Trial on charges including hit and run and impaired driving. Alleged s. 9 breach. Police stopped accused’s vehicle after a report of a minor hit and run collision, followed by some erratic driving. Some question as to whether the vehicle stopped was in fact the target vehicle. Police claimed to smell a strong odour of fresh marihuana emanating from the vehicle. However, police never searched the accused or the vehicle, and no drugs were ever found.

Held: Section 9 breach.

The smell of fresh marihuana “may” provide reasonable grounds for arrest: Harding, 2010 ABCA 180. However, the police did not conduct any form of search, and did not find any marihuana. “The arrest and detention of the accused for possession of marihuana, based solely on the smell of ‘fresh’ marihuana from the accused’s vehicle, was both unlawful and arbitrary”: Polashek 1999, OJ No 968 (ONCA).

E. Holzman, S. Armstrong –

Defence Counsel