R. v. Newell 2015 ONCJ 564 – in early March of 2013, a police officer with approximately two and a half years experience was on patrol when he noticed a brightly coloured car with tinted windows. He decided to effect a traffic stop in order to determine whether the tinted windows complied with the requirements of the Highway Traffic Act. After the vehicle stopped, the officer approached the driver’s side, realized that he could see the driver through the window and concluded that the tinted windows were legal. At that point, the driver, the defendant, Jeffrey Newell, opened the door of his vehicle.
As it was winter, Mr. Newell had a heavy winter coat with him, although there was some dispute as to whether he was wearing it or just had it lying on the back seat. Inside a pocket of this coat was a plastic bag and inside the plastic bag was approximately seven grams of dried marihuana. According to the officer, the odour of this marihuana was strong enough to penetrate both the plastic bag and the pocket of the coat because as soon as Mr. Newell opened the door of his vehicle, the smell was noticeable. During his examination-in-chief, the officer testified that he could “immediately” detect a “strong odour” of marihuana when Mr. Newell opened the door and that it was “getting stronger and stronger” as he spoke to him. He described the odour as “pretty distinctive, like smelling a skunk”. In cross-examination, however, he described the initial odour as “very faint” but that it became stronger when he put his head down nearer to the vehicle. The officer described the smell as “fresh” like the smell of a plant or a flower. The marihuana that was eventually seized was dried.
The officer testified that he was familiar with the smell of marihuana because he had smelled it during his training at police college. Also, he used to work at the front desk of the police station and people sometimes turned marihuana in to him so that it could be destroyed. On one prior occasion, he had arrested somebody for possession of marihuana. Based on the smell, the officer directed Mr. Newell to exit the vehicle and then placed him under arrest for possession of a controlled substance. He then searched Mr. Newell and located the bag of marihuana. No other contraband was found on Mr. Newell’s person or in the vehicle. Another officer was driving by and stopped to offer assistance to the arresting officer, who told him that he had a person in custody for a Controlled Drugs and Substances Act offence. The other officer stood by as the arresting officer searched Mr. Newell’s vehicle. He did not recall smelling anything.
Mr. Newell testified that at the time of his arrest, he was on his way to a friend’s house when he was stopped by the officer. He had just had the windows of his car tinted so he could not roll them down. Because of this, when the officer approached the vehicle, Mr. Newell opened the door. He provided his driver’s licence to the officer and there was a discussion about the fact that the licence, which was temporary, had no photograph. They also discussed the fact that the windows could not be opened and that Mr. Newell had an interlock device in the vehicle. According to Mr. Newell, the officer asked him if he or anybody else had smoked marihuana in the vehicle. Mr. Newell replied that nobody had done so. The officer asked him if he was sure about this and he replied that he was. The officer then said that he was going to search the vehicle and directed Mr. Newell to step out of it. At this point, Mr. Newell picked up his coat, which had been on the seat, put it on, and exited the vehicle. The officer then told him that he was under arrest because of the smell of marihuana. Mr. Newell denied that there was any marihuana smell. The officer handcuffed Mr. Newell and searched him. He located the marihuana that was in the coat pocket and removed it. According to Mr. Newell, it was the other officer, and not the arresting officer, who searched his car.
The sole basis for the arrest was the smell of marihuana the officer testified to noticing. According to the arresting officer, the odour of these seven grams of dried marihuana permeated the plastic bag containing the marihuana as well as the pocket of the winter coat where the bag was located. Not only did this smell permeate the bag and the pocket, it did so to the degree that it was noticeable to a person standing outside of the vehicle. Not only was it noticeable, according to the officer (at least during his examination-in-chief), the smell was “very strong”, like the odour of a skunk. The trial Judge, Honourable Justice P. Andras Schreck:
I do not believe [the officer’s] testimony on this issue. It defies credulity that a relatively small amount of dried plant matter would create such a strong smell that it would permeate both the plastic bag and the coat to the extent that it would be apparent to somebody standing outside of the vehicle. Quite apart from the implausibility of [the officer’s] evidence, I note as well that he was inconsistent in his description of the odour. He initially testified that he could “immediately” detect a “strong odour” of this marihuana when Mr. Newell opened the door and that it was “getting stronger and stronger” as he spoke to him. So strong, in fact, that he likened it to the smell of a skunk. In cross-examination, however, he described the initial odour as “very faint” but that it became stronger when he put his head down nearer to the vehicle.
Even if the trial Judge had believed the officer’s testimony, on the facts of this case, the court would not have concluded that the smell of marihuana constituted reasonable grounds for an arrest. Courts must be cautious about concluding that arrests based on smells are justified, as was made clear by Rosenberg J.A. in R. v. Polashek (1999), 45 O.R. (3d) 434 (C.A.), at para. 13:
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.
Crown counsel relied on several cases in support of her submission that the smell alone justified the arrest in this case; however, the trial judge said in each of the cases relied on by the Crown, the arresting officers also relied on other evidence in addition to the smell, such as an admission by the accused that he had recently smoked marihuana or visual observations of other evidence, such as smoke and “roaches” or a large amount of cash. As well, in one of the cases, the arresting officer’s prior experience with marihuana was described as “considerable”. In the present case, the arresting officer’s experience with marihuana was limited to one prior arrest, what he had learned in police college and an unspecified number of instances where people had delivered marihuana to him when he worked at the front desk of the police station. Even if the trial Judge had accepted that the officer smelled marihuana, which was not the case here, the Judge was not satisfied that he could have identified the smell and its source with sufficient certainty to justify an arrest.
The Judge ruled that the officer had no grounds to arrest Mr. Newell and that by doing so, he violated Mr. Newell’s s. 9 Charter rights. The subsequent warrantless search of Mr. Newell’s person was unjustified and therefore unreasonable, in violation of his s. 8 Charter rights. Following the Grant analysis, the Judge concluded that the long-term repute of the administration of justice would be best served by the exclusion of the evidence. The court could not condone the police conducting unjustified searches of individuals and then attempting to justify them after the fact with misleading evidence. As a result, the Crown had failed to prove this charge.