SCHRECK J.:

[1] Introduction

This case is about a police officer's ability to detect the smell of seven grams of dried marijuana that was contained in a plastic bag inside a coat pocket. Jeffrey Newell is charged with possessing that marijuana, contrary to s. 4(5) of the Controlled Drugs and Substances Act. He is also charged on a separate information with failing to appear in court, contrary to s. 145(2)(b) of the Criminal Code. With respect to the former charge, he has applied, pursuant to ss. 8, 9 and 24(2) of the Canadian Charter of Rights and Freedoms, to exclude the marijuana from evidence. With respect to the latter, he has testified that he did not attend court because he believed that a lawyer had re-scheduled the date.

I. Evidence

A. Possession of Marijuana

(i) The Case for the Crown

[2] Initial Traffic Stop

On March 8, 2013, Cst. Peter Lucas of the Peel Regional Police, who at the time had been a police officer for approximately two and a half years, 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, Cst. Lucas 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.

[3] Detection of Marijuana Odour

As it was winter, Mr. Newell had a heavy winter coat with him, although there is 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 marijuana. According to Cst. Lucas, the odour of this marijuana 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, Cst. Lucas testified that he could "immediately" detect a "strong odour" of marijuana 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. Cst. Lucas described the smell as "fresh" like the smell of a plant or a flower. The marijuana that was eventually seized was dried.

[4] Officer's Experience with Marijuana

Cst. Lucas testified that he was familiar with the smell of marijuana 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 marijuana in to him so that it could be destroyed. On one prior occasion, he had arrested somebody for possession of marijuana.

[5] Arrest and Search

Based on the smell, Cst. Lucas 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 marijuana. No other contraband was found on Mr. Newell's person or in the vehicle.

[6] Corroborating Officer

Another officer, Cst. Daniel Masters, was driving by and stopped to offer assistance to Cst. Lucas, who told him that he had a person in custody for a Controlled Drugs and Substances Act offence. Cst. Masters stood by as Cst. Lucas searched Mr. Newell's vehicle. He did not recall smelling anything.

(ii) The Defendant's Testimony

[7] Criminal Record

Mr. Newell testified on the Charter application as well as in his own defence on the fail to appear charge. He acknowledged that he had a criminal record that included convictions for possession of a controlled substance for the purpose of trafficking in 2008 and 2012 and impaired driving in 2010.

[8] Account of the Traffic Stop

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 Cst. Lucas. 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 Cst. Lucas 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, Cst. Lucas asked him if he or anybody else had smoked marijuana in the vehicle. Mr. Newell replied that nobody had done so. Cst. Lucas asked him if he was sure about this and he replied that he was. Cst. Lucas 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. Cst. Lucas then told him that he was under arrest because of the smell of marijuana. Mr. Newell denied that there was any marijuana smell.

[9] Search and Seizure

Cst. Lucas handcuffed Mr. Newell and searched him. He located the marijuana that was in the coat pocket and removed it. According to Mr. Newell, it was Cst. Masters, not Cst. Lucas, who searched his car.

B. Fail to Appear

[10] Failure to Appear

There is no issue that Mr. Newell was required to appear in court for trial on the possession of marijuana charge on June 4, 2014 and did not do so.

[11] Attempts to Arrange Pre-Trial Conference

Mr. Newell testified that he had appeared in court on numerous dates. He attempted to arrange a private pre-trial conference with the Crown but was unable to do so. He was finally forced to schedule a trial on a "with or without counsel" basis.

[12] Lawyer's Representation and Rescheduling

According to Mr. Newell, after the trial date was scheduled, he contacted a lawyer, Chris O'Connor, to represent him. He advised Mr. O'Connor of his scheduled trial date. Mr. O'Connor told him that he was unavailable to conduct the trial on that date, but that he would make arrangements to have it re-scheduled. According to Mr. Newell, as a result of this conversation he believed that he was not required to attend on the trial date. After the date passed, he made attempts to contact Mr. O'Connor but was unable to reach him. He finally contacted another lawyer who made inquiries and informed him that the date had not been re-scheduled and that a warrant had been issued for his arrest. The new lawyer made arrangements for Mr. Newell to turn himself in and he did so the next day.

