Court Information

Ontario Court of Justice Central West Region Brampton, Ontario

Parties

Between:

Her Majesty the Queen

-and-

Deen Khan

Reasons for Judgment

Before: Duncan J.

Counsel:

• A Akinyemi for the defendant
• C Afonso for the Crown

Overview

[1] The defendant is charged with possession of marijuana and possession of oxycodone, offence date March 13, 2011. With respect to the marijuana, the defendant relies solely on Charter arguments. With respect to the oxycodone, the defendant relies on the same Charter arguments but also disputes possession by denying knowledge of the drug's presence.

Summary of Evidence

Brief Overview

[2] Two witnesses testified – Officer Roberts of the Peel Police and the defendant. There are many conflicts in their respective versions of events. The police officer said that due to some erratic movements he stopped the vehicle the defendant was driving, smelled burnt marijuana, and asked about it. The defendant acknowledged having earlier smoked some in the car and having some in his possession, at his feet. The officer retrieved it and arrested the defendant. He put the defendant through some sobriety tests and later searched the vehicle more thoroughly and found the oxycodone in the console.

[3] In contrast, the defendant said there was nothing wrong with his driving and he was told no reason for the stop. He acknowledged in his evidence that there was a smell of marijuana in the car but he denied admitting to the officer that he had been smoking and being still in possession. He said he was taken from the car and put through some sobriety tests, which he passed. The officer then searched the vehicle and located the bag of marijuana under the driver's seat. He was then arrested. A further search turned up the oxy – which he knew nothing about.

Detailed Evidence

Officer Roberts' Account

[4] P.C. Roberts has been a police officer since 1995 with Peel, Guelph and the Canadian military. He has been certified and worked as a breathalyzer technician, though on the day in question, March 13, 2011, he was working with the central investigative unit patrolling areas where break-ins were common. At around 1:15 a.m., he first noticed the defendant's vehicle, an SUV, stopped on the eastbound side of Stargazer while facing westbound. The vehicle then moved to the correct side of the street and proceeded in a westerly direction. It made an improper rolling stop through a stop sign, turning right for northbound Wainscott. It then made another rolling right turn through a red light at Eglinton, turning too widely and into the wrong lane. The car then stopped at a red light at Mavis before turning left to go northbound. The officer followed and stopped the vehicle a short distance up Mavis at around 1:19 a.m.

[5] The reason for the stop was to check the driver's sobriety.

[6] As the officer approached the vehicle, all four windows were lowered and a strong smell of burnt marijuana emerged. It was a very distinct odour. While up to this point the officer was thinking in terms of possible alcohol impairment, he now began to consider drugs and/or alcohol. The officer asked for driving documents. Once he had them, he asked about the smell of marijuana and whether the defendant had been smoking. The defendant admitted having smoked some in the car earlier while at the drive-in with his girlfriend and to having a pipe at his feet. He was going to reach down but the officer, for safety reasons, told him not to. The door was opened and the pipe and bag of marijuana was immediately seen and seized. The defendant was arrested at 1:23.

[7] A call was made for a uniform officer to attend to continue the arrest since Roberts did not have a cage in his unmarked car. In the meantime, the defendant was put through some sobriety or drug influence tests. The defendant explained to the officer that fatigue accounted for his poor driving. In the result Roberts did not think the defendant was impaired. Officer Church arrived at 1:27 and placed the defendant in handcuffs. The defendant was read his rights to counsel at that time. Roberts then returned to the defendant's vehicle to search further and found the pills – 38 Oxy tablets - in a torn grocery bag in the centre console between the front seats.

Defendant's Account

[8] The defendant testified that he had been at the drive-in in Oakville with his girlfriend and had smoked marijuana in the car. He had dropped off his girlfriend and was headed home to Guelph when he was stopped. He denied following the route described by the officer and of driving in any way abnormally, though he did concede that his location in Mississauga was inexplicable for one travelling between Oakville and Guelph. He said that as he turned left on Mavis he saw the police officer turn right but then execute a quick U turn, follow and stop him.

