Pot may be legal in Canada but police officers in Ontario are using the province’s Cannabis Control Act (CCA) to conduct warrantless searches that are little more than fishing expeditions that violate charter rights, defence lawyers say.
“There are countless cases presently in our court system stemming from unlawful CCA searches and likely thousands of people who have been subjected to this type of unlawful behaviour we will never hear about because nothing illegal was discovered,” said Toronto defence lawyer Daniel Brown, vice-president of the Criminal Lawyers’ Association.
“This practice is as insidious as police carding and threatens the public’s trust in police,” he said, referring to the now-discredited police practice of documenting personal information gleaned from random stops.
Under the CCA, Ontarians are legally entitled to transport up to 30 grams of cannabis in a vehicle provided it is in an unopened original package or packed in baggage that is “fastened closed” and not readily available. If an officer has reasonable grounds to suspect marijuana is not packed in a closed bag or is readily available to a person in the car, he or she can search the entire vehicle — and all of its occupants — without a warrant.
While that power is intended to permit officers to search for evidence of Cannabis Control Act violations, it’s often used as a ruse to go snooping for evidence of other crimes, the defenders say.
Chloe Boubalos, who practises law in Toronto, believes it has become “a matter of routine” for police to use the law to target visible minorities, who, research suggests, are pulled over by police more often.
“They’re already overpolicing certain groups …it leads to this conclusion the same groups are going to be disproportionately impacted by these very, very broad powers that can lead officers to conduct really intrusive searches with just a smell.”
She and the other defence lawyers are calling on the courts and province to limit police powers, and point to British Columbia, where police require a warrant to search vehicles for pot.
Canada legalized the sale, possession and non-medical use of marijuana by adults in 2018. Each province also passed its own regulations determining how cannabis is distributed, sold and used.
Under Ontario’s law, people 19 and older can smoke or vape cannabis in their private residence and outdoor public places, including sidewalks, parks and beaches.
The punishment for having open, accessible cannabis in a vehicle (or boat) is a maximum $100,000 fine, one year’s imprisonment, or both.
Police typically need a warrant to search a person’s house or car unless a person gives their consent or if officers have reasonable and probable grounds to believe a crime has been committed.
Charter challenges have already begun, with many more expected.
Last week, a Brampton judge acquitted a man of having an illegal firearm in his car after rejecting the police officer’s evidence that there was improperly packaged marijuana inside.
The Ontario Provincial Police officer had done 72 CCA searches in the ninth months before pulling over defence lawyer Paul Aubin’s client on Highway 427 for a sobriety check.
(During his oral arguments, the prosecutor observed that while judges on the Court of Appeal “probably didn’t partake” in dope-smoking in the 1990s, much has changed because now “everyone knows what cannabis smells like.” The Brampton judge wrote that this “bizarre, gratuitous speculation” was “unhelpful.”)
In January 2021, a Newmarket judge also excluded a gun from evidence after finding York Regional Police officers exceeded their authority by searching an entire vehicle during a traffic stop. The accused was cleared of weapons offences.
The testimony of one of the arresting officers in that case highlighted how pervasive the practice is in York Region, said defence lawyer Carlos Rippell, who represented the defendant.
“How many Cannabis Control Act searches have you done at this point in your career?” Rippell asked the officer in November 2020, according to a court transcript.
“Lots,” responded York Regional Police Const. Caleb Allison.
“I do them every day. Every single day. Like every shift I work, I would say I do a cannabis search more often than not. Almost every single day.”
Allison added that if he believes a driver has cannabis that’s “readily accessible,” he assumes “there’s more where that came from … and there could be more in the vehicle.” Asked if he enforced the Liquor Licence and Control Act in a similar fashion, Allison said he does but “a lot less,” because it’s far more common to see cannabis in a vehicle than open liquor. The wording in that act closely resembles the search power in the CCA.
But the judge concluded the search exceeded the authority granted under the CCA. Rather than searching for illegally stored weed, the judge found the officers “were intent on searching the vehicle for a firearm.” He called such searches “systemic in nature” and characterized the breaches as “extremely flagrant.”
In an emailed statement to the Star, York Regional Police referenced another recent criminal case in Oshawa where a gun was discovered in a vehicle during a warrantless search. In that case, the judge concluded the officer did have reasonable grounds to search the vehicle, and all of its occupants, because of his reasonable belief that pot was stored in contravention of the CCA.
In his ruling, the Oshawa judge disagreed with the Newmarket judge’s earlier reasoning for excluding the gun.
“We currently have two inconsistent decisions from local trial judges regarding vehicle searches under the Cannabis Control Act. This law is still developing. We have not changed our practices because we remain mindful of the (Oshawa) decision,” York police said in the email.
“We expect that this issue will be reviewed at some point by an appellate court.”
In an interview with the Star on Thursday, Rippell said he believes there is a “version of this legislation that is constitutional,” but the current law must be amended so that police require a warrant. There also needs to be greater clarity on the meaning of “fastened closed.”
Would it be legal under the act, for instance, for a woman to have a “vape pen” in a closed purse?
It should be, and that person should never be subject to a search, Rippell said. “But because it’s new enough, the law isn’t crystal clear.”