KNOCK, KNOCK, SNIFF, SNIFF

If the police are at your door, does a suspicious marijuana smell
give them the right to enter?

Editor's note: This is a guest column on privacy issues by local
lawyer D. James Anderson. This week he tackles police searches. Next
week, he'll look at who can let the police into your home or room.

Back in 1992, Crime Stoppers received a tip about a house that reeked
of pot when the front door was opened. The RCMP tried to gather
enough information using conventional and legal means to obtain a
search warrant. They failed. Doubtlessly frustrated, two RCMP
officers decided to knock on the front door to check for a
questionable contraband smell. Sure enough, when the door opened, the
aroma of growing weed blossomed around them. I don't know if they
smiled, but like to imagine they did.

The owner was promptly arrested, and the officers entered the house
to secure the premises. A search warrant was obtained partly on the
basis of the smell, and a total of 41 marijuana plants were found in
the basement. Other drug-related paraphernalia and growing equipment
were also seized.

By the time this case reached the Supreme Court of Canada, the
question was essentially this: was the police knock-and-sniff at the
door a "search" within the meaning of Section 8 of the Canadian
Charter of Rights and Freedoms (i.e., the right to be secure against
unreasonable search and seizure)? If so, was it an unreasonable
search? Not only that, but was the second search, completed on the
basis of a warrant, also a violation of the occupant's rights under
Section 8, and must the evidence obtained subsequently be excluded at trial?

The short answer to all of these questions was yes. The slightly
longer answer is that the police violated the accused's reasonable
expectation of privacy.

In the words of former Supreme Court Justice John Sopinka, a
reasonable expectation of privacy protects a biological core of
personal information which individuals in a free and democratic
society would wish to maintain and control from dissemination to the state.

However, this right to privacy is not unlimited. For example, while
there is a reasonable expectation of privacy in one's dwelling place,
it decreases as the space becomes more public. It is a flexible
standard that requires a fairly detailed contextual analysis before
one can readily say what it is.

My reasonable expectation of privacy when urinating on a tree is
pretty modest; while standing in a stall at Rexall Place it's
greater; and while sitting on my own toilet in the locked bathroom of
my own house, crisp newspaper in hand, it's pretty high.

Context is important. Yes, the combination of a front door with an
unobstructed walkway creates an implied licence to approach and knock
for a lawful purpose, but nothing more. If the police knock, sans
warrant, with the intention of gathering evidence against the
occupant, then the occupant's reasonable expectation of privacy is
violated, and the protections against unreasonable search and seizure
in the Charter are triggered. You may have a simple one-word answer
for them: goodbye. Just be polite about it.

Fine, you say, but in this case, wasn't a search warrant subsequently
granted? Yes, but partly because of information obtained through an
illegal, warrantless search. The warrant the police eventually got
was based on the bad knock-and-sniff search, and so the evidence
gained through the search warrant was also tainted by the original breach.

One's rights, once violated, cannot be unviolated just as a bell,
once struck, cannot be unrung. As a result, upon application, any
evidence subsequently discovered may be excluded.

And if there is no evidence, there can be no conviction. Enough said.