Arrest based upon odour of marihuana from vehicle of passenger in the van violated s. 8 of the Charter and the evidence was excluded.

R. v. Beaudry, [2014] M.J. No. 79 – although this case has no binding effect, the principles discussed in it are of interest. Beaudry was a passenger in a cargo van which was pulled over as part of the annual Christmas check stop program. An officer of some 13 years attended to the vehicle and the driver rolled down his window, at which time the officer noted what he described as a “striking” and “instantaneous” smell of “raw” or un-smoked marihuana. Two occupants were in the front portion of the van, which was separated by a partition from the rear portion of the vehicle.

The officer testified that given the strength of the smell, he believed there to be a “rather large quantity of marihuana in that vehicle.” He testified that he was satisfied that “there was nobody in that vehicle that (a) didn’t have it on their person, or (b) wouldn’t have knowledge that that cannabis marihuana was inside that vehicle.” As a result, the officer immediately advised the occupants that they were under arrest for possession of marihuana. While he dealt with the driver, the officer called for assistance and directed another officer of 2 years to arrest Beaudry.

The junior officer asked Beaudry to step out of the vehicle, handcuffed him, and gave him a generalized overview of his rights. Beaudry, who was described as “cooperative and respectful”, was escorted to the rear of the cruiser car where the junior officer conducted a “methodical” search, looking at that time for “weapons and a means of escape”. As a result of the search, the junior officer located a cell phone, approximately $1000 in Canadian currency, and a clear Ziploc baggie in his upper right hand jacket pocket containing approximately 30 grams of marihuana. No weapons were located. Simultaneously to this, the senior officer dealt with the driver. A search of the driver’s jacket, which was located between the front seats of the van, located approximately 9 grams of marihuana in a jacket pocket. The driver was issued a promise to appear at the roadside and was released. Beaudry was transported to the detachment, where he was searched again, eventually being released on a promise to appear.

At trial, both counsel agreed that Beaudry was arrested for a summary conviction offence pursuant to section 4(4)(b) of the Controlled Drugs and Substances Act and as such, Criminal Code section 495(1)(b) applied (in order to arrest under this section, an officer must find a person “committing” an offence). In order for the arrest to be lawful, Crown counsel must establish on a balance of probabilities that the arresting officer subjectively believed that he had reasonable grounds to arrest the accused, and those grounds must be justifiable from an objective viewpoint. Judge Harvie of the Manitoba Provincial Court said there was no issue that the senior officer subjectively believed that he had reasonable grounds to arrest the accused. At issue was whether the totality of the circumstances objectively supported that conclusion, which was based exclusively on what he described as the strong odour he detected within the vehicle. The junior officer, who affected the arrest, relied on the instructions given to him by the senior officer.

Recognizing that evidence about “odours” is highly subjective, the authorities have paid careful attention to the circumstances under which this type of “evidence” is detected. In R. v. Polashek, 1999 CanLII 3714, 134 C.C.C. (3d) 187 (Ont.C.A.) Rosenberg J.A. discussed the application of principle described in American jurisprudence as the “plain smell doctrine” as it related to the arrest of the accused, the lone occupant in a vehicle which had been stopped for a Highway Traffic Act violation. The arresting officer detected a “strong odour” of marihuana, but could not tell whether it was burned or fresh. In responding to the argument that the presence in a vehicle of the odour of marihuana alone cannot provide reasonable grounds for arrest, Rosenberg, J.A. made the following comments:

I agree, in part, with the appellant’s position. Had Constable Ross based his arrest of the appellant solely on the presence of the odour I would have held that there were not reasonable and probable grounds to make the arrest. Given Constable Ross’ admission that he could not from the odour alone determine whether the marijuana had been smoked recently or even if he was detecting the smell of smoked marijuana, the presence of odour alone did not provide reasonable grounds to believe that the occupant was committing an offence. The sense of smell is highly subjective and to authorize an arrest solely on that basis puts an unreviewable discretion in the hands of the officer. By their nature, smells are transitory, and thus largely incapable of objective verification. A smell will often leave no trace. As Doherty J.A. observed in R. v. Simpson, at p. 202: “… subjectively based assessments can too easily mask discriminatory conduct based on such irrelevant factors as the detainee’s sex, colour, age, ethnic origin or sexual orientation.”

