Pubdate: Thu, 09 Apr 2009
Source: See Magazine (Edmonton, CN AB)
Copyright: 2009 SEE Magazine
Author: D. James Anderson
Bookmark: (Cannabis - Canada)


If the police are at your door, does a suspicious marijuana smell 
give them the right to enter?

Editor's note: This is a guest column on privacy issues by local 
lawyer D. James Anderson. This week he tackles police searches. Next 
week, he'll look at who can let the police into your home or room.

Back in 1992, Crime Stoppers received a tip about a house that reeked 
of pot when the front door was opened. The RCMP tried to gather 
enough information using conventional and legal means to obtain a 
search warrant. They failed. Doubtlessly frustrated, two RCMP 
officers decided to knock on the front door to check for a 
questionable contraband smell. Sure enough, when the door opened, the 
aroma of growing weed blossomed around them. I don't know if they 
smiled, but like to imagine they did.

The owner was promptly arrested, and the officers entered the house 
to secure the premises. A search warrant was obtained partly on the 
basis of the smell, and a total of 41 marijuana plants were found in 
the basement. Other drug-related paraphernalia and growing equipment 
were also seized.

By the time this case reached the Supreme Court of Canada, the 
question was essentially this: was the police knock-and-sniff at the 
door a "search" within the meaning of Section 8 of the Canadian 
Charter of Rights and Freedoms (i.e., the right to be secure against 
unreasonable search and seizure)? If so, was it an unreasonable 
search? Not only that, but was the second search, completed on the 
basis of a warrant, also a violation of the occupant's rights under 
Section 8, and must the evidence obtained subsequently be excluded at trial?

The short answer to all of these questions was yes. The slightly 
longer answer is that the police violated the accused's reasonable 
expectation of privacy.

In the words of former Supreme Court Justice John Sopinka, a 
reasonable expectation of privacy protects a biological core of 
personal information which individuals in a free and democratic 
society would wish to maintain and control from dissemination to the state.

However, this right to privacy is not unlimited. For example, while 
there is a reasonable expectation of privacy in one's dwelling place, 
it decreases as the space becomes more public. It is a flexible 
standard that requires a fairly detailed contextual analysis before 
one can readily say what it is.

My reasonable expectation of privacy when urinating on a tree is 
pretty modest; while standing in a stall at Rexall Place it's 
greater; and while sitting on my own toilet in the locked bathroom of 
my own house, crisp newspaper in hand, it's pretty high.

Context is important. Yes, the combination of a front door with an 
unobstructed walkway creates an implied licence to approach and knock 
for a lawful purpose, but nothing more. If the police knock, sans 
warrant, with the intention of gathering evidence against the 
occupant, then the occupant's reasonable expectation of privacy is 
violated, and the protections against unreasonable search and seizure 
in the Charter are triggered. You may have a simple one-word answer 
for them: goodbye. Just be polite about it.

Fine, you say, but in this case, wasn't a search warrant subsequently 
granted? Yes, but partly because of information obtained through an 
illegal, warrantless search. The warrant the police eventually got 
was based on the bad knock-and-sniff search, and so the evidence 
gained through the search warrant was also tainted by the original breach.

One's rights, once violated, cannot be unviolated just as a bell, 
once struck, cannot be unrung. As a result, upon application, any 
evidence subsequently discovered may be excluded.

And if there is no evidence, there can be no conviction. Enough said.
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