It's only funny if you're in the audience...

Fines, as a tool of law enforcement and ensuring justice, are currently pointless. Consider, for instance, receiving a fine for driving while distracted by an electronic screen (which, somehow, doesn't include GPS units, but that's another argument altogether... especially considering smartphones are much more likely to be used as GPS units these days). The fine in Ontario is going up to $280. The potential consequences of driving under the influence of distraction ranges from property damage through death (particularly horrifying when it is a pedestrian or an actually responsible citizen in their own vehicle). I will not currently argue against the appropriateness of a $280 fine given the risks (I think the fine amount is low), but lets just work with that as a number.

Suppose you are in a single income household and earn minimum wage in Ontario (just increased to $11/hr) and are lucky enough to have a full time job (or jobs, amounting to 40 hours per week). Your monthly income (before tax) will be $1760 (and you'll be scraping to make ends meet, at best...). A $280 fine is 16% of your monthly income (I'll write it as 0.16 for later reference) or about 1.3% of your annual income (0.013). A huge financial hit by any measure. Definitely a tangible punishment to such a person (fyi, 8.1% of Ontarians in the workforce were working for minimum wage as of 2009 [about double what it was in 2001]... the federal government hasn't published numbers since then, fyi, they used to be published annually... but, that too, is another story). Let's turn now to a household at the median income in Ontario: in 2011, it was $73,290/year, which is about $6100/month. Considering that most of these households would likely also have access to credit, a $280 fine is already likely an "expense" that could easily be absorbed into their budget... it is 4.6% of their monthly (pre tax) income (0.046... still noticeable, but it definitely would fall within most such people's "discretionary" spending limits) or 0.4% of their annual (pre tax) income (0.004). In 2011, there were roughly 576,000 households earning $200,000 or more in Canada... let's call it half a million (that's a sufficiently large number, in my opinion, to constitute a "segment of Canadian society"). To these people, a $280 fine (let's say they have an average income of $300,000 ... which is probably a decent guess for now given that over 300,000 of that half a million have incomes greater than $250,000), would be a petty annoyance at best (I would use the slightly more emotionally charged word "laughable"). With monthly incomes of $25,000 (do the math), such a fine would be about 1% of their monthly pre-tax income (0.01) or 0.09% of their annual pre-tax income(0.0009). I would argue that a $280 fine would provide no tangible punishment whatsoever to anyone in that income bracket.

Thus, my subject of "the sliding scale of punishment"... those with lower incomes are disproportionately burdened with needing to adhere to the laws of the land, while those who have higher incomes are insulated from the impacts of transgression because of their wealth.

But my momma told me not to bitch about something unless I had something positive to suggest as well. The solution to the above situation seems self-evident to me (has for a while, but I'm just writing about it now). The key to the solution is the word in the last paragraph: disproportionate. Or more appropriately, to make the system proportionate to ensure that the burden of abiding by the laws is shared equally amongst all citizens no matter what their income (with one caveat, for the very poor, because I'm not that much of a bleeding heart, which I will discuss shortly). Rather than set a fixed amount for such fines, a percentage of household income would be used. Using household income rather than personal income is a tricky decision already, but I'm thinking of individuals who live in wealthy households as often benefiting from the family's overall income without necessarily needing their own income (children and non-working life partners, for instance). It's really trying to tie financial burden to ability to pay. On that note, I would also see it instituted that any money transferred to someone (or the value of any resources contributed) from some other part of their family network to defend themselves against or to pay for such fines would have to declared as taxable income in the year it was received... again, ability to pay. Details aside, I hope you at least accept the principle of "financial ability", however it is accounted for, as that is the core of the argument.

So, numbers time again, and let's stay with the "$280" fine amount... obviously, it won't be a $280 to everyone anymore. It's also going to be a little more thought-provoking having to set the "base amount" that the proportional "actual amount" would be calculated from. Let us, for a moment, assume that $280 is the base amount we start with. The only readily available statistic we have access to that can also be considered a baseline with regard to financial ability of the overall population is the median household income. As stated, in Ontario, this was $73,290/year and we calculated $280 as being 0.4% of their annual pre-tax income. That single income household earning minimum wage discussed earlier makes about 29% of the median household income. Applying that proportion directly to our $280 base amount, we get about $81. Going the other direction, a household earning $300,000 per year is making 409% (about 4 times) the median household income. Applying that proportion, we get a fine of about $1146. Fyi, this is the first time I've actually calculated the numbers and my first blush is that they look like they could accomplish what I was hoping for. A quick glimpse into the stratosphere: about 2500 households in Canada earned more than $2.57 million per year, and had an average income of $5.1 million per year, so let's use that number. $5.1 million is 6958% above the median income, and that that income level, the $280 fine would scale to a whopping $19484 (and before you go *whoa!*, do remember that a $20,000 fine to such a household would have the same financial impact as an $81 fine on someone in Ontario working full time for minimum wage... I would argue it would have less of an impact because the sheer quantity of wealth provides so many other buffers that would not be available to someone with a low income... they'll be fine, and maybe they will be a little more careful next time). And while I'm here... contemplate the notion of environmental fines to corporations and how they work the same way (compare this to this, for instance)... but that too is another story.

