THC sticker enough for warrantless search, OCA rules

Criminal defence lawyers have criticized the ruling. What emerges, they say, is how little the Cannabis Control Act asks of police before they conduct a warrantless roadside search. 

“Randall bothers me a lot,” says Joseph Neuberger, founding partner of Neuberger & Partners LLP in Toronto. “It’s a very slim basis to search a person and a vehicle.” 

Ottawa police stopped Shamari Randall's vehicle. They believed the heavily tinted windows offended the Highway Traffic Act. While checking Randall’s documents, one of the officers saw a vape pen with a THC sticker next to the gearshift and believed that it contained cannabis.  

Randall stepped out of the car after the officer told him he intended to search the vehicle. Because it was cold, the officer offered Randall his jacket, draped over the driver’s seat. He searched it before handing it over, discovered a prescription vial he believed contained a controlled substance, and arrested Randall.  

A second officer found drugs, cash and paraphernalia in a satchel on the passenger side. A loaded firearm was later found in a dislodged gearshift compartment. 

Police subsequently charged Randall with drug trafficking and weapons offences. 

The Cannabis Control Act bars driving or having care or control of a vehicle containing cannabis unless it is in unopened original packaging or packed in baggage that is fastened closed or out of reach. An officer who has reasonable grounds to believe cannabis is being stored improperly may search the vehicle, and anyone in it, without a warrant. 

At trial, Justice David Berg of the Ontario Court of Justice held that the vape pen was cannabis paraphernalia, not cannabis. Seeing the pen supported reasonable suspicion, he found, but it did not amount to reasonable grounds for believing that cannabis was in the vehicle.  

As Berg saw it, the officer reached the reasonable grounds threshold only if he made further inquiries, such as questioning Randall or examining the pen. He excluded the evidence as the product of an unconstitutional search and acquitted the accused. 

In reasons released on Sept. 9, a unanimous Court of Appeal disagreed and ordered a new trial. 

Justice Bradley Miller, with Justices Katherine van Rensburg and Darla Wilson concurring, concluded that seeing a vape pen with a THC sticker within reach of the driver supported the officer’s inference that cannabis was present and accessible for consumption. Confirmation that the pen held cannabis was not required, since the obvious reason to keep a vape pen within arm’s reach was so the driver could use it. Nor were police obliged to ask questions before forming reasonable grounds. The upshot was that reasonable grounds existed and the search was lawful. 

Neuberger argues that the THC sticker was a tenuous basis for so intrusive a search.  

“The pen could have been empty,” he says. “The trial judge was correct that asking a few questions first would have been a minor step for the officer.” 

Neuberger believes that the legalization of marijuana has “watered down” protections against unreasonable search and seizure. 

“If reasonable grounds are the standard, the criteria should be more robust and should mandate some sort of inquiry.” 

Dan Brodsky, a Toronto-based criminal lawyer, believes Randall has diluted previous jurisprudence that he says required more of the police.  

“Officers should caution the driver and ask some questions before searching. There may be a reasonable explanation for what they are seeing.” 

Brodsky observes that the rules for cannabis in a vehicle work much like the rules for open liquor, but public awareness lags far behind.  

“Most drivers know an open bottle has to be out of reach. Most people don’t have a clue that THC has to be stored the same way.”