R. v. Pocklington Date:, 2017 BCPC 419

Citation: R. v. Pocklington Date: 20171011 2017 BCPC 419 File No: 3180-2-C Registry: Pemberton IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. ANDREW RICHARD POCKLINGTON RULING ON VOIR DIRE OF THE HONOURABLE JUDGE WEBB Counsel for the Crown: S. Paulson Counsel for the Defendant: J. Ladha Place of Hearing: Pemberton , B.C. Date of Hearing: October 10, 2017 Date of Judgment: October 11, 2017

[ 1 ] THE COURT: Constable Dunlap was working alone in November 11th of 2016 in Pemberton. He was operating a marked police car. He pulled into a recreational area approximately one kilometre from Pemberton. He stopped his car, turned off the lights. He was the only person parked in the pullout or the parking area at 1:00 in the morning. That was not unusual. Constable Dunlap was taking a coffee break. [ 2 ] Two vehicles pulled in after he had arrived and parked his vehicle. They arrived at approximately the same time.

Each vehicle turned towards him after entering the parking area, then turned around heading back in the direction that they entered into the parking area and also the direction that they would have to exit the parking area from. Constable Dunlap was curious. He activated his police lights. The vehicles stopped. He approached the closest vehicle, a truck. The accused was the driver and only occupant of that truck. [ 3 ] As Constable Dunlap approached the open driver-side window, he noted what he described as the smell of marihuana coming from within the truck.

At this point, without further investigation with no discussions, he arrested the accused. At approximately 1:05 a.m., he told him something to the effect that he was being arrested for possession of marihuana. The exact words of what was said are unclear.

The accused responded, denying possession of weed, a street term used for marihuana. [ 4 ] A scuffle ensued between the accused and the constable and later involving the co-accused, who I understand to be his sister, who entered into the fray from the second vehicle that was in the parking lot, a taxi, described as not a Pemberton taxi and likely a Whistler taxi. By 1:13 a.m., approximately eight minutes later, things had settled. The accused was then advised of his s. 10(

a) and 10(

b) rights, approximately eight minutes after his arrest at 1:05 a.m. [ 5 ] In this voir dire, the accused alleges that the stop initially was not lawful, that the detention was unlawful. He also argues that there was a breach of his right to counsel between 1:05 and 1:13 when he was arrested for possession of marihuana. He was not provided with his right to counsel at the time. I note that the officer, rather than provide him with his right to counsel, was apparently engaged in coping with the struggle between the accused and his sister.

The accused argues lastly that the arrest for possession of marihuana was unlawful, that there was no reasonable basis for the arrest. [ 6 ] Two of the arguments are, in my view, easy to address. I will deal with those now. First, the stop. It is clear that the accused was operating a motor vehicle on a highway, albeit a pullout, in British Columbia. The police can stop vehicles to check licence and registration, to make driver safety inquiries, to check for sobriety, to check for car safety. That is what happened here. The stop of the accused's vehicle was lawful.

There was no breach of any Charter rights. [ 7 ] The second argument is the delay in providing the accused with his right to counsel between 1:05 and 1:13. It is clear that this omission or delay was caused by the behaviour of the accused and the co-accused quarreling and struggling with the police. If they had not been in conflict with the officer, his right to counsel, I suspect, would have been provided at an earlier time. Instead, the quarrel ensued. Once it concluded, the accused was provided with his right to counsel, approximately eight -- approximately eight minutes after he was arrested.

I find no breach here. [ 8 ] The reason for the delay was the behaviour of the accused and co-accused. I also pause to say if I am wrong, it is only a technical breach. There is no substantial remedy that ought to be available for that breach if there was. I note in passing that no comments were made, no questions were asked during this time period. There would be no evidence to exclude. Instead, the officer was busy dealing with the conflict with the accused and his sister. [ 9 ] The only issue remaining is the arrest of the accused based on the smell of marihuana.

