Pubdate: Sun, 08 May 2011
Source: Toronto Sun (CN ON)
Copyright: 2011 Canoe Limited Partnership
Contact:  http://torontosun.com/
Details: http://www.mapinc.org/media/457
Author: Alan Shanoff
Bookmark: http://www.mapinc.org/mjcn.htm (Cannabis - Canada)
Bookmark: http://www.mapinc.org/coke.htm (Cocaine)

SUPREME COURT STRETCHES LAW TO NAIL A CRACK DEALER

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.
- ---
MAP posted-by: Jay Bergstrom