Court File and Parties

Ontario Court of Justice

Date: 2017-11-30

Court File No.: Brampton 3111 998 2016 4780

Between:

Her Majesty the Queen

— and —

Erik Osit

Before: Justice G.P. Renwick

Heard on: 19, 20 June, 14, 15, 27, and 30 November 2017

Reasons for Judgment released on: 30 November 2017

Counsel

M. Hourigan — counsel for the Crown, the Public Prosecution Service of Canada

A. Monaco — counsel for the defendant, Erik Osit

Judgment

RENWICK J.:

Introduction

[1] The defendant is charged with one count each of possession of marijuana and cocaine for the purpose of trafficking, contrary to s. 5(2) of the Controlled Drugs and Substances Act, S.C. 1996, c. 19 ("CDSA"). The charges stem from a traffic stop, the police observation of the smell of marijuana inside the defendant's car, and subsequent searches of the car that lead to the discovery of many individual packages of marijuana and cocaine which, based on the amounts, is conceded to be for the purposes of trafficking.

[2] The defendant has challenged the admissibility of the prosecution's evidence as a result of alleged breaches of the defendant's ss. 8, 9, 10(a), and 10(b) Charter rights. The parties agreed to have all of the evidence on the trial and Charter application taken together. As well, initially the prosecution sought to admit an inculpatory statement of the defendant made after his initial arrest, and a voluntariness voir dire also ran concurrent to the trial and Charter application. During final submissions, and based upon a concession by the defendant, the prosecution withdrew the application to adduce the defendant's statement.

[3] The prosecution called the two police officers who investigated and arrested the defendant, Constables Stevens and Rodziewicz, in its case in chief and on the Charter and voluntariness voir dires. The defendant testified on the Charter and voluntariness voir dires on his behalf, but not on the trial. No other witnesses were called by either party.

[4] As was the case for the investigators, my decision hinges upon the allegation of the smell of marijuana. If I accept that the police officers smelled marijuana upon approaching the defendant with regards to an expired validation sticker on his license plate, the arrest of the defendant, the subsequent searches of his car and the discovery of the drugs were lawful, and the Charter application must fail. Conversely, if the defendant satisfies me on a balance of probabilities that the traffic stop began or became arbitrary within the compass of s. 9 of the Charter, everything that follows is equally tainted and will be subject to analysis under s. 24(2) of the Charter. The parties agree in this case that there is a binary nature to the Charter application; the result will determine the outcome of this trial.

[5] The evidence was taken over the course of 5 court days. I have had the benefit of replaying the digital recording of much of the evidence on or before subsequent appearances and before writing this judgment. I have also considered and reviewed all of the exhibits and the submissions of both counsel. I am satisfied that the police violated the Charter rights of the defendant, that the drugs must be excluded and consequently the Crown has not proven the charges beyond a reasonable doubt, and in these reasons I will explain how I arrive at this conclusion.

Discussion

[6] The parties agree that the actions of the police were based upon their perception of the smell of marijuana emanating from within the defendant's car. There is no issue as between the parties that the law permits police to rely upon olfactory observations. In Polashek, the Ontario Court of Appeal approved of this type of evidence to establish reasonable and probable grounds to arrest in some circumstances:

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 possesses [sic] sufficient expertise that their opinion of present possession can be relied upon. [Underlining is mine.][1]

[7] On more than one occasion, the Ontario Court of Appeal has confirmed its earlier decision and the permissibility of relying upon the smell of marijuana as a possible basis for grounds to arrest.[2]

[8] It seems to me that the Court of Appeal approves of the use of odour perception evidence to provide police with grounds upon which to found an arrest, but given the inherent difficulty in objectively assessing the accuracy of an officer's sense of smell, triers of fact are urged to be cautious in considering the reliability of the witness' perceptions. In Polashek, the court noted that "experience or training can convince the trial judge that [the officer] possesses sufficient expertise that their opinion of present possession can be relied upon." I take this to mean that experience and training may satisfy a trial judge that smell perceptions are reliable, if the court is otherwise satisfied with the reliability of the witness' evidence.

[9] In this case, there are several weaknesses with both officers' accounts. Each witness testified to observations, sequences of events, and rationales for action that were not supported by other evidence, that did not remain consistent throughout their examination and cross-examination, and that did not corroborate the other officer's version of events. Moreover, there is neutral evidence which detracts from the officers' reliability.

