Arrest after vehicle stop based solely on the odour of burnt marihuana violated s. 9 of the Charter and the search incident to arrest violated s. 8. The resulting blood-alcohol readings were excluded.

R. v. Konior 2014 ONCJ 279 – this case involved an arrest for possession of a controlled substance and subsequently, an arrest for operating a motor vehicle after having consumed alcohol in excess of the legal limit following a failed roadside screening test.

The defendant was driving his pickup truck at 9:15 PM and he was stopped for using his cell phone. When speaking to Mr. Konior as he sat in his truck with the driver’s window down, the officer noticed a strong odour of burnt marihuana coming from inside the truck. He was asked if he had been smoking marihuana and he said: “Yes, at a friend’s house.” The officer formed reasonable and probable grounds to arrest him for possession of a controlled substance. Mr. Konior was asked to exit his vehicle and as he did, with his back to the officer, took something from his pocket and moved it to the front of his body. A male officer was called for assistance and he found a plastic baggie with marihuana inside the front of the shorts of the defendant. He was then handcuffed from behind.

In view of the small quantity of drug involved, and the fact that he had no criminal record, the officer decided not to charge Mr. Konior for possession, but told him that he would receive a ticket for using his cell phone while driving. As he was being released from inside the officer’s cruiser at 9:42pm, a strong odour of alcohol was detected, and despite denying consuming alcohol, the officer formed a reasonable suspicion that he had been driving with alcohol in his body. He was given a roadside screening test and failed, and was arrested for operating a motor vehicle after having consumed alcohol in excess of the legal limit. At the police station, his blood alcohol readings were 130 and 110 milligrams of alcohol in 100 millilitres of blood.

No defence evidence was called, but the defence had previously filed a Charter application alleging, in addition to other grounds, breaches of sections 8 and 9, and requesting an exclusion of all of the evidence obtained after the arrest of Mr. Konior.

For background information and to serve as a reminder to the cadet recruits, the onus is on the defence to establish a breach of sections 8 and 9 of the Charter on a balance of probabilities. However, if a search was conducted without a warrant, the Crown must prove, on a balance of probabilities, that the search was reasonable: R. v. Collins, [1987] 1 S.C.R. 265. If the search was unreasonable and a breach of section 8, the defence has the burden of establishing that the impugned evidence, if admitted, would bring the administration of justice into disrepute. On the trial proper, the Crown must prove the essential elements of the charges beyond a reasonable doubt.

The officer had no power to arrest the defendant for using his cell phone while driving. The Ontario Highway Traffic Act does not authorize a general power of arrest without warrant, except for those offences designated in section 217(2). Section 78.1, the provision concerning cell phones, is not included therein. The issue then is whether or not the officer had reasonable and proper grounds to arrest the defendant for possession of a controlled substance, based solely on the strong odour of burnt marihuana. The officer subjectively felt she had reasonable grounds to arrest Mr. Konior for possession of marihuana.

Concerning the objective grounds, the only basis for the arrest was the strong odour of burnt marihuana coming from the truck. The officer did not have to believe the explanation of having smoked some at a friend’s house, but there was no admission of present possession, nor was there evidence of drugs or drug paraphernalia in plain view. The area where Mr. Konior was stopped was not described as a known drug area. The ONCJ cited R. v. Polashek, [1999] O.J. No. 968 (C.A.), in which a police officer stopped a vehicle and smelled a strong odour of marihuana coming from inside the vehicle. There was no smoke and the officer could not tell if the odour was from fresh or burnt marihuana. When the officer told the driver he smelled this, he said “No you don’t.” The officer’s grounds for arrest were based on the smell, the driver’s verbal response, the area of Mississauga in which the stop took place, and the time of night. In paragraph 18, Rosenberg J.A., for the court, said as follows:

Thus, absent an error in principle, an appellate court is not entitled to interfere with the trial judge’s finding of reasonable grounds, unless that finding is unreasonable. If the trial judge’s reasons could be interpreted as finding reasonable and probable grounds solely on the basis of the odour of marijuana I would consider this an error in principle. However, as the excerpted passages from the evidence show, the officer did not rely solely upon the smell of marijuana and it would have been unreasonable for the trial judge to ignore that evidence in reaching his conclusion on both the objective and subjective grounds.

(See also R. v. Janvier, (2007), 227 C.C.C. (3d) 294 (Sask. C.A.)).

In the case at bar, Justice A.D. Cooper J. said it was very clear that the reasonable and probable grounds were based solely on the strong odour of burnt marihuana coming from inside the truck. In these circumstances, there was no objective basis to conclude that Mr. Konior was in possession of the drug in his truck said the judge. Therefore, since the search was executed without a warrant, the Crown must prove on a balance of probabilities that the search was reasonable. The judge found as a fact that the Crown had not shown the search to be reasonable, and there was a breach of section 8 of the Charter.