I said I would have one caveat, and here it is. It should not be possible to reduce a fine to zero by having no income. This obviously would still impact the extremely poor in some disproportionate way, but there does have to be limits. I do always like the "least among us" approach, and in Ontario, that "least" would be a single person (no dependents) on social assistance with an annual income of only $7512 [holy heck, current information was hard to find on that number... and holy heck, that is a ridiculously low number]. At that income level, our $280 fine would scale to a little under $29, and that seems pretty reasonable as a minimum fine amount regardless of income (at this point, the "driving" metaphor kind of breaks down as there is no way they could afford a car, but presume it's some other offense with the same base fine amount). And before I go completely, I did want to make one little examination of the base amount of $280... Using the minimum wage example, and $81, someone would have to work for about 7.5 hours (pre-tax) to pay off that fine. That "price" would be the same for anyone (that actually worked a salaried or hourly job) because of the scaling. When setting the "base amount", the question should be "how hard will it be to pay off this fine... will it be a significant detriment when weighed against the severity of the infraction?". I still can't help but feel that $280 is a low base amount even for "distracted driving". I would be more inclined for it to cost someone earning minimum wage $280 in fines (thus making the base amount $970 or so using the proportionality I have proposed)... but that's just me, your opinion of the severity of this particular social ill is likely different from mine.

One last comment on proportionality, because this is something I have contemplated for a while as well: speeding tickets. In Ontario, it sort of works with a sliding scale, but only based on the absolute number of km/h over the limit you were going. So... the fine is the same whether you are going 120km/h in a 100km/h zone, or if you are going 60km/h in a 40km/h zone (presumably residential). Fyi, it would be a $95.00 fine. Arguably, these are different offenses. Going 50km/h or more over the speed limit puts you into the "racing" category and it actually gets serious ("immediate 7-day license suspension and 7-day vehicle impoundment; upon conviction - $2,000 to $10,000 fine, 6 demerit points, up to 6 months jail, up to 2 years license suspension for a first conviction"). I have long thought that applying proportionality to, let's now call it, the base amount of speeding tickets makes much more sense than using an absolute speed. Back to the previous two examples, 120km/h in a 100km/h zone is going 20% over the speed limit whereas 60km/h in a 40km/h zone is going 50% over the speed limit. Again, I would argue these are two qualitatively different events. In the former, it is speeding a bit; but in the latter, it is speeding a lot. In Ontario, 0-19km/h over is $2.50 per km/h over (plus fixed fees), 20-39km/h over is $3.75 per km/h over (plus fees), 30-49km/h over is $6.00 per km/h over (plus fees), and 50km/h+ over is a different class of offense. To convert to the proportional determination using the same incremental fee schedule, you would pretty much only have to replace the "km/h over" with "% over", and you're good. In the case of our highway commuter with a heavy foot, they would be in the 20% over category and would be handed a fine of $95.00 ($20 of that is the fixed fees, the rest is the $3.75 times the number of percent over). Our suburban leadfoot, on the other hand, is 50% over the posted limit and would find their car impounded and their lives in turmoil for going 60km/h past their neighbours' driveways. And just to be clear, to get that $95.00 ticket, a speed of 48km/h would be sufficient in that 40km/h zone (20% above). Obviously, I believe that these would then also be the baseline numbers for the fines based on median income (presuming you think those are reasonable amounts... the more I think about it, the more I'm guessing the fine amounts are skewed downward to encompass the income distribution in our society and would generally go up when set against the median family income level). Thus, if your rich neighbour up the street ($300K annual household income) zipped past your house in their Kia at 55km/h in the 40km/h zone you lived in (about 38% over), the base amount of the fine would be $283, so their fine would be about $1160. If they tore past your place in their Tercel at 70km/h in a 40km/h zone and got caught, they would lose their car, be in court, and be facing fines from $8,000 to $40,000 and possible jail time. In contrast, if they did it today and were convicted (there are lawyers that make their living getting people who can afford it off the hook for these sorts of things... although that wouldn't change with the sliding scales I'm proposing I guess), they would receive a fine of $220 and some demerit points.