On the other hand, I would not go so far as was urged by the appellant that the presence of the smell of marijuana can never provide the requisite reasonable and probable grounds for an arrest. The circumstances under which the olfactory observation was made will determine the matter. It may be that some officers through experience or training can convince the trial judge that they possesses sufficient expertise that their opinion of present possession can be relied upon. Even in this case, the Crown adduced sufficient evidence from which the trial judge could reasonably conclude that Constable Ross accurately detected the odour of marijuana rather than some other substance.

Some distinction is drawn in the jurisprudence between situations in which a peace officer smells recently burned marihuana and those where the officer detects raw or un-smoked marihuana. This distinction is important when assessing whether an officer finds an accused “committing a criminal offence” and is therefore empowered to arrest pursuant to Criminal Code s. 495(1)(b). In R. v. Janvier (2008), 227 C.C.C. (3d) 294 the Saskatchewan Court of Appeal considered whether a strong smell of burned marihuana provided grounds for the arrest of a sole occupant of a vehicle. The accused had been stopped for a broken headlight. When the patrol officer was within a meter of the truck, he noted the very strong smell of burned marihuana, causing him to conclude that someone had smoked marihuana in the truck within the previous 20 minutes. The trial judge concluded that the odour alone did not provide the necessary grounds for arrest.

Jackson J.A. in Janvier conducted a lengthy review of the case law related to the powers of arrest conferred by Criminal Code s. 495(1)(b) where the arrest is based on the smell of burned marihuana. The Court also considered the alternate argument that the smell of recently burned marihuana provides objectively reasonable grounds to believe that un-smoked marihuana would be present. The Court referenced R. v. Huebschwerlen (1997), 10 C.R. (5th) 121 (Whitehorse Terr. Ct.) at paras. 19-20 in which Chief Judge Lilles reviewed numerous authorities, concluding that, for the most part, the courts have been reluctant to find reasonable grounds based on the smell of burned marihuana alone. Chief Judge Lilles summarized his conclusions regarding the jurisprudence:

19 As the above cases indicate, courts have been reluctant to find reasonable and probable grounds based on the presence of burnt marihuana odour alone, unless it is established, as in Guberman (1985), 23 C.C.C. (3d) 406], that the smell was fresh, recent and very strong. More often, other observations are made in conjunction with the odour, such as evidence of some other offence justifying arrest (open liquor), physical observations of drug impairment, some marihuana in the vehicle, or an admission by the accused that he/she had been using drugs earlier in the evening.

20 A detailed and most helpful analysis of the relevant considerations in such cases is found in the American case of People v. Hilber (1978) 269 N.W.2d 159 (U.S. Mich. S.C. 1978). The following points have been summarized from that decision.

  1. A distinction is to be made between the odour of unburned and burned marihuana. The former indicates the actual presence of marihuana, while the odour of burned marihuana indicates only that at some time in the past marihuana was present and burned.
  2. Reliance on the smell of burnt marihuana as the basis for reasonable and probable grounds relies on several inferences:
  • that the odour in the vehicle was caused by the driver/occupant having smoked marihuana
  • that marihuana smokers, like tobacco smokers, carry a supply with them

But we know that other odours in vehicles, such as tobacco, beer, spoiled food, etc. are often caused by someone other than the driver/occupant at the time the odour is detected. And there is no reason to believe that tobacco smokers and their behaviours provide standards from which to judge marihuana smokers. Because of the multiple inferences involved, it is not reasonable to infer that an occupant of a motor vehicle either smoked marihuana or has it in his/her possession, solely from a residual odour of marihuana in a motor vehicle. [Emphasis added.]

