COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Valentine, 2014 ONCA 147

DATE: 20140226

DOCKET: C54329

Rosenberg, Rouleau and Epstein JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Clinton Valentine

Appellant

Najma Jamaldin and Paul Genua, for the appellant

Cindy Afonso, for the respondent

Heard: October 28, 2013

On appeal from the conviction entered on July 5, 2011 by Justice Charles D. Anderson of the Ontario Court of Justice, sitting without a jury.

Epstein J.A.:

INTRODUCTION

[1] The appellant appeals from his conviction of possession of marihuana for the purpose of trafficking. His conviction turned on the trial judge’s ruling that the circumstances under which the marihuana was discovered were Charter-compliant.

[2] The charge arose out of an encounter between the appellant and the police after the appellant was stopped for speeding while driving along Highway 401. In the course of this interaction, the police searched the car the appellant was driving and discovered a large quantity of marihuana in the trunk.

[3] The appellant brought an application seeking to exclude the contraband from the evidence at trial on the basis that it was obtained in circumstances in which his s. 8 Charter rights had been violated. The trial judge dismissed the application. The evidence was admitted and formed the basis for the conviction.

[4] The appellant raises two main issues on appeal. The first is whether the trial judge erred in holding that the appellant’s rights under s. 8 were not infringed. The second issue is whether the trial judge erred in holding that even if the appellant’s Charter rights were infringed, the admission of the evidence would not bring the administration of justice into disrepute under s. 24(2).

[5] In my view, the marihuana was discovered in circumstances in which the appellant’s Charter rights were not infringed. I would therefore dismiss the appeal.

[6] I find it unnecessary to consider the trial judge’s s. 24(2) analysis.

FACTS

[7] On October 25, 2008, at about 10:20 p.m., Constable Dowling was conducting radar enforcement on Highway 401 when he observed a car that appeared to be speeding. The officer activated his radar and registered a speed of 128 kilometres per hour. He stopped the car for speeding.

[8] The appellant was alone in the car. Constable Dowling testified that in the course of obtaining the appellant’s licence, registration and insurance, the appellant appeared to be inordinately nervous.

[9] With the appellant’s documentation in hand, Constable Dowling returned to his cruiser and performed what is known as a CPIC check. This check disclosed that the appellant was on bail for charges including assault and uttering threats and that his bail conditions prohibited him from being outside of his Toronto residence between 10 p.m. and 5 a.m. The check also indicated that the appellant had been flagged for violence and as an escape risk. When examining the appellant’s documentation, Constable Dowling became aware that the appellant was driving a rental car.

[10] Based on the appellant’s conduct and the information obtained from the CPIC check, Constable Dowling called for police back-up. Constable Nassar responded to the call. Constable Dowling explained to Constable Nassar that, in his view, there were grounds to arrest the appellant for breach of recognizance.

[11] The two officers approached the appellant, who was still in the car, and noticed that he had the vehicle in reverse. Upon being told that he was under arrest for breach of his bail conditions, the appellant became uncooperative and refused to get out of the car. The police therefore physically removed the appellant from the car and arrested him for breach of recognizance. In the course of the frisk search incident to arrest on this charge, Constable Dowling found a cell phone. The appellant was placed in the back of the police cruiser.

[12] Constable Dowling testified that at that point he had not decided whether to take the appellant to the station or release him. The possibility of release gave rise to a concern about officer safety. Given what he had learned about the appellant's criminal antecedents and in the light of the appellant’s conduct since being stopped for speeding, Constable Dowling was worried that if there were weapons in the car in the area accessible to the driver, he and Constable Nassar would be at risk if they released the appellant. Constable Dowling testified that based on this concern, he decided to perform a safety search of the area of the car around the driver’s seat.

[13] Constable Dowling testified that when he put his head into the car to start the search, he noticed the strong smell of raw marihuana. He also saw a second cell phone and then discovered a large amount of cash in a jacket that was lying across the passenger seat in the front.

[14] The officer testified that in these circumstances, he believed that the appellant was in possession of marihuana. He returned to the police cruiser and arrested the appellant for possession.

[15] Constable Dowling returned to the car the appellant had been driving and conducted a search incident to the appellant’s arrest on the marihuana charge. When the officer opened the trunk in the course of this search, he discovered, among other items, a large partially-open duffle bag containing nine vacuum-sealed cylinders that held 18.1 pounds of marihuana. The officer could smell marihuana coming from them. Constable Dowling also noted that the duffle bag that was carrying the marihuana gave off a heavy smell of the drug.