[13] Cross-Examination on Lawyer Engagement

In cross-examination, Mr. Newell acknowledged that he only spoke to Mr. O'Connor on the telephone, never met with him personally, and never paid him any money. He initially testified that he was supposed to meet with Mr. O'Connor on his last court appearance before his trial date but he never showed up. When shown the Information, Mr. Newell acknowledged that there were no dates after the date on which the trial was scheduled. He maintained, however, that he recalled a court date on which Mr. O'Connor was supposed to attend but did not.

II. Analysis

A. Possession of Marijuana

(i) Section 9 of the Charter: The Initial Stop

[14] Lawfulness of Traffic Stop

Mr. Newell alleges breaches of his s. 8 Charter right against unreasonable search and seizure as well as his s. 9 right against arbitrary arrest or detention. As I understand the defence position, the alleged s. 9 violation relates to both the initial stop of Mr. Newell's vehicle as well as his arrest. The former is easily dealt with. Pursuant to s. 216(1) of the Highway Traffic Act, R.S.O. 1990, c. H.9, Cst. Lucas was entitled to stop Mr. Newell's vehicle if he did so as part of the lawful execution of his duties. As there was no issue that Mr. Newell's windows were in fact tinted, it was entirely appropriate for Cst. Lucas to stop the vehicle in order to ascertain whether they were tinted in a manner that conformed to the requirements of s. 73(3) of the HTA. This did not result in any violation of Mr. Newell's Charter rights.

(ii) Sections 8 and 9 of the Charter: The Arrest and Subsequent Search

[15] Warrantless Search and Valid Arrest

The remaining s. 9 issue is inextricably linked to the s. 8 claim. The marijuana was seized from Mr. Newell pursuant to a warrantless search. It is well established that a warrantless search is presumptively unreasonable unless justified by the Crown: R. v. Collins, [1987] 1 S.C.R. 265 at pp. 277-278. In this case, the Crown seeks to justify the search as being lawfully conducted pursuant to a valid arrest. It follows that the central issue to be determined is whether the arrest was valid. If it was not, the search was unreasonable and both s. 8 and s. 9 were infringed. If it was, the search was justified and neither section was infringed.

[16] Basis for Arrest – Marijuana Smell

The sole basis for the arrest was the smell of marijuana Cst. Lucas testified to noticing. According to Cst. Lucas, the odour of these seven grams of dried marijuana permeated the plastic bag containing the marijuana 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 Cst. Lucas (at least during his examination-in-chief), the smell was "very strong", like the odour of a skunk.

[17] Credibility Assessment – Implausibility and Inconsistency

I do not believe Cst. Lucas'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 Cst. Lucas'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 marijuana 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.

[18] Caution Regarding Arrests Based on Smell

Even if I had believed Cst. Lucas's testimony, on the facts of this case I would not have concluded that the smell of marijuana constituted reasonable and probable 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.

[19] Comparison with Precedent Cases

Crown counsel relies on several cases in support of her submission that the smell alone justified the arrest in this case: R. v Singh, [2003] O.J. No 3794 (S.C.J.); R. v. Rebelo, [2007] O.J. No. 1468 (C.A.); R. v. Serratore, [2006] O.J. No. 4454 (S.C.J.); R. v. Valentine, 2014 ONCA 147 , [2014] O.J. No. 876 (C.A.). I accept that "there is no legal barrier to the use of such evidence": R. v. Valentine, supra at para. 55. However, 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 marijuana (Singh, Serratore) or visual observations of other evidence, such as smoke and "roaches" (Rebelo) or a large amount of cash (Valentine). As well, in Valentine the arresting officer's prior experience with marijuana was described as "considerable". In this case, Cst. Lucas's experience with marijuana was limited to one prior arrest, what he had learned in police college and an unspecified number of instances where people had delivered marijuana to him when he worked at the front desk of the police station. Even if I had accepted that Cst. Lucas smelled marijuana, which I do not, I would not have been satisfied that he could have identified the smell and its source with sufficient certainty to justify an arrest.

