R. v. Dutchak, 2017 BCSC 810

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Dutchak, 2017 BCSC 810 Date: 20170210 Docket: 62416-2 Registry: Chilliwack Regina v. Michael David Dutchak Before: The Honourable Mr. Justice Brown Oral Ruling on Voir Dire #1 Counsel for the Crown: S.G. Price Counsel for the Accused: N. Lidder Place and Date of Trial/Hearing: Chilliwack, B.C. February 6 - 8, 2017 Place and Date of Judgment: Chilliwack, B.C.

February 10, 2017 [ 1 ] THE COURT: The accused, Michael David Dutchak, is charged that: … [O]n or about the 19th day of December, 2014, at or near the City of Boston Bar, in the Province of British Columbia, [he] did unlawfully possess a controlled substance, to wit: Cocaine, for the purpose of trafficking, contrary to Section 5(2) of the Controlled Drugs and Substances Act [S.C. 1996, c. 19.] [ 2 ] Defence counsel gave notice of a Canadian Charter of Rights and Freedoms [ Charter ] application, of his intention to apply pursuant to s. 24(2) of the Charter for “the exclusion of evidence, including but not limited to any and all controlled substances … recovered as a result of the search of the applicant’s vehicle and/or [his] person.” There was no controlled substance obtained from his person.

But found in the vehicle was a brick of cocaine; the item in question. [ 3 ] The accused, Mr. Dutchak, alleges that his roadside detention, subsequent arrest and the search of his vehicle violated his rights under s. 8 and 9 of the Charter because the officer who arrested him lacked reasonable grounds, subjective and objective, to lawfully arrest him. Consequently, he submits any search incidental to his arrest was also illegal. He also alleged his right to retain and instruct counsel was violated under s. 10(

a) and (

b) of the Charter . These reasons deal only with the question of whether Mr. Dutchak was lawfully arrested. If so, the search incidental to his arrest was lawful. If not, the search cannot have been lawful. [ 4 ] These are the facts. [ 5 ] Constable Tumbas was on duty at Boston Bar, British Columbia, on December 19, 2014. He was working with his partner, Constable McLean. Cst. Tumbas had been serving with the RCMP for 12 years; stationed at that time in Boston Bar, for three years.

He was in uniform, conducting road checks with two other members. [ 6 ] The purpose of the road checks was to check for impaired drivers, motor vehicle infractions, and criminal offences. They had started working at 5:00 p.m. on Highway 1, a two-lane highway. The weather at that time was cloudy, with some rain on and off. It was dark, but there was some ambient lighting. Around 1930 hours, a white Chevrolet pickup truck approached and was flagged down. The officers had not been busy that evening. The first thing Cst.

Tumbas noticed about the accused's vehicle was that it was not displaying a front licence plate on the front bumper where it is supposed to be positioned according to motor vehicle regulations. Instead, it was illegally placed on the dashboard of the vehicle, behind the front windshield. This constituted a vehicle infraction. [ 7 ] Photographs of the scene were entered into evidence showing Mr. Dutchak's vehicle, a white Chevrolet truck, in an area where, for safety reasons, the officers could direct vehicles off the road, and there, further question drivers if deemed necessary. Cst. Tumbas approached Mr.

Dutchak's vehicle and explained to him a road check was being conducted. Cst. McLean was working on the opposite side of the highway but had no business at hand. Cst. Tumbas went to the side window of the truck. He asked for the driver's licence and registration of Mr. Dutchak. He was the only occupant. He noted it took him some time to locate his driver's licence. He was struck by the way his left foot was shaking. [ 8 ] Although challenged in cross-examination regarding his vantage point and ability to see the accused’s foot shake, Cst. Tumbas credibly explained that the truck was a smaller, lower-sprung model.

