SUPREME COURT STRETCHES LAW TO NAIL 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 garbage bags placed outside for municipal garbage collection.
Also in 2009, they considered the propriety of a search of a vehicle
rented in B.C. on 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 near 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. 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 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 think 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.

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

Regardless, the Supremes ruled the evidence supported the officer's
belief, meaning the arrest was lawful. With the arrest being lawful
the search was also lawful. 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 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.