[20] Conclusion on Charter Breaches

Based on the foregoing, I conclude that Cst. Lucas had no grounds to arrest Mr. Newell and that by doing so, he violated Mr. Newell's s. 9 Charter rights. I also conclude that the subsequent warrantless search of Mr. Newell's person was unjustified and therefore unreasonable, in violation of his s. 8 Charter rights.

(iii) Section 24(2) of the Charter

(a) The Seriousness of the Violation

[21] Framework for Exclusion

The determination of whether evidence ought to be excluded pursuant to s. 24(2) of the Charter requires a consideration of the three factors set out in R. v. Grant, 2009 SCC 32 , [2009] 2 S.C.R. 353, the first of which is the seriousness of the violation. In this line of inquiry, the court must consider the nature of the police conduct and locate it on a continuum that runs between minor and technical breaches and those that result from a blatant and flagrant disregard for the Charter. The more severe the violation, the greater the need for the court to disassociate itself from the police conduct in order to maintain confidence in the administration of justice.

[22] Seriousness of the Breaches

I view the breaches in this case as serious. I do not know why Cst. Lucas decided to search Mr. Newell because Cst. Lucas chose not to reveal his true reasons for doing so. I can and do infer that he made his claim of being able to detect a "very strong" odour of marijuana in order to justify a search that he knew was otherwise unjustifiable. It follows from this that the Charter breach was deliberate. In addition to this, the fact that Cst. Lucas gave misleading evidence on this issue, as I find he did, also renders the breach more serious: R. v. Harrison, 2009 SCC 34 , [2009] 2 S.C.R. 494 at para. 26.

(b) The Impact of the Breach

[23] Impact on Section 9 Rights

Under this line of inquiry, the court must determine the extent to which the breach undermined the interests protected by the right that was infringed. With respect to the s. 9 breach, I note that Mr. Newell was released at the scene on a Form 9. However, as the Supreme Court of Canada recognized in R. v. McKenzie, 2013 SCC 50 , [2013] 3 S.C.R. 250 (at para. 133)"an arbitrary detention of any length . . . has a substantial impact on a person's Charter-protected interests". See also R. v. Harrison, supra at para. 31.

[24] Impact on Section 8 Rights

With respect to the s. 8 breach, in this case, Mr. Newell's pockets were searched. There is generally a high expectation of privacy with respect to the contents of one's pockets: R. v. Aucoin, 2012 SCC 66 , [2012] 3 S.C.R. 408, per Lebel J. (dissenting in the result); R. v. Mann, 2004 SCC 52 , [2004] 3 S.C.R. 59 at para. 56; R. v. Lam, [2014] O.J. No. 3645 (S.C.J.) at para. 213. As the Court noted in R. v. Grant, supra (at para. 78)"[a]n unreasonable search that intrudes on an area in which the individual reasonably enjoys a high expectation of privacy . . . is more serious than one that does not".

(c) Society's Interest in an Adjudication of the Case on its Merits

[25] Reliability and Importance of Evidence

In this line of inquiry, the court will usually consider the reliability of the evidence, its importance to the Crown's case, and, to some extent, the seriousness of the offence. With respect to the first two considerations, the marijuana is reliable and conclusive evidence which is indispensable to the Crown's case, factors which favour admission.

[26] Seriousness of the Offence – Dual Considerations

With respect to the seriousness of the offence, the Court in Grant cautioned that this cuts both ways (at para. 84):

The short-term public clamour for a conviction in a particular case must not deafen the s. 24(2) judge to the longer-term repute of the administration of justice. Moreover, while the public has a heightened interest in seeing a determination on the merits where the offence charged is serious, it also has a vital interest in having a justice system that is above reproach, particularly where the penal stakes for the accused are high.

