First, Parliament said aboriginal offenders in particular should be kept out of jail if at all possible. Then Ontario's appeal court said last week that black offenders deserve special consideration, too. And now -- it didn't take long -- an Ontario judge has taken that precedent and gone not one but two steps further.
Women may receive softer sentences than men for similar offences. And black women, who are "doubly disadvantaged," may receive especially favourable terms. So two black women who acted as drug couriers, swallowing large amounts of cocaine pellets before flying in from Jamaica, were sentenced to terms of house arrest.
The strangest thing about the offensive double standard applied by Mr. Justice Casey Hill of the Ontario Court of Justice is that he could have arrived at precisely the same sentences without it.
The offenders were single mothers, each with three children. They had felt desperate about their situation and were easy prey for figures high up in the drug trade. The children's fathers (multiple fathers in each family) provided no support. The families lived on welfare.
The women had no previous criminal record. They expressed remorse for their actions. One said: "I know I have made a terrible mistake, and . . . I know that I was wrong to do what I did and I'm very sorry, Your Honour. I'm just asking you just to give me a second chance to better my life with my children . . ."
Both women backed up their expressions of remorse by keeping out of trouble during nearly two years between the committing of their crime and the sentencing hearing.
Their offence was a serious one, but given all the circumstances, a conditional sentence seems fair. Justice has been tempered by mercy, and by the knowledge that the women involved do not seem likely to reoffend.
Then why did Judge Hill feel the need to point out that women are statistically less likely to reoffend than men? Are judges to apply a sort of actuarial table in determining when deterrence is necessary?
The judge expressed concern that the "war on drugs" has a disproportionate effect on black people, both men and women. But there was no evidence to suggest that any sort of racial profiling occurs in the nabbing of drug mules.
Sentences reflect the gravity of the offence and, in Judge Hill's words, the "moral blameworthiness" of the offender. By offering a sentencing discount based in part on race and sex, judges are in effect saying that people with a certain skin colour are less blameworthy than others, and that women are less blameworthy than men.
This is doing members of those groups a favour? If they are less blameworthy, they must therefore have less moral capacity than other people. The judges are, however inadvertently, adopting the logic of generalization, of racists and sexists.
This logic insults all people from those groups who obey the law. It denies offenders from other groups equal access to mercy, which is unfair; and it does not offer equal protection to the victims of crime, who in many cases are from the same disadvantaged group as the offender.
Offenders are individuals who in the end must be held accountable for their actions. The judges may believe they are helping the offenders, but in fact they are dehumanizing them.