Ah, writing essays can have entertaining moments. With this essay I had a particularly good time because I was able to call Queen Victoria names, talk about how the US had a Freudian Oedipus complex, and call the manhood of everyone (even of women) in Canada into question! This essay was written for a course I took last fall on “Indigenous Encounters with Colonial and Nation-Building Projects in Canada”, a second year Indigenous Studies (an interdisciplinary subject) class. The textbook for the course was John Ralston Saul’s A Fair Country: Telling Truths About Canada and this was supplemented with lectures and slides where our professor tried to take the stance that things went considerably different in Canada than they did in the US for aboriginal peoples because the power relationships during colonization were more equal and respectful, and it wasn’t until the mid to late 1800s that the formal attempts at cultural genocide, under The Indian Act, were begun proper.


Saul’s Vision for A Fair Country: Mending Our Fractured
Psyche of Through Re-Discovery Of Our Missing Parts
In his book A Fair Country: Telling Truths About Canada, John Ralston Saul lambastes the elite class of Canada for being castrati (Saul 2009) — that they have been emasculated and are reliant on those with power, those with testicles, to engage in the act of creation. Since the castrati have no creative endowment themselves, they have been trained to adopt a subservient posture and go pleading for guidance to those that can still wield the power and will to inflict their desires on others. Beholden to the notion that their value is in how well they serve their fertile masters, whoever they might be at any given time, this dysfunctional elite of Canada is accused by Saul of placing the need to fulfill their self-loathing ahead of the responsibilities that have been entrusted to them by the citizenry of this country. By extension, the citizenry obviously don’t rate attention from the elite because they are even further removed from those with real power, and the vast bulk of the population do seem to support that notion as they too seem to have fallen prey to that colonial insecurity and look to the lap-dog elite to guide them in their subservience. But where the bulk of Canadians have lined up, generation after generation, to metaphorically have their reproductive organs amputated in obeisance to the dominant cult of inferiority, the aboriginal peoples of Canada were specifically targeted with the most heinous of violent and involuntary castrations — that of intentional cultural genocide — during a hundred years of aggressive colonization that began here in earnest during the middle of the reign of Queen Victoria. But where the cultural genocide inflicted against aboriginal populations was overt and is now clear to be seen by all, especially those who were its target, Saul is making the argument in his book that we are all — every person in modern Canada — victims of a cultural genocide inflicted on us during the same period that has left us all impotent. The main difference is that non-aboriginals don’t realize what has been done to them, and Saul is telling us that we need look to his abstract “Métis shared heritage” in hopes that we might collectively find our balls — originally lobbed off by the British, and now done as an ongoing matter of courtesy by the “empire of the day” at our request — or at least in hopes that we might “grow a pair” by remembering we once had a unique power in this country, that arose because of our aboriginal heritage, that we could call our own.

( The rest of the essay is here... )

What Saul seems to be saying is that we need to reconcile the aboriginal and non-aboriginal peoples living in Canada in order to build a functional, confident, and effective society going forward. Under the influence of Victorian Empire, the colonizers forgot their history, forgot their roots, and tried to assign a father role to the aboriginal that was, at best, a specious and immature act of desperation in a failed attempt to mature. What he argues is that the aboriginal peoples were never the “other” to the European colonists in Canada, they were always “ourselves” and that together we should form a Métis nation. Where Saul’s vision falls short is how to get “there” from “here” in a, I daresay, fair manner. His vision does smack suspiciously of a sort of neo-colonialism, where the disconnected colonists have realized that they need to, once again, turn to the connected aboriginal peoples for critical resources. In this case it’s not furs, or minerals, or land. In this case, Saul thinks that despite everything that has been done to them, that the aboriginal peoples of the lands we call Canada are in possession of something we seem to have misplaced: our balls. Even if they have been carefully hiding them from us all these years for safekeeping, if we should decide we actually do want them after all, they had better make sure they have a really strong position before they do. Unfortunately, if we ever get them back, we’re likely going to be irresponsible with them for a while before we finally settle down again and are able to use them in a mature, considered, manner — and the keepers of our sacred gonads need to be able to protect themselves from our inevitable testosterone-fueled rampage until such a point as we have calmed down again.

( And the bibliography is here... )

P.S. The Quill and Quire review of Saul’s book is worth a read if you’re interested (and you should be if you think Canada should have any sort of future):

( Quill and Quire review )

