Judicial Error Could be Repeated Post-Legalization

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Judicial error could be repeated post-legalization Manitoba judge apparently neglected part of the Criminal Code when he handed down a conditional discharge

The Court of Appeal of Manitoba has corrected a lower court’s error that would have seen an offender face a relatively lenient conditional discharge for a small cannabis grow operation.

The offender, Elijah Lee Wenaus, was found to have grown 19 plants in the basement of his home in Manitoba, violating section 7(1) of the Controlled Drugs and Substances Act. That offence carries a maximum punishment of 14 years. Section 730 of the Criminal Code bars offenders from receiving conditional discharges if the offence’s maximum punishment is 14 years or higher. That meant that Wenaus was ineligible for a conditional sentence, and should have faced a more onerous punishment.

The sentencing judge apparently neglected this section of the Criminal Code when he handed down a conditional discharge on Wenaus, and the error was not discovered at the time by either the Crown or the defence.

Conditional discharges allow individuals to forego a conviction for an offence if they meet conditions of good behavior post-conviction. They are a tool in the judicial toolkit that gives flexibility to judges when faced with certain offenders.

However, because almost half of the incoming Cannabis Act’s approximately 45 offences carry a maximum imprisonment of 14 years, judges will not be able to dole out discharges and other conditional sentences as they see fit, even if appropriate for the offender.

The result? Offenders will be facing tougher, non-conditional sentences in which the conviction will remain on the offender’s criminal record. We may even see the error from this case repeated further. In the Wenaus case, the court of appeal upgraded his erroneous conditional discharge to a suspended sentence of nine months plus 50 hours of community service. This means that the conviction will forever remain on his criminal record (unless he obtains a record suspension).

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