Judge considers gender, race in drug sentences
Black women charged: Decision follows appeal court ruling that sentencing take race into account
Francine Dubé
National Post

One of the most respected judges of the Ontario Superior Court has ruled that "systemic and background circumstances" must be considered in the sentencing of two black women who were caught trying to smuggle cocaine into Canada from Jamaica.

"Considering the systemic and background circumstances of the offenders relevant to the commission of the offence already canvassed, various factors shared in common, and matters unique to each offender, an appropriate sentence range is an upper reformatory term of imprisonment (18-24 months)," Justice Casey Hill wrote.

Judge Hill referred repeatedly in his ruling to a recent Ontario Court of Appeal decision in the case of a black man named Quinn Borde who lived in a disadvantaged Toronto neighbourhood. The court in that case ruled that sentences for black offenders can be reduced or tailored to reflect systemic racism.

"Much of the material tendered as fresh evidence before the Ontario Court of Appeal in the Borde case was also produced by the defence here," Judge Hill wrote. "As described by [Judge Rosenberg in that decision], the reports respecting African-Canadians 'chronicle a history of poverty; discrimination in education, the media, employment and housing; and overrepresentation in the criminal justice system and in prisons.' "

Judge Hill's 111-page decision also details at length the problems suffered by women who end up in the criminal justice system.

"Two-thirds of federally sentenced women are mothers, and 70% of these are single parents all or part of the time; 68% of federally sentenced women were physically abused ... 53% of federally sentenced women were sexually abused ... fewer than one-third had any formal job qualifications beyond basic education prior to sentence, and two-thirds had never had steady employment," he wrote, citing a survey of women in federal institutions. "In other words, it may be said that 'men and women do not necessarily appear [before the court] in similar circumstances.'"

Even when women commit the same crimes as men, the factual underpinnings of the offence are often considerably different, Judge Hill wrote, and women are less likely than men to reoffend.

He pointed out that black women, like black men, are overrepresented in Canadian prisons. They are also overrepresented in the crime of cocaine importing, he said.

"And so, the women I see in the years that I have been here, are often single, black women and single mothers carrying a huge burden, very few employable skills, little prospect for the future with respect to attracting either stable employment at much more than a subsistence level, with the burden of child care of young children."

In his sentencing, he also took into consideration the fact that the women in question pleaded guilty, are first offenders, are single mothers of three children, demonstrated real remorse, and spent four days in custody at the time of their arrest.

Marsha Hamilton, now 28, arrived with her one-year-old son at Pearson International Airport on Nov. 9, 2000, on a flight from Montego Bay, Jamaica. She was found to have swallowed 93 pellets containing cocaine with a street value of about $70,000 before leaving Jamaica.

Traces of the drug were found in her urine and she nearly died from cocaine leaking into her bloodstream.

Hamilton was born in Canada but has family in Jamaica. According to the court decision, she was raised by her mother and maternal grandmother.

She is the single mother of three children, now ages three, seven and eight years, one of whom has a serious asthma condition. The fathers of the children provide no financial support.

Hamilton has a Grade 9 education, no criminal record, limited employment history and few employable skills. She lives in an apartment and supports her family on social assistance.

She was physically abused by the father of her first two children and lived in a shelter on more than one occasion with those children.

She pleaded guilty on March 6, 2002, maintaining it was her first involvement in such activity, that she felt remorse and that her involvement in the offence was a direct result of her financial hardship.

"All I have to say is I'm sorry, I'm truly sorry, but I made some mistakes in the past, and I look forward to getting a job and taking care of my kids for now," she said.

Donna Mason was caught on May 14, 2001, after flying to Toronto from Kingston, Jamaica, with 83 pellets of ingested cocaine.

Mason, now 33, is a Jamaican citizen who came to Canada in 1976 at the age of seven. At the time of the offence, she had two children (ages 8 and 10 years). Their fathers provide Mason with no financial support. She gave birth to a third child on Jan. 14.

She has a Grade 12 education and no criminal record. She is the senior children's choir leader at her church.

She has held short-term unskilled employment postings and, prior to the birth of her third child, was employed full-time at a Wendy's Restaurant, earning $8 an hour. This income is supplemented by welfare assistance.

She pleaded guilty on April 16, 2002, and was described by the probation officer in the pre-sentence report as a "quiet, pleasant, well-mannered, polite individual."

During the sentencing hearing, Mason addressed the court in these terms:

"I just wanted to say that I'm very sorry for what I have done, that I know I have made a terrible mistake, and that 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 and that I can show the court that I can do better in life."

The Crown had originally sought sentences of 2 1/2 and three years for the women.

Hamilton was sentenced to 20 months to be served on a conditional basis, with terms that essentially amount to house arrest. Mason received a similar sentence of 24 months.

The offences carry a maximum sentence of life in prison. In practice, sentences of three to five years in prison are standard for offenders who plead guilty to smuggling a kilogram of cocaine. Sentences of six to eight years are common for those who plead guilty to smuggling more.

The law is less clear on what the sentence should be for amounts under one kilogram.

Hamilton was attempting to smuggle 349 grams and Mason, 652 grams.

Sal Caramanna, the Toronto lawyer who represented Hamilton, said he didn't think the women got off lightly.

"I would argue that's an appropriate sentence even not factoring in any systemic issues," he said.


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