Counsel have provided me with numerous authorities on point, all of which canvass the generally agreed upon state of the law which is that the smell of marihuana alone can be grounds for a lawful arrest. Implicit in that statement is that "can" means that the smell of marihuana may be, but may not be grounds for a lawful arrest. The analysis is fact-dependent.

Each case is unique and must be analyzed in its entirety in terms of circumstances to determine whether an arrest based on smell alone is lawful. [ 10 ] I was provided with numerous authorities and I [indiscernible] outlining some of the factors that courts have considered. There are, in essence, two main cases that counsel relied on, MacCannell , 2014 BCCA 254 , and Ghorbanpoor , 2014 BCPC 157 .

I note, as counsel have indicated, that these cases were decided on the same date and, as a result, the Provincial Court judge in Ghorbanpoor did not have the benefit of the reasons in MacCannell arriving at her decisions on the facts in her case. [ 11 ] I have also considered a recent decision from the Ontario Court of Appeal, Gonzales , 2017 ONCA 543 , a judgment released June 30th of 2017. I will start by reviewing the Gonzales decision and then later refer to MacCannell and Ghorbanpoor before providing my decision. In Gonzales , the facts are generally provided at paragraph 1. Mr.

Justice Watt who says: They seemed out of place. Two young men in a new van. Rented, but overdue. Driving in and around a residential neighbourhood. In the middle of the day. Some new houses, others at different stages of completion. [ 12 ] And at paragraph 16, the police approached the van, and the court provides as follows: When Gilbert Gonzales opened the window on the driver’s door of the van, Det. Ward smelled the odour of fresh marijuana coming from the interior of the van. This odour and Gonzales’ apparent nervousness prompted Det.

Ward to consider the possibility that the large sealed cardboard boxes [within the van, I pause to say] contained drugs. [ 13 ] In dealing with the issue of a smell alone and the impact it may have on the lawfulness of the arrest, the court canvasses those issues starting at paragraph 80. I will read into the record the paragraphs from that case that are pertinent to the case at bar. Firstly, at paragraph 82, it says: [82] Shortly after Det. Ward walked up to the van and displayed his badge and warrant card at the driver’s window, the appellant lowered the window.

Detective Ward smelled fresh marijuana from inside the van. On approaching the vehicle, Det. Ward also noticed

several large cardboard boxes piled on the floor of the van, some abutting the back of the front seats. Each box was . . . closed with tape. When asked about the contents of the boxes, the appellant said nothing. [83] Detective Ward had prior experience in drug investigations. He was familiar with the smell of raw marijuana from having participated in dismantling grow ops. He described the odours from the van as “skunky”. [ 14 ] At paragraph 86, the court says: In brief reasons, the trial judge found that the arrest of the appellant without warrant was lawful under s. 495(1) (

b) of the Criminal Code . He was satisfied that Det.

Ward’s experience in drug investigations, coupled with the particularity of his description of the odour; the confirmatory opinions of other officers who participated in the arrest; and the appellant’s refusal to reveal the contents of the boxes met the standard of reasonably grounded belief described [in] s. 495(1)(b). [ 15 ] I pause to say that the appellate court found that the last two factors, the confirmatory opinions and the appellant's refusal to reveal the content of the boxes, were factors that the appellate court said ought not to have been considered in the trial judge's analysis.

At paragraph 89, it says: The appellant contends that whether a set of circumstances amounts to reasonable grounds to authorize an arrest involves a question of law that is subject to review on a standard of correctness. The standard involves both subjective and objective elements, which the trial judge conflated in his conclusory statement without an analysis. It says: Here, the objective component is of critical importance. It cannot be met by speculation or consideration of irrelevant factors.

Among the factors the trial judge considered, none were of any relevance to the issue except the confirmatory opinions of the other officers. But those provided negligible, if any support, when considered along with the fact that Det.

Ward had already advised the other officers of his grounds, in particular the smell of the marijuana; and the manner in which the marijuana was packaged rendering an ambient odour unlikely. [ 16 ] At paragraph 92, it says: The respondent says that there is no legal barrier or impediment to an experienced police officer relying on the smell of marijuana as a basis upon which to justify an arrest without warrant.