[10] To be clear, I do not find that the officers intentionally mislead the court. To the contrary, their evidence suffers more from poor recollections and deficient notes than a deliberate attempt to mislead. Nonetheless, the outcome is the same. The police testimony suffers from too many weaknesses to displace evidence that I accept which establishes several Charter violations. There are too many examples of problems in the testimony of the police witnesses to list, so I will refer to a significant example (the time of the stopping of the defendant's car) to illustrate my concerns with the prosecution's evidence.

The Police Evidence

[11] In order to understand the value of the police dispatch and unit history evidence it has to be situated within the context of the investigation as a whole. I will briefly outline the salient pieces and some of the many inconsistencies within the police testimony before examining the evidence which significantly undermines their reliability.

[12] Constable Stevens testified that Constable Rodziewicz, who was the driver of their police vehicle, noticed a car with an expired validation sticker on the rear license plate and decided to stop the car to investigate, notwithstanding that they were on their way to a particular location for administrative duties. Constable Rodziewicz offered a different reason for what drew his attention to the defendant's car, "erratic" driving.

[13] Constable Stevens testified that once Constable Rodziewicz had mentioned the car with an expired validation sticker, he typed the license plate number into his computer's vehicle query tool. He testified that this confirmed the name of the registered owner of the vehicle, which is acknowledged to be the defendant, and the fact of the expired validation sticker for that license plate. And, although the query tool can also provide outstanding charges or bail or probation conditions for individuals, and notwithstanding that the officer had the name of the registered owner of the vehicle they were following, he testified that he did not learn anything about the defendant's prior charge of possession of marijuana, which had resulted in a conditional discharge.[3]

[14] Constable Stevens was clear that his query of the license plate took place before the vehicle was stopped and he advised his dispatcher of the traffic stop at 11:54 am. During the traffic stop, Constable Stevens walked up to the passenger side of the defendant's car as Constable Rodziewicz approached the driver. Within 30 seconds to one minute Constable Stevens observed that the defendant exited his car and was arrested by Constable Rodziewicz. Constable Stevens said that he had smelled fresh marijuana as he approached the front passenger side of the defendant's car, although the passenger windows were never opened, and this took place before the defendant's arrest, which occurred at 11:55 am. Constable Stevens said that he communicated the smell of marijuana to Constable Rodziewicz, who did not recall that.

[15] Contrary to Constable Stevens' testimony, Constable Rodziewicz admitted in cross-examination that he did not know about the expired validation sticker until he ran a check on the defendant's license plate. He initially testified in chief that he stopped the defendant's car at 11:54 am. Then he immediately corrected himself and said that he had stopped the defendant's car 7-8 minutes before that, notwithstanding that his notes also indicated that the traffic stop occurred at 11:54 am. He testified that he arrested the defendant after a brief initial interaction when he noticed the smell of fresh marijuana, he communicated that to both the defendant and Constable Stevens, and then he told the driver to get out. Perhaps due to the order of their testimony, neither party asked Constable Stevens about Rodziewicz' belief that the traffic stop occurred 7 or 8 minutes before 11:54 am, but that officer was clear that was the time that he believed the traffic stop took place.

[16] Constable Rodziewicz says he arrested the defendant at 11:49 am, but either he or Constable Stevens did not call dispatch to "book out" with the vehicle until 11:54 am, after the arrest. According to his testimony, by 11:54 am, Constable Rodziewicz had found the two cans with false lids containing marijuana and cocaine, he had given the defendant rights to counsel and cautions, and he had provided the defendant with information about contacting duty counsel. He says that at 11:54 am, Constable Stevens was searching the defendant's car, but this cannot be the case as I will soon discuss.

[17] Furthermore, Constable Rodziewicz believed that he had requested a tow truck following the search of the defendant's car and his discovery of the marijuana and cocaine inside the fake beverage cans. In cross-examination, Constable Rodziewicz first testified that he booked out and advised dispatch that he had one in custody at 11:54 am. Subsequently, he corrected himself and said that he did not actually advise the dispatcher that he had a male in custody until 12:22 pm.

[18] As is obvious from the discussion above, there are significant discrepancies as between the police officers about the timing of the traffic stop. I have significant difficulties making any findings of fact relying solely upon the viva voce police evidence. Fortunately, during Constable Stevens' re-examination, the prosecution entered the audio recording of police radio calls between the officers and the dispatch (exhibit 11A). On the basis of the recordings and the times of the radio transmissions recorded on the Audio Copy Report (exhibit 11B), I am satisfied that the following communications took place at the times listed:

11:53:33 am (34 seconds in duration)

Stevens: NP5, can you show us out with a vehicle?

Dispatcher: Go ahead.

