I recently conducted a marijuana trafficking trial with fellow Ottawa criminal lawyer Michael Johnston, where the plain view doctrine played a central role.  The case illustrated two useful principles. First, the plain view doctrine confers a seizure power not a search power.  It does not permit an exploratory search to find other evidence. Second, there are dangers associated with a police power derived from the loose application of the plain view doctrine as it can be used as a pretext to avoid obtaining a warrant.

Background: The Marijuana Charges

The police stopped our clients in a car on the driveway to a house The stop was made because a citizen called 911 and reported that there was a handgun in the car.  The police quickly determined that there were no firearms in the car.  Several minutes later, however, the police claimed that they saw a bag of marijuana in plain view on the car seat. As a result, the police searched the car. Our clients were charged with possession of approximately 200 grams of marijuana for the purpose of trafficking.

Trial Strategy & Result

At trial, we argued that the police were not actually able to see any marijuana in the car.  Rather, we argued the police used the “plain view doctrine” a pretext to search the car for drugs.  Alternatively, even if the marijuana was visible, we argued that the police had no legal justification for remaining on the residential property once they realized there were no guns in the car, and therefore they could not rely on the plain view doctrine to justify looking into the car.

After the police officers were cross-examined the possession for the purpose of trafficking charges were dropped by the prosecution and our clients were found not guilty.

Limits of the Plain View Doctrine

The plain view doctrine has the potential for abuse. The Saskatchewan Court of Appeal case of R. v. Spindloe, 2001 SKCA 58 provides a useful statement on the limits of the plain view doctrine:

[42]   I am reluctant to impose rigid requirements, particularly in light of s. 8 of the Charter which relies not on rigid rules but on an assessment of reasonableness.  Applying the first and second tests of Collins, one must conclude that the common law, given the jurisprudence on point, authorizes plain view seizures.  The plain view seizure power cannot be exercised as a pretext for a planned warrantless seizure, but if the police are lawfully present in premises, they may seize property in plain view as long as there is probable cause to associate the discovered property with criminal activity.  Linked as it is to the lawful presence of the police, it is a reasonable law.  As was said in Askov, and approved in Neilsen, the one constant is that the presence of the police in the area where the items are seized must be lawful. Beyond that, the test is the third one articulated in Collins: the manner in which the police carry out the search and seizure must be reasonable.

Charged with Drug Offences in Ottawa?

If you have been charged with drug offences in the Ottawa area, Ottawa criminal lawyer Brett McGarry would be pleased to discuss the best strategy for defending your criminal charges with you.