Pubdate: Wed, 04 Aug 2004
Source: Globe and Mail (Canada)
Copyright: 2004, The Globe and Mail Company
Contact:  http://www.globeandmail.ca/
Details: http://www.mapinc.org/media/168
Page: A8
Author: Gay Abbate

APPEAL COURT HANDS DOWN HARSHER TERMS FOR DRUG MULES

Skin Colour Isn't Relevant, Judges Say

Three black women who argued that their skin colour and poverty led them to 
courier cocaine should not have received light sentences for smuggling the 
drugs, the Ontario Court of Appeal ruled yesterday.

The higher court handed down harsher sentences for the women arrested as 
so-called drug mules after they were found bringing cocaine to Canada from 
Jamaica. Each of them had successfully argued that systemic racism led to 
their crimes, but as of yesterday that defence became harder to use.

"A sentencing proceeding is . . . not the forum in which to right perceived 
societal wrongs, advocate 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," three judges ruled in unanimous decisions yesterday.

Lawyer David Tanovich said "the court has pretty much closed the door, 
unless you can prove a link between systemic racism and the offence."

Mr. Tanovich, who teaches at the University of Windsor, had represented 
Tracy-Ann Spencer in 2002, when she received no jail time but house arrest 
for two years less a day.

She had been convicted of importing 733 grams of cocaine in her suitcase.

In the 13-page decision released yesterday, the judges overturned the 
conditional sentence. Ms. Spencer will be sent to jail for 20 months, but 
can apply for bail if the ruling is appealed to the Supreme Court of 
Canada, as some observers expect.

The appropriate sentence would have been 40 months in custody, the judges 
said, but they gave the 27-year-old mother of three credit for the time she 
served under house arrest.

The judges, Mr. Justice David Doherty, Mr. Justice Dennis O'Conner and 
Madam Justice Eileen Gillese, also rejected similar arguments in two other 
cases also appealed by the Crown.

The judges said Marsha Hamilton, 29, and Donna Mason, 34, should have 
received jail time for their offences. But since the women have almost 
entirely served their conditional sentences -- Ms. Hamilton received 20 
months under house arrest and Ms. Mason two years less a day -- the judges 
found that little would be achieved by sending them to jail for a few more 
months.

The Court of Appeal had opened the doors to the systemic-racism defence in 
a 2002 case, Regina v. Quinn Borde.

While the court dismissed systemic racism as a mitigating factor in the 
Borde case, it said that lawyers could argue that black women constitute a 
vulnerable group because they are the victims of racial and gender bias in 
some instances.

In his earlier sentencing in the Hamilton and Mason cases, Mr. Justice 
Casey Hill of the Ontario Superior Court found that systemic racism and 
gender bias were key factors in the women agreeing to smuggle drugs.

Both are black single mothers on welfare, poorly educated and with no 
employment skills.

"In my view, systemic racism and background factors, identified in this 
case . . . should logically be relevant to mitigate the real consequences 
for cocaine importers conscripted as couriers," Judge Hill wrote.

But the Court of Appeal judges disagreed and criticized Mr. Hill for using 
unproven statistics he pulled from the Internet as evidence that blacks 
constitute a disproportionate number of people in the criminal-justice system.

"While no doubt well-intentioned, the trial judge effectively took on the 
combined role of advocate, witness and judge, thereby losing the appearance 
of a neutral arbiter," the judges said.

In the other case, Ms. Spencer worked and received child support from the 
two fathers of her three children, so the judges found that poverty was not 
the reason for her smuggling cocaine.

Nor did she plead guilty, as did the other two women. All these are 
mitigating factors, they said, but not enough to offset the seriousness of 
the offence.
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MAP posted-by: Keith Brilhart