Ontario Superior Court, Feb 6/03
A police officer stopped a vehicle for a traffic violation. The officer searched the passengers on the basis of the smell of marijuana. No drugs were found, but one of the passengers admitted that he had just smoked a joint.
When Richard Stephen, the passenger in the rear seat, stepped out, the officer discovered a 45-calibre semi-automatic pistol, with seven bullets in the magazine. Stephen was also carrying another loaded magazine. He was charged with possession of a loaded restricted weapon.
The judge quoted strong words about the smell of marijuana: “The danger of basing police action on a perception by an individual officer of a particular smell is that the sense of smell is highly subjective? Subjectively based assessments can too easily mask discriminatory conduct based on such irrelevant factors as the detainee’s sex, color, age, ethnic origin, or sexual orientation.”
The judge found that the officers embarked on a search based on a hunch that there were drugs in the car. Stephen’s section 8, 9 and 10(b) Charter rights were violated. The evidence was excluded and Stephen was acquitted.