Pubdate: Fri, 13 Jan 2017
Source: Regina Leader-Post (CN SN)
Copyright: 2017 The Leader-Post Ltd.
Author: Barb Pacholik
Page: A4


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 said Thursday before the
Saskatchewan Court of Appeal.

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.

Justices Ralph Ottenbreit, Neal Caldwell and Peter Whitmore reserved

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 at the University of Saskatchewan and through his
employment. Court heard the 26-year-old is currently attending a B.C.

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 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.

But Conroy argued similar offenders have also avoided 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.

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.

"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.
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