However, while the public has a vital interest in ensuring that the justice system is above reproach where the offence is serious, the converse is not the case. That is, where the offence is less serious, the public is less likely to "clamour for a conviction" but that does not mean that it is more tolerant of improper state conduct.

[27] Low Seriousness of Possession Offence

In this case, the offence at issue is possession of less than 30 grams of marijuana, an offence punishable only by summary conviction. It is at the low end of the continuum of seriousness for criminal offences. As was noted in R. v. Malmo-Levine, 2003 SCC 74 , [2003] 3 S.C.R. 571 (at para. 4)"[e]xcept in very exceptional circumstances, imprisonment for simple possession of marihuana would constitute a demonstrably unfit sentence and, if imposed, would rightly be set aside on appeal". In my view, the public is unlikely to "clamour for a conviction" in this case, nor is any reasonable member of the public likely to be outraged if the evidence is excluded. Indeed, while it is obviously up to the Crown to decide which cases to prosecute, some members of the public may well wonder why scarce judicial resources are expended on the prosecution of possession of small amounts of marijuana for personal use. As a result, I have concluded that in the circumstances of this case, the third Grant factor may slightly favour admission of the evidence but is more likely neutral.

(d) Balancing

[28] Exclusion of Evidence

Having considered the factors discussed above, I have concluded that the long-term repute of the administration of justice would be best served by the exclusion of the evidence. The court cannot 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 has failed to prove this charge.

B. Fail to Appear

(i) The Elements of the Offence

[29] Statutory Provision

Mr. Newell is charged with an offence contrary to s. 145(2)(b) of the Criminal Code, which provides as follows:

145(2) Every one who,

(b) having appeared before a court, justice or judge, fails, without lawful excuse, the proof of which lies on him, to attend court as thereafter required by the court, justice or judge

. . . is guilty of an indictable offence and liable to a term of imprisonment not exceeding two years or is guilty of an offence punishable on summary conviction.

[30] Distinction Between Mens Rea and Lawful Excuse

There is no issue that Mr. Newell was legally obligated to appear in court on June 4, 2014 and failed to do so. He testified that this was because he believed that the lawyer he had spoken to had changed the date of his trial. Counsel for both the Crown and the defence are of the view that the offence has been proven and the issue to be determined is whether Mr. Newell has established that he had a "lawful excuse." Respectfully, counsel are mistaken.

[31] Mens Rea Requirement

As was made clear in R. v. Legere (1995), 22 O.R. (3d) 89 (C.A.), at para. 33, failing to appear in court is a "true" criminal offence requiring proof of mens rea. Mere carelessness or failure to take the precautions that a reasonable person would take will not support a conviction. The issue of a lawful excuse arises only after the Crown has proven the elements of the offence, including the requisite mens rea, beyond a reasonable doubt.

[32] Burden of Proof

The distinction between a lack of mens rea and the existence of a lawful excuse is important in this case. If Mr. Newell's explanation is accepted, then because of a mistake of fact, he did not believe that he was required to attend court on June 4, 2014 and did not have the requisite mens rea. The burden of proving that he did is on the Crown and if Mr. Newell's evidence raises a reasonable doubt he is entitled to an acquittal. On the other hand, if Mr. Newell's explanation is treated as a legal excuse, the burden of establishing it falls on him.

(ii) The Defendant's Testimony

[33] Assessment of Credibility and Reasonable Doubt

I have some difficulty with Mr. Newell's evidence. He set the court date by himself on a "with or without counsel" basis but then claims that he did not attend court because a lawyer he never met in person and had not retained had arranged to change the court date for him. This was not the first charge faced by Mr. Newell and he presumably had some understanding of how the court system works. His explanation for not attending court is suspect. However, while I certainly do not believe his testimony, I find that it leaves me with a reasonable doubt. In so concluding, I note that Mr. Newell voluntarily turned himself in eight days later. As a result, the Crown has failed to prove the charge beyond a reasonable doubt.

III. Disposition

[34] Dismissal of Charges

For the foregoing reasons, the charges on both informations are dismissed.

Justice P.A. Schreck

Released: October 9, 2015