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Court
Pubdate: Wed, 13 Feb 2008
Source: National Post (Canada)
Copyright: 2008 Southam Inc.
Contact: http://www.nationalpost.com/
Details: http://www.mapinc.org/media/286
Author: Matt Kruchak, Canwest News Service
Bookmark: http://www.mapinc.org/mjcn.htm (Marijuana - Canada)
SMELL OF BURNT POT NOT ENOUGH FOR ARREST: COURT
SASKATOON - The Saskatchewan Court of Appeal has upheld a decision
stating the smell of burnt marijuana isn't enough evidence to arrest
someone for possession of the drug, and then search his or her vehicle
without a warrant.
The ruling in centred around the case of Archibald Janvier. Four years
ago he was driving in La Loche, Sask., when he was pulled over by an
RCMP officer because his truck had a broken headlight. The officer
approached the vehicle and smelled marijuana smoke. Mr. Janvier was
arrested for possession of marijuana based on the smell.
The officer then searched the vehicle and found eight grams of the
drug and what was thought to be a list of contacts -- which led to Mr.
Janvier also being charged. The case went to trial and the judge found
Mr. Janvier's Charter right to be free from unreasonable search and
seizure had been violated. The judge excluded the evidence and Mr.
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?"
said Ronald Piche, Mr. Janvier's lawyer. "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 decision and the trial judge's decision was
upheld.
"Until now, police have used smell of marijuana as reasonable grounds
to arrest someone for possession of marijuana," Mr. Piche said. "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."
Mr. Piche said the decision is encouraging, because the province's
highest court has taken a liberal interpretation of this law.
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