LAW IS NOT INTENDED TO RIGHT SOCIAL WRONG

Do the crime, do the time. The Ontario Court of Appeals was right to throw
out the offensive notion that a criminal's race or gender may be enough to
receive a dramatically reduced sentence, but other troubling questions remain.

The court's landmark decision overturned lower court decisions in three
separate cases involving black women attempting to smuggle cocaine through
customs on return flights from Jamaica. The amounts of cocaine were large
and would ordinarily net a smuggler substantial prison time.

But in these cases, the presiding judges turned to social science evidence
they claimed showed systemic discrimination against black women and, on
that basis, gave the women conditional sentences that effectively amounted
to house arrest.

Judges must consider personal circumstances when sentencing. A rich frat
boy who steals for a thrill and a poor father who steals to feed his child
may commit the same crime, but they are obviously not equally blameworthy.

But in the drug-smuggling cases, it wasn't the individual circumstances of
the defendants that resulted in lenient sentences, but the fact that they
are black women, which was taken to be "proof" they are greatly disadvantaged.

To have some idea of the absurdity of such reasoning, just imagine if, say,
a famous black actress received a reduced sentence on the grounds that she
is disadvantaged.

Fortunately, the appeal court restored sanity. Sentencing is about
individual culpability, the court said. It is not the place "to right
perceived societal wrongs."

Just so. Unfortunately, the Criminal Code contradicts this good sense.

An amendment passed several years ago states that when sentencing, judges
should use prison as a last resort for all defendants, but "particularly"
in the case of aboriginals.

The purpose of this amendment was precisely to use sentencing to right
perceived societal wrongs.

Opponents of the amendment -- including this newspaper -- warned that it
would lead to the sort of thinking the Court of Appeal overturned earlier
this month.

Clearly, the law is a mess on this key principle.

Either the Court of Appeal decision or the "aboriginal discount" has to go.
We prefer to stand with the court.

Meanwhile, these cases raise another practical issue, which is that the
women convicted of smuggling cocaine were not otherwise criminals. Instead,
they were ordinary people enticed by the fat profits of the illicit drug
trade to take a quick roll of the dice.

This is a very common story.

While we often think of the drug trade as the business of gangsters, the
easy money to be made on the black market has also lured countless
otherwise law-abiding people into crime.

Recent research in Canadian prisons found that just one-quarter of mid-to
high-level traffickers were violent career criminals: Three-quarters were
ordinary people, usually small businessmen, who had succumbed to temptation.

You might say drug prohibition is a fantastically effective criminal
recruitment scheme. Or to put it another way, it is one giant system of
entrapment.

That's an outrage that has nothing to do with skin colour.