Provincial

Did Saskatchewan’s High Court Judge “Fumble” by Considering Upcoming Legalization of Cannabis in Former Football Player’s Sentencing Decision?

By Whitney Abrams | April 4, 2017

In November 2015, Seamus John Neary (“Neary”) was convicted of possession for the purpose of trafficking and trafficking over 20 pounds of marijuana, and for possession of psilocybin (magic mushrooms), contrary to the Controlled Drugs and Substances Act.

The sentencing decision was released June 23, 2016, where Justice R. Shawn Smith of the Saskatoon Court of the Queen’s Bench said that a jail term, as sought by the Crown, was unnecessary. A large part of the reduced sentencing decision was due to the “declared intention that steps are being taken to legalize marijuana.” Notably, Neary’s academics, education, involvement in the community, and classification as “not a usual offender” for drug-related charges, were also considered.

The normal sentencing regime used by the Court of Appeal for similar charges are usually in the range of 15 to 18 months. As mentioned above, in his reasons, Justice Smith commented on the impact of upcoming legalization on his sentencing decision. He stated, “typically, I would not hesitate to follow the guidance of the Court of Appeal. However, in this instance, at this moment, we find ourselves in a curious circumstance; we are in an interregnum, a time that exists between two governing regimes.”

Neary’s counsel argued that in the face of legalization of marijuana, denunciation and deterrence concerns are not applicable as they once were. Accordingly, he argued, “to blindly follow the current sentencing regime of 15 to 18 months would not be an intellectually honest act in the face of the coming change.”

The Court ultimately agreed with Neary’s counsel, and held that no larger good would be served by a jail sentence as Neary posed no danger to the community. Justice Smith stated:

“[Neary] has conducted himself well as a citizen but for this single unfortunate foray into the mire of the drug world. To be certain, as he attempted to engage in a criminal enterprise, his crimes are deserving of denunciation and deterrence. However, facing the reality that the product in which he dealt is to become legal, it should be said that the decibel level of such denunciation and deterrence may be less than it otherwise would be.”

Accordingly, a suspended sentence of two years was imposed. Over the course of the two year sentence, Neary is required to meet conditions including keeping the peace and being of good behaviour, appearing before the court when required, and notifying his probation officer of any change in his name, address, or in his employment.

The Crown appealed the sentencing decision, and argued that Justice Smith erred in focusing on Neary’s personal circumstances and the fact that marijuana is to become legal.  To an extent, we agree.  The prudent course of action is to obey the law as it is today.  This is the approach we are seeing police implement as justification for dispensary raids all across Canada.

The silver lining is that Justice Smith’s decision demonstrates the trend of shifting public perception related to cannabis and the acceptance of legalization in the justice system.

The Crown’s appeal was heard in January, 2017. The Saskatchewan Court of Appeal reserved its decision and no written reasons have been released as of yet.


Whitney Abrams

Whitney Abrams

Whitney’s work focuses on providing regulatory advice and advocating on behalf of cannabis businesses in the North American market. She is a frequent contributor to Canada Cannabis Legal.
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Comments (3)

  1. Jules:
    Dec 29, 2018 at 12:53 AM

    Fascinating article. Very in depth. My one question is: from where would Canada import cannabis? Are there countries currently exporting cannabis legally? Uraguay seems like the most economical source, although shipping costs could be an issue.

  2. miss lena:
    Feb 24, 2019 at 01:52 PM


    All labels will need to be plain, not appealing to children, and make no health claims. For edibles, there may be no dietary claims, and for topicals, there may be no cosmetic claims. For all of the new product classes, packaging and labelling must not contain any elements that associate the product with an alcoholic beverage, alcohol, or an alcohol brand.

  3. miss lena:
    Feb 24, 2019 at 01:52 PM

    All labels will need to be plain, not appealing to children, and make no health claims. For edibles, there may be no dietary claims, and for topicals, there may be no cosmetic claims. For all of the new product classes, packaging and labelling must not contain any elements that associate the product with an alcoholic beverage, alcohol, or an alcohol brand.






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