Stevens: Gonna be: Bravo-Yankee-Echo-Hotel 4-4-2, or sorry, 7-7-5. I'm at Burnamthorpe and Duke of York.

Dispatcher: Sorry, the last numbers are going to be 7-7-5, correct?

Stevens: Ya, 10-4, sorry about that.

Dispatcher: 10-4, no worries.

11:54:32 am (4 seconds in duration)

Stevens: And NP5, can we get a contract tow?

Dispatcher: 10-4

12:22:34 am (6 seconds in duration)

Rodziewicz: 12NP5, be, ah, 10-19 with a male 92.

Dispatcher: 10-4.

12:34:44 am (7 seconds in duration)

Stevens: NP5, we're 10-7, can you [inaudible]?

[19] During Constable Rodziewicz' cross-examination, the Unit History for the officers' car (12NP5) was also introduced into evidence (exhibit 13). These three exhibits (11A, 11B, and 13) are apparently neutral, independent records produced and maintained by Peel Regional Police. The authenticity and value of these exhibits were not challenged by the prosecution. These records ultimately call into question the reliability of the testimony of both police witnesses.

[20] At 11:53:33 am, Constable Stevens is recorded advising the police dispatcher that they are booking out to investigate a vehicle, which turned out to be the defendant's car, at Burnamthorpe and Duke of York. He uses the words "Gonna be," which might indicate that they will be stopping a vehicle with the license plate BYEH 775, but given the inclusion of the streets involved, it is likely the case that they have already stopped the defendant by this point. Thirty-six seconds later, at 11:54:09 am, the dispatcher has typed the information provided by Constable Stevens into the Unit History for their vehicle as "TRAFFICSTOP" at "BTHOPE/DUKE OF YORK."

[21] In the second radio transmission, made only 59 seconds after the first communication, Constable Stevens requests a tow truck. However, at this time, Constable Rodziewicz testified that Constable Stevens was then searching the defendant's car rather than communicating with the dispatcher.

[22] Regardless, I am left to wonder how the police could have completed any investigation sufficient to warrant a tow of the defendant's car less than one minute after advising the dispatcher that the car was (going to be) stopped. Counsel for the defendant suggests that this proves that the police had already made up their minds that they were going to impound the defendant's car, which makes little sense to me on the defence theory that 11:54 am is the actual time of the traffic stop and the police would not yet have known who was driving, let alone what might eventually be found in the vehicle.

[23] If I accept Constable Rodziewicz' evidence that by 11:54 am the defendant had already been arrested and the drugs inside the passenger compartment of the car had been recovered, why wasn't the defendant's arrest communicated to the police dispatcher at 11:53 am when Stevens advised of the traffic stop, or at 11:54 am when he sought a tow truck? It is not until the third radio call at 12:22:34 pm that Constable Rodziewicz personally advised the dispatcher that they would be returning to the division (10-19) with the defendant in custody (92). This is also substantiated by the Unit History, which at 12:22:51 pm records "Change Location: [12 DIV W/ML 92]." Neither officer explained what they were doing from 11:54 am until 12:22 pm, or why they did not advise their dispatcher until 12:22 pm that the defendant had been arrested.

[24] At the very least, these records indicate a disturbing lack of precision in the times recorded by the officers for their actions. This imprecision permeated the officer's evidence with respect to the timing and sequence of their investigative steps and it continued back at the station during the handling of the drugs and the recording of drug exhibit weights, and property bag and tag numbers. Again, there are too many examples of imprecision, discrepancies, and changes to the officers' evidence to mention.

[25] Constable Rodziewicz testified that he has investigated marijuana possession approximately 80 times. He said he is very familiar with the smell of marijuana, but he acknowledged difficulty describing the differences between fresh and dry marijuana, and burned and unburned marijuana. In light of the many difficulties I have with Constable Rodziewicz' evidence, and the implausibility that any marijuana scent emanated from the Arizona Iced Tea can he recovered, I am unable to conclude with any degree of certainty that there was a detectable odour of marijuana inside the defendant's car when Constable Rodziewicz first spoke to the defendant. To be precise, I am not saying I suspect that Constable Rodziewicz' is untruthful in claiming that he smelled marijuana shortly after the interaction began, but I have no confidence in the reliability of his recollections to find an objective basis for the defendant's arrest.

