EQUALITY BEFORE THE LAW MAKES A COMEBACK

There is no longer an automatic discount in Ontario's criminal courts
for being poor, black and female. The Ontario Court of Appeal
delivered a stern message on race and crime yesterday to some
idealistic but woefully misguided lower-court judges.

It is hard to imagine how those judges -- Madam Justice Nancy Mossip
and Mr. Justice Casey Hill, both of the Ontario Superior Court of
Justice -- got it so wrong. Faced with three individuals who had
imported substantial amounts of cocaine into Canada, the judges bent
over backward to keep them out of jail because they were black single
mothers. Judge Hill, who introduced 700 pages of his own research on
race, crime and the justice system late in the proceedings, "assumed
the combined role of advocate, witness and judge," the appeal court
said. Judge Mossip's ruling was "manifestly inadequate," appeal
court-speak for plain awful.

To some extent, the Ontario Court of Appeal itself was to blame. It
had said, in February of 2003, that black offenders could receive
reduced sentences if their difficult circumstances could be linked to
systemic racism, and if their crimes did not involve serious violence.
This may have been nothing more than a legal truism: Any and all
factors shaping an offender's life may be considered at sentencing.
But the appeal court had said little on what sort of circumstances
would cry out for special treatment; it was easy to see how its
pronouncement might be interpreted broadly by lower courts.

Indeed, "systemic racism" often involves indirect inequality, rather
than overt acts of mistreatment, and so its connection to the
individual might not admit of any proof. How then to insist on
individual responsibility?

Judge Mossip and Judge Hill applied the broadest of brushes to the
defendants. As black single mothers, they were easy prey for
higher-ups in the drug trade. Judge Hill quoted from statistics about
the percentages of black penitentiary inmates. (It turns out, the
appeal court said, that the federal penitentiary holds only 25 black
women, or .007 per cent of black Canadian women.) The three
defendants' children would suffer if they were jailed.

Well-meaning though these judges were, they were engaged in a project
that could only damage the social fabric of the community. They were
institutionalizing low expectations of black Ontarians.

In the most egregious of the cases decided yesterday, Tracy-Ann
Spencer had been given house arrest for 20 months and a curfew for
four months for importing 733 grams of cocaine -- an amount that,
according to sentencing guidelines from the appeal court, should
produce a jail term of three to five years.

Judge Mossip had stressed that, as a black woman, and 23-year-old
mother of three, Ms. Spencer was deeply affected by Canadian society's
racial and gender bias.

On what evidence? Ms. Spencer was raised in a loving, stable home. She
was the beneficiary of $25,000 in government student loans so she
could study nursing full-time while raising her children. The two
fathers of her three children paid her $1,000 a month in child support
between them. She and her children were living with her mother.

Just because she is a black single mother, the appeal court said
yesterday, does not mean that her financial circumstances had anything
to do with her race or gender. She should have received 40 months, the
appeal court said, and at this late date, after she has served 16
months of house arrest, it ordered her to go to jail for 20 months.

Writing for the appeal court, Mr. Justice David Doherty clarified the
court's views on sentencing, minimizing the whole issue of race. The
sentencing proceeding, he said, is not the place to make up for
"perceived social injustices."

The black community is harmed by cocaine, and one should not assume
that this community looks at the justice system only from the
offender's perspective. What is important, he added, is not whether
systemic racism is the reason that someone is poor, but that "the
underlying causes" of someone's crimes are either beyond her control,
or something for which she can not be faulted.

Now why didn't the Ontario Court of Appeal say that the first time?