LET HIGH COURT DEFINE BALANCE IN CHARTER CASES

Crown prosecutor Douglas Curliss should reconsider his decision not
to appeal the verdict in the case of a La Loche man charged with
trafficking in marijuana.

On Feb. 1, 2004, an RCMP officer stopped Archibald Janvier for having
a broken headlight on his truck. While walking to Janvier's vehicle,
the officer caught the pungent smell of a burnt marijuana cigarette.

Janvier was arrested, searched and found to be in possession of about
eight grams of pot and a list of contacts. He was charged
subsequently with trafficking.

At both the Queen's Bench and Appeal Court levels, however, the
charges were thrown out because the justices ruled that the smell of
marijuana smoke alone wasn't enough evidence of a crime to allow the
officer to violate Janvier's charter protection against unreasonable
search and seizure.

His lawyer Ron Piche argued that just because there's smoke that
doesn't mean there is marijuana. While a reasonable person may infer
from the smell that there might be marijuana present, courts have
previously ruled that for the summary offence of possession of a soft
drug, inference of a crime alone isn't enough for an arrest. An
officer must actually witness a crime being committed.

That is, the officer must see the marijuana, smell fresh marijuana or
observe evidence of impairment in the person who was driving the
detained vehicle. And while there was no evidence the officer noticed
any of these things with Janvier, the issue doesn't stop there.

At almost the same time the Saskatchewan Appeal Court was weighing
the evidence in the Janvier case, the Ontario Court of Appeal was
considering a similar situation in its jurisdiction. In that case,
however, the court opted to admit the evidence and allow the
conviction to stand.

In the Ontario case, Bradley Harrison was driving a rented SUV
through Kirkland Lake in 2004 when an OPP officer noticed the vehicle
didn't have a front licence plate, which was then required in the
province. The officer made a U-turn and put on his flashing lights
before he realized the vehicle was from Alberta, which doesn't
require a front plate.

Rather than let things go, the officer stopped the SUV anyway. When
Harrison admitted to not having a driver's licence on him, the
officer searched the vehicle. Stuffed in two boxes in the back were
35 kilos of cocaine, worth millions of dollars on Toronto streets.

Both the trial judge and the majority of the Appeal Court judges
conceded Harrison's charter rights were violated when the officer
stopped his car and searched the SUV without having reasonable
grounds to suspect a crime. They also took exception to the officer
lying to the court in an effort to make his actions appear legitimate.

However, judges at both levels felt the seriousness of the crime --
trafficking in hard drugs -- was more important than the harm done to
the Charter of Rights by glossing over its provisions.

While the similarities between the Ontario and Saskatchewan cases
certainly are stark, there is one marked difference. Janvier was
busted for a relatively small amount of a soft drug -- the possession
of which is but a summary offence -- while Harrison was involved with
the sale of a large quantity of hard drugs.

Noting the serious harm done to individuals and society by the abuse
of hard drugs, the Ontario judges ruled that to throw out the
conviction would cause a greater harm by putting the administration
of justice into disrepute than the damage done to the charter by
allowing the violation of Harrison's rights.

In the Saskatchewan case, the courts clearly believed the greater
harm would be the damage done to the charter rather than the
disrepute brought to the administration of justice by ruling that the
smell of burned marijuana doesn't necessarily indicate the presence
of the drug.

In both cases the courts had to weigh carefully the balance between
the charter protection of individual rights and the common law
protection afforded to society. In doing so the judges made a number
of value judgments with which many citizens will take issue.

For example, while the Ontario judges are correct in noting the
damage done to individuals and society by the sale of hard drugs,
that damage isn't universally felt. Casual users are much less likely
to be involved in the violence and crime associated with hard-core
addicts and dealers.

Similarly, while the courts may believe soft drugs such as marijuana
generally are less offensive than cocaine, La Loche is a community
whose leaders have often complained of the harm caused by drug and
alcohol abuse.

An RCMP officer based in La Loche may be in a better position to
determine what in the view of a reasonable member of that community
would place the administration of justice in greater disrepute --
admitting the evidence found during the arrest, or allowing an
accused to walk free to protect the charter?

For more than a quarter-century, protecting the charter and weighing
its impact on communal rights have become among the most important
roles of the high courts. Given the controversy over both the
Harrison and Janvier decisions, that balance likely is best spelled
out by the Supreme Court.