Illegal Search and Illegal Seizure and Smell of marijuana not enough for search

Illegal Search and Illegal Seizure

In Canada, Section Eight of the Canadian Charter of Rights and Freedoms protects all individuals from unreasonable search and seizure. For a search to be “reasonable” it must be authorized by law, the law itself must be reasonable, and the manner in which the search was carried out must be reasonable (R. v. S.A.B., 2003 SCC 60). This means that the officer must be acting within the power of a valid statute, and it must be performed on the basis of there being “reasonable and probable grounds” that a crime has been committed.

Section Eight of the Canadian Charter of Rights and Freedoms provides everyone in Canada with protection against unreasonable search and seizure. This Charter right provides Canadians with their primary source of constitutionally enforced privacy rights against unreasonable intrusion from the state.

Under the heading of legal rights, section 8 states:

8. Everyone has the right to be secure against unreasonable search or seizure.

Any property found or seized by means of a violation of section 8 can be excluded as evidence in a trial under section 24(2).

Reasonable expectation of privacy

Generally speaking, the reasonable expectation of privacy focuses on the action being unreasonable on the basis that it violates an individual’s reasonable expectation of privacy.

Each individual possess the right to privacy, meaning that person has the right to be left alone by police unless there is a probable cause based on objective facts that the person is committing a crime.


Not every form of examination constitutes search. A search within the meaning of section eight is determined by whether the investigatory technique used by the state diminishes a person’s reasonable expectation of privacy. The focus of analysis is upon the purpose of the examination. A police officer who compells someone to produce their licence would not be invasive enough to constitute a search (R. v. Ladouceur, [1990][1]). Equally, an inspection of the inside of a car is not a search, but questions about the contents of a bag would be. (R. v. Mellenthin [1992][2]) It has also been ruled that the use of a police dog as a means to gain probable cause to search is also in itself a violation of Section 8, and that other factors must be present before a police dog can be used and a search executed. (R. v. A.M. [2008],[3] R. v. Kang-Brown [2008][4])


The meaning of seizure is fairly straight forward. In R. v. Dyment (1988),[5] the Court defined it simply as the “taking of a thing from a person by a public authority without that person’s consent.” This meaning has been narrowed to cover property taken in furtherance of administration or criminal investigation (Quebec (Attorney General) v. Laroche, [2002][6]).

Section Twenty-four of the Canadian Charter of Rights and Freedoms

Section Twenty-four of the Canadian Charter of Rights and Freedoms provides for remedies available to those whose Charter rights are shown to be violated. Some scholars have argued that it was actually section 24 that ensured that the Charter would not have the primary flaw of the 1960 Canadian Bill of Rights: Namely, Canadian judges would be reassured that they could indeed strike down statutes on the basis that they contradicted a bill of rights.[1]

See post also, Smell of marijuana does not give police the right to search here


Under the heading “Enforcement,” the section states:

24. (1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.

(2) Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.


Exclusion of evidence

Practices regarding what evidence may be brought against an individual in trials are addressed by section 24(2). When evidence is obtained through the violation of a Charter right, the claimant is able to apply to have the evidence excluded from the trial under this section. Typically, evidence obtained through violating an accused’s right to security from unreasonable search and seizure (section 8) is excluded by this section.[1]

The 1987 case R. v. Collins established three factors to consider when determining whether to exclude evidence. First, the courts will look at whether the admission of the evidence would affect the fairness of the trial. Second, they will look at the seriousness of the Charter violation, and third, they will look at the effect of excluding the evidence on the administration of justice.


1. ^ a b c Dyck, Rand. Canadian Politics: Critical Approaches. Third ed. (Scarborough, Ontario: Nelson Thomson Learning, 2000), p. 442.

2. ^ Hogg, Peter W. Constitutional Law of Canada. 2003 Student Ed. (Scarborough, Ontario: Thomson Canada Limited, 2003), pp. 864-865.

3. ^ Supreme Court of Canada. Doucet-Boudreau v. Nova Scotia (Minister of Education), (2003) 3 S.C.R. 3.

4. ^ R. v. Smith (1989)

5. ^ Weber v. Ontario Hydro (1995)

6. ^ see N.S. v. Martin; N.S. v. Laseur (2003) for the Charter jurisdiction test

7. ^ Douglas/Kwantlen Faculty Association v. Douglas College (1990), see also Cuddy Chicks v. Ontario (1991)

8. ^ ibid.

9. ^ R. v. Wray (1970), 4 C.C.C. 1, 11 C.R.N.S. 235, [1971] S.C.R. 272.

10. ^ Morton, FL and Ranier Knopff. The Charter Revolution & the Court Party. (Broadview Press, 2000), p. 39.

Smell Of Marijuana

The Saskatchewan Court of Appeal upheld a lower court’s ruling that the smell of burned marijuana is not enough to allow police to arrest someone and conduct a warrantless search.

Saskatchewan Courts: Marijuana Smell Not Enough to Warrant a Police Search

Tuesday, February 12, 2008
Original article can be found here:…h.html?ref=rss

CBC News

A Saskatchewan Court of Appeal ruling that police can’t search a vehicle just because they smell burned marijuana will change how police conduct themselves, a lawyer says.

In December, lawyer Ron Piche successfully defended a La Loche man who was arrested after police found marijuana.

However, he beat the charge when a provincial court judge ruled the arrest and search was unreasonable.

In a 35-page decision released on Dec. 14, the Saskatchewan Court of Appeal agreed and upheld the acquittal.

The court said just because an officer can smell burned marijuana, it doesn’t mean a suspect smoked the drug just before and it doesn’t mean a suspect is likely to be carrying marijuana.

“Until now police have used the smell of marijuana as reasonable grounds to arrest someone for possession of marijuana,” said Ronald Piche, Janvier’s lawyer. “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 often times finding some evidence.”

The case went to trial, and the judge found the arrest was a violation of Janvier’s charter right to be free from unreasonable search and seizure. The scent of marijuana indicated a suspicion that it was smoked but didn’t provide reasonable and probable grounds for an arrest or a search, the judge concluded and excluded the evidence. 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?”

The Crown appealed the verdict and the trial judge’s decision was upheld. The outcome is encouraging because the province’s highest court has taken a liberal interpretation of this law, Piche said.

Further investigation

Hoover says he may not be able to arrest people if he smells pot, but it doesn’t stop him from investigating.

“I just have to do a little bit more of an investigation,” Hoover said. “I just can’t simply detain them and search the vehicle right away. I’ve got to use my head like any police officer has to do and conduct an investigation.”

Using your head and violating rights are two different things.

Douglas Curliss, The Crown’s lawyer, said the court’s decision was based on the fact that the officer didn’t have any additional evidence. “The court was of the view that all he had was the smell of burnt marijuana alone; he couldn’t act.”

“One of the things that came out is that the sense of smell is such a subjective thing, as well. Does the strength of the investigation depend on the odour? Does the investigation depend on how good that officer’s sense of smell is? It just seemed all a little vague and arbitrary and I think this takes that out,” Piche said. “They need more than the sense of smell.”

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