Canada: Smell of Weed No Longer Grounds for Arrest, Search

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 in centered 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 the province's highest court has taken a liberal interpretation of this law.