Pubdate: Fri, 13 Aug 2004 Source: Orangeville Citizen (CN ON) Copyright: 2004 Orangeville Citizen Contact: http://www.citizen.on.ca/ Details: http://www.mapinc.org/media/2529 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. - --- MAP posted-by: Josh