Court of Appeal for Ontario

Date: 2021-06-25 Docket: C64381

Before: Hourigan, Paciocco and Zarnett JJ.A.

Between: Her Majesty the Queen, Respondent And: Jordan Smeltzer, Appellant

Counsel: Lance C. Beechener, for the appellant Sarah Egan, for the respondent

Heard: June 22, 2021 by videoconference

On appeal from the conviction entered on July 5, 2017 by Justice Wayne G. Rabley of the Ontario Court of Justice.

Reasons for Decision

Factual Background

[1] On September 1, 2015, experienced drug unit officers were on Proudfoot Lane in London, an area known for drug activity, conducting an unrelated drug trafficking investigation.

[2] After setting up to conduct surveillance for that unrelated investigation, they observed the driver of a vehicle behave in what they considered to be a suspicious manner. The driver first parked in a lot in front of 565 Proudfoot Lane, one of a cluster of apartment buildings, where he appeared to be looking around and texting. He then circled around one of the buildings, exited the parking lot, and parked on a nearby public road which bordered the parking lot.

[3] Jordan Smeltzer, the appellant, then approached the vehicle on foot from the direction of the parking lot of the Proudfoot Lane apartment complex. He entered the vehicle. The vehicle drove a short distance down the road, turned around, and then returned to the parking lot, this time coming to a stop near the front of 585 Proudfoot Lane, in what the arresting officer described as a more “secluded spot” than the “exposed” parking area in front of 565 Proudfoot Lane. Once the vehicle stopped, officers observed the appellant passing something to the driver. Approximately 30 seconds later, the appellant exited the vehicle and the vehicle left.

[4] As the appellant was about to enter the building at 585 Proudfoot Lane, the arresting officer, by ruse, induced the appellant to approach him. The arresting officer testified that when the appellant got close to him, he began to smell the strong odour of marijuana “coming from the area of [the appellant’s] person and the backpack”. He then arrested the appellant.

[5] A search incident to arrest of the backpack disclosed approximately 259 grams of marijuana and a “large bundle of cash”. During the search of the appellant’s person, three cellphones were also located.

Issues on Appeal

[6] The appellant appeals his conviction for possession of marijuana for the purpose of trafficking. He submits that the trial judge erred in finding that the arresting officer had reasonable and probable grounds to arrest and search him, and thereby improperly dismissed his application under ss. 8 and 9 of the Canadian Charter of Rights and Freedoms.

[7] Under this umbrella ground, the appellant raises three specific grounds of appeal:

(1) The arresting officer’s explanation of his grounds for the arrest relied on the fact that it occurred in a low-income, high-crime area, and the trial judge failed to consider how this class-based discrimination contaminated the arresting officer’s subjective grounds for arrest.

(2) The trial judge erred in concluding that the arresting officer had objectively reasonable grounds for arresting and searching the appellant, since the observed conduct of the parties was neutral and therefore an unreliable indicator of drug trafficking activity.

(3) The trial judge erred in accepting the arresting officer’s evidence that he had smelled marijuana coming from the appellant and his backpack.

[8] During oral submissions, the appellant’s appeal counsel (“appeal counsel”) pressed only this third ground of appeal. He did not argue the second ground of appeal, and, although he made submissions on the first ground, he acknowledged candidly that he did not expect the appeal to turn on that ground.

[9] At the end of the hearing, we dismissed the appeal for reasons to follow. These are our reasons.

Analysis

[10] Although appeal counsel gave focused oral submissions, since none of the grounds of appeal were formally abandoned, we will address each of them in turn. We begin with the third ground, as listed above, which appeal counsel emphasized before us.

The Smell of Marijuana

[11] Appeal counsel urges that the trial judge erred in his analysis of the arresting officer’s testimony that he had smelled marijuana coming from the appellant and his backpack. He submits that the trial judge was obliged to give this evidence more scrutiny than he did because this was the key observation relied upon by the arresting officer to form his grounds, and the appellant’s trial counsel (“trial counsel”) challenged the credibility of this evidence.

[12] In what we interpret to be a related argument, appeal counsel says that the trial judge failed to consider the unreliability of smell evidence when determining whether reasonable and probable grounds existed, which appeal counsel argues he was obliged to do.

[13] Finally, appeal counsel argues that the trial judge erred in accepting the arresting officer’s evidence based on circular reasoning.

[14] We do not agree that the trial judge was obliged to say more than he did in accepting the arresting officer’s evidence that he had smelled marijuana. First, trial counsel did not make the credibility of this specific testimony as central a focus of the trial as appeal counsel now suggests. During cross-examination, trial counsel merely asked the arresting officer if he was exaggerating his claim that he had smelled marijuana. By the way trial counsel posed his questions, he did no more than imply that it was implausible that the arresting officer could have detected the odour of marijuana while it was wrapped in plastic and concealed in a backpack.

[15] During his closing submissions, trial counsel did make a bald general assertion that the arresting officer’s testimony was “concocted”. However, he did not provide a basis for that assertion, nor did he tie it to the arresting officer’s testimony that he had smelled marijuana prior to arresting the appellant. The sole related argument that trial counsel made in his closing submissions was that the arresting officer “didn’t smell anything until he approached [the appellant] and arrested him.” Put otherwise, the ultimate challenge made at trial was not that the arresting officer had not smelled marijuana, but that he had not smelled it before the appellant was arrested.

