The Queen v. R.(D.) 2018

The police attended the client’s home near Nakusp, BC to check on the well being of a woman that the police had received concerning phone calls about.  While standing at the front door to the residence, the police officer was able to speak with the woman and determine that she was fine, however while standing at the door he smelled the odour of what he referred to as “vegetative marihuana”.  The officer returned to the police station and drafted an Information to Obtain (“ITO”) a search warrant for the house on the basis of the smell of marihuana.  The next day the police executed the warrant and discovered a modestly sized indoor marihuana grow operation.  The client as well as two other people living in the house were charged with production of marihuana and possession for the purpose of trafficking.  At trial Mr. van der Walle argued that the grounds set out out by the officer in the ITO were insufficient and did not give rise to reasonable and probable grounds, which is the standard that needs to be met to obtain a search warrant.  Specifically, the officer had failed to set out his experience and how he is able to reliably distinguish between the odour of growing marihuana plants versus the odour of dried “bud” marihuana and the odour of smoked marihuana.  After hearing argument the Supreme Court Judge agreed with the defence and ruled that the warrant was invalid.  At that point the prosecutor, much to his credit, decided that it was likely that the illegally obtained evidence would be excluded and opted to drop the charges.  Not guilty.  Client did not testify.