Court Information

Ontario Court of Justice

Date: 2015-01-28

Court File No.: Regional Municipality of Durham 998 13 25302

Parties

Between:

Her Majesty the Queen

— and —

Joshua Cairns

Before: Justice J. De Filippis

Heard on: December 4, 2014

Ruling on Charter Motion Released on: January 28, 2015

Counsel

Mr. Raven — counsel for the Crown

Mr. Balka — counsel for the defendant

Decision

De Filippis, J.:

[1] The defendant is charged with possession of cocaine for the purpose of trafficking. The charge arises as a result of the seizure of cocaine from a car after the defendant was arrested following a traffic stop. The defendant claims the arrest was unlawful and violated his rights as guaranteed by sections 8 and 9 of the Canadian Charter of Rights and Freedoms. He applied to exclude the evidence of the cocaine, pursuant to subsection 24(2) of the Charter. For the reasons that follow, I dismiss the application.

Facts

[2] On July 12, 2013 at 10:19 PM, PC Aukema observed a black Honda Accord in the Township of Scugog. He followed the vehicle to the area of Water Street and Scugog Street. A query of the plate confirmed the officer's observation that the validation for the vehicle expired in May 2013. The vehicle entered a plaza parking lot in which there is a convenience store. The officer maintained observations of the now unoccupied vehicle prior to seeing two males enter it and drive away. It was followed south on Water Street, before turning west onto Scugog Street, at which time the officer initiated a traffic stop by activating his emergency lights.

[3] PC Aukema testified the vehicle did not immediately stop, but drove up the hill slowly with the right turn signal on, before turning onto John Street and stopping "a couple of houses north of the corner". He added that as he approached the vehicle, the interior light for the vehicle was turned on and he noted that the driver appeared to be putting something into the centre console of the vehicle. The interior light was turned off as the officer reached the driver's window. According to the officer, the driver acted strangely by not making eye contact with him and staring straight ahead. He asked the driver what he had placed in the centre console and the latter replied that he had removed items. PC Aukema believed the stack of papers on the driver's lap to be too large to have fit in the console.

[4] The driver produced, upon demand, documents for licence, registration and insurance. The name and photograph on the licence matched that of the driver; that is, the defendant, Joshua Cairns. PC Aukema testified that while speaking with him, he could smell odours that he knew to be freshly burnt and unburnt marijuana and he was able to determine the smell was emanating from inside the vehicle. There was also a strong odour of air freshener. The officer said he saw that the defendant's hands were shaking. Inside the vehicle, he observed tobacco flakes "all over" and a cigarette that had tobacco removed from the end and was twisted. The officer testified that in his experience some people who use marijuana will mix cigarette tobacco in with it. The defendant was advised about the odour of marijuana and the officer's belief that he was in possession of the drug. The defendant replied that the officer was smelling cigarette smoke.

[5] The officer conceded he is not part of the drug squad and has not been trained for duties in that unit. He testified he that he was exposed to the odour of marijuana at Police College and "too often to count since then". He had no explanation for why he did not approach the driver of the vehicle when the two males entered it in the parking lot, except to say, "I decided to wait until he put the car in motion and stop him on the roadway". PC Aukema confirmed that neither male had aroused any suspicion and that the traffic stop was for the purpose of investigating the invalid sticker. He resisted the suggestion he was incorrect in stating the defendant delayed stopping his car after the cruiser emergency lights had been activated. He insisted that it appeared the defendant was putting something into the centre console, not "the other way around". The officer agreed that the odours of burnt and fresh marijuana are distinct and said he detected both. He stated he did not smell tobacco notwithstanding that the defendant had a lit cigarette in hand.

[6] PC Aukema arrested the defendant and passenger for possession of marijuana at 10:40 PM, "within minutes" of the traffic stop. He testified that, as he did so, he told the defendant he could smell marijuana on him and that the latter explained he had been with a person who smoked it. He searched the vehicle pursuant to that arrest. Inside the centre console he found a white digital scale with white powdery residue on it, a large number of "dime bags", and two Ziploc bags containing a powder. It is not disputed that the latter is cocaine and that it amounted to nine grams. According to the officer, as soon as the items were seized from the centre console, the defendant said "they're mine". A second officer, PC Stevens, arrived on scene to assist. Marijuana was not found in the vehicle. The officer did not photograph the tobacco flakes or seize the cigarette with the twisted cigarette.

[7] PC Aukema also seized the defendant's cellular telephone. He testified that he performed a "cursory search" of it to obtain the telephone number so he could seek judicial authorizations. When he activated the screen he saw this text conversation:

Kayla: Do you have any?

Kayla: Can you do a B and how much?

The officer said this conversation was immediately present on the screen and he did not scroll down. He later obtained a production order and search warrant.

[8] Hugh Allward is a 25 year old sheet metal apprentice. He was the passenger in the defendant's motor vehicle. He testified that as he had been at a pub on the night in question and was "too drunk to drive", he contacted the defendant to pick him up. They met at the plaza near the convenience store. After driving away, he noticed a police cruiser following them and the defendant told him to check the glove box for his licence. He testified that on being stopped, the officer asked them if they had been drinking alcohol. Mr. Allward admitted as much. The officer then asked if they had "smoked pot". Both men said no. The defendant produced a cigarette butt and suggested this was the source of the smell. Mr. Allward testified that he did not smell marijuana or air freshener in the car. He said he did not know the defendant to be "involved" with marijuana or cocaine but heard him claim ownership of the cocaine found by the police. The charge against Mr. Allward was later withdrawn by the Crown.

