The scent of marijuana wafting from an open car window doesn’t give an officer grounds to make an arrest and search a vehicle, according to a recent decision from the Saskatchewan Court of Appeal. But city police don’t believe the verdict will deter them from arresting dope-smoking drivers. The ruling is centered around the case of Archibald Janvier. He was driving alone in La Loche four years ago when pulled over by an RCMP officer. His truck had a broken headlight.
The officer said he approached the vehicle and 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 scent of the burnt joint. The officer then searched the vehicle and found eight grams of marijuana and what was thought to be a list of contacts – which resulted in the charge of 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 often times finding some evidence.” The case went to trial, and the judge found the arrest was a violation of Janvier’s charter right to be free from unreasonable search and seizure. The scent of marijuana indicated a suspicion that it was smoked but didn’t provide reasonable and probable grounds for an arrest or a search, the judge concluded and excluded the evidence. Janvier was declared not guilty.
“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.” The Crown appealed the verdict and the trial judge’s decision was upheld. The outcome is encouraging because the province’s highest court has taken a liberal interpretation of this law, Piche said.
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, (so) he couldn’t act.” The case will not go before the Supreme Court of Canada, Curliss said.
“I think it’s a surprising decision from the court and probably not in line with other jurisdictions in terms of the inferences that one could draw from the smell of marijuana,” said Dwight Newman, associate dean at the University of Saskatchewan’s college of law. “I think that most people would think that the smell of marijuana doesn’t indicate the absence of marijuana but the presence of it.”
The verdict won’t have a major impact on police practices, said Alyson Edwards, spokesperson for the Saskatoon Police Service, but it will require officers do a little 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 if an officer suspects the driver to be impaired, a roadside sobriety test can be conducted.
“With a decision like this, the first thing the RCMP is going to have to do is review it – just to determine just what the impact of it will be on how the RCMP conducts its business,” said Staff Sgt. Rick Whattam, with RCMP media services. He would not comment directly on the decision.
– Article from the Star Phoenix newspaper