Pubdate: Wed, 13 Feb 2008
Source: Regina Leader-Post (CN SN)
Copyright: 2008 The Leader-Post Ltd.
Contact:  http://www.canada.com/regina/leaderpost/
Details: http://www.mapinc.org/media/361
Author: Matthew Kruchak, Saskatchewan News Network; Canwest News Service
Bookmark: http://www.mapinc.org/mjcn.htm (Cannabis - Canada)

POT SMELL NOT ENOUGH TO WARRANT SEARCH

SASKATOON -- 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 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 case will not go before the Supreme Court of Canada, Curliss said.
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