In this case, the odour was specifically described by an officer with experience in drug investigations, including dismantling grow ops where the smell of raw marijuana would be prevalent. [ 17 ] Then starting at paragraph 94, the court canvasses the governing principles about arrests based on odour and says at paragraph 95 as follows: The Criminal Code requires that an arresting officer subjectively have reasonable grounds on which to base an arrest. But more is required. In addition, the grounds must be justifiable from an objective point of view.

To say the same thing in another way, a reasonable person in the position of the officer must be able to conclude that there were indeed reasonable grounds for the arrest. On the other hand, nothing more than reasonable grounds need be shown. Not a prima facie case. And not proof beyond a reasonable doubt . . . [ 18 ] At paragraph 97, the court provides a helpful

summary of the law around this issue and says as follows: No bright line rule prohibits the presence of the smell of marijuana as the source of reasonable grounds for an arrest. However, what is dispositive are the circumstances under which the olfactory observation was made. Sometimes, police officers can convince a trial judge that their training and experience is sufficient to yield a reliable opinion of present possession.

As with any [other] item of evidence, it is for the trial judge to determine the value and effect of the evidence . . . [ 19 ] At paragraph 103, the court says as follows: The trial judge stated the statutory conditions precedent to arrest without a warrant under s. [495] of the Criminal Code were met in this case. [This paragraph -- sorry, under 495(1)(b)] This paragraph, unlike s. 495(1) (

a) does not, in terms, require that the officer have reasonable grounds to believe that a person has committed an indictable offence. What is required is that the officer personally observe facts or events that can support a reasonably grounded belief that a person is presently committing the offence.

Depending on the circumstances, an odour of fresh or raw, as opposed to burnt or smoked, marijuana, on its own, may be sufficient to ground an arrest under s. 495(1) (b). [ 20 ] Then, lastly, in arriving at a conclusion at paragraph 107, the court says as follows: Despite consideration of irrelevant factors or circumstances in reaching his conclusion on this issue, I would not interfere with the conclusion [of the] trial judge . . . Unlike in Polashek , the evidence here described the odour as that of raw or fresh marijuana, an observation that spoke to an offence that was then ongoing.

The officer was experienced in drug investigations. He had participated in dismantling grow ops, something that could support an inference that he would be familiar with the smell of vegetative marijuana. And his observations were made in connection with a van filled with large sealed boxes. I would not interfere with the trial judge’s conclusion on this point. [ 21 ] The case at bar involves an officer alone at a dark time of night in a remote area. There were two new vehicles introduced into the parking area and, at the time of the arrest, one of the vehicles was completely unknown.

The officer had no idea how many people were inside the second vehicle, who they were, or why they might be there, but in my view, those unfortunate circumstances cannot, in my view, elevate an unlawful arrest to a lawful arrest. The officer being alone could not restrict the accused's Charter rights. I say that in passing.

[ 22 ] The next case I propose to discuss is MacCannell , the case that Crown relies on, and again note that it was released on the same date as Ghorbanpoor , a case relied on by the defence. I will deal with the comments that I think are particularly apropos to the case before me from MacCannell . Firstly, dealing with the facts, at paragraph 6 and 7, it says as follows: [6] While patrolling Highway [97] [sic, 37], a somewhat isolated highway in northern [B.C.], approximately 42 kilometres north of Kitwanga, the investigating officer, Cst. Moore, observed Mr.

MacCannell’s truck apparently travelling in excess of the posted speed limit. The officer turned on his radar and confirmed that the truck was speeding. Cst. Moore . . . pulled over Mr. MacCannell, got out of his vehicle and walked along the roadway [to] the driver’s side of the pickup. [7] He spoke to Mr. MacCannell through the open window of the driver’s door, took his driver’s license and other documents, and began walking back to his police vehicle. In doing so, he walked past the rear door on the driver’s side of the truck. He noted an overwhelming [smell] of vegetative marihuana emanating from the truck.

