Citing Trudeau’s Plan to Legalize, Judge Refuses to Give Convicted Marijuana Trafficker Jail Time

The former University of Saskatchewan football linebacker's future had been in the hands of a judge with court precedent and the former Conservative government's justice policies signalled there was a significant chance he'd end up behind bars. But on Thursday afternoon in Saskatoon, Queen's Bench Justice Shawn Smith cited the change in federal power and impending marijuana legislation as a reason to let the 25-year-old walk out of court without cuffs. "It's a weird feeling. I'm grateful that it's coming to an end," Neary told VICE. In February 2014, Saskatoon Police were following two people who they alleged were drug dealers. After the two left Neary's apartment, police found marijuana in their backpacks. A warrant to search Neary's apartment turned up a pound of marijuana and a receipt for a storage locker. There, officers found 14 more pounds of weed . Since then, Neary's been in a court battle over the 21 pounds of marijuana, which he says he was storing for a friend. In November, he was convicted. The laws on the books didn't look good for Neary.

TOUGH ON CRIME LAWS

In 2012, the Conservatives made amendments to the Safe Streets and Communities Act which precluded conditional sentence orders for marijuana trafficking over three kilograms, Neary's co-counsel, Chris Lavier said. That means given the amount Neary had precluded him from community-based jail sentences or conditional sentence orders. Arguing this was a cruel and unusual punishment Lavier, along with BC-based lawyer John Conroy, made a constitutional challenge to have this overturned. "By removing the community-based sentence from the sentencing options it would effectively… leave no other option than to send him to jail," Lavier said, adding there are other sentences that are possible and legal, but have never been done with Saskatchewan case law because of the amendments to the Act. Even the judge said if Neary had been charged prior to those amendments, he would have been a perfect candidate for conditional sentences because of his family support and lack of criminal record. In the end, the judge shut down the constitutional challenge but made a precedent-setting decision of two years less a day of probation—pointing to the confusing state of affairs in Canada's marijuana legislation in his decision. "We find ourselves in a curious circumstance; we are in an interregnum, a time that exists between two governing regimes," Justice Smith wrote in his decision. The decision read that the prime minister has made it clear that we are on our way to legalization in Canada, and even though how that will look for distribution is still unclear, it is certainly coming. The court's obligation to deterrence doesn't hold as much weight when prohibition is becoming a thing of the past. "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," Justice Smith wrote. The judge referenced Neary's continuing education and employment plus a pile of reference letters from across the country showing his contributions to society as a reason for it being unlikely that he is a threat to the community. It was a lot of weed, and probably a pretty bad call (which Neary admits), but the judge said "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."

Privilege Helps

Even Neary's conditions (curfew, no alcohol, no bars, etc.) are a win for the former star athlete, since they will apply only until the end of August. Lavier said the judge's ruling reflect the everyday challenges the country's justice system faces when it comes to pot. "Everybody struggled with that issue—the judge, the council, the council for the Crown - because none of us know [what the legislation will be]," he said. The precedent set in this case is not enough Conroy added, it certainly doesn't carry the weight of a Supreme Court decision for people currently head-on in the justice system with marijuana charges. "It's still illegal until they do something but they said they are going to make it legal and they've refused to decriminalize or have some sort of interim provision," Conroy said. "So I think courts are in this situation where the sentencing principles are diminished compared to the past in terms of what kind of sentence you are going to impose." As he studies for his LSATs and makes long-term plans for the first time in two years, Neary said he recognizes that some of this decision also has to do with his privilege as a white guy with some wealth. "My privileges are vast and I think about that every day," he said. "Without that privilege I wouldn't be able to do what I'm doing now as I'm going to school, keeping a job, staying out of prison. [It's] affording me opportunity for opportunity." Neary pointed to statistics about the over incarceration of Indigenous people (in the Prairies, 48 percent of federal inmates are Aboriginal and numbers are higher for provincial corrections) and said "if I was Native, if I was black, if I was poor—I would definitely be in jail right now, regardless of what was happening on a political or economic spectrum concerning cannabis. He says he wants to be an ally for people navigating the justice system and people figuring out Canada's cannabis future. "It's not just about me anymore, it's about all Canadians." Follow Geraldine Malone on Twitter.