Appeals court raps judge for marijuana 'diatribe'

Of course, the irony is that one type of drug offender deterred by jail is the commercial grower.

Now, whether the war on drugs is sensible is a legitimate issue for public debate -- readers may recall that Portugal decriminalised drugs without any significant increase in drug use.

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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

Kirk Makin
Globe and Mail

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 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.
James Morton
1100-5255 Yonge Street
Toronto, Ontario
M2N 6P4

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