of the mandatory victim surcharge. She maintained that the removal of judicial discretion to impose the surcharge was necessary to achieve the goals of rectifying some of the harm done by criminal activity, by raising funds for public services devoted to assisting victims of crime and holding offenders accountable to victims of crimes to the community by requiring a contribution by them to these funds at the time of sentencing. Further, she held that in order for a sentence to be considered “grossly disproportionate”, it must be so disproportionate that Canadians would find it “abhorrent, intolerable, and outrageous to standards of decency”. Justice Pardu likened the mandatory surcharge to mandatory minimum imprisonment sentences when determining the s.12 constitutionality of s.737(1) of the Code and ultimately upheld the lower court’s decision by imposing the victim surcharge on the appellants.

The “Criminal Ghetto” and Bill C-28

In my opinion, the decision in R.v. Michael best furthers the objectives of Canadian sentencing law. As summarized above, the main objectives of sentencing are denunciation, deterrence, rehabilitation, protection of the public, and responsibility. The fundamental principle of sentencing of proportionality animates these objectives; thus, like in every aspect of law, there is a need to balance competing values in accordance with the Charter. Justice Paciocco skillfully achieved this balance in his decision. In considering the multiple layers of historical, temporal, and social inequities that contextualized Michael’s crimes, Justice Paciocco held that “failing to take these circumstances into account would violate the fundamental principles of sentencing”. In this case, imposing the mandatory surcharge would be grossly reprehensible, not only because it would offend Mr. Michael’s Charter rights, but also because it would push him further into what I have coined the “criminal ghetto”.

When one population systematically exploits another, the resulting loss of social, economic, political, and religious freedom can expose a group of people to a disadvantaged niche, which I have called the “criminal ghetto”. The word “ghetto” is used deliberately to underscore the notions of oppression and social isolation (Wells 2010, Maternal Capital and the Metabolic Ghetto: An Evolutionary Perspective on the Transgenerational Basis of Health Inequalities). Those who find themselves in the criminal ghetto did not get there on their own; rather, they were pushed there by policies and laws – like s.737(1) of the Code. The structure of our neoliberal society depends on the exclusion of certain individuals and the demarcation of the “good” and self-regulating citizen from the “criminal”. Those who find themselves in the criminal ghetto fail to meet the minimum standards of well-being. They fail to adhere to the laws. They fail to fit within the overarching discourse of neoliberalism in which the common law is situated. However, they fail not through their own volition, but through the structure of society. Imposing a mandatory surcharge on populations of criminals already “failing” and extremely vulnerable, exacerbates their vulnerability and pushes them further into the criminal ghetto. This is exactly what could have happened to Shaun Michaels. This is actually what happened to the Tinker appellants. And, this is exactly what is happening to all of the outliers in the criminal justice system, who find themselves unable to pay the mandatory victim surcharge because they fail to meet the minimum standard of well-being, and are stuck in the criminal ghetto.

The somewhat cold decision in R.v. Tinker strictly adheres to s.737(1), and in my opinion, loses sight of s.718.1, the fundamental principle of sentencing. Justice Pardue does not quite achieve the balance of reconciling the mandatory minimum surcharge with the Tinker appellants’ s.12 Charter rights as eloquently or as skillfully as does Justice Paciocco. While she did acknowledge that the Tinker appellants were either in the criminal ghetto or on the demarcation of the criminal ghetto, she did not engage with the social determinants of crime as heavily as Justice Paciocco. However, to be fair, this was an appellate court decision and not a lower court, so the parameters of the facts were not necessarily as pertinent; but, the issue of the constitutionality of the mandatory victim surcharge was the same. She still found the imposition of the mandatory surcharge not to be grossly disproportionate to the fundamental principle of sentencing, which arguably impedes the objectives of Canadian sentencing law. Forcing individuals to pay the surcharge when the fee is beyond their financial means due to the marginalized position they occupy in society, does not denounce, deter, rehabilitate, protect the public, and promote responsibility; rather, it does the opposite. Imposing the mandatory victim surcharge on these outliers who have no means to pay it, not only forces them deeper into the criminal ghetto (which is contrary to rehabilitation, but in conformity with the discourse of neoliberalism), but it also violates their s.12 Charter rights and can trigger the compulsion to commit further crimes in order to find the finances to pay the fine (which is, again, contrary to denunciation, deterrence, public protection, and the promotion of responsibility, but in complete conformity with the discourse of neoliberalism). In effect, the imposition of the mandatory victim surcharge simultaneously works against those stuck in the criminal ghetto and against the objectives of sentencing law in Canada, and works in favour of perpetuating the totalizing goal of neoliberal policies – to make a uniform and homogenous class of self-regulating citizens that buy into the idea that success can come through self-improvement.

However, as always, all hope is not lost. On October 21, 2016, the Minister of Justice introduced Bill C-28: An Act to Amend the Criminal Code (Victim Surcharge). In her review of the bill, she addressed the exact issues in R.v. Michael and R.v. Tinker – whether or not s.12 Charter concerns could be remedied through re-introducing judicial discretion in certain circumstances (i.e. s.737(1.1) would provide judges with the discretion to impose fewer surcharges than the number of offences that have been committed, s.737(5) would provide an offender with the right to apply to be exempted from the surcharge, and s.737(6) would excuse the offender from paying the surcharge if it caused them “undue hardship”, which considers unemployment, homelessness, lack of assets, etc.). Bill C-28 was first tabled in the House of Commons on February 1, 2017 and in my opinion, has the potential to be an effective response to the problems created by the mandatory surcharge. Re-introducing judicial discretion awards more power to the judiciary in determining whether or not to impose or include the victim surcharge in their sentencing of individuals, who may or may not be stuck in the criminal ghetto. If all judges were to seriously consider the goals of sentencing with the fundamental principle of sentencing animating their decisions, like Justice Paciocco, then they will have the unique power to help individuals climb out of the criminal ghetto and bring the objectives of sentencing to life. By re-introducing judicial discretion to sentencing, judges will no longer be required to impose a mandatory surcharge that is well-beyond the financial means of many offenders. This can allow offenders to make an earnest and genuine effort to subscribe to the totalizing goal of neoliberal policies and affords them the opportunity to participate with the rest of society in a way they could not do if they were subjected to this “cruel and unusual punishment”. In other words, they could exemplify the achievement of the sentencing objectives.

Final Thoughts

From a critical legal anthropological perspective, R.v. Michael and R.v. Tinker demonstrate the role that structural inequalities play in the prevalence of limitations to freedoms of socially excluded groups that are severely affected by the consequences of colonialism and neoliberal policies. These cases demonstrate that structural inequities have profoundly impacted the socio-economic statuses of “outlier” or “criminal” groups, thereby casting them in the criminal ghetto. They show how larger structural inequalities and neoliberal policies may be the real aetiological pathway to crime. And most importantly, they illustrate that the fundamental issue with imposing a mandatory victim surcharge is that it can operate in a way that is diametrically opposed to the sentencing objectives and principles in Canada. Moreover, they emphasize how the mandatory victim surcharge – or even mandatory minimum imprisonment, or mandatory anything – is complicated because it assumes a homogenous society. As seen through the “outliers” in R.v. Michael and R.v. Tinker, society is not homogenous. Everyone occupies a unique position within the discourse of neoliberalism in which the common law operates. Some individuals are located at the very heart of the discourse and are resultantly, high functioning members of society; whereas others, like Shaun Michaels and the Tinker appellants are located outside of the discourse and, consequently, inside the criminal ghetto. The passing of Bill C-28 affords those individuals stuck in the criminal ghetto the opportunity to exit it. And hopefully, never look back.