POT SMELL NOT GROUNDS FOR SEARCH, COURT RULES

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 centred around the case of Archibald Janvier. He was
driving alone in La Loche four years ago when he was 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 drug.

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 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.