Saskatchewan Appeal Court finds incarceration ‘demonstrably unfit’ sentence for cannabis offence

Law360 Canada (December 3, 2025, 12:20 PM EST) --

John L. Hill

Canada passed the Cannabis Act on Oct. 17, 2018, becoming the second country in the world, after Uruguay, to formally legalize the cultivation and recreational use of cannabis.

It is now common to see cannabis stores in almost every town and city. Prosecutions for possession of the substance are now a rarity. The Oct. 2, 2025, Saskatchewan Court of Appeal decision of R. v. Liu, 2025 SKCA 98 stands out for that reason.

On May 5, 2021, a Saskatchewan Highway Patrol officer stopped Diexin Liu for a sobriety and licensing check, citing tinted front windows. During the stop, the officer observed unstamped tobacco and called the RCMP. Liu was arrested, and a search incident to the arrest revealed 5.094 kilograms (11.23 pounds) of cannabis in five vacuum-sealed bags weighing one pound each, along with an additional 30-gram bag, bags containing cannabis stalks and leaves (weighing 1.47 kilograms and 1.64 kilograms, respectively), indoor grow equipment (lights, fans, humidifiers, water systems, grow tent) and Liu’s personal belongings, as he claimed to be moving from Calgary to Toronto.

Liu was a Chinese national and permanent resident with limited English skills. He faced charges in the Saskatchewan Provincial Court of unlawfully possessing more than 30 grams of dried cannabis in a public place, possessing cannabis for the purpose of distribution and possessing cannabis for the purpose of sale. He was also charged with possessing an unstamped cannabis product. Under the Excise Act, the absence of a stamp indicates that applicable federal and provincial duties on the product have not been paid. He was self-represented after the trial judge refused to grant an adjournment to obtain legal counsel. A Mandarin interpreter assisted him.

The Crown called RCMP Sgt. Robb Karaim as an expert. The process for his qualification was irregular. The judge said no voir dire was needed but still qualified him. The Crown expanded the expert’s scope to include opinions on the purpose of possession. Liu received Karaim’s 17-page CV only shortly before the qualification hearing. Additionally, the judge limited Liu’s ability to question the expert.

Karaim was qualified in all requested areas and testified that the cannabis was possessed for distribution and sale, based on factors such as packaging, quantity, degradation over time and estimated value.

Liu testified that he was moving provinces, had grown cannabis himself from four plants, used two to three grams per day, and kept one-pound bags solely to organize his supply. He denied any intention to sell, admitting only occasional sharing with friends. The trial judge accepted the expert evidence, rejected Liu’s explanation as not credible and convicted him of possession for the purpose of distribution and sale, along with related offences.

He received 13 months’ imprisonment for distribution or sale, a concurrent four months for possession and a $10,525 fine under the Excise Act. He appealed.

The court found that several interconnected errors happened in qualifying the expert and admitting his opinion. Although the expert’s qualifications were not accepted, the judge chose not to conduct a voir dire, which goes against standard practice (R. v. Abbey, 2009 ONCA 624). The Crown also provided late notice of expanding the scope of the expert’s opinion, addressing a key issue to be decided: the purpose of Liu’s possession of the material. This was a breach of s. 657.3(3) of the Criminal Code. This new issue related directly to the matter at hand and required closer scrutiny (R. v. Sekhon, 2014 SCC 15 and R. v. Mohan, [1994] 2 S.C.R. 9).

Karaim’s qualifications were not clearly presented to the accused. Liu only had 20 minutes with an interpreter to review the officer’s 17-page CV. The judge then ended the viva voce evidence regarding the expert’s qualifications. This made the qualification process procedurally unfair by restricting Liu’s ability to fully respond and defend.

Although acknowledging Liu’s right to question the proposed expert, the trial judge repeatedly prevented questions that directly related to qualifications and the basis of the opinion. The judge failed to provide an analysis of the Mohan criteria or the risk-benefit balancing required by White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23. Not conducting this analysis constitutes an error of law (R. v. S.K.M., 2021 ABCA 246; R. v. Montague-Mitchell, 2018 SKCA 78).

There was inadequate scrutiny of the opinion on the final issue. While experts may sometimes address the final issue, courts must apply heightened scrutiny (R. v. Sekhon, 2014 SCC 15; and Mohan). The trial judge did not.

The trial judge prevented Liu from challenging the expert’s inference that the cannabis was intended for distribution. Restricting relevant cross-examination is a serious error that affects the right to full answer and defence (R. v. Lyttle, 2004 SCC 5; R. v. R.V., 2019 SCC 41; R. v. Shearing, 2002 SCC 58).

With these errors during trial, the curative proviso does not apply. The curative proviso in s. 686(1)(b)(iii) applies only when the error is minor and has no impact on the verdict, or when the case against the accused is overwhelming (R. v. Khan, 2001 SCC 86; Sekhon; R. v. R.V.; R. v. Tayo Tompouba, 2024 SCC 16 at para. 76). The proviso was not applicable here because the errors directly influenced the verdict. The judge relied on the expert evidence to discredit Liu’s credibility and to conclude that the cannabis was possessed for distribution. Additionally, the case was not overwhelming without the expert evidence. Liu’s admitted multi-year supply of cannabis created competing inferences, both inculpatory and exculpatory, consistent with R. v. Villaroman, 2016 SCC 33.

Quantity alone does not conclusively prove trafficking (R. v. McCallum, 2006 SKQB 287; R. v. Mehari, 2009 ABPC 217; R. v. Wint, 2023 NSSC 100; and R. v. Bagnato, 2011 ONSC 2440). The trial judge also considered packaging alongside expert evidence, not in isolation.

A miscarriage of justice can occur from cumulative irregularities that affect fairness, even without proof of actual prejudice (R. v. Wesaquate, 2022 SKCA 101; R. v. Davey, 2012 SCC 75). Because the expert evidence was admitted through a flawed process and Liu’s cross-examination was improperly limited, fairness was undermined.

The Appeal Court also expressed difficulty with the trial judge’s sentencing process. At para. 61 of the judgment, it stated: “Cutting to the bottom line, I agree with Mr. Liu that the sentence for the possession count conviction was demonstrably unfit, not a proportionate sentence, and also not a sentence that aligns with customary dispositions for similar offenders having committed similar offences (R. v. Lacasse, 2015 SCC 64 at para. 52, [2015] 3 S.C.R. 1089; R. v. Friesen, 2020 SCC 9 at para. 26, [2020] 1 S.C.R. 424).”

The Court of Appeal quashed Liu’s charges for distribution and sales and referred those matters for trial. It upheld his conviction for violating the Excise Act but amended his sentence to a 12-month conditional discharge, requiring him to keep the peace and be of good behaviour.

John L. Hill practised and taught prison law until his retirement. He holds a JD from Queen’s and an LLM in constitutional law from Osgoode Hall. His most recent book, Acts of Darkness (Durvile & UpRoute Books), was released July 1. Hill is also the author of Pine Box Parole: Terry Fitzsimmons and the Quest to End Solitary Confinement (Durvile & UpRoute Books) and The Rest of the (True Crime) Story (AOS Publishing). Contact him at johnlornehill@hotmail.com.

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