I completed the following (very) “short assignment” for my “Canadian Political Environment” course that I'm taking this summer (vs. “Canadian Political Institutions”, which is the sister course to this one). From the syllabus: “This course introduces students to the social and economic foundations of the Canadian polity. We focus particularly on the evolution of political cleavages and the politics of identity in the Canadian context. We begin by situating Canada in the global context. The classes that follow focus on Canada’s original inhabitants, First Nations and Inuit peoples, and Canada’s traditional cleavages of language and region. The class cleavage, frequently noted for it lack of saliency in the Canadian context, is also considered. The course moves on to analyze the impact of notions of ethnicity, ‘race’ and gender in Canadian political identity. We continue by looking at how various Canadian political interests mobilize through group politics, and conclude by considering the process of political socialization in Canada and the role of the mass media.”. This first assignment had a particular goal: “The task is to select a quotation that relates to a topic covered early in the course and write a critical response no more than two pages double-spaced. One of the purposes of this task is to get students in the habit of writing clearly and concisely, which is a very useful skill for assignments of any length.” and “In this paper, students should: State whether you agree or disagree with the selected quotation; Identify clearly your position on the matter; Construct a logical argument in support of your position, while using specific examples; Address possible counter-arguments to your position.”. Please let me know if you think I have succeeded.

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Phelonius P. Friar, Short Assignment, July 19, 2010
Title: Aboriginal Privilege in Canada
Course: PSCI 2002A, John Crysler

In the Supreme Court of Canada case R. v. Van der Peet, Chief Justice Antonio Lamer wrote for the majority, “[W]hen Europeans arrived in North America, aboriginal peoples were already here, living in communities on the land and participating in distinctive cultures, as they had done for centuries. It is this fact, and this fact above all others, which separates aboriginal peoples from all other minority groups in Canadian society, and which mandates their special legal, and now constitutional, status.” While the court recognized that when considering the Constitution Act, 1982, “any ambiguity as to the scope and definition of s[ection] 35(1) must be resolved in favour of aboriginal peoples”, it is important to note that the ruling also rejected Van der Peet’s appeal against a conviction for selling 10 salmon that had been “caught under the authority of an Indian food fish licence” and found her guilty of “contravention of 27(5) of the British Columbia Fishery (General) Regulations, which prohibited the sale or barter of fish caught under such a licence” (R. v. Van der Peet, [1996] 2 S.C.R. 507, 1996). Section 35(1) of the Constitution Act, 1982 states “The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed” (Constitution Act, 1982, 1982), and with this ruling, the Supreme Court saw fit to both reaffirm those rights as they exist within the framework of Canadian law, and also to seriously limit the definition of what those rights are. While I agree with Lamer’s statement above on “special status”, and support the expansion of Aboriginal rights within Canada as a means of achieving reconciliation, the rest of the ruling creates an environment where that “status” is interpreted in a narrow, restrictive, and colonial manner.

The Canadian justice system had no choice but to adopt the approach it did given the paucity of precedent and the glaring lack of direction from the legislature regarding how to interpret section 35(1). The problem is that this judicial approach has created a situation where the contemporary Aboriginal peoples in Canada once again have their livelihoods and many aspects of their day-to-day existence dictated to them from the central authority of the institution of Canada, albeit in a more subtle way than in the past. The ruling in the Van der Peet case states “those practices, customs and traditions that are integral to distinctive aboriginal cultures will serve to identify the crucial elements of the distinctive aboriginal societies that occupied North America prior to the arrival of Europeans.” (R. v. Van der Peet, 1996). This implies that unless the right being sought was a practice that existed prior to European colonization – presumably as interpreted by anthropologists, historians, and the courts – then it is not “recognized”. In his essay, “Frozen Rights in Canada: Constitutional Interpretation and the Trickster”, John Borrows writes that “in arriving at these conclusions the Court seriously undermined the future commercial competitiveness and survival of Aboriginal nations in contemporary Canadian society” (Borrows, 1997), in essence shutting Aboriginal peoples out of all modern activities that did not exist at the time “prior to the arrival of Europeans”.

While those taking a purely capitalist approach will argue that the Aboriginal peoples “lost fair and square” against the “superior” forces of the colonizers, and that the ongoing demands of that community need to be silenced to maximize access to valuable resources and minimize the cost of supporting that population – presumably through more aggressive attempts at assimilation – Canada provides a richer social tapestry than the monoculture of capitalism. The international experience with reconciliation providing long-term solutions also argues against a purely capitalist-pragmatic approach to the problem. While the courts did provide value by acknowledging special status for Aboriginals, the broader body of Canadian society needs to take an active role in recognizing and expanding the rights of the Aboriginal peoples of Canada in a modern globalized world – not merely recognizing traditional ways of life, but projecting those historic social constructs into our post-subsistence and post-industrial reality.

Bibliography

Borrows, J. (1997). Frozen Rights in Canada: Constitutional Interpretation and the Trickster. American Indian Law Review, 22(1), 37–64.

Constitution Act, 1982. (1982, April 17). Retrieved from http://laws.justice.gc.ca/eng/const/PRINT_E.pdf

R. v. Van der Peet, 2 S.C.R. 507. (1996). Retrieved from http://www.canlii.org/en/ca/scc/doc/1996/1996canlii216/1996canlii216.html