The video recording shows him stopping mid-stride as he passes the open rear window. Cst. Moore immediately returned to the driver’s door and told Mr. MacCannell, that he could smell an “overpowering smell of marihuana” coming from inside the truck. Cst. Moore confirmed in cross-examination that the smell was his only basis for concluding [that] he had reasonable and probable grounds to arrest Mr. MacCannell and search the vehicle. [ 23 ] At paragraph 10, where it says: The trial judge found that Cst. Moore formed the opinion that he had reasonable and probable grounds to arrest Mr.

MacCannell based solely on what he referred to as the “overwhelming odour of vegetative marihuana”.

The judge noted that the officer found the smell so overpowering that he formed the opinion [that] “there was marihuana actually present in the pickup, not the remnants of smells from marihuana being there at some time previously" . . . [ 24 ] Then at paragraph 34 under the heading, "Is odour alone sufficient to ground a credible belief that an offence is being committed," the court says as follows: [34] I turn next to the second . . . argument on appeal: is odour alone sufficient to ground a credibly based belief that an offence is being committed? . . . [36] The Crown [relies on] . . . the weight of the jurisprudence confirms that the necessary inference to justify an arrest may be drawn from odour alone.

The Crown relies on . . . Schulz . . . Dubois . . . Ashby , Boyd , Taylor and Janvier . Then it says: The Crown writes in its factum . . .

Going to paragraph 2 of that, it says: Under this qualitative analysis of the totality of the circumstances, a strong smell of vegetative marihuana, which is clearly articulated and described in evidence by an officer with considerable experience in the identification of marihuana based on its smell, in a vehicle occupied by a sole occupant, being driven on [a] lonely stretch of highway may support an objectively reasonable inference that the sole occupant of the vehicle is presently in possession of marihuana. Such an objectively reasonable inference can or may justify a warrantless arrest under s. 495(1) (

b) of the Criminal Code . It says: The appellant relies on Ruiz as well as several of the same cases cited by the Crown for the contrary proposition. Below I shall canvas these cases. From my review of the jurisprudence on this question, it is clear that depending on the facts of the case, odour alone may well be [enough] to support an arrest under ss. (b). In my respectful view, Ruiz is wrongly decided and ought not to be followed. [ 25 ] Paragraph 38, it says: I return to Ashby where Frankel J.A. commented on the “odour alone” issue.

As earlier noted, there was other evidence besides odour on which the arresting officer in Ashby relied. However, Frankel J.A. implicitly approved . . . Harding, 2010 ABCA 180 . . . in which the Alberta Court of Appeal held that an arrest could be based on smell alone. At paras. 56 and 59, Mr. Justice Frankel said . . . [ 26 ] Again, I go to the second [sic, first] paragraph which is subparagraph 64 [sic, 56]: As in my opinion that criterion was satisfied, it is not necessary to decide whether Ms.

Ashby could have been lawfully arrested based solely on that odour, although I note that support for such a conclusion can be found in . . . Harding , 2010 ABCA 180 . . . at para. 29 . . . in which the circumstances were similar to . . . the case at bar. [ 27 ] At paragraph 39, the court says: . . . in Schulz Donald J.A., speaking for the court, held that [an] odour alone may be a sufficient basis to permit an officer to arrest an accused without a warrant. In Schulz the officer attended Mr. Schulz’s residence. He knocked. A voice from within said “Come in”. The officer entered the home.

He was able to smell burning marihuana. On seeing that the individual was a police officer, Mr. Schulz quickly rose, came to the door and closed it behind him. Thus, in Schulz there was some other evidence besides the odour to ground the belief that an offence was being committed. Donald J.A. said . . . We were given an extensive canvass of the cases about the question of the sufficiency of odour of marihuana as a basis for an arrest or for a search warrant. I think, however, that while the circumstances of each case differ it cannot be said, when one considers Ewart , above, and the cases of . . . Sievert . . .

