Judge tackled race before
Doherty approved jury bias queries
Sentence ruling shows `evolution'

A decade ago, Mr. Justice David Doherty ruled potential jurors could be questioned about racial bias


Aug. 5, 2004. 06:09 AM

A little over a decade ago, Mr. Justice David Doherty made headlines when he ruled potential jurors could be questioned for racial bias. It was a decision that had defence lawyers cheering and legal experts scratching their heads and wondering about the long-term implications.

Now the highly respected Ontario Court of Appeal judge finds himself once more leaping into the fray, looking at the issue of race and sentencing. But this time he has said being black or disadvantaged shouldn't be considered in determining a sentence.

Earlier this week, he ruled in two major decisions that a sentencing court is not the place "to right perceived societal wrongs" or "make up" for social injustices.

The cases involved three women who were given lighter sentences for being drug mules because they were black and disadvantaged. The decisions have sparked a furious debate among legal scholars and lawyers over whether the poor, the disadvantaged or minorities should be given more lenient sentences.

"The economic circumstances of the respondents made their choice more understandable than it would have been in other circumstances, but it remains an informed choice to commit a serious crime," Doherty wrote on behalf of himself, Associate Chief Justice Dennis O'Connor and Madam Justice Eileen Gillese.

"The blunt fact is that a wide variety of societal ills including, in some cases, racial and gender bias are part of the causal soup that leads some individuals to commit crimes."

It seems to some a bit of a departure from his earlier decision. But others see it more as an "evolution" in thinking.

Most importantly, there is a huge difference in the cases, says Alan Young, a professor of law at York University's Osgoode Hall Law School. "I must say the principles and philosophy that underlie jury selection are fundamentally different from the sentencing process," Young said in an interview.

"There is nothing inconsistent in my mind for saying you are entitled to challenge jurors for racial bias because we want to ensure all trials are fair. The relevance of racism is apparent in jury selection. The relevancy of racism is not as readily apparent when it comes to punishing and sentencing ... whether you can use the sentencing process to address deep-seated racial inequalities; it is unclear if it's appropriate."

Not everyone agrees with Young. Lawyers David Tanovich and Julian Falconer, who represented one of the three defendants, believe race is entirely relevant in sentencing and want to see the issue handled definitively by the Supreme Court of Canada.

"I am disappointed that the court refused to take into account the relevance of race in the sentencing of drug importers," Tanovich told the Star's Tracey Tyler. "Race is relevant to general deterrence because it raises the question of how relevant deterrence is to a group who faces systemic discrimination and enforcement. Moreover, it is a myth to think that there is anything resembling free choice given the collateral damage caused by systemic racism and gender bias."

Tanovich said he felt the court ignored the social context that the "war on drugs" in the United States and Canada has been a "war on blacks" and "has had a profound impact on an already marginalized and disadvantaged group in our society."

Falconer called it "a tough case by anyone's standards. But there are certain cultural realities at play here."

Criminal lawyer Peter Thorning, the vice-president of the Canadian Association of Black Lawyers, believes it is the sentencing judge's duty to take into account all relevant social and political factors that contribute to a crime.

Thorning wants Parliament to take the initiative, examine the racism blacks face in the legal system overall and make changes to the Criminal Code, much as was done for aboriginal Canadians. The Criminal Code now calls for judges to be sensitive to the historic mistreatment of aboriginal Canadians. The same thing should apply for black offenders, Thorning said.

Other legal experts don't like the idea of separate treatment of visible minorities or the disadvantaged in the courts.

"Judges have been infected by an apartheid mentality," said Rob Martin, a professor of law at the University of Western Ontario. "They have ceased to see people as individuals and see them primarily as members of different racial groups or members of different groups based on sexual preference or race."





Mr. Justice David Doherty