Pubdate: Tue, 19 Apr 2016
Source: Windsor Star (CN ON)
Page: A4
Copyright: 2016 The Windsor Star
Contact:  http://www.canada.com/windsorstar/
Details: http://www.mapinc.org/media/501
Author: Sarah Sacheli

JUDGE PONDERS LIGHTER SENTENCE FOR MARIJUANA

How does the changing attitude toward marijuana affect what I do here today?

A Windsor judge mused aloud Monday about whether he should be lenient 
with a drug trafficker given "changing public opinion" on marijuana.

"Let me poke the elephant in the room," Superior Court Justice Thomas 
Carey said at the sentencing hearing of a man caught with 10 
kilograms of marijuana in his car and another 1.5 kg hidden above a 
ceiling tile in his home.

Our current federal government was elected on a platform that 
included the decriminalization of marijuana, and it's already legal 
in some countries and U.S. states, Carey said.

"How does the changing attitude toward marijuana affect what I do here today?"

Benjamin Herta, 28, was arrested on Nov. 14, 2012, after backing his 
BMW into a ditch along a rural property on Concession Road 8 in 
Amherstburg. In the back seat were bins of pot totalling more than 10 kg.

Tracks in the frost led police to a horse barn on the property where 
police found another 212 kilos of marijuana.

Herta's passenger, Edward Seery, 36, confessed to the pot in the barn 
and was sentenced in 2013 to 31/3 years in a federal penitentiary.

Police then raided Herta's Lincoln Road home and found 1.5 kg of 
marijuana hidden above a ceiling tile, $2,800 under his mattress and 
a debt list in his bedroom drawer.

After trial, Carey convicted Herta of possessing the marijuana found 
in the car and at his home for the purpose of trafficking.

On Monday, Carey likened marijuana to alcohol at the tail end of prohibition.

"Was it relevant in 1932 in the sentencing of a bootlegger that 
prohibition was coming to an end?"

Herta's own lawyer, Ken Marley, said, "as an officer of the court," 
he needed to point out that his client had been convicted of a crime 
that was on the books at the time of his arrest and continues to be a crime.

"Take the law as it is," Marley told the judge.

Federal drug prosecutor Richard Pollock said he was taken aback by 
the judge's musings.

The federal government still prosecutes drug traffickers, Pollock 
said, because drug trafficking is illegal and possessing drugs for 
the purpose of trafficking is illegal.

"If the prime minister were here, that would be his position," Pollock said.

"You might even get your picture taken," was the judge's reply. 
Pollock did not crack a smile. One of Carey's fellow judges just last 
week dealt with a marijuana case, declaring the possible 
decriminalization of the drug irrelevant in current cases. Superior 
Court Justice George King sentenced Anthony Roy Caporale, 39, to 21 
months on house arrest for operating a 600-plant grow operation in a 
rented house on Rankin Avenue.

"I am aware of the federal government's stated intention to 
decriminalize cannabis marijuana," King said in his written decision. 
"However, it is not a relevant factor for me to consider in 
determining the appropriate sentence. On April 26, 2013, it was, and 
remains to this day (to be) illegal to grow cannabis marijuana in 
Canada without proper legal authority. My responsibility is to 
fashion a sentence based on the law in existence at the time of the 
offence, not on what might someday become the law of the land."

Carey is to sentence Herta on Friday. 
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