SHOULD BLACK DRUG 'MULES' GET LENIENCE?

IN OUR VIEW, two of the best judges in Ontario are Superior Court Justice
Casey Hill and Justice David Doherty of the Ontario Court of Appeal.

Both are former Crown attorneys who have played significant roles in
developing Canadian jurisprudence. Both are seen as vigorously independent,
unafraid to make judgments that effectively change the law as it has come to
be seen.

Justice Doherty broke new ground in 1992 when his decision in R. v. Parks
became a precedent for Canadian jurors routinely being screened for possible
racial prejudice.

More recently, Justice Hill made a similar move when he concluded that two
black single mothers who admitted to having knowingly brought cocaine with
them on flights from their native Jamaica should not be given the harsh
penitentiary sentences normally meted out to cocaine "mules."

Instead, he imposed 20-month "conditional" sentences that effectively placed
them under house arrest for the same period they would normally be
incarcerated on getting a five-year sentence.

Last week, Justice Doherty concluded that his former Crown colleague had
erred in law - that sentencing was not the time for the courts to engage in
social engineering.

"The fact than an offender is a member of a group that has historically been
subject to systemic racial and gender bias does not in and of itself justify
any mitigation of sentence. Lower sentences predicated on nothing more than
membership in a disadvantaged group further neither the principles of
sentencing, nor the goals of equality."

(Although he found that the two should have received custodial sentences, he
permitted them to simply serve the balance of their sentences in the
community because, after 17 months' compliance, it would "work an undue
hardship" on them to go to prison now, when they otherwise would have
already have been out on parole.)

In allowing the Crown's appeal against the February 2003 sentences for the
two, he said the sentencing process has a narrow focus that "aims at
imposing a sentence that reflects the circumstances of the specific offence
and the attributes of the specific offender. Sentencing is not based on
group characteristics, but on the facts relating to the specific offence and
specific offender as revealed by the evidence adduced in the proceedings."

He said a sentencing "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 found Justice Hill "lost that narrow focus" by expanding the proceeding
to include broad societal issues not raised by the parties. After the women
pleaded guilty, their charges proceeded by way of a joint sentencing
hearing, at which Justice Hill relied of his own extensive experience as a
Crown and trial judge and more than 1,000 pages of sociological material
before concluding that conditional sentences were appropriate based on the
offenders' race, gender, poverty and vulnerability.

Justice Doherty agreed with the Crown's submission that Justice Hill
"effectively took over the sentencing proceedings, and in doing so went
beyond the role assigned to a trial judge." He held that the trial judge's
role "is to listen, clarify where necessary, and ultimately evaluate the
merits of the competing cases presented by the parties."

Justice Doherty concluded that importing cocaine is itself a violent act:
"Viewed in isolation from the conduct which inevitably follows the
importation of cocaine, the act itself is not a violent one in the strict
sense. It cannot, however, be disassociated from its inevitable
consequences. Unlike the trial judge, I characterize cocaine importation as
both a violent and serious offence."

On this basis he held that Justice Hill erred, because on a proper
application of sentencing principles and caselaw authority, the offences
merited substantial prison terms despite the mitigating effect of their
personal circumstances.

We strongly suspect the last word has not been heard on the subject, and
that when the issue finally reaches the Supreme Court of Canada the judges
there will try to find a compromise position.

Certainly, cocaine trafficking is a serious problem that must be dealt with,
and there's little doubt that the two women were precisely the type of
people used by the drug lords as "mules," in part because they needed the
money and had legitimate reasons to visit relatives in the land of their
birth. In this case, they had literally risked their lives by swallowing up
to 93 cocaine pellets, presumably for the round-trip plane tickets and a few
thousand dollars.

In such circumstances, a major factor in sentencing should be whether the
offender on being caught assisted police in locating the drug traffickers.
Then, and then alone, should the courts favour the option of conditional
sentences or even conditional discharges.

On the other hand, there is a lot to be said for having lots of flexibility
in the sentencing.

Although we would applaud a long penitentiary sentence for anyone involved
in large-scale importation of hard drugs, we think there's a lot to be said
for the use of the maximum conditional sentence of two years less a day plus
three years' probation, with one term of probation being that the offender
must stay in Ontario.

In reality, such sentences will certainly minimize the risk of recidivism
and may even act as effective a general deterrent as a five-year
penitentiary term, which would cost society an enormous amount, both for
incarceration and for the care of the offenders' children.

Curbing crime should always involve more than just warehousing the
criminals.