He was standing by the B-pillar, just behind it with his flashlight, and with the aid of it, could see clearly to the footwell area where the foot pedals were and the shaking of Mr. Dutchak's left foot. He explained he did not notice the right foot shaking. Cst. Tumbas agreed that feeling nervous is not abnormal when being pulled over by a police officer, adding he sometimes feels nervous himself when he is being pulled over for a road check. However, he thought

Mr. Dutchak's shaking foot oddly different and nothing like he had seen before. He was struck by it enough to ask Mr. Dutchak if he was feeling all right, and whether he was suffering from a medical condition and required treatment. There was no positive response to that. Mr. Dutchak declined any medical attention and denied he had any medical problem at the time. [ 9 ] Constable Tumbas noticed his conversation with Mr. Dutchak was shorter than he usually encounters in that situation. He redirected the conversation to subjects he felt could calm him down and get him more relaxed.

He asked him to pull into the designated parking area, so he could conduct his standard vehicle and licence checks. A secondary purpose for doing that was to get the vehicle off the road, so that it would not be accidentally struck from behind by an approaching vehicle. [ 10 ] Constable Tumbas went back to the vehicle to do a vehicle and driver's licence check. Returning back to the accused's vehicle, he encountered Cst. McLean, who asked him, “what he had”. Cst. Tumbas testified he replied he was not sure but something did not add up. He stated to Cst. McLean that if he wished to talk to Mr.

Dutchak, he could go ahead and do so. He explained those kinds of police exchanges are common, as officers try to share information to know what is going on and to have each other's backs. [ 11 ] Constable Tumbas was armed with a holstered sidearm. It was not visible. He was also equipped with a baton and spray. [ 12 ] On cross-examination, Cst. Tumbas denied he inserted his head inside the cab of the truck. He demonstrated with his body how he positioned himself from where he was standing behind the B-pillar, leaning forward, bent a little bit but not inserting his head into the cab.

That stance becomes relevant again a little later on. [ 13 ] Constable McLean had been a member for eight years. He first noticed the white truck where it was pulled under the canopy adjacent to a restaurant across the highway from where he was working. He was working the south side. He did not have any traffic at that point to deal with. [ 14 ] Each officer was driving a marked police vehicle equipped with emergency lights and reflective decals.

The road check was located at the bottom of two hills, either side of it, with the lights from the check point visible from 500 metres to approaching traffic. [ 15 ] Having nothing to do, Cst. McLean recalled he walked across the road, noticing the truck had what appeared to be a new licence plate on the back bumper. He spoke to the driver while Cst. Tumbas “did his thing”, as Cst. McLean put it. He noticed the driver was looking straight ahead, hands on the steering wheel, his leg jiggling, his voice cracking like a teenager. He could not recall if the motor was running. Cst.

McLean denied putting his head in the window. He recalled he had not had any contact with Cst. Tumbas at that juncture. I do not see any concerning discrepancy in the officer's testimony on that subject. [ 16 ] When Cst. Tumbas was walking towards him, he said something was not right. Although he had noticed the faint smell of marihuana at the truck, he could not recall if he mentioned that to Cst. Tumbas. He recalled the marihuana odour was vegetative, faint. In his nine years of service, he had become familiar with various states of marihuana from seeding to bud. He had some experience in grow ops.

He said the faint smell coming from the truck was vegetative. He testified he had not smelled any marihuana before that during the road checks, but had not had much traffic anyway. [ 17 ] Apart from checking for the presence of the “N” sign, which he was asked to do by Cst. Tumbas, he had no further noteworthy involvement in the investigation and arrest of Mr. Dutchak. He did not participate in the search that eventually ensued. [ 18 ] Turning attention back to Cst. Tumbas. His checks having been conducted on the computer, he confirmed that Mr. Dutchak's licence was a Class 7.

Therefore, he was required to display an “N” sign. He could not see one on the vehicle and, as noted, had asked Cst. McLean if he could see one; his reply negative. [ 19 ] Considering the improper display of the licence plate plus the lack of an N sign, which neither officer could see, he prepared a ticket to cover those motor vehicle offences. On his way back to the vehicle, Cst. Tumbas recalled he had the passing encounter with Cst. McLean, who likely said, “something was up” and that he had “smelled marihuana”. At that juncture, Cst.

