CRIMINAL LAW SYSTEM A BLUNT INSTRUMENT

Two recent situations illuminate the problems with criminal law trying
to deal with social problems. The first is David Fox, a man with an IQ
of 45 who can't find a psychiatric facility to take him because he
walks the fine line between "criminal and inmate."

The story, on page 1 of this issue, illustrates how people with mental
disorders often end up in the criminal justice system, which can't
really serve them properly, because there are no other options.

The second example is the Court of Appeal rulings in the cases of
three women who were given, by justices Casey Hill and Nancy Mossip,
lenient house-arrest sentences for smuggling cocaine because they were
black, poor, and mothers.

Appeal Court Justice David Doherty was highly critical of both lower
court judges.

"A sentencing proceeding is also not the forum in which to right
perceived societal wrongs, allocate responsibility for criminal
conduct as between the offender and society, or `make up' for
perceived social injustices by the imposition of sentences that do not
reflect the seriousness of the crime," he wrote in R. v. Hamilton and
Mason.

Mossip adopted Hill's reasons from Hamilton in another case where she
sentenced a woman to 20 months house arrest. In his reasons in R. v.
Spencer, Doherty says: "The sentence imposed on Ms. Spencer at trial
was so manifestly inadequate that this is not a case where it can be
said that the administration of justice would not be served by
incarcerating Ms. Spencer at this time." He sentenced her to 20 more
months to be served in jail.

At trial, Hill had presented 700 pages of statistics and research on
race, crime, and the justice system that he'd compiled himself. That
was overstepping the bounds, assuming "the combined role of advocate,
witness, and judge, thereby losing the appearance of a neutral
arbiter," said Doherty.

While Hamilton and Spencer both reject the idea that the women's race
and financial hardship should lead to more lenient sentences, the
Court of Appeal had opened the doors to the systemic-racism defence in
2002's R. v. Borde.

In Borde, the appeal court dismissed systemic racism as a mitigating
factor, but Justice Marc Rosenberg said systemic racism and the
background factors faced by black youths could affect some sentences.
But he rightly noted the severity of the crime outweighed other
factors in determining the sentence.

These cases all illustrate how the criminal justice system can't fix
societal problems. The drug mules committed serious crimes and their
financial and family situations were not enough reason for light
sentences. David Fox and others with mental disorders who end up in
prisons also won't find the solutions to their problems there.

It's better social services not lawyers, judges, and prisons that are
required to assist these people.