Jim Finnel
Fallen Cannabis Warrior & Ex News Moderator
Canada - 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.
NewsHawk: Jim Behr: 420 MAGAZINE
Source: Toronto Sun (CN ON)
Copyright: 2011 Canoe Limited Partnership
Contact: torsun.editor@sunmedia.ca
Website: Toronto Sun
Details: MapInc
Author: Alan Shanoff
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.
NewsHawk: Jim Behr: 420 MAGAZINE
Source: Toronto Sun (CN ON)
Copyright: 2011 Canoe Limited Partnership
Contact: torsun.editor@sunmedia.ca
Website: Toronto Sun
Details: MapInc
Author: Alan Shanoff
