Last June, a judge of the Saskatoon Court of the Queen’s Bench handed out a suspended sentence to Seamus John Neary after he was convicted of possession for the purpose of trafficking and trafficking over 20 pounds of cannabis.
What made the decision especially notable was the fact that the judge cited the imminent legalization of cannabis as a basis to deviate from what would otherwise be a sentence of 15 – 18 months in custody. The judge noted that in the circumstances there was “an interregnum, a time that exists between two governing regimes” and 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.
The Crown appealed the decision to the Saskatchewan Court of Appeal, who took a much different view of the situation in overruling the trial judge and substituting a sentence of 15 months incarceration.
The Court of Appeal noted that
Judges are bound to apply the law as it exists not as it might be in the future especially when, as here, it is unknown when the law will be changed, what the terms of it will be and how it will affect the offences of trafficking drugs or possession for the purpose…
The possible future legalization of possession of marijuana can have no legal effect on the sentencing regime… It is an irrelevant extraneous factor that could, in this case, play no part in sentencing considerations. The trial judge’s reliance on this factor was an error of law.
With the federal government slated to legalize cannabis by July 1, 2018, stay tuned for what will likely be an attempt to further appeal the decision to the Supreme Court of Canada.