Tumbas was still focused on the motor vehicle infractions, and had in hand a ticket for the motor vehicle infractions that encompassed the illegal positioning of the licence plate and lack of an “N” sign. [ 20 ] Constable Tumbas did not ask Cst. McLean for more specifics of his observations. He went to the vehicle and explained the infractions to Mr. Dutchak. He positioned himself behind the B-pillar. He demonstrated how he leaned forward from behind the B-pillar, slightly crouched down, while still remaining to the left of where the window would have been, were it to have been shut.

He did not put his head inside the window. He inhaled deeply and smelled what he described as a faint smell of fresh marihuana. He testified he was able to distinguish easily between fresh marihuana and burnt marihuana, that he had considerable experience in making that distinction. He granted he was not able to make the finer distinctions between, say, dry, harvested marihuana and so on, but could well distinguish between fresh and burnt marihuana. In his six years in Langley, he was involved in an estimated 100 investigations that involved the odour of marihuana.

He had not undergone updated specific training in that area since he was in depot. He has not dismantled a grow op but has been involved in an investigation where the marihuana was at the harvest stage. He gave some examples that I will not detail here. He testified he could tell it was coming from inside the vehicle. He did not notice the smell of marihuana around the area before Mr. Dutchak's truck arrived. He isolated the odour as coming from Mr. Dutchak's truck. [ 21 ] I find Cst.

Tumbas was able to distinguish between fresh marihuana and burnt marihuana or, as Crown counsel drew the distinction, between consumable and consumed marihuana, a more instructive terminology for the purposes of the arrest provisions in s. 495 (

a) and (

b) of the Criminal Code . Cst. Tumbas testified he formed the opinion there was fresh or consumable marihuana in the truck. He stopped explaining the nature of his motor vehicle violations to Mr. Dutchak. He told him he could smell marihuana. Mr. Dutchak did not offer an explanation. He formed the opinion that there was fresh vegetative marihuana in the vehicle. He advised Mr. Dutchak he was under arrest for possession of marihuana. He directed Mr. Dutchak to leave the vehicle and to stand in an area under an awning, just ahead of where the truck was parked. Mr.

Dutchak was cooperative at all times. [ 22 ] He recited Mr. Dutchak's rights under the Charter from memory, including his right to retain counsel, services available to him if he could not afford to retain a lawyer, a caution that anything he said could be used against him in court, and so on. He did not recall

whether he obtained a response from Mr. Dutchak, or as to whether he understood. He did not have a note of his having made a response.He did not put any handcuffs on Mr. Dutchak. A search of his person revealed nothing of interest. Mr. Dutchak was polite and compliant.He saw no indication of impairment. [23] In his initial search for items in the vehicle, he found a baton located in the door pocket on the driver's side. It was one similar tothe baton used by the police, expandable from 12 to 16 inches. At first, he incorrectly thought it was a prohibited weapon andacknowledged his error when he testified. Cst.

Tumbas advised Mr. Dutchak of his s. 15 rights, this time incorporating possession of thebaton for a dangerous purpose. He has not been charged with that offence here. [24] His arrest was for possession of a controlled substance, namely marihuana. As Cst. Tumbas smelled vegetative marihuana in aconsumable state as opposed to having been consumed, his arrest for Mr. Dutchak without warrant would fall under s. 495(

b) of theCriminal Code. Cst. Tumbas prepared a ticket for the various motor vehicle infractions, reciting Mr. Dutchak's Charter rights frommemory. He did not notate his response at that time. After he found the baton, he repeated the recitation, as I mentioned. [25] Continuing his search, he noticed underneath the driver's side seat, a paper bag with a plastic object inside it, a sealed pack ofthe same kind he had seen before, recognizing it as a type of packaging for trafficking purposes. From his previous experience hebelieved it was a brick of cocaine, which it in due course turned out to be.

He stopped his search and went to the accused, advisedMr. Dutchak he was arresting him for possession for the purpose of trafficking and for possession of a weapon. He placed him inhandcuffs and from memory recited Mr. Dutchak’s Charter rights. He did not make a note of any response the accused made at thatstage. Cst. McLean placed Mr. Dutchak in the rear seat of the Tahoe police vehicle. There, Cst. Tumbas read to Mr. Dutchak his Charterrights and police caution from the standard-issue card. Cst. Tumbas read out in court the contents of the card. The wording provided acomplete reading of Mr.