[26] Unfortunately, the prosecution's defence of the warrantless search is predicated upon an acceptance of a perceived smell of marijuana as the sole reason for the arrest of the defendant. This is not a case where the perception of the smell of marijuana was accompanied by observations of drugs or drug paraphernalia, an admission of possession or recent consumption, or any other indicia to indicate the presence of marijuana. This case totally rests on the smell of marijuana as the only foundation for the officer's reasonable grounds for the defendant's arrest. In all of the circumstances, I am unable to rely upon Constable Rodziewicz' unverifiable perception with any confidence in light of the many discrepancies in the police evidence as a whole. The evidence of Constable Stevens does not assist me, for two reasons. Firstly, it contradicts Constable Rodziewicz on a material point; that is to say, when the traffic stop took place. Secondly, Constable Stevens' evidence of his detection of the smell of marijuana through the closed passenger window is not compelling and completely contrary to common sense.

The Evidence of the Defendant

[27] During his voir dire testimony, the defendant admitted that he was trafficking drugs and he was completely aware of all of the drugs found in his vehicle by these officers. The defendant entered two faux beverage cans into evidence during an experiment conducted by defence counsel, Ms. Monaco. The defendant testified that he filled each can with substances producing noxious scents to mimic the strong odour of marijuana, which he testified could not be detected inside the closed false beverage cans. During the experiment, which involved giving the cans to each officer, I also tried to smell the closed cans and could not detect any odours which were inside them.

[28] The defendant's version of events was plausible. He says he used the fake beverage cans because marijuana odours did not escape when the cans were closed. This makes sense. It is difficult to imagine why a drug dealer would go to so much trouble to disguise his drugs if they could be readily detected by a simple whiff inside his car.

[29] The defendant admitted that unburned marijuana has a strong smell which can linger on surfaces even after the marijuana is removed. He also agreed that he can become accustomed to odours with time and exposure to the point where they are less noticeable by him. Were it not for the difficulties I have in relying upon the officers' evidence, the defendant's admissions could have satisfied me that there may have been a residual smell of unburned marijuana which was detectable by Constable Rodziewicz, but I do not find that this mere possibility establishes that the odour was "pungent" and immediately detected by him, as the officer suggested.

[30] Aside from the plausibility of his evidence, the defendant testified in a credible manner. He was balanced in his testimony by admitting things which undermined his credibility or testimony (he was dealing drugs and he had been found guilty of possessing marijuana in the past, and he admitted that the odour of marijuana can linger), he had a thorough and detailed recollection of the events and the sequence of things, and his evidence was consistent internally, across all phases of his testimony. Where his evidence differs from the police evidence, I prefer and accept the defendant's testimony. On this basis, I am not satisfied that there was an odour of marijuana inside the defendant's vehicle that was so obvious as to have been perceived immediately by Constable Rodziewicz upon his approach of the defendant with his window down.

[31] My acceptance of the defendant's evidence and the unreliability of the police testimony are separate bases for finding that there were no objectively reasonable grounds to arrest the defendant and search his car. I am satisfied on a balance of probabilities that ss. 8 and 9 of the Charter have been violated.

[32] With respect to s. 10(a) of the Charter, the defendant's own evidence in chief establishes that he was told of the initial arrest at the time he was being placed into the police car. He was already on notice that the officer smelled marijuana and that his car was going to be searched. My finding that there were no objectively reasonable grounds for the arrest do not retroactively invalidate the information given to the defendant at the time. At the very least, the defendant was being detained on the basis of a suspicion and because he was plainly told about the smell of marijuana, he knew what that suspicion was.

[33] Section 10(b) of the Charter requires more than simply providing information, it requires that the detainee be given an opportunity to contact their counsel of choice. Collectively, these rights are known as the informational and implementational components of s. 10(b).[4] Constable Rodziewicz did not make a note that he had given the defendant his s. 10(b) Charter rights immediately upon the initial arrest, but he testified that he did provide the rights, nonetheless. Again, I am unable to rely upon his memory as a reliable record of what took place. The defendant testified that he did not receive the informational component of his rights to counsel until five minutes after he was initially arrested. I accept this evidence. The law is clear that s. 10(b) rights are triggered immediately upon detention.[5] Consequently, the defendant has also established a breach of his s. 10(b) Charter right.

Section 24(2) of the Charter

[34] The prosecutor conceded that if I find that the police were deliberately misleading the court about their intentions and actions on 01 April 2016 the Crown would not seek to defend the admissibility of the drugs under s. 24(2) of the Charter. As my findings are not predicated on a lack of credibility, but rather a lack of reliability, it is appropriate to conduct a s. 24(2) Charter analysis.