Barron . . . and . . . Seney . . . that odour alone will never be enough. [ 28 ] Next, at paragraph 42, it says:

Taylor was an application in chambers for leave to appeal to this Court from a judgment made in Supreme Court dismissing Taylor’sappeal of a

summary conviction for possession of marihuana. In the course of his reasons for judgment denying leave . . . Low J.A.considered Boyd and Ashby and held that the question of whether evidence of odour only, would support an arrest was not a question oflaw but rather was one that turned on the factual matrix in each case. [29] Then quoting from that case in the second paragraph, it says: As I have said above, Mr. Taylor wants this court to make it a proposition of law that the odour of marihuana alone can never besufficient to found a lawful arrest and search.

I do not consider that to be a proposition of law and I do not see how [that] argument couldsucceed. In a particular case, if the dominant fact supporting the arrest is the odour of marihuana (as it usually will be), the questionwould be whether the evidence in its entirety [would be] sufficient to support the conclusion that the [erecting] [sic, arresting] policeofficer acted objectively.

Each case must be decided on its particular constellation of facts and circumstances, not on a general bindingappellate judicial statement as to what evidence is or is not sufficient in all cases. [30] At paragraph 44, the court deals with other -- the headline of being "other possible inferences," and says as follows: [44] The last point the appellant makes on appeal is that the officer ought to have considered other potential innocent inferences orexcuses from which . . . could have drawn an inference other than that Mr. MacCannell was committing an offence. For example,Mr.

MacCannell argues that he might have had an authorization to possess marihuana for medical needs pursuant to the MMARs, or thatthe odour could have been left over from earlier use of the vehicle to transport marihuana. [45] In my view, this argument cannot succeed. In . . . Jir, 2010 BCCA 497 . . . this Court described the reasonable grounds standard. This standard does not require an officer to satisfy him or [himself] [sic, herself] that there is evidence of proof beyond a reasonabledoubt or even a prima facie case.

All that the officer must have is an objectively reasonable basis for believing [that] the suspect ispresently in possession of [the] marihuana, without necessarily ruling out potentially innocent inferences, defences or lawful excuses. [31] Next, in dealing with a contrary decision on similar circumstances, I will review the decision of my sister Judge Pothecary inGhorbanpoor, 2014 BCPC 157 , 2014 BCPC 0157, again, released on the same date as MacCannell. In determining the --describing the facts, I start at paragraph 3, it says: . . . the vehicle in which Mr.

Ghorbanpoor was driver was initially seen by Constable O'Brien . . . It was parked by the side of the road,on what the officer described as a gravelled area. He said that in his opinion it was unusual to see vehicles parked there, although he didnot explain . . . why . . . [32] He said he also -- paragraph 5: He also testified that he turned his car around and drove toward the car. However, it had already pulled out, and had turned right,heading northbound on Marmont. He decided then to conduct a traffic stop to determine whether or not the driver should indeed havebeen displaying an "N".

The vehicle pulled over to the right side of the road. The driver's window was down. It is not clear if it waswound down or had been down for some time. He said he approached on the driver's side of the vehicle, spoke with the driver, asked forthe driver's licence, and the driver's licence was produced to him. [33] It says at paragraph 7: He said that he could smell an odour of marihuana that from his experience he believed to be vegetative marihuana. It was coming frominside the vehicle. He characterized it as a fairly strong smell, and [then he] placed Mr.

Ghorbanpoor under arrest for possession of acontrolled substance. Mr. Ghorbanpoor was still in the car at that time.

He arrested him, advised him of his Charter rights and warning,and placed him in the rear of the police car. [34] At paragraph 16, it says the officer: . . . agreed in cross-examination that on the two occasions when he has been involved in investigations of grow-ops, particularly . . .where he was involved in dismantling it, that, after leaving, his clothes also smelled of marihuana from the contact with it or being in thepresence of it in the course of the dismantling operation, notwithstanding that he was not a user or possessor in the conventional way.