Dutchak's Charter rights and encompassed the police warning. [26] At this point, I will not extend the facts further, as per agreement of the parties. I will, first of all, dispose of the s. 8 and s. 9sections of the Charter; that is, the legality of the arrest and subsequent to it, the search incidental to that arrest. Crown counsel advisedthat the ruling on that issue will determine whether further steps, if any, would be taken by the Crown with respect to the charges. [27] The package containing a brick of what Cst. Tumbas thought was cocaine was about the size of a Kleenex box.

He seized it andweighed it, in the process dividing the brick into two parts because the weigh scale available to him at the time could not properly weighthe whole brick accurately at once. He therefore cut the brick in half. The substance of the matter was weighed or analyzed and thecertificates of analysis placed before the court. In short, the analysis received confirmed the substance was cocaine. The amount wasroughly one kilogram. [28] On cross-examination, Cst. Tumbas stated that he could not recall his depot training in 2007 with respect to the Charter ofRights and police powers, et cetera.

He thought he might have had some refresher courses but could not recall when they were. [29] With respect to detecting the odours of marihuana, he confirmed the only categories he was familiar with were fresh versusburnt. Counsel put to him the additional category of fresh and dry, but Cst. Tumbas affirmed the categories he was most familiar withwere fresh versus burnt.

For the purposes of this case, I do not see an expertise or any further refinement of odours would make anymaterial difference to the weight of his evidence with respect to his detection of the odour he testified to. [30] On cross-examination, Cst. Tumbas stated he could not recall whether the accused was wearing a jacket when he was speakingto him. He was firm that he did not put his head in, which he pointed out would require his shoulders to move forward, along with hishead, were he to have done that. He said it was not necessary for him to do so. He took the stance I described earlier in these reasons.

Hestated he took a deeper breath and noticed the faint smell of fresh marihuana, after which, as I noted earlier, he stopped the rest of hisinvestigation related to motor vehicle infractions and advised him he was under arrest for possession of marihuana. He testified furtherthat he was relying for grounds at the time on the combination of the faint smell of fresh marihuana, Mr.

Dutchak's highly unusual, tohim, shaking foot, which he took as a manifestation of nervousness, having excluded, through his questioning, a medical condition. [31] On cross-examination, he agreed he had not notated anything about that at the moment he was about to effect arrest. He couldnot recall directing his attention to that. He granted the nervousness he noted was about 19 minutes earlier.

He diminished the emphasisdefence counsel put on that time gap, stressing it was the totality of his interaction with the accused that led him to form the belief that hewas in possession of a controlled substance, marihuana. Cross-examined further on the shaking, Cst. Tumbas granted that it was cold andthat the cold could cause some shivering, but noted also that it was his left foot that had been shaking so unusually, not his arms. He didnot endorse the cold as the suggested cause of the shaking. [32] The legal principles relevant to these issues can be summarized as follows. [33]

Section 8 of the Charter provides all citizens with a constitutional guarantee against an “unreasonable search and seizure”. Awarrantless search, as occurred in the present case, is prima facie unreasonable under s. 8 of the Charter unless the Crown establishes ona balance of probabilities that the search was authorized by a reasonable law and conducted in a reasonable manner. A search conductedincidental to arrest is authorized by law so long as the arrest itself is lawful. [34] Section 495(1) of the Criminal Code authorizes a peace officer to arrest without warrant (

a) a person whom the officer, onreasonable grounds, believes has committed an indictable offence; or (

b) a person whom the officer finds apparently committing acriminal offence. If a warrantless arrest of an accused is not in accord with s. 495(1)(

a) or (

b) of the Criminal Code, then the arrest maybe found to be contrary to s. 9 of the Charter, which

section protects all citizens from arbitrary detention or imprisonment. [35] As noted in R. v. Storrey, (SCC), [1990] 1 S.C.R. 241 at para. 17: [17] In

summary then, the Criminal Code requires that an arresting officer must subjectively have reasonable and probable groundson which to base the arrest. Those grounds must, in addition, be justifiable from an objective point of view. That is to say a reasonableperson placed in the position of the officer must be able to conclude that there were indeed reasonable and probable grounds for thearrest. On the other hand, the police need not demonstrate anything more than reasonable and probable grounds. Specifically, they are

not required to establish a prima facie case for conviction before making the arrest. [36] In R. v. To, [1998] B.C.J. No. 1323 (C.A.) at para. 11, the British Columbia Court of Appeal confirmed the need to consider theofficer's “skills and knowledge” when assessing the objective reasonableness of an arresting officer's belief that an offence has beencommitted. See also R. v.

