A Vancouver motorist has successfully challenged a driving prohibition that came after a cop smelled cannabis on him and observed that he had glassy, red eyes.
Const. Kayla Chow imposed a 24-hour ban on Jasdeep Singh Shergill on September 30, 2016. It came after he was pulled over while driving slowly in the 9000 block of Shaughnessy Street.
According to the May 18 ruling by Justice Nigel Kent, officers on the scene ‘could immediately smell an odour of fresh marihuana and observed marihuana grinders in plain view in the middle console’.
Shergill and two passengers were ordered out of the vehicle and arrested.
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The police occurrence report stated that ‘Shergill had glassy red eyes and a strong odour of marihuana coming from his body.’
In searching the vehicle, officers found a bottle of Visine, as well as a 12-pack of beer in the trunk, with only nine of them unopened.
‘The alleged reasonable and probable grounds in this case really boil down to a combination of slow driving, the odour of vegetative marihuana, and glassy, red eyes,’ Kent wrote in his ruling. ‘Absent more objectively compelling circumstances, however, three ‘mere possibilities’ do not a ‘reasonable probability’ make.’
Kent also noted that Chow’s affidavit filed in court ‘voices her own ambiguity and uncertainty whether Mr. Shergill’s ability to drive a motor vehicle was affected by either a drug or by alcohol’.
‘I conclude that any subjective belief that Cst. Chow may have held that Mr. Shergill’s ability to drive his motor vehicle was affected by a drug at the time he was detained on the evening of September 30, 2016, was not sufficiently justifiable from an objective point of view,’ the judge stated in his ruling. ‘There was insufficient ‘reasonable probability’ for a prohibition and Cst. Chow’s decision to issue that prohibition was unreasonable. It was a decision not ‘within the range of possible outcomes defensible in respect of the facts and law’.’
As a result, Kent set aside the driving prohibition.
