An Ontario judge cited systemic racism against blacks Thursday in handing down extraordinarily light sentences to a pair of cocaine couriers, the first test of a controversial Ontario Court of Appeal ruling.
Mr. Justice Casey Hill of Ontario Superior Court gave the women conditional sentences featuring house arrest rather than imposing the two- or three-year penitentiary terms normally given for such offences.
Judge Hill said that Marsha Hamilton and Donna Rosemarie Mason belong to a group that is overrepresented in the justice system: impoverished black women who get caught up in the drug trade out of desperation.
He also took into account the well-being of their children, their impeccable behaviour while on parole and the fact that Ms. Mason faced deportation if her penalty exceeded two years.
The ruling was immediately criticized by a senior Justice Department official, James Leising. Besides being socially divisive, Mr. Leising said, Judge Hill's ruling will prove to be a godsend for drug overlords who are always on the hunt for willing recruits.
"If I were in the drug business and I were an overseer, I would fire all my couriers right away, hire black women, and say, 'There is no penal consequence for what you do. You're going to get a discount,' " he said.
Mr. Leising also said that the "extreme discount" the two defendants were given because of their race is an insult to disadvantaged groups who consider themselves capable of making basic life choices without an artificial leg up.
Ms. Hamilton, 28, will spend 20 months under house arrest. Ms. Mason, 33, will spend two years less a day.
Judge Hill delved at great length into the principles of sentencing before concluding that he was "unconvinced" by the government argument that he would be opening the floodgates to drug importers.
Judge Hill, a former senior Ontario prosecutor, said he preferred to concentrate on statistics and the personal reality of the defendants' lives.
Born in Jamaica, Ms. Mason came to Canada at the age of 7. She retained her Jamaican citizenship. Ms. Hamilton was born in Canada. Each woman has three children and limited education.
Each was arrested after arriving in Toronto on a flight from Jamaica. Both had swallowed pellets containing a substantial amount of cocaine.
Judge Hill said the defendants are clearly members of an underclass which, since they must rear children without the help of absentee fathers, can be easily exploited.
"These individuals, highly dispensable throwaways of elusive overseers, live in the despair of poverty, single mothers and subjects of systemic racism," he said in his 112-page ruling.
"It is apparent that women, and especially African-Canadian women like the offenders here and so many others, are virtue-tested by drug-operation overseers deliberately preying on their social and economic disadvantage."
The ruling is precisely what many penal reformers prayed for, and law-enforcement officials feared, after the appeal court's recent ruling in the case of Regina v. Quinn Borde.
In the Borde judgment, the court cautiously opened a door to the consideration of systemic racism and background factors in non-violent cases where a link can be demonstrated between the offender and systemic racism.
Almost as if they had anticipated the Borde decision, defence lawyers Salvatore Caramanna and Edward Royle spent several months putting expert evidence before Judge Hill to show this sort of link in the Hamilton and Mason cases.
Mr. Leising argued Thursday that they fell well short of the showing such a link. He also rejected statistics they produced to show the overrepresentation of black women in the justice system and to establish a close parallel between the experience of aboriginals and blacks in the justice system.
"There is a certain paternalism in this judgment," Mr. Leising said. "I agree that the Court of Appeal opened the door. But in this case, Justice Hill has rushed through it a little too quickly."
Mr. Leising said that in view of the dire consequences to the two women if his department were to win an appeal, it is still debating what to do. Mr. Leising said it can sometimes be wrong to subject people caught up in test cases to the full rigours of the justice system.