Juan, 2007 BCCA 351 at paras. 18 and 19: The objective reasonableness of the arresting officer's groundsmust be assessed from the standpoint of the “reasonable person, standing in the shoes of the police officer." [37] A search incidental to arrest may include a search of the vehicle the accused was arrested in: Cloutier v.

Langlois, (SCC), [1990] 1 S.C.R. 158 at para. 31. [38] It is difficult to reconcile the cases, but the weight of appellate authority in this Province supports the possibility that anofficer’s reasonable grounds for a belief a person is committing the offence of possessing marihuana can be based on their smelling freshmarihuana: R. v. Dubois, 2004 BCCA 589. [39] The Saskatchewan Court of Appeal dealt with a case of an officer who made an arrest after smelling raw marihuana comingfrom the accused's car.

Whether a smell of marihuana will justify the arrest and search depends on the circumstances of each case: thefinding in R. v. Sewell, 2003 SKCA 52. [40] I turn now to submissions of defence counsel. [41] Defence counsel submitted: 1. The warrantless search was presumptively unreasonable and the onus on the Crown to show Cst. Tumbas had reasonable andprobable grounds to conduct the search. 2. There could not have been more than 30 grams of marihuana, given the faint odour. [42] In R. v.

Boyd, 2013 BCCA 19, the court noted at para. 30, “The jurisprudence in this province seems to support the thesis that afull consideration of all relevant circumstances needs to be made by the trier of fact." [43] In R. v.

Webster, 2008 BCCA 458, Justice Frankel said at para. 31: [31] ... [T]he odour of freshly-smoked marihuana emanating from a vehicle objectively supports, at a minimum, a reasonablesuspicion that the driver and/or passenger are then engaged in criminal activity, namely, possession of marihuana. … [44] It is noteworthy that Frankel J.A. further stated: … It is reasonable to suspect that persons who have just used marihuana will have more of that drug in their possession. [45] That is not the circumstance here, i.e. burnt marihuana, but it is indicative that even the smell of burnt marihuana can invite theinference the suspect may have consumable marihuana in their possession. [46] The possession of marihuana is a hybrid offence per s. 4(1)(

a) and (

b) of the Controlled Drugs and Substances Act. The onlystrictly

summary conviction offence is actual possession of 30 grams or less. [47] Constable Tumbas had no basis on which to know whether Mr. Dutchak was in possession of more or less than 30 gramswithout a search. The odour of marihuana coming from inside the truck can lead reasonably to a subjective belief that he was inpossession of marihuana. He did not have the means and was not obliged to determine the quantity before effecting an arrest in what wasa hybrid offence. [48] I note also the comments in R. v. MacCannell, 2014 BCCA 254, with respect to possession of 30 grams or less.

It is clear fromthe authorities that Cst. Tumbas was not required in the circumstances to determine whether there were 30 grams or less of marihuana. [49] Defence counsel relied heavily on the testimony of Cst. McLean, his noticing Mr. Dutchak's hands on the steering wheel, eyesstraight ahead, and voice cracking and warbling. Cst. McLean also testified he noticed a smell of marihuana as he turned away from thevehicle; and his decision not to arrest Mr. Dutchak because he felt he did not have reasonable and probable grounds.

Counsel suggestedthe court had, in this case, the privilege of the evidence of another officer with similar training and experience to that of Cst. Tumbaswho did not believe he had grounds to arrest. [50] It should be kept in mind, assuming for the sake of argument Cst. McLean had reached a different conclusion, i.e., that he didhave grounds to effect an arrest, and Cst. Tumbas then arrested him, that unless Cst. McLean was the operating mind of the investigationand had directed Cst. Tumbas to effect an arrest and that he had fully shared the details of his observations with him, that Cst.