Itwas a matter where upon going home he had showered and changed clothes. [35] At paragraph 30, the court summarizes the view of the stop and says as follows: [30] So the vehicle gets stopped. A driver's licence is produced. If the reason for stopping was to determine the validity of this driverdriving that vehicle without an "N", the officer made no inquiry regarding that. No evidence has been provided about whether an "N" isindicated on the driver's licence, and that is information clearly visible to a police officer by the nature of the licence that is issued. Sothat was information he would have right then.

But again, no note was made and nothing was said about it in evidence. [31] He then, having smelled marihuana, places the driver under arrest. He does not detain him for investigation. He jumps right toarrest, believing that based on the smell alone, that he has reasonable and probable grounds to arrest this individual, and he does.

Hethen secures him in the back of the police car. [36] The court then canvasses a number of cases dealing with the issue of the odour of marihuana and then says at paragraph 45: This is a case where I am not satisfied that the Crown has indeed proven the search to [be] reasonable, and I do find it to have been anunreasonable search in these circumstances. It was undertaken precipitously.

It was undertaken without having any grounds to movebeyond suspicion in the context of this particular investigation, and it was undertaken in circumstances that result in my not beingconvinced that the stop was simply a motor vehicle stop.

[ 37 ] I will now deal a little further with the officer's evidence with regards to his training. The officer testified that he had taken drug training courses including courses that explain the differences between fresh and burnt marihuana and that his evidence was, when he approached the vehicle, he smelled the odour of marihuana coming from the driver-side window. He said it was a moderate smell, that it was there the whole time.

He says it was fresh and not burnt marihuana. [ 38 ] He also says that he was aware at the time that a marihuana smell could linger, that is, it could be present from sometime before, that the marihuana could have been in the vehicle previously, but not there at the present time. He was not aware of who the registered owner of the vehicle was. He made no inquiries in that regard. Lastly, and of some significance, according to defence counsel, is that the officer's notes do not particularize the smell of marihuana.

In fact, they seem to be surprisingly absent with the terms of references to the marihuana being present in the vehicle. [ 39 ] In considering the evidence, I am also considering the absence of evidence that was present. There is no nervousness shown by the driver. There were no boxes found in the vehicle as was the case in Gonzales . There were no packages visible. There were no admissions made by the driver here.

The only thing present was the smell coming from the driver-side of a vehicle which is owned by someone and the window was open and no notes particularizing the smell. [ 40 ] I accept that the law is clear that the smell alone can provide a reasonable basis for arrest. I am mindful that it is "can" and not "shall." Here, the only evidence before me is that the officer had some training and some experience in distinguishing fresh and burnt marihuana and that he had some ability to recognize the smell of fresh marihuana. [ 41 ] I have found previously that it was a lawful stop for Motor Vehicle Act purposes.

After the lawful stop, a moderate smell of fresh, not burnt, marihuana was noted coming from the vehicle, coming from someone's truck, the registered owner unknown at the time. The officer was aware that it could be a residual smell, that marihuana may have been present in someone's truck sometime before, but not present on the night in question. The smell was moderate, not overwhelming and nauseating. There were no open packages. There were no sealed packages. There were no packages consistent with packaged marihuana. There was no nervousness displayed by the driver.

There was no flight displayed by the driver, no sweating, no unusual behaviour, no poor driving, no erratic behaviour. There was just a moderate smell of marihuana coming from someone's vehicle. [ 42 ] The smell of marihuana came from one of the two vehicles that were lawfully in a parking lot just after 1:00 a.m. They were there lawfully just as the police officer was. I accept that the officer was not obliged to eliminate all other possible inferences and the test is only whether there was reasonable grounds for belief that he was in possession of marihuana.

If he did have reasonable grounds, then he is subject to arrest. [ 43 ] In my view, in all of the circumstances, the reasonable belief of the officer was not supportable. There was only a smell. There was no other indicia. There was absence of any clear contemporaneous notes of the outlining of the smell or the level of the smell or how he arrived at it.

Reliability of the officer's recollection of the smell is very much at issue. [ 44 ] Taking all of those factors into account, I find that there was no reasonable grounds for the arrest and find, accordingly, that the arrest was unlawful. [RULING ON VOIR DIRE CONCLUDED]