Jackson J.A. in Janvier noted “that it is not reasonable to infer that an occupant of a motor vehicle having smoked marihuana would have more in his or her possession” and that since his decision, “almost all of the reported decisions have concluded, as he did, that the smell of burned marihuana alone does not provide an objective basis for a reasonable belief that there is more marihuana present.”

In R. v. Harding 2010 ABCA 180, the Alberta Court of Appeal considered the role of “odour” in the conviction of the accused for possession for the purpose of trafficking. The accused was the sole occupant of vehicle which was pulled over because the licence plate and registration tag were obscured by mud. The officer, who had considerable experience dealing with marihuana, detected a strong odour of “raw” marihuana, conducted some further investigation, and placed the accused under arrest. It was agreed that other factors identified by the officer were merely suspicions, and that the strong odour was the only objective factor to be considered. The Court drew a distinction between those cases involving burnt marihuana and concluded (at para 29):

Here, Sgt. Topham smelled the very strong odour of raw marijuana, not burnt marijuana. The smell of raw marijuana, given Sgt. Topham’s experience with marijuana, constituted the observation that a crime, namely, possession of marijuana, was being committed. No inference was necessary. The possession of marijuana was not a past event and the officer did not need to infer that he could find more marijuana by searching the appellant or his vehicle. The smell of raw marijuana alone was sufficient to conclude that the appellant was at that time in possession of marijuana.

The Court did go on to note that while the smell of raw marihuana could provide sufficient grounds for arrest, such a conclusion would depend on the officer’s experience. In Harding, supra, the trial judge described the arresting officer as having a “great deal of experience” with a “well trained nose.” Similar comments were made in R. v. Meyers, [2012] B.C.J. No. 374; 284 C.C.C.(3d) 248 (B.C.Prov.Ct.); R. v. Burgess, [2009] B.C.J. 449 (B.C. Prov.Ct.); R. v. Costain, [2010] B.C.J. No. 1268 (B.C. Prov.Ct); R. v. Ashby (2011), BCSC 513 (CanLII).

The smell of un-smoked marihuana, along with other factors, provided sufficient grounds for arrest in R. v. Yaremus, 2008 ABPC 322 (CanLII). In that case, both investigating officers, who were consider very experienced, testified as to the distinctive odour of both fresh and burned marihuana which was emanating from a vehicle stopped in a known drug trafficking location.

Judge Harvie in this case said the case law is clear that while the smell of “raw” or “un-smoked” marihuana can provide a foundation for an arrest, given the highly subjective nature of this evidence, the experience of the arresting officer and the totality of the circumstances must be carefully considered.

The senior officer had experience dealing with marihuana, specifically having been involved with a special operation where he had picked “thousands” of plants for destruction. While on highway patrol, he testified to having encountered vehicles with both smoked and un-smoked marihuana. The junior officer confirmed that as part of his training, he handled fresh marihuana and had taken a course on the transport of illicit substances. He was called over to assist the senior officer, and was immediately instructed to arrest Beaudry, who showed no signs of intoxication or otherwise having been under the influence of drugs. While the passenger vehicle window was up, the junior officer testified that he attended to the passenger side of the vehicle where he requested that Beaudry remove himself from the vehicle, placing him under arrest. At no time did he note a smell of marihuana, either from the vehicle or from the accused. Judge Harvie said this was significant given that the bulk of the marihuana located in the vehicle was ultimately found in Beaudry’s jacket, albeit sealed within a Ziploc baggie.

Judge Harvie said given that the smell of marihuana provided the sole basis for the arrest of the driver and Beaudry, the evidence in this regard required careful scrutiny and the cautionary words of the Ontario Court of Appeal in Polashek, supra, bear repeating:

“The sense of smell is highly subjective and to authorize an arrest solely on that basis puts an unreviewable discretion in the hands of the officer. By their nature, smells are transitory, and thus largely incapable of objective verification.”

