R. v. Janvier (A.V.),

• Jurisdiction: Saskatchewan
• Judge: Klebuc, C.J.S., Jackson and Smith, JJ.A.
• Neutral Citation: 2007 SKCA 147
• Court: Court of Appeal (Saskatchewan)
• Date: 04 June 2007
• Citation: 2007 SKCA 147,(2007), 302 Sask.R. 190 (CA),[2008] 3 WWR 1,227 CCC (3d) 294,54 CR (6th) 253,[2007] SJ No 646 (QL),164 CRR (2d) 212,302 Sask R 190,(2007), 302 SaskR 190 (CA),[2007] S.J. No 646 (QL),302 Sask.R. 190,302 SaskR 190

R. v. Janvier (A.V.) (2007), 302 Sask.R. 190 (CA);

      411 W.A.C. 190

MLB headnote and full text

Temp. Cite: [2008] Sask.R. TBEd. JA.004

Her Majesty the Queen (appellant) v. Archibald Valentine Janvier (respondent)

(No. 1218; 2007 SKCA 147)

Indexed As: R. v. Janvier (A.V.)

Saskatchewan Court of Appeal

Klebuc, C.J.S., Jackson and Smith, JJ.A.

December 14, 2007.

Summary:

A police officer stopped a truck that had a broken headlight. When he was within a metre of the truck, the officer smelled burned marijuana. The officer arrested the accused, the truck's sole occupant, for possession of marijuana. He then searched the accused and his truck. He found eight grams of marijuana and what he believed to be a list of contacts. The charge of possession was replaced with a trafficking charge.

The Saskatchewan Provincial Court found that the search was unreasonable. The court excluded the evidence of marijuana and acquitted the accused. The Crown appealed.

The Saskatchewan Court of Appeal dismissed the appeal. The court held that s. 495(1)(b) of the Criminal Code did not permit a police officer to arrest someone for possession of marijuana based on the smell of burned marijuana alone. The smell of burned marijuana alone also did not give rise to reasonable grounds to effect a warrantless search under s. 11(7) of the Controlled Drugs and Substances Act. The trial judge did not err in excluding the evidence resulting from the search pursuant to s. 24(2) of the Charter.

Civil Rights - Topic 1217

Security of the person - Lawful or reasonable search - What constitutes unreasonable search and seizure - A police officer stopped a truck that had a broken headlight - When he was within a metre of the truck, the officer smelled burned marijuana - The officer arrested the accused, the truck's sole occupant, for possession of marijuana - He then searched the accused and his truck - He found eight grams of marijuana and what he believed to be a list of contacts - The possession charge was replaced with a trafficking charge - The trial judge found that the search was unreasonable, excluded the evidence of marijuana and acquitted the accused - The Saskatchewan Court of Appeal dismissed a Crown appeal - The court held that s. 495(1)(b) of the Criminal Code did not permit a police officer to arrest someone for possession of marijuana based on the smell of burned marijuana alone - An officer smelling burned marijuana did not find a person committing the offence of possession of marijuana and the smell of burned marijuana alone was not sufficient to support a reasonable inference that more, unsmoked marijuana would be present - Since the arrest was not lawful, the officer could not rely on the common law power to search incident to arrest - The officer also did not have reasonable grounds to believe that marijuana was on the accused's person or in his truck to justify a warrantless search under s. 11(7) of the Controlled Drugs and Substances Act - The trial judge's decision to exclude the evidence pursuant to s. 24(2) of the Charter was not unreasonable.

Civil Rights - Topic 1281

Security of the person - Unlawful arrest - General - [See Civil Rights - Topic 1217 ].

Civil Rights - Topic 1646

Property - Search and seizure - Unreasonable search and seizure defined - [See Civil Rights - Topic 1217 ].

Civil Rights - Topic 1653.2

Property - Search and seizure - Warrantless search and seizure - [See Civil Rights - Topic 1217 ].

Civil Rights - Topic 8368

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Exclusion of evidence - [See Civil Rights - Topic 1217 ].

Criminal Law - Topic 3212

Compelling appearance, detention and release - Arrest - Arrest without warrant - [See Civil Rights - Topic 1217 ].

Narcotic Control - Topic 2062

Search and seizure - Warrantless searches - Reasonable grounds - [See Civil Rights - Topic 1217 ].

Police - Topic 3069

Powers - Arrest and detention - Arrest without warrant - Of person committing criminal offence - [See Civil Rights - Topic 1217 ].

Cases Noticed:

Baron et al. v. Minister of National Revenue, [1993] 1 S.C.R. 416; 146 N.R. 270, refd to. [para. 16].

R. v. Biron (1975), 4 N.R. 45 (S.C.C.), consd. [para. 20].

R. v. Roberge (1983), 46 N.R. 573 (S.C.C.), consd. [para. 22].

R. v. Beilard (1985), 61 A.R. 321 (Prov. Ct.), consd. [para. 25].

R. v. Huebschwerlen, [1997] Y.J. No. 24, consd. [para. 33].

People v. Hilber (1978), 269 N.W.2d 159 (Mich. S.C.), refd to. [para. 34].

R. v. Zagar (M.) (1998), 222 A.R. 195 (Prov. Ct.), consd. [para. 36].

R. v. I.D.D. (1987), 60 Sask.R. 72 (C.A.), refd to. [para. 43].

R. v. Sewell (E.E.) (2003), 232 Sask.R. 210; 294 W.A.C. 210; 2003 SKCA 52, dist. [para. 44].

R. v. Mann (P.H.), [2004] 3 S.C.R. 59; 324 N.R. 215; 187 Man.R.(2d) 1; 330 W.A.C. 1, refd to. [para. 56].

R. v. Collins, [1987] 1 S.C.R. 265; 74 N.R. 276; 56 C.R.(3d) 193, refd to. [para. 58].

R. v. Mellenthin (1992), 144 N.R. 50; 135 A.R. 1; 33 W.A.C. 1; 76 C.C.C.(3d) 481 (S.C.C.), refd to. [para. 59].

R. v. Buhay (M.A.) (2003), 305 N.R. 158; 177 Man.R.(2d) 72; 304 W.A.C. 72 (S.C.C.), refd to. [para. 60].

Statutes Noticed:

Controlled Drugs and Substances Act, S.C. 1996, c. 19, sect. 11(1), sect. 11(5), sect. 11(7) [para. 51].

Criminal Code, R.S.C. 1985, c. C-46, sect. 495(1) [para. 10].

Counsel:

Douglas G. Curliss, for the appellant;

Ronald P. Piche, for the respondent.

This appeal was heard on June 4, 2007, before Klebuc, C.J.S., Jackson and Smith, JJ.A., of the Saskatchewan Court of Appeal. The following judgment of the Court of Appeal was delivered by Jackson, J.A., on December 14, 2007.