Three criminal defence lawyers who focus on cannabis cases say they're dismayed at the 10-month jail sentence recently imposed by a Manitoba judge on a man caught with 86.3 grams of marijuana.
Rodney Clayton Felix, 31, pleaded guilty to possession of cannabis for the purpose of distribution — a new offence under the federal Cannabis Act that took effect last October.
"Ten months is a very long time for a non-violent drug offence, especially given that the particular drug has just been legalized," said Caryma Sa'd, who practices law in Toronto.
Sa'd is worried the sentence from provincial court Judge Dale Schille "sets the bar very high" for future convictions.
"Past judgments affect future decisions... If this sentence isn't appealed, it's going to be a reference point for future cases," she said Wednesday.
Toronto cannabis lawyer Jack Lloyd isn't convinced the case is the first criminal conviction and sentence under the new marijuana law, as asserted by a recent article in a Canadian cannabis law blog.
"But what I can tell you is that 86 grams of cannabis resulting in a prison sentence of that duration is shocking," he said.
Under the federal rules that came in effect Oct. 17, 2018, set a personal public possession limit of 30 grams.
Provincial court sentencing decisions aren't binding on other judges, Lloyd said. Still, he worries other judges might look to Schille's sentence for guidance.
"For other judges that simply don't like cannabis, it'll be very persuasive," he said. "They'll use it to put more people in jail for cannabis."
The prosecutor in Felix's case asked for 15 months imprisonment. His lawyer, Scott Paler, had countered with a fine, and later raised the spectre of punishment in cannabis cases becoming a "class issue."
"Violent, dangerous criminals in this country do not get as much jail as that guy got, so I'm very curious as to how on earth he got that sentence. It's incredibly unjust," Lloyd said.
Paul Lewin, another Toronto attorney who practices cannabis criminal law, agreed the sentence appears harsher than sentences for the equivalent crime before marijuana legalization.
'Violent, dangerous criminals in this country do not get as much jail as that guy got, so I'm very curious as to how on earth he got that sentence. It's incredibly unjust' – Toronto cannabis lawyer Jack Lloyd
"It's just mind-boggling, and it's completely contrary to what this whole thing was supposed to be about, with these heavy-handed, prohibition-era, (former prime minister Stephen) Harper-era sentences," said Lewin.
All three lawyers emphasized they weren't privy to all the details of Felix's case.
However, aggravating factors may have contributed to the 10-month sentence, according to Paler, an attorney with Legal Aid Manitoba.
Felix already had two past convictions for similar offences, Paler said. In addition, the charge for which Felix was sentenced April 2 was his second under the Cannabis Act since legalization.
At the time of his arrest in November 2018, Felix was out on bail, with another pending charge for possession of cannabis for the purpose of distribution — although Paler said prosecutors stayed that charge.
Paler also believes the judge's sentence reflected the fact Felix had a knife in his bag when he was arrested. (Felix didn't plead guilty to that charge, he added.)
The Gladue Principle requires courts to make special considerations when sentencing Indigenous people.
Paler said he did "did outline some Gladue considerations for the judge to consider," but didn't order a formal report for the court. Those reports can take weeks, he said, and "Mr. Felix wanted to resolve his matters as soon as possible, and we were hoping for a different outcome."
At this point, Paler doesn't believe Felix will appeal his sentence. He is expected to be released from custody in June.
"Manitoba has a fairly conservative judiciary, and we have some of the more serious sentences in terms of drug offences in this province, relative to other jurisdictions," Paler said.
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Updated on Thursday, April 4, 2019 at 7:19 PM CDT: Fixes quote attribution.