Swallowed Up: Drug Couriers at the Borders of Canadian Sentencing
I Introduction
Critics of law's many claims to power over women identify 'wars' on 'drugs' as a terrain of women's oppression.1 Domestic skirmishes in the drug 'wars' in countries of the North have facilitated intensified surveillance of women as they birth and raise their children or claim support from public institutions;2 justified intrusion into the 'private' spaces of women's bodies, their homes, and their places of leisure; and increased the criminalization of women.3 In the countries of the South that have borne the brunt of the globalization of American prohibition laws – places where the 'war' is literal, not metaphorical – women have been [End Page 285] displaced by armed conflict and had their livelihoods destroyed by crop eradication programs.4
Situated at the intersections of the North and the South are the women from poor countries and the poor women from rich countries who work as couriers, carrying small quantities5 of prohibited drugs from source and transit states into those in which consumers reside. In many states, including Canada, the United States, and the United Kingdom, convicted couriers normally receive very harsh sentences, usually multi-year prison terms.6 This sentencing practice has fuelled concerns about the imprisonment rates of black women from socially, politically, and economically marginalized communities. Some studies indicate that black women receive prison sentences for importing drugs at rates greatly disproportionate to their populations in the United States, the United Kingdom, and Canada and that drug-importation offences contribute significantly to the over-representation of black women in prisons.7
The conventional view that severe punishment of couriers is necessary to achieve deterrence and protect society has encountered resistance from some sentencing judges in a few jurisdictions. They have criticized guidelines that produce harsh penalties, sought to modify these norms, and sometimes refused to invoke them.8 A recent Ontario sentencing [End Page 286] decision offers what at first sight seems to be a fundamental break with established practice, both in its relatively light penalty and, more importantly, in its justification of the sentence. In R. v. Hamilton,9 the judge imposed conditional sentences10 on two black women couriers who had entered Canada after swallowing condoms stuffed with cocaine. Hill J.'s opinion characterizes importing by couriers as a distinctive offence deserving of mitigation because of the social context – the racialized identities, impoverished circumstances, and parenting responsibilities – of the women who commit it. His construction of black women couriers as trapped by their circumstances, 'desperate' for money and 'vulnerable' to exploitation by drug-trade organizers, draws on developments in feminist analysis and 'critical race theory' that have promoted social contextualization as a way to address discrimination.11 Without relinquishing the notion that courts must hold couriers accountable for their crimes, Hill J. seeks to temper the penal consequences of the offences, mitigating sentence on the basis that these women neither chose nor controlled the social context that drove them to commit their offences.12 This usage of social-context analysis did not persuade the appeal court, which treated the women's social context as marking them as precisely the kinds of persons that severe punishment seeks to deter and, hence, as a reason to impose harsh penalties.13
Despite their different holdings on the relevance of social context to determining the penalty, the two decisions share common themes that have the effect of buttressing discriminatory as well as punitive practices of the criminal-justice system. First, they rest on similar understandings of [End Page 287] how the social context of poor black women accounts for a disproportionate number of them appearing before the courts as drug couriers. Both opinions treat 'social context' as pertinent to the women's choices but not to those of officials...
