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A "class issue" could be emerging in the way post-legalization cannabis offences are prosecuted, a Winnipeg lawyer says.
"I have some concern that the application of the law will end up being a class issue, that certain people will be singled out for punishment under the penalty provisions in the Cannabis Act and other people will be hit with regulatory penalties," defence lawyer Scott Paler said.
"I'm concerned that there may well be a double standard there."
His client, a 31-year-old Winnipeg man, was sentenced to 10 months in jail Tuesday for what is likely the first cannabis possession conviction in Manitoba since the drug was legalized last fall.
Rodney Clayton Felix pleaded guilty to possession of cannabis for the purpose of distribution under the federal Cannabis Act, as well as a mischief charge. He was caught with 86.3 grams of cannabis, after he reacted angrily to being 15 cents short while he tried to make a purchase at a downtown Winnipeg mall on Nov. 9, 2018.
"I have some concern that the application of the law will end up being a class issue, that certain people will be singled out for punishment under the penalty provisions in the Cannabis Act and other people will be hit with regulatory penalties. –Defence lawyer Scott Paler
Felix wanted to buy a memory card at The Source at Portage Place and gave the cashier $10, but when he found out it cost a total of $10.15, Felix cursed and ripped a speaker off the store wall.
He was arrested and police searched his backpack, finding the marijuana packaged in dime bags, a folding knife, scale, grinder, more than one cellphone and other drug paraphernalia. He was on bail at the time, facing a drug charge that was later stayed.
The federal Crown prosecutor asked provincial court Judge Dale Schille to impose a 15-month jail sentence in light of Felix's previous convictions for trafficking in marijuana and cocaine. Schille agreed jail time was necessary for Felix, saying "he is, any way you slice it, a drug dealer."
But Paler asked for a fine.
"Those types of penalties should be reserved for people who are selling marijuana on a large scale on the black market or they’re selling marijuana to people who are underage. Those types of offences, in my view, are far more grievous than the type of scenario we’re talking about with Mr. Felix, who is absolutely the lowest of the low in terms of this type of offence," he said in court.
Since there is no legal precedent for this type of case under the Cannabis Act, Paler presented Judge Schille with a copy of a Winnipeg Free Press story that reported some sellers at the Winnipeg stop of the HempFest Cannabis Expo were ticketed and fined for selling illegal edibles in February.
The argument didn't hold up in front of the judge, who commented on the "dearth" of similar cases, but said the article "really has no correlation to the facts before me at all."
In an interview, Paler said the consequences for cannabis distribution seem to be "as severe if not more severe" than they were under the previous legislation.
Cannabis was legalized for recreational use in Canada on Oct. 17, 2018, with a personal public possession limit of 30 grams.
"They got a ticket for a little over $2,500 for violating the regulations with respect to distribution of cannabis materials (at the February cannabis Expo).... but an Aboriginal man with three ounces of pot in his backpack gets a significant jail sentence," he said, suggesting the low-level distribution of black market cannabis should be treated the same as alcohol or tobacco.
"It seems to me there's a pretty stark contrast between the way they deal with cannabis, which is a legal substance to have, an alcohol and tobacco.
"Bootlegging alcohol or selling black market cigarettes tend to end up with a financial penalty, but the perspective on marijuana is apparently much different."
"They got a ticket for a little over $2,500 for violating the regulations with respect to distribution of cannabis materials (at the February cannabis Expo).... but an Aboriginal man with three ounces of pot in his backpack gets a significant jail sentence." –Defence lawyer Scott Paler
Felix has three months left to serve of his sentence, followed by the two years of probation Schille also imposed.
"It is obviously extremely unfortunate for Mr. Felix that all of this could have been avoided had he fished 15 cents out of his pocket, because that’s the catalyst for all of this unfolding," Schille said.
Police didn't find any extra cash when they searched Felix's belongings.
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Katie May reports on courts, crime and justice for the Free Press.
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