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The smell alone can’t constitute the grounds for a search

By Hempology | February 14, 2008

Ottawa Citizen, ON
13 Feb 2008
Matt Kruchak


SASKATOON – The Saskatchewan Court of Appeal has upheld a decision stating the smell of burnt marijuana isn’t enough evidence to arrest someone for possession, and then search his or her vehicle without a warrant.

The ruling is centred around the case of Archibald Janvier.  Four years ago, he was driving in La Loche, Sask., when he was pulled over by an RCMP officer because his truck had a broken headlight.

The officer approached the vehicle and smelled marijuana smoke.  Mr.  Janvier was arrested for possession of marijuana based on the smell.

The officer then searched the vehicle and found eight grams of the drug and what was thought to be a list of contacts — which led to Mr.  Janvier also being charged with possession for the purpose of trafficking.

The case went to trial and the judge found Mr.  Janvier’s Charter right to be free from unreasonable search and seizure had been violated.  Mr.  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, Mr.  Janvier’s lawyer.

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