[9] The defendant denied that his windows were all down but agreed that two windows were down a bit to clear out the marijuana smell. He said the officer gruffly asked him for his documents and when he questioned why he was stopped the demand for documents was made even more sternly. As he retrieved the documents, the officer leaned in the car and sniffed. He asked why there was a smell of marijuana and the defendant answered: "I don't know what you're talking about." He was ordered out of the vehicle. He was patted down.[1] He was subjected to a number of sobriety tests - which he passed. The officer then directed him to sit on the curb and he complied. The officer then searched the vehicle and retrieved the marijuana and pipe. The defendant acknowledged it was his and that he had been smoking earlier. He was arrested, handcuffed and directed to sit on the curb again.

[10] Roberts then returned to search the vehicle further and came up with the oxy pills. The defendant was asked about them and he denied any knowledge, offering the explanation then, repeated at trial, that other of his friends and family frequently drove the vehicle (which was registered to his father). The defendant testified that only then did P.C. Church arrive and take him into his custody. He said he was not read his rights to counsel until they had returned to the police station.

Charter Issues

[11] The defendant makes the following Charter arguments:

• He was stopped for no reason. His detention was therefore arbitrary, contrary to section 9
• He was not informed of the reason for his detention when stopped and investigated: section 10(a)
• He was not informed of his right to counsel on arrest: section 10(b)
• He was subjected to unreasonable search and seizure: section 8

Burden of Proof and Findings of Fact

[12] The burden of proof is on the defendant/applicant to satisfy me on a balance of probabilities that his rights were breached and that evidence should be excluded. He is aided in respect of his claim under section 8 by a presumption of unreasonableness for warrantless searches where the burden shifts to the Crown, again on a balance of probabilities.

[13] Counsel for the defendant submits that in resolving credibility issues between the officer and defendant the well known case of W.D. should be applied. I don't think so. The WD formula is a corollary of the traditional burden of proof of guilt - beyond a reasonable doubt. But Charter issues are determined on a balance of probabilities standard. It would be incompatible with this burden to apply a standard of reasonable doubt to assessment of credibility going to those Charter issues: see by analogy R v Defaria, 2008 ONCJ 687.

[14] Applying the above burdens of proof, I find the following:

• I prefer P.C. Robert's evidence over the defendant's respecting the events up to the officer's arrival at the door of the defendant's car. Specifically, I find that the vehicle was driving as described by Roberts, that he stopped it to check the driver's sobriety and the four windows of the car came down as he approached.

• I find that the officer did not specifically tell the defendant the reason for the stop. He asked for and received the driving documents and then asked about the smell of marijuana. (this was common ground)

• From that point on the two versions diverge. I find both witnesses and their versions equally credible and I am unable to choose one over the other.[2] It follows from this that neither side has succeeded in discharging its respective burden of proof. Specifically I am unable to find that the search occurred as described by the officer but at the same time I am unable to find that the other alleged breaches occurred as alleged by the defendant. This stalemate leads to the somewhat odd result that different issues must be determined below on different and opposing factual findings.

Section 9: Arbitrary Detention

[15] I am satisfied that the stop of the defendant was carried out to check his sobriety. I accept Robert's evidence regarding the defendant's driving. He was very detailed and precise in his description of that driving. By contrast, the defendant was well off any route between Oakville and Guelph and, I infer, was pretty much lost, inattentive and bewildered as to his route and his driving.

[16] Even if there was no such suspicious driving, the authority of a police officer to stop and check sobriety is not dependant on objective grounds suggesting impairment. Random stops for sobriety check are valid: R v Ladouceur, [1990] 1 SCR 1257. But again, this stop was not random in that there were grounds to suspect possible impairment.

[17] Similarly, the detention of the defendant, the questioning and the roadside sobriety assessment were validly grounded in the same legal authority as the stop. This is so even though the investigation almost immediately shifted focus to marijuana. The two concerns – sobriety and possession of intoxicating substances – are obviously related: R v Findlater, 2010 ONSC 5141.

