R. v. Cosford, 2022 MBPC 60

CITATION: R. v. Cosford, 2022 MBPC 60 THE PROVINCIAL COURT OF MANITOBA BETWEEN His Majesty the King ) C. Soul ) for the Crown - and – ) ) Dayton Cosford ) J. Pinx ) for the Accused ) ) Judgment delivered: Dec. 21, 2022 Pollack S.P.J. [ 1 ] In this

summary conviction proceeding Dayton Cosford has entered guilty pleas to transportation of a firearm in a careless manner and possession of cannabis for the purpose of distributing it. [ 2 ] At 10:22 p.m. on August 17, 2020 Winnipeg Police Service officers were in a residential area as a result of reports of shots being fired. Behind a nearby residence they came across Dayton Cosford and spoke with him. Mr. Cosford told them that he heard four or five shots. The officers asked him if he had a firearm in his nearby vehicle and he responded in the negative.

When the officers pointed out shotgun shells in the vehicle, Mr. Cosford admitted that a 12-gauge shotgun without a trigger lock was also there. [ 3 ] Also found in his vehicle were six bags of marihuana totalling 1.275 kilograms, packed and labelled with product names and eight bags of shatter extract, totalling 224 grams, each bearing a different label. Although these were commercially packaged products, none was authorized under the Cannabis Act . The marihuana is worth at least $5,700.00 and the shatter is worth at least $11,000.00 upon illegal sale.

Also seized was $4,000 in cash. [ 4 ] In providing the facts upon guilty pleas being entered, the prosecution stated that Mr. Cosford was not responsible for the shots that had been fired and that there was no connection between him and the fact that shots were fired. The defence, of course, punctuated this irrelevant fact with emphasis. [ 5 ] Mr. Cosford offered no explanation for possession of the cannabis or the funds but, with respect to the firearm and shells, he has an explanation; this was met with skepticism by the prosecution but without evidence to the contrary.

The explanation is that the firearm belongs to, and is properly licenced to, one of the men with whom he was working in a rural area. Earlier that day, while emptying the contents of a remote building, they came upon a bear. In the building was a gun safe and the licensee obtained the rifle. The men managed to scare the animal away and the rifle and ammunition was thrown into Mr. Cosford’s truck – a truck which they were loading with items from the building. The rifle remained there in case the men came across the bear again. Mr.

Cosford is licenced to hunt on private property and was not prohibited from using that firearm when he was in the company of the licensee. [ 6 ] One of the men later asked Mr. Cosford to drive him to a location where he could see a horse that was for sale. He did so and eventually returned home to Winnipeg. He says that he did not think about the firearm any further and that is why he took no steps to avoid carelessly transporting it in his truck. He does not say that he is innocent for forgetting but that his culpability must be considered to have been minimal because he simply forgot. [ 7 ] Mr.

Cosford is twenty-four, has a grade twelve education and is in an electrician course at Red River College. He is self- employed as an insolation sub-contractor and has no prior criminal record. He identifies as Metis and resides in the north end of Winnipeg with his mother and sister. He uses prescribed marihuana to address back pain. Some letters introduced by the defence without objection indicate that he is otherwise of good character. [ 8 ] The Manitoba Prosecution Service seek a sentence of nine months for the careless transportation count.

They support that position with reference to the carelessness of leaving an unlocked firearm and ammunition in a vehicle as well as the existence of the drugs in the same vehicle. While they do not plead that the firearm was for protection while distributing cannabis, they leave me with the proposition that its mere availability to a drug dealer is an aggravating feature.

As I suspected, and counsel confirmed when given the opportunity to research the case law, there is no Manitoba precedent for such a sentence in these circumstances but that is their position. [ 9 ] The Public Prosecution Service of Canada goes further; they link the offences by seeking the maximum available sentence of six months under section 9(5) (b)(

i) of the Cannabis Act but specifying that it should be served concurrently with the nine-month sentence for the Criminal Code offence. [ 10 ] Additionally, and not parenthetically, they ask me to consider that the production of shatter involves a refining practice

whereby the product is left with an enhanced Tetrahydrocannabinol (THC) content. They say that there are two risks to be addressed in this sentencing: the unregulated refining process is highly flammable and the high THC content involves a risk to the subject who ingests this unregulated cannabis extract . [ 11 ] The defence say that both offences merit small fines.

In the alternative, if imprisonment is deemed necessary, they submit that a conditional sentence of imprisonment for three months would be appropriate. [ 12 ] I cannot infer that there is an intentional connection between the seized cannabis and the firearm and ammunition.

The prosecution specifically asked me not to draw it and the defence deny such a nexus. [ 13 ] With respect to their submission in support of a nine-month sentence for the Criminal Code offence I would posit that, in Manitoba, no first offender has been jailed for careless storage or transportation of a shotgun and ammunition in the circumstances of this case where both were left, forgotten, in the back of a truck. That said, the Court cannot ignore that the forbidden items were transported by an outlaw drug dealer.

In my opinion that fact removes some typical sentences of a modest fine or probation from the sentencing choices. [ 14 ] I have not been made aware of a Cannabis Act prosecution like this one. The prosecution have referred me to part of the sentencing judgement R. v. South, 2017 MBPC 3 , a Controlled Drug and Substances Act case that included evidence of shatter. McKenzie PJ wrote this, at paragraph 26: Parliament has confirmed that Canadians do not want individuals selling substances to its citizens unless those drugs are controlled by the state.

This is so, even with drugs that may otherwise be legal to obtain, but especially so for drugs that are otherwise illegal, such as marihuana and marihuana derivatives, including shatter. The premise being that society has a strong interest in knowing that what they are ingesting is safe, both in the short and long term, or at the very least they can make themselves aware of potential harm and make a decision based on the known side effects. In my view, McKenzie PJ’s underlying premises apply to the newer legislation in a prosecution such as this.

One cannot enter a reputable cannabis store and speak to an authorized vendor about shatter, its side effects and its THC concentration in the way one can about an edible product to be used as a sleep aid. It is obvious that the shatter and the marihuana seized in this case was intended to be wholesaled through what would have to be illegal unregulated market competition. [ 15 ] In stating the purposes of Canada’s Cannabis Act ,

section 7 describes the objects of the legislation that offenders like Mr. Cosford ignore. Unless prosecution is a real deterrent, Canada will be unable to restrict cannabis to protect the health of young persons, unable to reduce illegal cannabis activity, unable to control the quality of cannabis that is supplied to the public and unable to inform Canadians about inherent health risks. [ 16 ] Given the quantity involved here, the value of the investment in the seized drugs and the sophisticated packaging and labelling, a proportionate sentence must demonstrate that this is a serious offence - even in a

summary proceeding under a statute that addresses a need to deal with cannabis separate from other drugs. [ 17 ] Therefore these are the sentences:

a) For the Criminal Code offence of careless transportation of a firearm there will be a fine of $2,000.00; there will be no discretionary prohibitions pursuant to Criminal Code, s. 110 .

b) For the Cannabis Act offence of possession for the purpose of distribution there will be a fine of $10,000.00. As a result of that conviction, pursuant to Criminal Code, s. 109(1) (c.1), for a period of ten years Mr. Cosford is prohibited from possessing any firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition and explosive substance. “Original signed by” Pollack S.P.J.