[16] The officer then charged the appellant with possession of marihuana for the purpose of trafficking and took him to the police station to be held for a bail hearing. The car the appellant had been driving was towed to the station for processing.

[17] Constable Nassar testified that at the station he got into the car for the first time. He immediately noticed an extremely strong smell of raw marihuana.

[18] Constable Stefura, an officer with the Drug Enforcement Unit in Kingston, went to the detachment to assist Constables Dowling and Nassar. Constable Stefura testified that upon entering the garage area, he smelled a strong odour of raw marihuana coming from the car.

[19] At trial, the appellant brought a Charter application contesting the validity of the search of his car. It was agreed that this Charter application would be blended with the trial proper.

[20] On that application, the appellant’s evidence was primarily directed toward challenging the foundation of Constable Dowling’s search of the trunk - the appellant attempted to show that Constable Dowling could not have smelled marihuana when he conducted the safety search of the front of the car.

[21] The appellant testified that, in the course of a trip to Montreal for business, he agreed to drive a load of marihuana to Toronto. He took steps to protect the discovery of the marihuana en route. To mask the smell, he ensured that the drugs were vacuum-sealed in plastic and placed in a water-resistant duffle bag. During the drive to Toronto the appellant periodically opened the car window to let air circulate and to conduct smell tests to ensure that the marihuana in the trunk was not giving off any noticeable odour.

[22] The appellant called Dr. Doty to give expert testimony in support of the defence position that Constable Dowling could not in fact smell marihuana when he conducted the safety search. On consent, Dr. Doty was allowed to give his opinion about the olfactory ability of humans, the odour containment properties of packaging and the smell characteristics of raw marihuana. Dr. Doty testified that the nature of the packaging of the marihuana in question was such that a person would not be able to smell the drugs. Dr. Doty also testified that 19 months after the arrest, he went to the facility where the drugs were stored and conducted his own smell test. He said that he could detect only a mild odour of raw marihuana and that in his opinion, the smell of the drugs at the time of the arrest would not have been materially stronger. Finally, Dr. Doty used a product called mugwort in an attempt to replicate the conditions present when Constable Dowling conducted the search of the car. He testified that in his opinion, this simulation demonstrated that the officers’ evidence that they could smell raw marihuana in the car was simply not credible.

THE TRIAL JUDGE’S REASONS ON THE CHARTER APPLICATION

[23] The trial judge, following the direction of the Supreme Court in R. v. Nolet, 2010 SCC 24, [2010] 1 S.C.R. 851, at para. 4, proceeded through the interactions between the appellant and the police to determine whether, as the situation developed, the officers “stayed within their authority, having regard to the information lawfully obtained at each stage of their inquiry.”

[24] The trial judge found that Constable Dowling had the authority to stop the appellant under both the common law and under the Highway Traffic Act, R.S.O. 1990, c. H.8, to obtain relevant documents, including the appellant’s driver’s licence, and to perform the computer search.

[25] The trial judge found that based on the evidence obtained from the computer search, Constable Dowling had both subjective and objective reasonable grounds for arresting the appellant for breach of his recognizance.

[26] The trial judge ruled that Constable Dowling was entitled to search the area of the car proximate to the driver’s seat as a search incident to the appellant’s arrest on the breach charge. This ruling was based on the trial judge’s acceptance of Constable Dowling’s testimony that he was considering releasing the appellant and that he was concerned that if he did so, his and Constable Nassar’s safety could be in jeopardy if there were weapons in the area of the car around the driver’s seat.

[27] Although the appellant argued that there was no intervening arrest for simple possession of marihuana following Constable Dowling’s search of the front area of the car, the trial judge accepted the officer’s evidence and held otherwise.

[28] The trial judge also found that Constable Dowling had grounds to make that arrest. This finding was based primarily on his acceptance of the officer’s testimony that in the course of the search of the car he smelled raw marihuana and discovered another cell phone and a large amount of cash.

[29] The trial judge concluded that the search of the entire car incident to the possession charge was a valid search. This search led to the discovery of the large quantity of marihuana in the trunk and the appellant’s arrest for possession for the purpose of trafficking.

[30] Based on his progressive analysis of the interaction between the police and the appellant, the trial judge concluded that, as the situation developed, the police stayed within their authority. He therefore held that the drugs were discovered in a Charter-compliant manner.

[31] Notwithstanding that the trial judge found there to be no Charter breach, he proceeded with a s. 24(2) analysis and concluded that even if there were a violation of s. 8, he would not have excluded the evidence under s. 24(2) of the Charter.