[18] There was no breach of section 9.

Section 10(a): Right to be Informed of Reason for Detention

[19] The defendant bears the burden on this issue and, as mentioned, he has not satisfied me that events occurred as he described. In particular, he has not established that there was an extended period of detention before the search and arrest. I accept the officer's evidence that he asked for and received the driving documents, asked about the smell of marijuana and received an admission that lead to immediate search and arrest. But even on this version, some 10(a) issues arise.

[20] The first point concerns the failure to immediately advise as to the reason for the stop. The officer, who had considerable experience, said it was his practice to request and receive a driver's licence and other documents before giving the driver the reason for the stop and investigation. That way the driver can not take off when informed or if he does, his identity will be known. I think this is a reasonable practice and, provided undue delay is not incurred, comes within the meaning of "promptly". See by analogy recent interpretation of the "immediacy" requirement in section 254 also R v Quansah, 2012 ONCA 123.

[21] The second and main point is whether what was said after receipt of the driving documents amounted to sufficient advice in the circumstances. No particular words are required for 10(a) compliance. It is the substance of what is conveyed and can reasonably be supposed to have been understood that matters: R v Evans, [1991] 1 SCR 869; R v Nguyen, 2008 ONCA 49. For example, a police officer who stops a vehicle and inquires of the driver "have you been drinking tonight?" surely conveys the same message as if he had said "I am detaining you briefly to check your sobriety."

[22] The issue of 10(a) compliance in this case must take into account the shifting reason for the stop and detention. While the initial stop was to check sobriety, by the time the officer had received the documents his focus shifted from sobriety of the driver to marijuana, though the former remained a concern. His question made clear the substance of the reason (or one of the reasons) for detention at that point - marijuana. It is my view that this brief questioning provided sufficient information to the defendant as to the reason for the brief investigative detention that preceded his arrest. The requirements of section 10(a) were therefore satisfied in the circumstances.

[23] If I am wrong in this conclusion and there was a 10(a) violation, it would not be a case for exclusion. The informational deficiency persisted for mere moments before arrest (again on the officer's version). It did not alter the defendant's predicament or legal status. It caused no prejudice. One of the main purposes of 10(a) is to provide information to assist the detainee in the exercise of his rights under 10(b) in an informed way. But the 10(b) right was suspended in the circumstances of this case up to the time of arrest in any event. A 10(a) violation therefore had minimal if any impact on the Charter protected interest.

Section 10(b): Right to Counsel

[24] In his submissions, counsel for the defendant clarified that his position was that the 10(b) violation alleged was the failure to read the rights on arrest. He was not arguing that they should have been read at an earlier point in time.

[25] The relevant factual conflict is whether the 10(b) rights were read when the second officer arrived (PC Roberts version) or whether they were not read until after arrival at the police station (defendant's version). The defendant bears the burden. In my view he has not satisfied it. I prefer the officer's evidence on this point.

[26] But as with 10(a), even the officer's version raises some issues. He testified that he waited for the second officer to arrive before reading rights because he didn't want to take his eyes off the defendant to retrieve his rights card. Does that amount to a 10(b) violation? I don't think so. The obligation is to inform the detainee "without delay" which usually means "immediately". However, there is some latitude and the advice can be delayed in some circumstances, particularly where officer safety is concerned: R v Suberu, 2009 SCC 33; R v Quansah. I think the reason given for the delay in this case was valid. The delay that resulted was 4 minutes. In my view this was, under the circumstances, compliance with the temporal requirements of 10(b).

[27] If I am in error in that conclusion, I am satisfied that it would in any event not be a case for exclusion. One of the lessons that emerges from the Grant trilogy is that exclusion should be reserved for cases in which the breach is material – that it in some way matters, either in the particular case or to the long term broader interests of the administration of justice. A delay of short duration in the circumstances of this case is simply immaterial. The informational component of 10(b) goes hand in hand with the operational component. In my view there is little purpose in providing the information about right to counsel much in advance of when the detainee can act upon that information and exercise the right. So viewed, even the defendant's version does not disclose a breach of any significance.

