JUDGES MUST APPLY THE LAW--AND HOLD THEIR BIASES

The four-year jail sentence imposed on former Toronto Maple Leafs
captain Rob Ramage by Justice Alexander Sosna and upheld by the
Ontario Court of Appeal last week is evidence some judges do treat
impaired driving cases seriously. That's in sharp contrast to judges
who don't seem capable of applying simple impaired driving laws as
mentioned in last week's column.

Many readers shared their theories on why some judges don't follow
appellate directions or the law in impaired cases. Many speculated
about the drinking habits of judges. One reader made the argument:
"Lawyers and judges are some of the worst drinking and driving
offenders anywhere. Alcoholism runs rampant in these professions due
to the enormous demands and stress of the jobs. In fact, Osgoode Hall
has one of the most impressive and well-stocked bars in the province
- -if not the country -so it should come as no surprise that those who
so frequently and freely imbibe often deliver verdicts that are
lenient, outrageous, and in some cases even criminal (pardon the
expression)."

Perhaps -I'm not aware of any statistics on impaired driving by
lawyers or judges -but another group of readers think some judges
don't follow the law because they disagree with the law.

"The judges disagree with the method currently being applied to deal with
alcohol addiction. Translation: Sending someone to jail is not the solution
and until we find a better one, sending a drunk to jail isn't the long term
solution," one reader wrote.

That may be so, but judges are paid to apply the law, not to decide
cases based on personal views.

Perhaps the best blatant example of a judge letting his personal
opinions get in the way of the law can be seen in the 2008 Zeyu Song
decision. Song pleaded guilty to a charge of production of marijuana.
He operated a large scale grow-op in a Brampton, Ont.. residential
area. He stole electricity. More than 1,400 plants were seized. There
were no mitigating circumstances, other than it was a first offence
and, based on prior appeal court decisions, a jail term was warranted.
Instead, Justice J. Elliott Allen imposed a conditional sentence,
meaning no jail time. He made no efforts to disguise his agenda or his
personal views of drug laws as evidenced by his statement, "really
what we're doing by prohibiting the production and consumption of
marijuana is giving the Hells Angels several billion dollars worth of
income every year."

Late in 2009, the Ontario Court of Appeal reprimanded Allen stating,
"judges are entitled to hold personal and political opinions as much
as anyone else. But they are not free to permit those views to colour
or frame their trial or 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 a
lack of objectivity."

Another misguided sentencing decision took place in 2008 and was also
corrected by Ontario's appeal court in late 2009. Ahmad and Mehran
Mirzakhalili were convicted of arson and conspiracy to commit fraud.
As with any case of arson, they risked the lives of firefighters and
emergency personnel, but in this case, according to the appeal court,
they "followed through on their plan to blow up and burn down their
own store (in Ottawa) even after they discovered that people were
working late in the adjoining framing shop." Yet Justice Denis J.
Power granted a conditional sentence. On appeal, Ontario's appeal
court imposed a jail sentence, noting that "conditional sentences are
not appropriate for serious arson offences."

You'd think that would be self evident to most.

Judges who are unable or unwilling to follow statutes and precedents
create a strain on our legal system. Scarce resources are wasted and
unreasonable expectations are raised dealing with their erroneous
decisions. They create a lack of respect for the judiciary in general
and the rule of law.