In this case, said the judge, the verification of what the senior officer described as an “overwhelming” smell by his partner was surprisingly absent. While possessing less experience than his partner, the junior officer did attest to being familiar with marihuana and its unique odour, so even recognizing that the passenger window was up, it seemed likely that an odour as “overwhelming” as the one purportedly detected by the senior officer would have been easily detected when Beaudry exited the vehicle. The judge said that the senior officer was certainly of that view, testifying that he didn’t attend to the passenger side of the vehicle because “Whether I was on the driver’s side of that vehicle or the passenger side of the vehicle is inconsequential, the odour would have been the same whether I was on the driver’s side or the passenger side.” The Court was then left with a question as to whether the smell emanating from the vehicle was as strong as was suggested by the senior officer, and by extension, whether it was strong enough, standing alone, to provide reasonable grounds to believe that an offence was being committed.

Judge Harvie, for her own reasons, said the Crown must only establish on a balance of probabilities that the officers had reasonable grounds to arrest, and that those grounds are justified from an objective point of view. Given that the officers clearly stated that they arrested the accused, an examination of the issues related to the powers of “investigative detention” might seem at first blush to be unnecessary. However, given the officers’ evidence in this area, some comment was required according to the judge.  To summarize, Judge Harvie said there was a lack of clarity on the part of the officers’ testimony with respect to the powers of arrest versus the powers of detention and was important when objectively considering whether the officers had the requisite grounds to arrest Beaudy. The officers appeared to view the power of arrest to essentially be interchangeable with the power to detain for investigative purposes, and a reliance on the “practice” of arresting a suspect lead to the concern that the officers did not give proper attention and weight to the need for “reasonable grounds”. This must all be considered when weighing the officers’ clearly articulated views that they had the authority to “arrest” the driver and Beaudry based on the odour that only the senior officer detected.

The Judge said the senior officer did not provide any information to the junior officer about the basis for his conclusion that two occupants should be arrested. This must be assessed when considering that the junior officer Constable did not make any observations on his own which would provide grounds to arrest Beaudry, and that he seemed to consider that the simple fact that this was a “drug related stop” conferred upon him the power to arrest Beaudy.

The crown must establish on a balance of probabilities that the arresting officer subjectively believed that an offence was being committed, therefore giving them reasonable grounds to arrest the accused, said the judge. Those grounds must be objectively reasonable. The senior officer, an officer with experience in drug investigations, relied exclusively on the smell of raw marihuana coming from the vehicle. Despite describing this smell as “overwhelming”, it was not noted by the junior officer, who actually arrested the accused.  According to Judge Harvie, a further complicating factor was the lack of clarity from both officers as to the fine but important distinction between circumstances in which an accused can be arrested versus those circumstances which would support only an investigative detention.

Given the unique, subjective and highly transitory nature of “smells” as a basis for arrest, special attention must be paid to this type of evidence. Taking all of the circumstances into consideration, Judge Harvie was not satisfied that the evidence in this case objectively supported the arrest of the accused. While the senior officer had previous experience in dealing with marihuana, his evidence on this important point was not supported by the junior officer, who while less experienced than his partner, was in a position to have noted the smell. Judge Harvie was satisfied that the accused’s arrest was not lawful and that he was searched in violation of section 8 of the Charter.

Applying the analysis as set out in Grant, Judge Harvie considered the officers’ Charter-infringing conduct to be serious. The lack of consistency between the officers, the complete lack of any further investigative steps, coupled with a serious lack of understanding related to the powers of arrest raised serious concerns. The Judge further considered that the impact on the accused was significant and more than technical. While the drugs sought to be introduced represented real and reliable evidence, that consideration cannot be seen to trump the first two prongs of the test. Taking all of the forgoing into account, Judge Harvie concluded that the evidence in question should be excluded pursuant to the Charter, section 24(2).

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