WHERE THERE'S SMOKE THERE'S NOT ALWAYS POT

Court Rules Smell Of Burnt Marijuana Not Evidence For Arrest

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 their vehicle
without a warrant.

The ruling centred around the case of Archibald Janvier. He was
driving in La Loche four years ago when he was pulled over by an RCMP
officer because his truck had a broken headlight.

The officer approached the vehicle and smelt burnt marijuana. Janvier
was arrested for possession of marijuana based on the smell emitting
from his truck. 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.

The case went to trial and the judge found a violation of Janvier's
charter right to be free from unreasonable search and seizure. The
judge excluded the evidence and 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, 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," 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 and often
times finding some evidence."

Piche said the decision is encouraging because Saskatchewan's highest
court has taken a liberal interpretation of this law.