This one comes to us from Canada.
You may have heard about Canada's Bill C-15 and all those crazy live-and-let-live judges up in Canada who are too lax on giving marijuana growers their come uppance.
Truth is, sometimes they can be pretty lax. But as this recent decision demonstrates, it's not how lax you are, it's how you justify it that matters.
Which brings us to a decision released yesterday by the Court of Appeal for Ontario in the case of R. v. Song.
The facts are simple. The accused, Mr. Zyu Song, pleaded guilty to growing over 1,400 marijuana plants -- whilst splicing a power line and stealing the electricity to do it, too. It was his first offence. There was no other sob story about illness, drug addiction, family violence, bad childhood. No, none of that. The grower was doing it for the cash; pure and simple.
So, how to sentence such villainy?
Mr. Justice Allen of Ontario's Superior Court of Justice had to determine just that when Mr. Song appeared before him to answer for his grave crime.
The Crown was seeking a sentence of about 18 months. Luckily for Mr. Song, the trial judge was having none of it. On that day, the trial judge was in no mood to play his normal role in the support of Prohibition.
Almost invariably, trial judges couch their language in the time honoured way of referring to all of the sentencing principles known to the law with a nod and insisting how important they all are. Then, after paying homage and lip service, the judge exercises his or her discretion in the way that best fits "the criminal and the crime" to justify the sentence they wish to impose.
But this time, Justice Allen departed from the time honoured practice and veered into very dangerous waters. The trial judge decided that instead of paying lip service to all of the sentencing principles first, he would instead be openly honest about it.
How honest is honest? Take a look:
It appears that Canada's largest appellate court would have the national media believe that they missed it too. (Psst: Not a chance.)
The Court of Appeal, in hearing the appeal from the sentence handed out to Mr. Song, wrote:
After supposedly missing the reference to Einstein, The Court of Appeal then had the following to say:
Similarly, the Court of Appeal took the trial judge to task for this heresy:
"There was no evidence to support any of these observations."
But then the Court of Appeal gets to the meat of the matter and says this:
Which the Court of Appeal for Ontario then proceeded to do, in a proper judicially dishonest fashion.
So what to make of all of this?
1 - Judges cannot directly challenge the principle of deterrence or attack the laws of the state as being irrational or purposeless. That is not a judge's role.
And the second message?
2 - By referring to precedent and judicial reasoning to accomplish the same goal indirectly, the Court of Appeal then showed judges in Ontario how to properly let a grower of 1,400 plants off of the hook.
As soon as I read the decision, I recognized that there was no way that a judge like Justice Michael Moldaver could have missed a reference to Albert Einstein. That was the cue that I was about to read decision that was written in judicial code.
One part is written for judges and lawyers (this is how you do it without making a public fuss); the other part for the media (how naughty and liberal our judges can be - -but see - we have it all under control).
Predictably, Canada's largest daily newspaper, The Toronto Star, utterly missed the coded message, and falls for the candy doled out to the media:
"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."
The link to the newspaper article is here. They miss every clue, too:
http://www.thestar.com/news/ontario...-berated-for-lax-sentencing-on-marijuana?bn=1
You may have heard about Canada's Bill C-15 and all those crazy live-and-let-live judges up in Canada who are too lax on giving marijuana growers their come uppance.
Truth is, sometimes they can be pretty lax. But as this recent decision demonstrates, it's not how lax you are, it's how you justify it that matters.
Which brings us to a decision released yesterday by the Court of Appeal for Ontario in the case of R. v. Song.
The facts are simple. The accused, Mr. Zyu Song, pleaded guilty to growing over 1,400 marijuana plants -- whilst splicing a power line and stealing the electricity to do it, too. It was his first offence. There was no other sob story about illness, drug addiction, family violence, bad childhood. No, none of that. The grower was doing it for the cash; pure and simple.
So, how to sentence such villainy?
Mr. Justice Allen of Ontario's Superior Court of Justice had to determine just that when Mr. Song appeared before him to answer for his grave crime.
The Crown was seeking a sentence of about 18 months. Luckily for Mr. Song, the trial judge was having none of it. On that day, the trial judge was in no mood to play his normal role in the support of Prohibition.
Almost invariably, trial judges couch their language in the time honoured way of referring to all of the sentencing principles known to the law with a nod and insisting how important they all are. Then, after paying homage and lip service, the judge exercises his or her discretion in the way that best fits "the criminal and the crime" to justify the sentence they wish to impose.
But this time, Justice Allen departed from the time honoured practice and veered into very dangerous waters. The trial judge decided that instead of paying lip service to all of the sentencing principles first, he would instead be openly honest about it.
How honest is honest? Take a look:
Careful ICM readers will note that Mr. Justice Allen was paraphrasing Albert Einstein in the above passage. If you missed it, don't feel too bad.
It appears that Canada's largest appellate court would have the national media believe that they missed it too. (Psst: Not a chance.)
The Court of Appeal, in hearing the appeal from the sentence handed out to Mr. Song, wrote:
Do you think the judges on the Court of Appeal really missed it? Hmmm. Stick around; it gets better.
After supposedly missing the reference to Einstein, The Court of Appeal then had the following to say:
The Court of Appeal's point in citing the above passage was to "admonish" the trial judge to the media, which had previously had a field day in reporting on the sentence -- and most especially the reasons of the trial judge -- in the national press.
Similarly, the Court of Appeal took the trial judge to task for this heresy:
The Court of Appeal's response to this?
"There was no evidence to support any of these observations."
But then the Court of Appeal gets to the meat of the matter and says this:
The message to trial judges? It isn't your place to question the law openly. It's your place to pay it lip service and then find a proper judicial way around laws you don't like.
Which the Court of Appeal for Ontario then proceeded to do, in a proper judicially dishonest fashion.
So the appeal is dismissed and Mr. Song - who had no previous criminal record - was not ordered into jail. He walked with only 12 months under house arrest for 1,400 plants and a spliced power line growing dope in Canada's largest metropolitan area.
So what to make of all of this?
1 - Judges cannot directly challenge the principle of deterrence or attack the laws of the state as being irrational or purposeless. That is not a judge's role.
And the second message?
2 - By referring to precedent and judicial reasoning to accomplish the same goal indirectly, the Court of Appeal then showed judges in Ontario how to properly let a grower of 1,400 plants off of the hook.
As soon as I read the decision, I recognized that there was no way that a judge like Justice Michael Moldaver could have missed a reference to Albert Einstein. That was the cue that I was about to read decision that was written in judicial code.
One part is written for judges and lawyers (this is how you do it without making a public fuss); the other part for the media (how naughty and liberal our judges can be - -but see - we have it all under control).
Predictably, Canada's largest daily newspaper, The Toronto Star, utterly missed the coded message, and falls for the candy doled out to the media:
"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."
The link to the newspaper article is here. They miss every clue, too:
http://www.thestar.com/news/ontario...-berated-for-lax-sentencing-on-marijuana?bn=1
