SUPREME COURT STRETCHES LAW TO NAIL A CRACK DEALER

Another week and another Supreme Court of Canada pronouncement on a
drug case. It's hard to keep track of all of the decisions.

Last year, the Supremes considered whether electricity-consumption
data from a power supplier obtained without a search warrant was a
violation of the Charter privacy right to be free from unreasonable searches.

In 2009, the Supremes considered whether police have the right to
search through garbage bags placed outside for municipal garbage
collection. Also in 2009, the Supremes considered the propriety of a
search of a vehicle rented in British Columbia during a cross Canada trip.

In 2008, the Supremes considered the constitutional validity of using
sniffer dogs to assist in identifying drugs in a student locker and
at a bus terminal.

Last week's case involved an Alberta officer stopping a car for
speeding 21 km/h over the limit on a highway between Edson and
Edmonton. During the traffic stop the officer smelled freshly burnt marijuana.

The driver didn't have a driver's licence, so the officer asked the
driver to move to the police cruiser for an identification check.
Before the driver was allowed to enter the officer's vehicle the
officer conducted a safety pat down and found $5,410 in cash in a
pocket. The officer then arrested the driver and conducted a search
of the vehicle.

During the vehicle search he discovered 100 grams of crack cocaine,
thereby leading to a charge of possession of cocaine for the purpose
of trafficking.

The driver didn't appear to be impaired and the burnt smell did not
appear to emanate from his breath, clothing or hands. There were no
drugs or drug paraphernalia in plain view in the vehicle. With these
facts, the trial judge and two of three Alberta Court of Appeal
judges ruled the arrest and search were lawful. The dissenting appeal
court judge disagreed.

The Supremes then dismissed the appeal and ruled the arrest and
search were lawful. The reasoning is a bit suspect.

The search of the vehicle could only have been lawful if the arrest
had been lawful. The arrest would have been lawful only if the
officer had reasonable grounds to believe the driver had committed an
indictable offence.

For marijuana, that means the officer must have had reasonable
grounds to believe the driver was in possession of at least 30 grams
of the drug.

That's where the reasoning breaks down. How does the smell of burnt
marijuana translate to reasonable grounds the driver was in
possession of at least 30 grams of the drug?

The smell would indicate the driver or someone in the vehicle had
smoked marijuana within a few hours of the arrest. Stretching it,
perhaps the smell indicated the driver was still in possession of
some marijuana, but how could the officer have reasonably believed it
was 30 grams or more?

Apparently the cash helped create the reasonable grounds. Sure, the
cash, mostly in $20 bills, was a good indicator the driver was in the
drug business, but how does that translate to a reasonable belief the
driver had 30 or more grams of marijuana in his possession at that time?

Suspicious, yes. A good hunch, yes. Reasonable grounds, not to me.

Regardless, the Supremes ruled the evidence supported the officer's
reasonable belief, meaning the arrest was lawful. With the arrest
being lawful the search was also lawful as being merely incidental to
the arrest. Hence the evidence of the cocaine was admissible.

I have no sympathy for this chap, one Derek James Loewen. Anybody
dumb enough to be driving without a licence and speeding while
transporting crack cocaine somehow deserves to be captured as a
prisoner in our strange war on drugs.

But still, I think the dissenting judge in the Alberta Court of
Appeal got it right.