Canada: Smell of Pot No Grounds for Arrest or Search, Says Saskatchewan Appeals Court

The Saskatchewan Court of Appeal has ruled that the scent of burning marijuana emanating from a car window is not probable cause for an arrest and vehicle search. The decision came in the case of Archibald Janvier, who was pulled over for a broken headlight four years again in La Loche, Saskatechewan.

When the officer approached Janvier's truck, he said he could smell burnt marijuana. He arrested Janvier for marijuana possession based on smelling the burnt weed, then searched the vehicle and found eight grams and a list of names, which led to Janvier being charged with possession for the purpose of trafficking.

At trial, the judge found that the scent of marijuana created a suspicion it had been smoked, but did not provide "reasonable and probable" grounds for either the arrest or the search. To arrest him based simply on the scent of burnt marijuana violated his right to be free from unreasonable search and seizure, the judge ruled as he declared him not guilty.

The Crown appealed the verdict, but the appeals court upheld the judge's verdict. That was the correct decision, said Ronald Piche, Janvier's attorney.

"Until now, police have used the smell of marijuana as reasonable grounds to arrest someone for possession of marijuana," he told Canwest News Service after the decision. "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 oftentimes finding some evidence."

It's hard to possess something that's already been smoked, Piche continued. "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?" Piche said. "There may be suspicion that the person is in possession of marijuana, but that's not enough to base an arrest."

Crown prosecutors, unsurprisingly, were not happy. Crown lawyer Douglas Curliss told Canwest the court's decision was based on the lack of any additional evidence to justify an arrest and search. "The court was of the view that all he had was the smell of burnt marijuana alone; he couldn't act." Still, he said, the Crown will not appeal the decision.

Is there a continental trend here? Last March, the Utah Supreme Court held that the smell of burning marijuana is not enough evidence for a warrantless home search. And just last month, a California Appeals Court ruled that even seeing someone smoking pot inside a home was not sufficient grounds for a warrantless entry.