JUDGE BERATED FOR LAX SENTENCING ON MARIJUANA

The Ontario Court of Appeal rebuked a Brampton trial judge today for
suggesting it would be a form of "insanity" to jail a man for running
a large-scale marijuana grow operation from his home.

By choosing instead to sentence Zeyu Song to 12-months of house
arrest, Justice Elliott Allen ignored a line of cases from the appeal
court, instructing judges that conditional sentences in these cases
should rarely be imposed.

At the sentencing hearing last year, Allen essentially dismissed the
high court's pronouncements as mere "utterances" and suggested it is
largely up to local judges to fashion their own marijuana sentencing
practices.

But in doing so, he completely upended the notion that appeal courts,
in many instances, should defer to a trial judge's findings.

"The principle of deference is not a license for the sentencing judge
to defy settled jurisprudence, ignore the principles of the Criminal
Code, or his or her dias as a political podium," Justices Michael
Moldaver, Janet Simmons and Robert Blair said in a decision
collectively authored by "the court."

When Song, who pleaded guilty to a charge of production of marijuana,
came before the court last year to be sentenced, Allen rejected a
federal prosecutor's argument that a jail term was necessary to
discourage members of the public from getting involved in the drug
trade.

"What's your basis for saying that?" the judge pressed. "Because
nobody has been deterred. People have been going tojail for drug
offences for - for a couple of generations now and the drug - the drug
plauge is worse than it ever was."

Allen questioned why, when a form of sentencing "doesn't work," he
would try doing it again and again.

"Isn't that a form of insanity?" he asked.

The judge also noted that, in the United States - "which makes us look
like we are all living in northwestern Europe by comparison" - a huge
number of people are serving life sentences without parole for growing
or trafficking in moderate amounts of marijuana.

Meanwhile, the chances of a Dutch teenager smoking marijuana - which
is available at their local coffee shop - are substantially lower than
the likelihood of an American teenager using the drug, he said.

All society is really doing by prohibiting the production and
consumption of marijuana is "giving the Hell's Angels several billion
dollars worth of income every year," said Allen, who added that if pot
were not illegal, there also wouldn't be a problem with home invasions.

In a "breezy and colourful fashion," the judge has made it clear that
he personally has little use for a sentencing regime that seeks to
deal with marijuana offences by imposing "real" jail sentences to
deter people from buying and selling the drug, the appeal court said.

But while "judges are entitled to hold personal and political opinions
as much as anyone else," they are not free to permit those views to
colour or frame their trial and sentencing decisions," the court said.

As unhappy as it was with Allen's approach to sentencing, however, the
appeal panel had a practical problem. Song had completely served his
year of house arrest and, in such circumstances, the court is
reluctant to send people back to jail.

Without taking away from its dim view of how the trial ended, the
panel said it was "not persuaded that it would serve the interests of
justice to send Mr. Song to prison at this point."

So while the Crown effectively won its case, its appeal of Song's
sentence was dismissed.