Marihuana odour and the basis for arrest.

R. v. MacCannell 2014 BCCA 254 – an appellate court has again considered whether marihuana odour alone is a basis to ground a credibly based belief that an offence was being committed and provides a basis for arrest. The accused was stopped by police for speeding. The officer, a very experienced officer in police investigations involving marihuana, smelled vegetative marihuana emanating from the vehicle. Based on the smell, he arrested the appellant and searched the vehicle. He found 50 marihuana plants behind the driver’s seat. A further 34 pounds was discovered when the truck was searched at the detachment. Later, other officers discovered cannabis resin and $4,000 in cash. The appellant argued that the trial judge erred in failing to exclude the evidence of the drugs and cash seized from his vehicle on the basis of violations of his Charter rights. He argued that his arrest was unlawful and that, accordingly, the search of his vehicle incidental to that arrest was unreasonable. The trial judge found that the officer had reasonable and probable grounds to arrest the appellant based solely on the overwhelming odour of vegetative marihuana.

The first argument on appeal was whether the arrest was made under s. 495(1)(a) or 495(1)(b) of the Criminal Code. In other words, was the arrest based on the reasonable grounds to believe the accused has committed an indictable offence, or did the officer find the accused committing a criminal offence?  Under the CDSA, s. 4(5) and Schedule VIII provide that a person who is found in possession of marihuana in an amount less than 30 grams is guilty of an offence punishable by summary conviction. The court ruled that the smell of vegetative marihuana in this case, as opposed to burnt marihuana, involked s. 495(1)(b) CC and whether the accused possessed more than 30 grams or not was irrelevant when the arresting officer “finds committing any offence”.

Next, the court turned to discuss if odour alone was sufficient to ground a credibly based belief that an offence was being committed? The Crown argued that the weight of the jurisprudence confirms that the necessary inference to justify an arrest may be drawn from odour alone, as decided in R. v. Schulz, 2001 BCCA 601, R. v. Dubois, 2004 BCCA 589, R. v. Ashby, 2011 BCSC 513, aff’d 2013 BCCA 334, R. v. Boyd, 2013 BCCA 19, R. v. Taylor,  2012 BCPC 112, aff’d 2012 BCSC 1517, leave to appeal ref’d 2013 BCCA 382and R. v. Janvier 2007 SKCA 147. The defence relied upon R. v. Ruiz, [2012] B.C.J. No. 2780 and several of the same cases cited by the Crown for the contrary proposition.  Justice N.J. Garson, writing for the unanimous court, said all that can be said on this ‘odour alone’ question is that depending upon the facts of the case, odour alone may be sufficient to support an arrest under ss. (b).

The last point the appellant made on appeal was that the officer ought to have considered other potential innocent inferences or excuses from which he could have drawn an inference other than that Mr. MacCannell was committing an offence. For example, Mr. MacCannell argued that he might have had an authorization to possess marihuana for medical needs pursuant to the MMARs, or that the odour could have been left over from earlier use of the vehicle to transport marihuana.  The court assessed the reasonable grounds standard and said this standard does not require an officer to satisfy him or herself that there is evidence of proof beyond a reasonable doubt or even a prima facie case. All that the officer must have is an objectively reasonable basis for believing the suspect is presently in possession of marihuana, without necessarily ruling out potentially innocent inferences, defences or lawful excuses.

The BCCA agreed with the decision of the trial judge in that the officer was a very experienced officer in police investigations involving marihuana, and the trial judge was satisfied that he had reasonable and probable grounds to arrest the accused, Mr. MacCannell, for possession of marihuana, to search the pickup, incidental to that arrest. He justified those actions based on the overpowering smell of vegetative marihuana. He had a reasonable belief that there was marihuana in the vehicle, and the trial judge found that belief, from an objective and subjective point of view, to be reasonable. Standing in the shoes of this officer, with his extensive experience, objectively he could easily have held a credibly based belief that Mr. MacCannell was in possession of vegetative marihuana. As the BCCA found that the arrest was lawful, it was unnecessary to consider the argument that the search incidental to his arrest was in violation of s. 8 of the Charter.

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Filed under Recent Case Law, Search and Seizure

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