DO THE CRIME, DO THE TIME

The Ontario Court of Appeal 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 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 this week.

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 a 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 has nothing to do with skin colour.