[28] In fact, it seems to me that it might often be confusing for a detainee at the roadside to have the full 10(b) menu read to him including 1-800 phone numbers and inquiries as to whether he wants to call a lawyer "now". Beyond confusing, the practice is probably waiver-inducing since the manifest impracticality of calling a lawyer "now" would be apparent to the detainee. To the extent that 10(b) advice might provide some immediate comfort to the freshly arrested or detained, I suggest it would be better practice just to tell him succinctly that he has the right to a lawyer and that the right can be exercised when they get to the station, where the full details of the 10(b) advice could be given. This practice would also automatically insulate the detainee from use of any incriminating statement he may make in the interim, without the need to address often difficult questions of waiver.

Section 8: Unreasonable Search and Seizure

[29] I view this as the central issue in the case.

[30] On either version, it was a warrantless search and the Crown bears the burden of showing reasonableness, that is, lawful authority. On the officer's version the authority is clear. The defendant's admission of marijuana at his feet provided evidence to support the arrest and search incident to it. However, as mentioned, I am not satisfied on a balance of probabilities that the officer's version should be accepted.

[31] The defendant's version gives rise to a more complex question, being whether a vehicle search based mainly but not exclusively on the smell of burnt marijuana is authorized by law.

The Polashek Test

[32] The leading case in this jurisdiction is R v Polashek, [1999] OJ No 968. In that case the accused was stopped for a traffic infraction. The officer testified that he smelled marijuana, though he could not say whether it was fresh or burnt marijuana. When he said that he smelt marijuana, Polashek responded "No you don't". It was argued on the basis of American jurisprudence that the smell of marijuana alone cannot support arrest because it only shows that someone sometime smoked marijuana in the vehicle and not that the present occupant is in present possession of the drug. The Court of Appeal declined to go so far. Rosenberg JA said:

In short, the appellant argues that the presence in a vehicle of the odour of marijuana alone shows only that at some time someone smoked marijuana in that vehicle. It does not provide reasonable grounds to believe that the present occupant of the vehicle was in present possession of marijuana. Thus, it is argued, there are no grounds for an arrest or a search based solely on the officer's perception of marijuana odour.

I agree, in part, with the appellant's position. Had Constable Ross based his arrest of the appellant solely on the presence of the odour I would have held that there were not reasonable and probable grounds to make the arrest. Given Constable Ross' admission that he could not from the odour alone determine whether the marijuana had been smoked recently or even if he was detecting the smell of smoked marijuana, the presence of odour alone did not provide reasonable grounds to believe that the occupant was committing an offence. 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. As Doherty J.A. observed in R. v. Simpson at p. 202 "subjectively based assessments can too easily mask discriminatory conduct based on such irrelevant factors as the detainee's sex, colour, age, ethnic origin or sexual orientation."

On the other hand, I would not go so far as was urged by the appellant that the presence of the smell of marijuana can never provide the requisite reasonable and probable grounds for an arrest. The circumstances under which the olfactory observation was made will determine the matter. It may be that some officers through experience or training can convince the trial judge that they possess sufficient expertise that their opinion of present possession can be relied upon. Even in this case, the Crown adduced sufficient evidence from which the trial judge could reasonably conclude that Constable Ross accurately detected the odour of marijuana rather than some other substance.

[33] The Court went on to uphold the trial judge's finding that reasonable grounds to arrest existed based on the circumstances over and above the smell. These circumstances were: the statement ("No you don't"); the area of town (Malton, where marijuana use was said to be prevalent); and the officer's experience of being involved in 40 or 50 marijuana seizures (see Polashek para 15). These factors together with the italicized passage above make it apparent that the Court's concern was not the honesty but rather the reliability or accuracy of the olfactory observation. If reliability can be enhanced, reasonable grounds can be found to exist.[4]

Application to This Case

[34] It seems to me that the facts in this case are similar to Polashek and even more supportive of a conclusion that reasonable grounds were present. These include:

• The observed driving. While roadside test results pointed in another direction, the driving still had some significance.