Legal Analysis

[9] Section 8 of the Charter provides that "Everyone has the right to be secure against unreasonable search or seizure". This right means that the police must have reasonable and probable grounds to arrest and/or search a person. Section 9 protects against arbitrary detention or imprisonment. In this case, both sections turn on the existence of reasonable and probable grounds. Pursuant to subsection 24(2), "Where…a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute".

[10] A reasonable and probable ground to arrest and/or search has both a subjective and an objective component. The subjective component requires that the officer honestly believe the suspect committed an offence. The objective component means that the officer's opinion must be supported by objective facts: Storrey v. The Queen, 53 C.C.C. (3d) 316. In forming reasonable and probable grounds, an officer must take into account all the information available, disregarding only what is unreliable. The officer cannot pay attention only to what incriminates and disregard all that exonerates (Chartier v. Attorney General of Quebec, 48 C.C.C. (2d) 34). This standard must not be inflated to the context of testing trial evidence. Neither is it to be so diluted as to threaten individual freedom: R. v. Censoni, [2001] O.J. No. 5198 (S.C.J.). In other words, there must be enough to justify police interference with individual liberty, but this does not mean a prima facie case or proof beyond a reasonable doubt.

[11] It is not in dispute that the defendant was lawfully stopped for driving a motor vehicle with an invalid plate sticker. This does not mean the officer had the right to arrest the defendant and to search him and the car as an incident of the arrest. That authority depends on whether the officer had reasonable and probable grounds to believe the defendant was in possession of marijuana.

[12] The Defence submits that the smell of burnt marijuana is not evidence of its present existence and that the odour of fresh marijuana, as admitted by the officer, is "transient". Moreover, it is argued that PC Aukema is not a credible witness with respect to detection of odours as he did not smell tobacco in the car notwithstanding that both its occupants had been smoking in it and Mr. Allward testified he did not smell marijuana (or air freshener) in the vehicle. The Defence also suggests that the officer is unreliable as the Crown has failed to show the officer has relevant expertise in detecting the odour of marijuana. It is asserted that this unreliability is a significant departure from the standard expected of an investigator in these circumstances.

[13] The Crown argues that the Storrey test is met if I accept that PC Aukema detected an odour of burnt and/or fresh marijuana within the car and on the defendant himself and that he also made these observations; tobacco flakes all over the vehicle, a twisted cigarette, the appearance of something being put inside the console, the defendant's shaking hands and his strange demeanor in looking straight ahead and avoiding eye contact. It is suggested that the tobacco flakes and twisted cigarette are consistent with the officer's experience that some people mix marijuana and tobacco and that the other observations reveal nervousness and an attempt to conceal something.

Court's Findings

[14] I do not accept the submission that PC Aukema is an unreliable witness with respect to the odour of marijuana. On the contrary, he has substantial experience with it. I am satisfied that he can identify marijuana by its smell. In this regard, the defendant's statement to him, upon arrest, that he was with someone who had smoked marijuana supports the officer's belief that the odour was present. The officer's testimony about this statement was not challenged and there is no other reason why I should reject it. I am confident PC Aukema detected the odour of burnt marijuana. I do not have such faith in his belief he also smelled fresh marijuana. In R. v. Harding, 2010 ABCA 180, it was held that the "overpowering" odour of raw marijuana can support the observations a person is in possession of the drug. In that case, the police found 56 pounds of marijuana in the trunk of the car. In this case, there is no evidence the odour of fresh marijuana was of such strength and none was found. PC Aukema is likely mistaken in identifying this odour. This does not undermine his reliability about the presence of burnt marijuana. More important, there is nothing to suggest he lied about it.

[15] In concluding that PC Aukema did smell burnt marijuana within the car and on the defendant himself, I am not troubled by the fact that he did not detect the odour of tobacco. Again, there is nothing to suggest he lied about this, especially since he conceded the defendant had a cigarette in hand. The inference I draw is that if such an odour was present, it did not overwhelm that of the marijuana. Similarly, I am not concerned by Mr. Allward's testimony that he had also smoked a cigarette in the vehicle and had not detected the smell of marijuana. I note that Mr. Allward was drunk at the time. In any event, his testimony does not, in itself, mean the officer is unbelievable or inaccurate in reporting his observations.

[16] My finding that there was an odour of burnt marijuana on the defendant and in his car does not constitute reasonable and probable grounds that the drug was present at that time: See R. v. Janvier, 2007 SKCA. Moreover, smell is highly subjective and, without more, will usually fail the objective component in Storrey. A case such as Harding in which a particular odour is "overwhelming" is exceptional and confirms this cautionary approach. However, the smell of burnt marijuana, along with other relevant factors, can meet the Storrey test: See R. v. Polashek, [1999] O.J. No. 968. The application of these principles will always be case specific.

[17] Along with the odour of burnt marijuana, what additional factors would justify reasonable and probable grounds in this case? I am not impressed by the evidence of tobacco flakes and the twisted cigarette. There is nothing in the record before me to validate PC Aukema's belief that some people smoke a combination of marijuana and tobacco. On the other hand, I do accept the officer's testimony that the defendant's hands were shaking and he stared straight ahead when first stopped. These actions are consistent with anxiety and unease. I also accept that on approaching the motor vehicle, the defendant put something in the centre console. In the circumstances of a traffic stop, this reasonably supports the inference that there was something he did not want the officer to see.

[18] Having regard to the smell of burnt marijuana, the defendant's nervousness, and his apparent attempt to hide something, I endorse the officer's subjective belief that he was in possession of marijuana. In my opinion, the defendant's arrest for that offence was lawful and rights as guaranteed by sections 8 and 9 of the Charter were not infringed. His application to exclude the evidence of cocaine found, following the defendant's arrest is dismissed.

Released: January 28, 2015

Signed: "Justice J. De Filippis"