JUDGES CRITICIZED FOR PRO-BLACK BIAS

'Drug Mule' Sentences Inadequate, Appeal Court Finds

Social Hardship Alone Doesn't Justify Leniency, It Concludes

Three women who smuggled large quantities of cocaine into Canada are not
entitled to lenient sentences simply because they are black, single mothers
living in poverty, Ontario's highest court has ruled.

A sentencing court is not the place "to right perceived societal wrongs" or
"'make up' for perceived social injustices by the imposition of sentences
that do not reflect the seriousness of the crime," the Ontario Court of
Appeal said in two major decisions yesterday.

But that's what two Ontario judges did when they applied broad
generalizations about Jamaican "drug mules" to the cases of the three
women, who avoided substantial prison terms and were instead handed
conditional sentences confining them to house arrest, the court concluded.

It said the women deserved between 20 and 40 months behind bars -- even if
it meant their children would temporarily be left without mothers.

While the women, who smuggled cocaine through Pearson airport in swallowed
pellets and suitcases, were unquestionably struggling with very difficult
economic circumstances, which were largely beyond their control, they "had
a choice to make and they made that choice knowing full well the harm that
the choice could cause to the community," said Mr. Justice David Doherty,
who wrote both decisions for the 3-0 court.

"The economic circumstances of the respondents made their choice more
understandable than it would have been in other circumstances, but it
remains an informed choice to commit a very serious crime."

"The blunt fact is that a wide variety of societal ills -- including, in
some cases, racial and gender bias -- are part of the causal soup that
leads some individuals to commit crimes," said Doherty, writing on behalf
of Associate Chief Justice Dennis O'Connor and Madam Justice Eileen Gillese.

"If those ills are given prominence in assessing personal culpability, an
individual's responsibility for his or her own actions will be lost."

While lawyers for the women argued conditional sentences would "promote
respect" for the law and counter the legitimate belief that blacks have
been treated unfairly and unnecessarily harshly by the criminal justice
system, the court took a dim view of that position.

"This argument assumes that the black community looks at the criminal
justice system exclusively from the perspective of the offender," Doherty
said. "The black community, like the rest of Canada, knows only too well
the harm caused by cocaine."

Although the sentences handed to two women, Marsha Alisjie Hamilton and
Donna Rosemarie Mason, were inadequate, little would be accomplished by
sending them to jail now that they have spent nearly 17 months under house
arrest, the court said. It reluctantly agreed to let them serve their
remaining sentence in the community. Hamilton received 20 months and Mason
two years less a day.

But the 20-month conditional sentence handed to the third woman, Tracy-Ann
Spencer, was "manifestly" unfit and should have been 40 months'
imprisonment, the court said, crediting her with 20 months for time served
at home and ordering her to spend another 20 months in jail.

The court was highly critical of Mr. Justice Casey Hill for turning the
sentencing hearing for Hamilton and Mason into a virtual one-man inquiry,
digging up "a veritable blizzard of raw statistical information" on
everything from the overrepresentation of blacks in the prison system to
Canada's compliance with international drug treaty obligations.

Hamilton, who travelled to Jamaica with her 1-year-old son in November,
2000, swallowed 93 pellets containing 349 grams of up to 79-per-cent pure
cocaine. Mason, who returned from Jamaican holiday on March 14, 2001,
swallowed 83 pellets of up to 91-per-cent pure cocaine, weighing 489 grams.
Both women pleaded guilty in the Superior Court of Justice.

Partway through the sentencing hearing, the proceedings took "a dramatic
turn" when Hill, through his secretary, sent lawyers about 700 pages of
material gathered from his own research. He said in nearly nine years as a
judge in Brampton, he'd noticed an unusually large number of single black
mothers appearing before him charged with drug smuggling and it led him to
wonder whether they were being preyed upon and unfairly bearing the brunt
of tough drug sentencing laws.

Hill concluded they were vulnerable and desperate targets, conscripted by
the drug distribution hierarchy and paid relatively small amounts of money,
which they used to feed their families and pay the rent. Their children
would essentially become orphaned if the women went to jail, he added in
his judgment on Feb. 20, 2003.

A month later, Madam Justice Nancy Mossip relied heavily on Hill's findings
in sentencing Spencer, a nursing student who had pleaded not guilty to
smuggling 733 grams of 82-per-cent pure cocaine in a suitcase.

By assuming the "multi-faceted role of advocate, witness and judge" and
appearing to drive the inquiry, Hill, a former Ontario prosecutor, stepped
outside the role of judge and his efforts "put the appearance of
impartiality at risk" -- even if he did conduct the hearing with
"scrupulous fairness" by allowing lawyers for all parties to have input,
Doherty said.

While Hill's judgment was "thoughtful and detailed," it was not based on
evidence in the case, Doherty said, noting there was no information about
why the women committed the crimes, apart from a single line in Hamilton's
pre-sentence report that "financial hardship" was behind her action.

The decision ignored principles of sentencing and binding judgments from
the Court of Appeal, which has repeatedly said conditional sentences are
rarely warranted for cases of serious drug importation, Doherty said.

Jim Leising, a senior justice department lawyer, said he was extremely
pleased with the decision. He argued the earlier rulings would encourage
the very exploitation Hill was worried about, because drug kings would
assume there were no penal consequences to using black women as couriers.