Tumbaswas not entitled to rely on Cst. McLean's observations. In fact, however, Cst. Tumbas, who was the lead investigator in this case, he whohad to have reasonable and probable grounds, subjective and objective. The finding of reasonable and probable grounds must rest on hissubjective and objective grounds. Cst. McLean's evidence with respect to his subjective belief is not relevant, except for two reasons:First, his smelling marihuana alerted Cst.

Tumbas to the investigation of it; and second, another trained member had smelled the odour offresh marihuana in the vicinity of the vehicle, which lends credence, at least, to the presence of the odour of fresh marihuana in the nearvicinity of the truck. It should also be noted that Cst. McLean did not deductively narrow the source of the odour as did Cst. Tumbas. [51] If in the investigative circumstances of this case Cst. Tumbas could not rely on Cst. McLean's observations for the formation ofhis own subjective belief, the fact Cst.

McLean, based on his more cursory and happenstance observations, reached a differentconclusion does not tell against Cst. Tumbas' conclusions. Cst. McLean's evidence is relevant primarily to show, as I noted, that hisobservation alerted Cst. Tumbas, who deliberately sought to isolate the source and to corroborate a detectable odour in the near vicinityof the truck.

[ 52 ] The question remains whether Cst. Tumbas had reasonable and probable grounds. It is not in question that as the driver and owner of the vehicle, if effectively so only as of two days previous, Mr. Dutchak had a reasonable right of privacy and that without his consent, without lawful arrest, his vehicle could not be searched. [ 53 ] Defence counsel critiqued the authorities relied on by Crown because they were distinguishable. Most of the distinctions he made were sound and the Crown did not take issue with there being characteristics differing from this case.

Rather, the Crown explained, he had relied on the authorities in support of his contention that (1) the odour of fresh marihuana standing alone can form part of the basis for subjective and objective grounds; and (2) for the basic principles they set out. [ 54 ] In R. v. MacCannell , (as earlier cited) the appellant had been stopped by police for speeding. The officer was very experienced in police investigations involving marihuana. He smelled the vegetative marihuana emanating from the vehicle. Based on the overwhelming smell, he arrested the appellant and searched the vehicle.

The court found that odour alone, in that case, was sufficient to ground a credibly-based belief that an offence had been committed under s. 495(1) (

b) of the Criminal Code . [ 55 ] As I noted, the officer in that case had noticed an overwhelming odour of vegetative marihuana emanating from the truck. In MacCannell , the officer confirmed in cross-examination the smell was the only basis for his concluding he had reasonable and probable grounds to arrest the accused and search the vehicle. He had considerably more experience than Cst. Tumbas. He said he had been involved in hundreds of vehicle stops involving the presence of marihuana, and 12 to 15 investigations of marihuana production and grow op offences.

He was also capable of distinguishing between burned, growing, or vegetative and dried marihuana. The court held it was not necessary for the officer to believe that the appellant was in possession of more than 30 grams; and in that case, odour alone was sufficient to ground a credibly-based belief that an offence was being committed. [ 56 ] In R. v. Hay , 2015 BCSC 2592 , the officer, having walked to the passenger side of the pickup truck and opening the passenger door, testified that as soon as he opened it he detected a moderate odour of green marihuana, having a wet, skunky smell.

Apart from the odour of green marihuana in the vehicle, the constable relied on the fact that the suspect was very nervous and perspiring profusely, that the vehicle had a very lived-in condition (which I note can be indicative of pipeline drug trafficking). He also noted the presence of a radar detector and that the vehicle was not registered to the accused, which was of interest because, in his experience, rental or borrowed vehicles were frequently used to transport drugs. He also noted the lived-in condition of the vehicle is very common for drug traffickers. [ 57 ] R. v.

Kim , 2016 BCSC 2192 , is not particularly apposite in this case in that there was a report citing apparent drug activity in the area. During a surveillance, drug trafficking had been noticed. The officer also noted some indicia of drug trafficking, such as a folded $20 bill, typically used for street drug transactions, in the lap of the accused, Mr. Kim.