[32] The testimony of the police officers and the physical evidence of the drugs that were seized from the car, were sufficient to satisfy the trial judge that the Crown had proven the appellant’s guilt of the offence of possession of marihuana for the purpose of trafficking, beyond a reasonable doubt.

ISSUES

[33] As noted above, the issues the appellant raises on appeal concern whether the marihuana was discovered in circumstances in which the appellant’s Charter rights were breached and, if so, whether the evidence was nonetheless admissible.

ANALYSIS

(1) Were the Appellant’s Charter Rights Breached?

The Arrest for Breach of Recognizance

[34] The Crown relies on s. 495(1) of the Criminal Code that allows a peace officer to arrest without a warrant “a person … who, on reasonable grounds, he believes has committed … an indictable offence.” The reasonable and probable grounds test has both subjective and objective elements. It is not enough for the officer to believe there existed reasonable and probable grounds to arrest; those grounds must also be justifiable from an objective point of view: R. v. Storrey, 1990 CanLII 125 (SCC), [1990] 1 S.C.R. 241, at p. 250.

[35] The appellant challenges the trial judge’s conclusion that the police had reasonable and probable grounds to arrest him for the offence of breach of his recognizance on the basis that the trial judge ignored relevant material evidence regarding his curfew obligations. While the appellant’s bail terms included a curfew between the hours of 10 p.m. and 5 a.m., there was an employment exception. And Constable Dowling knew it.

[36] In the course of the CPIC check, Constable Dowling was advised that the appellant was allowed to be out of his home during his curfew hours for the purpose of employment. Furthermore, the appellant testified that he informed the officer that he had a letter from his employer giving him permission to be outside of his home at that time. The appellant argues that in the light of this information, the trial judge erred in finding that Constable Dowling had reasonable and probable grounds to arrest him for breach of his recognizance.

[37] I would not give effect to this argument.

[38] Subjectively, the officer was aware of the facial breach. The CPIC check disclosed that the appellant was on bail for serious crimes and that his conditions of release included a curfew - he was not permitted outside of his home between the hours of 10 p.m. and 5 a.m. The appellant was stopped for speeding at 10:20 p.m. The appellant was out past his curfew.

[39] It is true that there was an employment exception and the evidence demonstrates that Constable Dowling became aware of it, at least through his exchange with CPIC. However, on its own, the officer’s knowing about the employment exception does not necessarily lead to the conclusion that his belief that the appellant was in breach of his recognizance was unreasonable. Determining whether the employment exception operated at that particular time and in those particular circumstances depended on obtaining additional information about the circumstances in which the appellant was driving along Highway 401 late at night and then assessing the validity of that information.

[40] Constable Dowling had evidence of a clear facial breach. He only had the appellant’s assurance that the exception to the curfew was in play. It was late at night. The appellant had serious criminal antecedents, was on bail for serious offences and was exhibiting threatening behaviour. In my view in these circumstances the officer is not required to investigate and try to rule out all possible explanations for the appellant’s being out past his curfew before making an arrest.

[41] The evidence indicated that the officer believed reasonable and probable grounds existed to arrest the appellant for breach of recognizance and that those grounds were justifiable from an objective point of view. I see no reason to interfere with the trial judge’s conclusion on this point.

The Search of the Front of the Car Incident to the Arrest for Breach of Recognizance

[42] This takes me to the next step in the interaction between the appellant and the police – the search of the front area of the car the appellant was driving when he was stopped.

[43] The officer searched the car without a warrant. A warrantless search is presumed to be unreasonable; however, it may be justified at common law if it is a search incident to arrest.

[44] A search incident to arrest is only valid if it is conducted for a legitimate purpose. The three main purposes of a search incident to arrest are to ensure the safety of the police and the public, to protect evidence from destruction and to discover evidence that may be used at trial: R. v. Caslake, 1998 CanLII 838 (SCC), [1998] 1 S.C.R. 51, at para. 19. In this case, Constable Dowling testified that his reason for searching the vehicle was for safety reasons.

[45] The appellant submits that Constable Dowling’s testimony that the search was for the purpose of officer safety is illogical given that when the officer decided to conduct the safety search, the appellant was confined in the back of a police cruiser. The safety of the officers could not possibly be in jeopardy. He argues that the trial judge therefore erred in accepting Constable Dowling’s evidence that he decided to search the car for safety reasons. The appellant argues that the search incident to arrest was not carried out for a valid purpose and that the search was unreasonable.

[46] Again, I would not give effect to this argument.