• The rolled down windows – an affirmation by the defendant's action that the odour was indeed present. Further it suggests recent smoking and not stale lingering smell.

• That the odour was qualified as "strong"

• The statement – "I don't know what you're talking about" – very similar to the statement in Polashek

• The ability of the officer to discern and articulate that it was burnt marijuana.

• The officer's experience – while not detailed specifically in relation to marijuana – it is reasonable to infer that 16 years or so of policing experience would necessarily involve frequent dealings with marijuana.

[35] I conclude that the officer had reasonable grounds to believe that marijuana had recently been present and smoked in the vehicle.

The "Found Committing" Issue

[36] This conclusion however would not be sufficient to permit an arrest – and search incident thereto - for simple possession of an unknown quantity of marijuana. Unless there is evidence of a quantity exceeding 30 grams, the offence is straight summary and therefore the defendant must be "found committing" it: section 495(1)(b) Criminal Code; see R v Loewen, 2011 SCC 21; R v Truong, [2011] BCJ No 2078 and authorities cited therein. But this "found committing" issue does not arise in this case because, on the defendant's version, he was not searched incident to arrest but rather a search was conducted before arrest, and provided the evidence upon which the arrest was based.

Warrantless Search Authority Under the CDSA

[37] So it comes back to the question: Was there legal authority for PC Roberts to search the defendant's vehicle as described in the defendant's version of events? The Controlled Drugs and Substances Act provides in section 11:

11(1) A justice who on ex parte application is satisfied by information on oath that there are reasonable grounds to believe that

(a) a controlled substance.. in respect of which this Act has been contravened

is in a place may, at any time issue a warrant authorizing a peace officer … to search the place for such controlled substance ….and seize it

(7) A peace officer may exercise any of the powers described in subsections (1), ……without a warrant if the conditions for obtaining a warrant exist but by reason of exigent circumstances it would be impractical to obtain one.

[38] To summarize this provision, a justice can issue a warrant to search any place where there are reasonable grounds to believe that marijuana (in any amount) is present. Further, a warrantless search is permitted if a warrant could have issued (ie there are reasonable grounds) and exigent circumstances exist.

Could a Warrant Have Issued?

[39] The first question: Could a justice have issued a warrant in the circumstances of this case? I have already concluded that there were reasonable grounds to believe that marijuana had recently been consumed in the vehicle. The section speaks in the present tense – that a controlled substance is in the place – but that is certainly one reasonable inference that could be drawn from the smell of marijuana smoke: See R v Webster, 2008 BCCA 458 at para 31. The circumstances support (at least) two possibilities – that the marijuana that had been there had been totally consumed or that only some of it was consumed and some was left over and still in the vehicle. Both are reasonable inferences. In considering whether reasonable grounds exist, the availability of one inference does not negate the reasonableness of another alternative inference: R v Bush, 2010 ONCA 554. Accordingly, I conclude that the circumstances in this case provided reasonable grounds to believe that marijuana was present in the vehicle. A justice could issue a warrant.

Do Exigent Circumstances Exist?

[40] The next and final question is whether exigent circumstances existed. In the recent case of R v Kelsy, 2011 ONCA 605, Rosenberg J.A. summarized the 2 bases for exigent circumstances:

Exigent circumstances have been recognized at common law as a basis for searching property without a warrant. Cases that have addressed the issue of exigent circumstance appear to rest on two bases. The first basis relates to the risk of imminent loss or destruction of the evidence or contraband before judicial authorization could be obtained. The second basis emerges where there is a concern for public or police safety.

[41] With respect to the first basis – loss or destruction of evidence or contraband – a series of cases of high authority has established that such exigent circumstances will often, though not invariably, be present by reason of the evidence or contraband being present in a motor vehicle: R v Rao, 12 CCC 3d 97; R v Debot, 30 CCC 3d 207; R v Grant, [1993] 3 SCR 223. With respect to the second basis – police and public safety, Rosenberg J.A. in Kelsy noted that the parameters were rather vague and may be largely subsumed by statutory provisions (such as s 529.1 dealing with warrantless arrests in dwelling houses) and the common law Waterfield doctrine. There can be no doubt however, that concern for safety of an individual, the police or the public at large can in itself justify a reasonably grounded though warrantless intrusion into areas of privacy to search or arrest where it is impractical to first obtain judicial authorization: R v Godoy, [1999] 1 SCR 311.

