The Ontario Court of Appeal has rebuked a Brampton trial judge for suggesting it would be a form of “insanity” to jail a man for running a large-scale marijuana grow operation.
By choosing to subject Zeyu Song to 12 months house arrest, Justice Elliott Allen fashioned a sentence “based on his personal views of national drug policy” and engaged in an unhelpful “personal diatribe” about prison’s ineffectiveness in curbing the drug trade.
Despite a line of cases from the appeal court instructing judges that conditional sentences in these cases should be rare, Allen suggested it is largely up to local judges to develop their own marijuana sentencing practices.
In doing so, he completely upended the notion that appeal courts, in many instances, should defer to a trial judge’s conclusions, an appeal panel ruled Wednesday.
“The principle of deference is not a licence 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,” 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 people 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 to jail for drug offences for – for a couple of generations now and the drug – the drug plague is worse than it ever was.”
Allen questioned why, when a form of sentencing “doesn’t work,” he would try it again and again.
“Isn’t that a form of insanity?” he asked.
The judge noted that, in the United States, 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 teen 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 Hells Angels several billion dollars worth of income every year,” Allen said.
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 dilemma. Song had served his term of house arrest and, in such circumstances, the court decided “it would not serve the interests of justice” to send him back to jail.
So while the Crown won in principle, its appeal of Song’s sentence was dismissed.