The ONCJ turned to determining whether the arresting officer had reasonable grounds to arrest Mr. Konior for impaired operation.  In doing so, it cited R. v. Khan, [2010] O.J. No. 3861 (O.C.J.), which reviewed the relevant legal principles that were recently summarized by Durno J., sitting ad hoc, in the Ontario Court of Appeal decision in R. v. Bush, 2010 ONCA 554 at paras. 36-40:

Drinking and driving prosecutions involve a continuum of findings, beginning with a reasonable suspicion the driver has alcohol in his or her body, the standard for an Approved Screening Device (roadside) demand pursuant to s. 254(2) of the Criminal Code. At the other end of the continuum, is the standard for conviction, proof beyond a reasonable doubt that the operator’s ability to operate a motor vehicle was impaired by the consumption of alcohol or that the driver’s blood alcohol concentration was over the legal limit.

– Between suspicion and proof beyond a reasonable doubt lies reasonable and probable grounds. Section 254(3) of the Criminal Code authorizes peace officers to demand Intoxilyzer breath samples provided the officer “has reasonable and probable grounds to believe that a person is committing or at any time within the preceding three hours has committed” the offence of impaired operation or driving ‘over 80.’ (emphasis added) Reasonable and probable grounds does not amount to proof beyond a reasonable doubt or to a prima face case: see Censoni at para. 31 and R. v. Shepherd 2009 SCC 35 at para. 23.

– Reasonable and probable grounds have both a subjective and an objective component. The subjective component requires the officer to have an honest belief the suspect committed the offence: R. v. Bernshaw, [1995] 1 S.C.R. 254 at para. 51. The officer’s belief must be supported by objective facts: R. v. Berlinski, [2001] O.J. No. 377 (C.A.) at para. 3. The objective component is satisfied when a reasonable person placed in the position of the officer would be able to conclude that there were indeed reasonable and probable grounds for the arrest: R. v. Storrey, [1990] 1 S.C.R. 241 at p. 250.

– In Storrey v. The Queen, supra at 323, Cory J. articulated the overarching context of drinking/driving investigations – the need for reasonable balance between the individual’s rights to liberty and the need for society to be protected from the menace of impaired drivers. Every year, drunk driving leaves a terrible trail of death, injury, and destruction: The Queen v. Bernshaw, supra at 204; Regina v. Saunders (1988), 41 C.C.C. (3d) 532 (Ont. C.A.) at 537, 539, 541 per Cory J.A. (as he then was). [emphasis added]

– In Storrey, Cory J. addressed the importance of the requirement that officers have reasonable grounds as follows at p. 249-250:

  • The importance of this requirement to citizens of a democracy is self-evident. Yet society also needs protection from crime. This need requires that there be a reasonable balance achieved between the individual’s right to liberty and the need for society to be protected.

– The determination of whether reasonable and probable grounds exist is a fact-based exercise dependant on all circumstances in a case. As well, the court should not lose sight of the fact that police officers in drinking and driving cases are involved in making quick and, hopefully, informed decisions as to whether there are reasonable grounds.

The defence requested the court to exclude all evidence obtained after arrest of the defendant. Since Mr. Konior was not charged with possession of a controlled substance, it was the blood-alcohol readings which were sought to be excluded. The ONCJ said the Polashek case was decided in 1999, and the law has been clear since then that the mere odour of marihuana, without anything else, is not sufficient to constitute reasonable and probable grounds to arrest someone. The judge said it is important for police officers to know what the law is and for the court to ensure that the law is followed. In all the circumstances, the judge found that the Charter-infringing state conduct was serious.

The police officers in this matter placed Mr. Konior under arrest and required him to take a roadside screening device test. He then was transported to a police station and compelled to submit to more breath testing. He was then given a 90 day administrative licence suspension and required to attend court, including attendance at this trial. It was the judge’s finding that the arrest and detention of Mr. Konior had a serious impact on his Charter-Protected Interests. Balancing all of the factors, the judge ruled that to admit any of the evidence obtained by the police after the unlawful arrest of the defendant, would bring the administration of justice into disrepute.

There had been a breach of sections 8 and 9 of the Charter of Rights and Freedoms and the blood-alcohol readings were excluded under section 24 (2) of the Charter. Because this evidence was excluded, the defendant was found not guilty of having operated a motor vehicle after having consumed alcohol in excess of the legal limit.

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Filed under Arbitrary Arrest or Detention, Impaired Driving, Recent Case Law, Search and Seizure

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