[42] While a finding of either basis for exigent circumstances may suffice, in my view both bases were present in this case. Their combined effect justified the minimally intrusive search of the vehicle that occurred here.[6] The officer was confronted with a situation where he had good reason to believe that the lone occupant driver had recently consumed an intoxicant – an illegal one - in the vehicle. Even if not demonstrably impaired at that point in time, there would be nothing to prevent him consuming some more, if he had it, as he continued on his way. He had already demonstrated no reluctance to do so that evening. Obtaining a warrant was clearly not feasible. The only other alternative – that the officer must bid him good evening through a cloud of green smoke and send him on his way back into traffic – is not attractive or reasonable.

[43] It is my conclusion that in this case exigent circumstances existed supporting a warrantless search of the vehicle, as authorized by section 11(7) of the CDSA. Accordingly, even on the defendant's version of events, the search was authorized by law. There was no breach of section 8 of the Charter.

Caution Regarding Olfactory Evidence

[44] In closing on this topic I would add that I am very much aware of the potential for abuse inherent in permitting a warrantless search of a vehicle based substantially though not exclusively on alleged smell of marijuana. Such claims by police officers should be scrutinized with care. In this case there is no question of the bona fides of the officer's evidence about the smell as the defendant in his evidence acknowledged that it was present and that he was airing out the car to get rid of it. I would point out as well that the police have long had the authority to conduct warrantless searches of vehicles and all persons in them on reasonable grounds to believe that liquor is being unlawfully kept in the vehicle: Section 32(5) Liquor Licensing Act RSO 1990 C L-19. This authority does not seem to be abused. It would not be a significant additional encroachment on civil liberties – and it would be consistent from a public safety standpoint – to recognize a similar power where there are grounds to believe in the presence of a similar potentially intoxicating illegal substance.

Admissibility of Evidence

[45] The evidence is admissible. There are no other issues. The defendant is found guilty of possession of marijuana.

Oxycodone

[46] The issue here is knowledge. There is no evidence that the defendant ever handled the pills or the bag they were in. They were not in a visible location. There is no evidence that he had exclusive use of the vehicle and his evidence was that he did not.

[47] There is a reasonable doubt that he had the requisite knowledge of the presence of the pills. He is found not guilty on that count.

Disposition

Released: March 6, 2012

B Duncan J

Footnotes

[1] This pat down appears to be unobjectionable: see R v Loewen infra. I did not understand the defendant to make any issue of it.

[2] I am aware of course that it is not necessarily an all or nothing, either/or choice and that I can accept some, none or all of either version. However in the circumstances of this case I think it does come down to a choice between versions with little room for refinement.

[3] It is of some interest that the pre-Charter law about the duty of an arresting officer to provide the reason for arrest had established that it is not necessary to do so if the surrounding circumstances make the reason obvious: R v Beaudette (1957), 118 CCC 295 (Ont CA); R v Shore (1961), 129 CCC 70 (BCCA).

[4] This focus on reliability is understandable since the issue before the Court was whether smell of marijuana was capable of amounting to reasonable grounds. The honesty of the evidence was a given, for the purpose of the question. For trial judges however, honesty of the police evidence is a very significant first issue, given the potential for abuse as discussed at end of this judgment.

[5] This particular issue was not directly before the Court in Polashek. The offence date in that case July 1996 predates the CDSA. Under the former statute, the NCA, possession of any amount of marijuana was a hybrid offence thereby carrying arrest powers in relation to indictable offences including reasonable grounds to believe in present past or future offences: Section 495(1)(a).

[6] Looking under the seat and looking in the console. A more intrusive search may not be justified on a Waterfield type analysis.