[47] The route leading to the trial judge’s conclusion that the search was for the valid objective of officer safety was as follows. The trial judge accepted Constable Dowling’s testimony that he was considering releasing the appellant. I note that the trial judge turned his mind to whether the officer was in a position to release the appellant (effectively into a continuing breach of the recognizance) and concluded he was. The trial judge then held that the prospect of allowing the appellant back into the car gave rise to a concern over officer safety based on the possibility that there may be weapons in the car proximate to the driver’s seat. This concern was valid in the light of the appellant’s criminal antecedents and the disturbing behaviour he had exhibited in the course of the stop.

[48] On this record, I see no reason to interfere with the trial judge’s finding that the search of the front of the car was reasonable based on a valid objective – officer safety.

The Arrest for Possession of Marihuana

[49] At trial and before this court, the appellant’s challenge of the validity of his arrest for possession is limited to his position that the trial judge erred in finding that Constable Dowling smelled marihuana in the course of the safety search of the front of the car.

[50] I would not give effect to this argument. In relation to the officer’s ability to smell the raw marihuana in the car, the trial judge was entitled to reject Dr. Doty’s opinion and to accept Constable Dowling’s testimony.

[51] The trial judge carefully reviewed Dr. Doty’s evidence and explained why he did not accept it. First, no science was identified to support Dr. Doty’s evidence about the strength of the smell of the marihuana that was seized in this case. He discounted the value of Dr. Doty’s personal experience smelling the drugs some 19 months after it was seized from the appellant. The trial judge reasoned that the passage of time diminished the weight that could be attributed to Dr. Doty’s observations. Finally, the trial judge found himself unable to rely on the simulated test using mugwort as there was no objective baseline to lend credibility to the experiment.

[52] I would not interfere.

[53] This takes me to the trial judge’s acceptance of the evidence of the three police officers, particularly that of Constable Dowling, about their being able to smell the marihuana.

[54] The appellant raises an argument previously considered by this court regarding the precarious reliability of “smell” evidence given that the sense of smell is highly subjective and largely incapable of objective verification: R. v. Polashek (1999), 1999 CanLII 3714 (ON CA), 45 O.R. (3d) 434 (C.A.).

[55] While this court has cautioned against placing undue reliance upon evidence of smell, it has also recently confirmed that “there is no legal barrier to the use of such evidence”: R. v. Morris, 2013 ONCA 223, 305 O.A.C. 47, at para. 8; see also R. v. Hoang, 2013 ONCA 430, [2013] O.J. No. 2922, at para 5.

[56] In Polashek, Rosenberg J.A. expresses concern about basing an arrest solely on the presence of odour. However, as in Polashek, here Constable Dowling did not make his arrest solely on that basis. This officer, who gave evidence about his considerable experience in occurrences involving raw marihuana, testified that his decision to arrest the appellant for possession of marihuana was based not only on the smell of raw marihuana in the car but also on his finding the cash and the second cell phone and his observations about the appellant’s misconduct during the course of his interaction with the police.

[57] It was open to the trial judge to accept Constable Dowling’s evidence that as he entered the car for the safety search, he noted a powerful smell of raw marihuana. I am not persuaded that, on this record, there is a basis to interfere.

The Search of the Car Incident to the Arrest for Possession of Marihuana

[58] Once the trial judge held, correctly in my view, that the arrest for possession of marihuana was valid, Constable Dowling was entitled to search the rest of the car, including the trunk, to obtain further evidence of the offence: Caslake, at para. 19. As Officer Dowling carried out the search for the legitimate purpose of discovering evidence connected to the arrest for possession, it was a lawful search incident to arrest. I agree with the trial judge’s conclusion that the search of the trunk did not violate the appellant’s s. 8 rights.

Conclusion Regarding whether the Marihuana was Discovered in Charter-compliant Circumstances

[59] In his careful, detailed reasons, the trial judge examined the interaction between the appellant and the police from the time he was stopped for speeding to the time the drugs were discovered. He applied correct legal principles to findings of fact that were supported by the record and concluded that the police stayed within their authority, having regard to the information lawfully obtained at each stage of their inquiry.

[60] I see no reason to interfere with the trial judge’s conclusion that the marihuana was discovered in circumstances in which there was no breach of the appellant’s Charter rights.

(2) Did the Trial Judge Err in his s. 24(2) Analysis?

[61] In the circumstances, I see no need to address the trial judge’s s. 24(2) analysis.

DISPOSITION

[62] The appellant’s conviction appeal was limited to his argument that the trial judge erred in admitting the marihuana into evidence. Given my conclusion that I would not give effect to this argument, I would dismiss the appeal.

Released: (“MR”) February 26, 2014

“Gloria Epstein J.A.”

“I agree M. Rosenberg J.A.”

“I agree Paul Rouleau J.A.”