R. v. Song (Z.),

• Jurisdiction: Ontario
• Judge: Moldaver, Simmons and Blair, JJ.A.
• Neutral Citation: 2009 ONCA 896
• Date: 10 December 2009
• Court: Court of Appeal (Ontario)

R. v. Song (Z.) (2009), 257 O.A.C. 221 (CA)

MLB headnote and full text

Temp. Cite: [2009] O.A.C. TBEd. DE.095

Her Majesty the Queen (appellant) v. Zeyu Song (respondent)

(C49621; 2009 ONCA 896)

Indexed As: R. v. Song (Z.)

Ontario Court of Appeal

Moldaver, Simmons and Blair, JJ.A.

December 16, 2009.

Summary:

The accused pleaded guilty to the production of marijuana and, after being credited for six months of pretrial bail, was sentenced to a 12 month conditional sentence. The Crown applied for leave to appeal and, if granted, appealed.

The Ontario Court of Appeal granted leave to appeal, but dismissed the appeal.

Criminal Law - Topic 5720.4

Punishments (sentence) - Conditional sentence - When available or appropriate - The accused pleaded guilty to the production of marijuana and, after being credited for pretrial bail, was sentenced to a 12 month conditional sentence - The Ontario Court of Appeal stated that it was very difficult to conclude that this was one of those rare cases where a conditional sentence was appropriate - The accused engaged in a large scale commercial grow operation involving more than 1,400 plants worth a considerable amount of money - The enterprise was carried on in a residential area and involved the theft of a considerable amount of electricity through a hydro bypass - While the accused pleaded guilty and had no prior record, there was little else of a mitigating nature - However, where he had completely served the conditional sentence, the court was reluctant to send him to prison - Accordingly, the court dismissed the appeal - Had the court been dealing with the matter de novo at trial, a period of incarceration would have been warranted - See paragraphs 14 to 19.

Criminal Law - Topic 5830.8

Sentencing - Considerations on imposing sentence - Drug and narcotic offences - The accused pleaded guilty to the production of marijuana and, after being credited for pretrial bail, was sentenced to a 12 month conditional sentence - The Crown applied for leave to appeal - The Ontario Court of Appeal allowed the application, holding that the sentencing judge made at least three errors in principle - First, he ignored or failed to give effect to jurisprudence emanating from the Court of Appeal to the effect that conditional sentences were rare, even for first offenders, in cases such as this involving large residential marijuana grow operations - The judge treated the principle of appellate deference as leave to impose with impunity a sentence based on personal views of national drug policy - This was wrong and constituted an unreasonable exercise of discretion - Secondly, he refused to apply the provisions of the Criminal Code and binding jurisprudence that mandated that general and specific deterrence be considered in arriving at an appropriate sentence in cases of this nature - He discounted general deterrence to the point of suggesting that it would be "insane" to consider it - Lastly, the judge erred by allowing his personal and political opinions to colour or frame his decision - He made it clear that he had little use for a sentencing regime that sought to cope with marijuana offences by relying on deterrence and "real" jail sentences - Personal diatribes of the nature engaged in by the judge were unhelpful and demonstrated a lack of objectivity that undermined the deference generally afforded to judges - The principle of deference was not a licence for a judge to defy settled jurisprudence, ignore the principles of the Code and use his or her dais as a political podium - See paragraphs 4 to 13.

Criminal Law - Topic 5833

Sentencing - Considerations on imposing sentence - Deterrence - [See Criminal Law - Topic 5830.8 ].

Criminal Law - Topic 5878

Sentence - Possession, cultivation or production of a narcotic or a controlled drug or substance - [See Criminal Law - Topic 5720.4 ].

Criminal Law - Topic 6201

Sentencing - Appeals - Variation of sentence - Powers of appeal court (incl. standard of review) - [See Criminal Law - Topic 5830.8 ].

Criminal Law - Topic 6211

Sentencing - Appeals - Variation of sentence - Application for leave to appeal - Grounds - [See Criminal Law - Topic 5830.8 ].

Criminal Law - Topic 6214

Sentencing - Appeals - Variation of sentence - Considerations - Where sentence of trial court has been fully or partially served - [See Criminal Law - Topic 5720.4 ].

Cases Noticed:

R. v. Jacobson (M.G.) (2006), 209 O.A.C. 162; 207 C.C.C.(3d) 270 (C.A.), refd to. [para. 5].

R. v. Nguyen (T.H.T.) (2007), 229 O.A.C. 71; 227 C.C.C.(3d) 262 (C.A.), appld. [para. 5].

R. v. Chen (W.K.), [2007] O.A.C. Uned. 102; 2007 ONCA 230, refd to. [para. 7].

R. v. Dawson (B.) (2004), 189 O.A.C. 147 (C.A.), refd to. [para. 7].

R. v. Koenders (A.D.) (2007), 244 B.C.A.C. 271; 403 W.A.C. 271; 221 C.C.C.(3d) 225; 2007 BCCA 378, refd to. [para. 7].

Counsel:

Kevin Wilson, for the appellant;

Linda Tang, for the respondent.

This application and appeal were heard on December 10, 2009, by Moldaver, Simmons and Blair, JJ.A., of the Ontario Court of Appeal. The following judgment of the court was released on December 16, 2009.