Old Laws Old Tricks

Arguing a Saskatchewan judge fumbled when he used potential pot legalization to justify giving a break to a former university football player caught with 21 pounds of marijuana, the Crown wants jail.

“The new (pending) legislation does not mean all things marijuana are now legal,” federal prosecutor Wade McBride argued before the Saskatchewan Court of Appeal on Thursday.

The lawyer representing Seamus John Neary not only defended his client’s sentence of probation, but took a second kick at a Charter of Rights argument. He contends a law prohibiting a conditional sentence for such a crime is cruel and unusual punishment — especially given the current government’s stance regarding pot.

“This drug is no longer as big a concern,” John Conroy contended.

Whether or not either side scored with their arguments is unknown. Justices Ralph Ottenbreit, Neal Caldwell and Peter Whitmore reserved decision.

The Crown launched its appeal after Neary received a suspended sentence with two years’ probation last June. Court of Queen’s Bench Justice R. Shawn Smith had said a jail term — the Crown had sought 15 to 18 months — was unnecessary for someone “who conducted himself well but for this single unfortunate foray in the mire of the drug world.” He listed at length Neary’s prior accomplishments as a volunteer at Regina social and youth programs, in academics and football at his Regina high school and later the University of Saskatchewan, and employment. Court heard the 26-year-old is currently attending a B.C. university.

A former defensive back for the U of S Huskies, Neary wasn’t under investigation until police saw their targets leave his Saskatoon apartment with two backpacks stuffed with pot in February 2014. A search found more pot at his home and in a storage locker — for a total of 21 pounds, plus $1,000 cash. Smith rejected Neary’s defence that he was storing the drugs for a friend and convicted him of possession for the purpose of trafficking, trafficking, and possession of proceeds of crime. He had also previously pleaded guilty to simple possession of magic mushrooms.

Smith said denunciation and deterrence were factors in sentencing, but less so since “the product in which he dealt is to become legal.”

McBride argued Smith erred in that finding and in focusing seemingly exclusively on Neary’s personal circumstances.

“It’s not an impulsive act to traffic in large quantities of marijuana,” he added.

McBride also urged the court not to focus on what Canada’s marijuana laws might be, but what they currently are. “The law still is though shalt not traffic in marijuana,” McBride said. Even with legalization for recreational use, the drug will be highly regulated and will likely prohibit large-scale, trafficking by criminals, he noted.

But Conroy argued similar offenders have also escaped jail terms, and Smith used his discretion given all the circumstances, including an imminent change in the pot law.

“It’s not going to be as serious as it used to be … The gravity of the offence is diminished,” he said. “You’re denouncing something that’s going to be legalized.”

When asked by Ottenbreit if Conroy had any case law to support the argument that the court should follow what government has signalled as opposed to the current law, the B.C. lawyer conceded he had none.

“It’s a misnomer to call it the old law; it’s the present law,” Ottenbreit interjected at one point.

In his defence cross appeal, Conroy revisited a Charter argument rejected by Smith. A 2012 legal amendment prevents conditional sentences, served in the community, for indictable crimes that carry hefty, maximum penalties — as is the case with Neary’s crimes. “Parliament went too far,” since the law captures people who aren’t endangering the public, Conroy argued.

McBride disagreed. “Distributing large quantities of marijuana is a serious offence,” he said.