[16] Appropriately, in his reasons for decision, the trial judge addressed the modest challenges trial counsel had made to the credibility and reliability of the arresting officer’s smell evidence. As he was entitled to do, the trial judge accepted the experienced arresting officer’s evidence that marijuana has a “strong pungent” odour and that he could smell it on the day in question. In doing so, the trial judge was clearly rejecting trial counsel’s suggestion that it was implausible that the arresting officer had smelled wrapped marijuana inside a backpack. Having rejected the sole basis for trial counsel’s challenge to the smell evidence, the trial judge concluded that he had no reason to reject the arresting officer’s testimony. Simply put, before accepting the arresting officer’s evidence, the trial judge considered and rejected the challenge that had been made to it. He was not obliged to say more.

[17] Nor was the trial judge obliged to demonstrate in his reasons that he had considered that smell evidence can be highly subjective and suspect. In R. v. Gravesande, 2015 ONCA 774, 128 O.R. (3d) 111, at para. 40, Pardu J.A. was rightly critical of the trial judge’s failure to allude to this concern where there was a case-specific reason to doubt an officer’s smell evidence. Specifically, two correctional officers who had interacted with Mr. Gravesande only moments earlier had not smelled the odour of marijuana that a third correctional officer claimed to have smelled. Moreover, Pardu J.A. raised this point as one of several examples from the trial judge’s reasoning that reflected his uneven scrutiny of the evidence. Similar concerns are not present in the appeal before us.

[18] Finally, we do not accept appeal counsel’s submission that the trial judge engaged in circular reasoning. We do not interpret the trial judge’s reasons, at para. 21, as stating that the arresting officer must have smelled marijuana or else he could not have arrested the appellant. Rather, the trial judge’s comments must be read in the context of trial counsel’s submission on smell. It thus becomes apparent that in the impugned passage the trial judge was rejecting the suggestion that the arresting officer had not smelled the marijuana until he had already arrested and detained the appellant. The trial judge’s point was the arresting officer’s objective in calling the appellant over in order to obtain the grounds for his arrest, supported his testimony that he secured the grounds – the smell – before arresting the appellant.

Relying on Neutral Behaviours

[19] Appeal counsel was correct in not pressing the second ground of appeal listed above, which was based on the contention that the behaviours observed by the officers were neutral and thus not objective indicia of a drug transaction.

[20] The relevant series of events included: the conduct of the driver upon arrival; the pickup of the appellant on a public road rather than out front of the building he came from; the otherwise pointless movement of the vehicle to a secluded area after the pickup; the apparent hand-off of something within the vehicle from the appellant, who was carrying a backpack; and the short duration of the meeting. The trial judge was entitled to accept the testimony of experienced drug officers that, viewed together, this series of events was consistent with a drug trafficking transaction.

[21] We are satisfied that the cumulative behaviours of the parties, coupled with the smell of marijuana coming from the appellant immediately after departing the vehicle, provided reasonable and probable grounds for arresting and searching the appellant.

The Character of the Neighbourhood

[22] Appeal counsel was also correct not to press the argument, advanced in the appellant’s factum, that the arresting officer’s grounds were undermined by his reliance on the fact that these events occurred in a low-income, high-crime area.

[23] We agree that one’s mere presence in a high-crime area is not an objective indicium that one is involved in criminal activity: R. v. O.N., 2009 ABCA 75, 448 A.R. 253, at para. 40, citing R. v. Mann, 2004 SCC 52, [2004] 3 S.C.R. 59, at para. 47. As such, the arresting officer should not have considered this factor in determining his grounds for arrest. However, as indicated, based on the remaining grounds the arresting officer considered, his conclusion that he had reasonable and probable grounds to arrest the appellant was objectively reasonable.

[24] We do not accept that the arresting officer’s reliance on the fact that the apparent transaction occurred on the Proudfoot Lane apartment complex constituted discrimination based on “perceived class”, thereby contaminating and undermining the arresting officer’s subjective grounds. The arresting officer found relevance in his knowledge that the Proudfoot Lane apartment complex was a high-crime area, not that it was a low-income area. He mentioned the low rents in the buildings when explaining why it is common for the apartments to be used as drug “stash houses”. We see no indication that he relied on the alleged poverty of the neighbourhood as an indicium of criminal activity.

[25] Had the arresting officer done so, or had he expressed suspicion of criminal activity because the area was low-income, closer consideration of the appellant’s submission on this point may have been warranted. That submission, by analogy to this court’s racial-profiling decision in R. v. Dudhi, 2019 ONCA 665, 147 O.R. (3d) 546, is that reliance on discriminatory stereotypes about poverty and crime should be treated as tainting, and therefore undermining, an officer’s subjective grounds for interfering with the liberty of a suspect. In the circumstances of this appeal, however, we need not address this matter.

Conclusion

[26] On the evidence, the trial judge was entitled to find that the arresting officer had subjective grounds to believe there was a credibly-based probability that the appellant had engaged in drug trafficking, and that the arresting officer’s belief was objectively reasonable.

[27] The appeal is therefore dismissed.

“C.W. Hourigan J.A.”

“David M. Paciocco J.A.”

“B. Zarnett J.A.”