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Appeals court raps judge for marijuana 'diatribe'

The Ontario Court of Appeal thrashed a sentencing judge today for saying that sending people to jail in hopes of deterring marijuana offences is a form of insanity.

The appeal court said that Ontario Court Judge J. Elliott Allen has no right to misuse his judicial position to issue the sort of political "diatribe" that has no place in a courtroom.

"Judges are entitled to hold personal and political opinions as much as anyone else," the Court said. "But they are not free to permit those views to colour or frame their trial and sentencing decisions. They are bound to apply the law as it stands.

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"Personal diatribes of the nature engaged in by the sentencing judge here are unhelpful, however, and demonstrate to us a lack of objectivity that undermines the deference generally afforded to judges."

Judge Allen expressed his views on Oct. 14, 2008, while sentencing Zeyu Song to a conditional sentence for producing 1,400 marijuana plants at a large-scale grow operation near Brampton, Ont.

Judge Elliott spoke at length about the fallacy of believing that harsh penalties for marijuana have any effect on its use and production.

"Nobody has been deterred," he said. "People have been going to jail for drug offences for - for a couple of generations now and the drug - the drug plague is worse than it ever was ... If something doesn't work, do I try doing it again and again to see if it does work? Isn't that the definition of insanity?"

The judge noted that in the United States a huge number of people are serving life prison terms for growing or trafficking in modest amounts of marijuana, yet the drug is still easy to obtain.

"I am given to understand the chances of a Dutch teenager smoking marijuana are substantially lower than they are of an American teenager smoking marijuana - and the Dutch teenager can walk down to the corner and get it at a coffee shop," Judge Allen added.

He remarked that even conservative think-tanks advocate dismantling the drug laws because they are merely, "giving the Hell's Angels several billion dollars worth of income every year, which is then turned into investments in what would otherwise be legitimate businesses."

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In their blistering response to Judge Allen's ruminations, Mr. Justice Michael Moldaver, Madam Justice Janet Simmons and Mr. Justice Robert Blair accused him of ignoring express instructions to avoid imposing conditional sentences for large grow operations.

"The sentencing judge's reasons make it clear - albeit in breezy and colourful fashion - that he personally has little use for a sentencing regime that seeks to cope with marijuana offences by relying upon principles of deterrence and by the imposition of 'real' jail sentences," the Court said.

They said that Judge Allen erroneously believed that his inherent power as a trial judge would prevent appellate courts from altering his decision.

"The sentencing judge turned the principle of deference on its head," the appeal court said. "He treated it not as a recognition of his front line connection to the community and of his proximity to the dynamics of the proceeding, but rather as leave to impose with impunity a sentence based on his personal views of national drug policy.

"The principle of deference is not a license for the sentencing judge to defy settled jurisprudence, ignore the principles of the Criminal Code, or use his or her dais as a political podium."

While the case called out for a jail sentence, the Court said that it was reluctant to impose a term of incarceration on Mr. Song since he has already completed his conditional sentence.

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"In the end - without taking away from any of our observations above - we are not persuaded that it would serve the interests of justice to send Mr. Song to prison at this point," the Court said.

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About the Author
Justice reporter

Born in Montreal, Aug. 3, 1954. BA (Journalism) Ryerson, 1979. Previously covered environment beat, Queen's Park. Toronto courts bureau from 1981-85. Justice beat from 1985 - present. More

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