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Smell Of Pot Smoke No Longer Grounds For Search, Arrest

Herb Fellow

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SASKATOON - The scent of weed wafting from an open car window doesn't give an officer the right to make an arrest and search a vehicle, according to a recent decision made by the Saskatchewan Court of Appeal. But city police don't think the verdict will prevent them from arresting dope-smoking drivers.

The ruling is centred around the case of Archibald Janvier. Four years ago he was driving in La Loche, Sask., about 600 kilometres north of Saskatoon, when he was pulled over by an RCMP officer. His truck had a broken headlight.

The officer approached the vehicle and said he could smell burnt marijuana from a metre away. Janvier, who now runs a business in Fort McMurray, Alta., was immediately arrested for possession of marijuana based only on the smell of the burnt narcotic. The officer then searched the vehicle and found eight grams of marijuana and what he thought was a list of contacts, which led to Janvier being charge with possession for the purpose of trafficking.

"Until now, police have used the smell of marijuana as reasonable grounds to arrest someone for possession of marijuana," said Ronald Piche, Janvier's lawyer. "It always struck me as a little thin, frankly. It's frankly a lazy officer's way of giving out a warrant, and getting to check a vehicle out, and oftentimes finding some evidence."

The case went to trial and the judge found Janvier's charter right to be free from unreasonable search and seizure had been violated. The scent of marijuana created a suspicion it was smoked, but didn't provide reasonable and probable grounds for an arrest or a search, the judge concluded before excluding the evidence. Janvier was declared not guilty.

The Crown appealed the verdict and the trial judge's decision was upheld.

"The smell alone can't constitute the grounds, because the smell of burnt marijuana - as opposed to raw marijuana - gives an inference that the material is gone, it's dissipated into the atmosphere. So how can you say you're in possession of something that doesn't exist?" Piche said.

"There may be suspicion that the person is in possession of marijuana, but that's not enough to base an arrest."

Douglas Curliss, The Crown's lawyer, said the court's decision was based on the fact that the officer didn't have any additional evidence. "The court was of the view that all he had was the smell of burnt marijuana alone; he couldn't act." The case will not go before the Supreme Court of Canada, he said.

The verdict won't have a major effect on police practices, said Alyson Edwards, spokeswoman for the Saskatoon Police Service. It just means officers will need to do a bit more work. "They're going to have to ask more questions, and perhaps look for more evidence that would allow them to search a vehicle," she said, adding that if an officer suspects the driver is impaired, a roadside sobriety test can be conducted.

The outcome is encouraging, because the province's highest court has taken a liberal interpretation of this law, Piche said, adding the decision clears the air a bit. "One of the things that came out is that the sense of smell is such a subjective thing, as well. Does the strength of the investigation depend on the odour? Does the investigation depend on how good that officer's sense of smell is? It just seemed all a little vague and arbitrary and I think this takes that out," Piche said. "They need more than the sense of smell."

Source: Canada.com
Copyright: Saskatoon StarPhoenix 2008
Contact: Matt Kruchak, Canwest News Service
Website: Smell of pot smoke no longer grounds for search, arrest
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