R. v. S.D. [Court of Queen’s Bench, Calgary, September 2016]

S.D. was driving a vehicle outside of Lake Louise and was pulled over by the police for (apparently) weaving in his lane of traffic multiple times. The police detected the smell of marijuana and proceeded to search S.D.’s vehicle allegedly discovering over 5 kilograms of marijuana and 4 tubs of marijuana honey. S.D. was charged with possession of marijuana in excess of 3 kilograms for the purpose of trafficking and simple possession of marijuana (the honey). A few weeks prior to his arrest S.D. had been pulled over by the police and was found to be in lawful possession of 2 kilograms of marijuana pursuant to a medical marijuana license which allowed him to possess same. Ms. Fagan’s position was that the police knew he would be in possession of marijuana at the time they conducted a traffic stop and that the police were using the Traffic Safety Act to conduct a drug investigation thus rendering the entire exchange between police and S.D. unconstitutional. The Crown was convinced of same and a stay of proceedings was entered (i.e. the termination of the prosecution against S.D.). Ms. Fagan secured the return of approximately 2 kilograms of marijuana to S.D.