SENTENCING BY RACE

In November, 2000, Marsha Hamilton was caught returning from a trip to
Jamaica with 93 cocaine pellets in her stomach. A few months later, Donna
Mason was caught with 83 pellets. According to our drug laws, both cases
should have netted the offenders significant jail time. But in a bout of
social activism, an Ontario Superior Court Justice, Casey Hill, converted
their joint sentencing hearing into a public forum on the challenges facing
black single mothers. After sending lawyers roughly 700 pages of his own
research on the subject, Justice Hill effectively concluded that the
offenders were the real victims. On the basis that their race, gender and
finciancial circumstances placed them in an untenable situation in which
they were easy targets for higher-ups in the drug trade, he decided to
spare them jail time in favour of house arrest.

A month later, Justice Hill's ruling was cited as precedent. Leaning on his
findings, Madam Justice Nancy Mossip gave a similar sentence to Tracy-Ann
Spencer -- a 26-year-old single mother convicted of smuggling cocaine in a
suitcase.

Make no mistake: We share Justice Hill's skepticism of Canada's drug
policies. But the Criminal law is what it is. And it is repellent to
suggest that certain ethnic, racial or socio-economic groups are less
responsible for their actions than others. It would have been one thing to
treat the offenders leniently because of special circumstances -- judges do
so all the time. But to make special allowances on the basis of group
characteristics -- i.e. that they happened to be black and female -- is
unacceptable. Taken to its logical conclusion, such a policy would lead to
race-specific sentencing guidelines for all of Canada's various ethnic
groups -- cross-indexed to gender, and updated in inverse proportion to the
latest StatsCan data on earnings.

Thankfully, saner heads have prevailed. On Tuesday, the Ontario Court of
Appeal unanimously rejected the Superior Court's findings. While
acknowledging that "the economic circumstances of the respondents made
their choice more understandable than it would have been under other
circumstances," Mr. Justice David Doherty -- writing on behalf of Associate
Chief Justice Dennis O'Connor and Madam Justice Eileen Gilllesse -- rightly
refused to let them off the hook for making "an informed choice to commit a
very serious crime.

"The blunt fact is that a wide variety of societal ills -- including, in
some cases, ethnic and gender bias -- are part of the causal soup that
leads some individuals to commit commit crimes. If those ills are given
prominence in assessing personal culpability, an individual's
responsibility for his or her actions will be lost."

More welcome still was his recognition that, far from helping blacks,
Justice Hill had actually done them a disservice. "This argument assumes
that the black community looks at the justice system exclusively from the
perspective of the offender," he said. "The black community, like the rest
of Canada, knows only too well the harm caused by cocaine."

To its credit, the Court of Appeal judges -- unlike their colleagues on the
Superior Court bench -- appear to have grasped the full concept of
equality. For centuries, blacks and other minorities fought for the right
to be treated equally under the law. For the criminal justice system to
begin according them differential treatment, no matter how
well-intentioned, is to undo much of the progress that has been made.