Other indicia included the accused moving frantically and placing an object down the front of his pants, driving quickly, and the manner of his driving constituting a violation of the Motor Vehicle Act , and various other indicia of drug trafficking. [ 58 ] Defence counsel pointed to these grounds and proffered them to accentuate the unlike and comparatively minimal objective evidence that grounded Cst. Tumbas' grounds for arrest.

In reply, Crown counsel submitted that the cases are not introduced to suggest that the circumstances in this case are comparable, rather that if an officer has reasonable and probable grounds they can act and the grounds need not rest on 27 items, and in some cases there were only three grounds, and in other cases somewhere in between. [ 59 ] I note the Court of Appeal has cautioned in decisions against relying overly on comparison of the facts between cases. Each case stands on its own evidence; each must be assessed as such.

Of course, the strength and characteristics of the odour of marihuana detected is going to vary widely from case to case. It could depend on a host of factors, including how long the marihuana had been in the location where it has been detected, air temperatures, airflow, whether the odour is detected indoors or outdoors, et cetera. It is true, of course, that some of the officers in the other cases had a wider base of experience; but in the case at bar, that was not required, in my view, and there was sufficient evidence that the arresting officer, Cst.

Tumbas, had the experience and training to distinguish between consumed and consumable marihuana, which he did. [ 60 ] I disagree that the 19-minute delay between when Cst. Tumbas first noticed Mr. Dutchak's shaking left foot and nervousness negatives that observation being an ingredient for the formation of subjective and objective grounds, simply because he did not comment on it or make a note of it at the time of the arrest. [ 61 ] Constable Tumbas dealt with Mr. Dutchak from the outset. He noticed the improperly positioned licence plate, and the absence of an “N” sign; both are motor vehicle infractions.

Besides his shaking left foot, Mr. Dutchak was nervous enough, in his view, that he felt he had to change the subject of the conversation in order to calm him down. I find that was a facet of his nervous behaviour. [ 62 ] What the Crown has to show is Cst. Tumbas believed he had reasonable and probable grounds on which to base his arrest; and that they are reasonable and justifiable from an objective point of view. That is to say, a reasonable person placed in the position of the officer must be able to conclude that there were indeed reasonable and probable grounds for the arrest.

On the other hand, the police need not demonstrate anything more than reasonable and probable grounds, as I mentioned earlier. [ 63 ] I find Cst. Tumbas had an honest belief he had grounds for arrest. It is not the number of grounds and their individual weight that determines whether the grounds are objectively reasonable. In some cases, for example, the arresting officer has prior information, the benefit of surveillance information; and sensory impressions such as the odour of marihuana do not figure at all in their determinations.

In some cases the odour of marihuana will be overwhelming, in some cases moderate, in some cases faint. As I mentioned, the strength of the odour can be influenced by many factors. [ 64 ] In the case at bar, Cst. Tumbas was mindful of the need to try to isolate the source of the odour. He was not walking away when he detected it, as was Cst. McLean, rather positioned himself so that any odour he detected was emanating from the cab of the vehicle where Mr. Dutchak was and had been.

The strength of the odour would be affected by how long it had been in the vehicle. [ 65 ] I note Crown counsel mentioned the opportunity Mr. Dutchak had to prepare for the roadblock and toss things out, but I should note I have not included that in my deliberations as it is speculative.

[ 66 ] The fact an overwhelming presence of the odour of fresh marihuana can form reasonable and probable grounds, does not preclude fainter degrees of odour from forming part of reasonable grounds. Cst. Tumbas had turned his mind specifically and completely at the material time to the detection of whether marihuana was present and the source of it. His detection of the faint odour of marihuana in combination with his observations of Mr. Dutchak's nervousness and foot shaking gave him objectively reasonable grounds to arrest Mr. Dutchak.

There is no question the grounds are not as robust as they are in some cases. It would be easier for assessment purposes if the odour of vegetative marihuana had been nauseatingly overwhelming; but considering Cst. Tumbas' training and experience, and his engagement with and observations of Mr. Dutchak, I find he had subjective and objective probable grounds. [ 67 ] Accordingly, I find the search incidental to arrest was also legal and that the items seized will not be excluded from evidence. “N. Brown J.”