[35] The law for this analysis is clear.[6] When faced with an application for exclusion under s. 24(2), a court must assess and balance the effect of admitting the evidence on the public's confidence in the justice system in respect of three inquiries:

i. The seriousness of the Charter-infringing state conduct;

ii. The impact of the breach on the Charter-protected interests of the defendant; and

iii. Society's interest in the adjudication of criminal cases on their merits.

[36] At the first stage, I must consider the nature of the police conduct that infringed the defendant's Charter rights and which lead to the discovery of the evidence. The more severe or deliberate the state conduct that led to the Charter violation, the greater the need for the Court to dissociate itself from that conduct, by excluding evidence linked to that conduct. This helps to preserve public confidence in the rule of law.

[37] The second inquiry calls for an evaluation of the extent to which the breach actually undermined the defendant's Charter-protected interests. The more serious the incursion on these interests, the greater the risk that admission of the evidence would bring the administration of justice into disrepute.

[38] At the third stage, I have to balance the truth-seeking function of the criminal trial process and the long term effect of admission or exclusion of evidence recovered in these circumstances. Factors such as the reliability of the evidence and its importance to the Crown's case should be considered at this stage.

[39] Under the first enquiry, I find that the police conduct was not motivated by mala fides. I reject the contention that the police knew that they were about to stop a known drug dealer and they had no lawful purpose in stopping the defendant's vehicle. The defendant admitted that his validation sticker was expired and his license plate would clearly have shown this. Nonetheless, I find that the breach of the defendant's ss. 8 and 9 Charter rights were serious. As a motorist, the defendant could well expect that if his validation sticker was expired, he might attract the attention of the authorities. But he should not then be said to have expected that he would be taken out of his car and have his personal and property rights violated, absent reasonable and probable grounds for an arrest. The officer's belief in the smell of marijuana was unreliable. His record of the interaction with the defendant was poor and the arrest and subsequent searches and the failure to accord the defendant his s. 10(b) Charter rights in a timely way flowed from his initial flawed belief. This increases the seriousness of the state conduct and mitigates in favour of excluding the evidence.

[40] In terms of the impact of the police action, because the improper arrest involved the removal of the defendant from his car, a pat-down search of his person, the defendant was placed in handcuffs and held in a locked police car for 5 minutes before receiving his rights to counsel, all while two police officers thoroughly searched his car (causing slight damage to the lining in the trunk) without a warrant or proper grounds, the combination of the several Charter violations and the effect of the state conduct is quite serious. This factor also favours exclusion of the evidence.

[41] Under the third inquiry, I must consider whether the vindication of these Charter violations through the exclusion of evidence extracts too great a toll on the truth-seeking goal of the criminal trial.[7] The evidence is reliable and it existed independent of the actual Charter violations. The Crown concedes that exclusion of the evidence would lead to an acquittal.

[42] In all of the circumstances, where the police conduct initially begins lawfully and only slightly trespasses upon the defendant's Charter-protected liberties, but then the police continue to violate the defendant's rights, they completely mishandle their responsibilities in terms of recording their activities in a transparent and verifiable way, they fail to follow police policy, they fail to appreciate the need to take care to document their perceptions, their actions, their findings, and the physical evidence in a reliable way, and the two police officers communicate after one has testified during the trial contrary to the clear order excluding witnesses, it becomes inescapable that the long-term effect of admitting the evidence in these circumstances would undermine public confidence in the administration of justice and the rule of law.

Conclusion

[43] Accordingly, I am excluding the evidence of all of the marijuana and cocaine seized from the defendant. Erik Osit, you are acquitted of these charges.

Released: 30 November 2017

Justice G. Paul Renwick

Footnotes

[1] R. v. Polashek, [1999] O.J. No. 968 (C.A.) at paras. 13-14.

[2] See R. v. Morris, 2013 ONCA 223, [2013] O.J. No. 1583 (C.A.) at para. 8, and R. v. Valentine, 2014 ONCA 147, [2014] O.J. No. 876 (C.A.) at para. 56.

[3] Although there was evidence that a query of the defendant's name several months after the defendant's arrest resulted in information about other outstanding drug charges, during submissions counsel for the defendant conceded that there was no admissible evidence that this information was available to these officers on the date when they dealt with the defendant.

[4] See R. v. Bartle, [1994] S.C.J. No. 74.

[5] See R. v. Suberu, 2009 SCC 33, [2009] S.C.J. No. 33 at paras. 2, 29, 31, and 45.

[6] See R. v. Grant, 2009 SCC 32, [2009] S.C.J. No. 32 at para. 71.

[7] Grant, supra, at para. 82.