APPEALS COURT RAPS JUDGE FOR MARIJUANA 'DIATRIBE'

Ontario Court of Appeal thrashes sentencing judge for saying harsh
penalties for marijuana have little effect on its use and production

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.

"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."

In their blistering response to Judge Allen's ruminations, Mr. Justice
Michael Moldaver, Madam Justice Janet Blair and Mr. Justice Robert Blair
accused him of ignoring express instructions to avoid impose 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.

"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.