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N.S. to amend its cannabis law to protect citizens from unreasonable searches

Oct 29, 2021
The provincial government tabled the amendment to Section 24(1)(a) of the act on Thursday in a bid “to clarify the standard of reasonableness required to search a place or vehicle,” accord ...

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Nova Scotia is looking to strike a balance between the safety of all with individual rights under the Canadian Charter of Rights and Freedoms with its move to amend the province’s Cannabis Control Act.

The provincial government tabled the amendment to Section 24(1)(a) of the act on Thursday in a bid “to clarify the standard of reasonableness required to search a place or vehicle,” according to the Nova Scotia Department of Justice.

Police investigating violations of the Cannabis Control Act will need to have “reasonable grounds to believe” before carrying out any search for illegal cannabis, the statement explains. Currently, in line with other provinces, the Nova Scotia act allows an officer to conduct a search “at any reasonable time.”

The proposed change follows a Mar. 4, 2020, provincial court ruling, R. vs. Daniels, in which the judge concluded the act’s section of addressing search and seizure lacked clarity and, as such, was “statutorily invalid,” the statement notes.

In essence, the court ruled that inspection powers under the act infringed the driver’s rights under Section 8 of the Charter.

“Everyone has the right to be secure against unreasonable search or seizure” and is meant to “protects people, not places, against unjustified intrusions on their privacy interests,” the section notes.

“Public health and safety are the primary goals of our cannabis legislation, but it is equally important that the Charter rights of Nova Scotians are protected from unreasonable searches,” Brad Johns, Nova Scotia’s justice minister and Attorney General, says in the government statement.

In Nova Scotia, a person of legal age can use cannabis in the privacy of his or her home. “Cannabis in any form cannot be used in vehicles by passengers or drivers. You may be fined up to $2,000 for consumption in a vehicle,” notes information from the provincial government.

In the U.S., the odour of fresh or burnt marijuana is often cited as the reason for searches. But the practice has been taking some hits of late.

In the recently legalized state of New York, for example, a new policy notes that police officers can only search a vehicle if the driver “appears to be under the influence of marijuana and there is probable cause to believe that they have been smoking it” or the driver is actually seen doing so, CNN reported this spring.

In Maryland, it was ruled that marijuana odour is no longer probable cause to search, according to Stein Sperling Bennett DeJong Driscoll. Although a joint found did not look to be more than 10 grams, the man was arrested and searched, with the police finding cocaine in his pocket.

Where cannabis remains illegal, however, weed smell may tell a different story.

Barnett Howard & Williams PLLC reports that in Texas, where recreational cannabis is not legal, an officer could carry out a warrantless vehicle search based on a marijuana smell emanating from that vehicle.

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