R. v. Cleveland Date:, 2017 BCPC 69

Citation: R. v. Cleveland Date: 20170228 2017 BCPC 69 File No: 233492-1 Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Criminal REGINA v. DEVON WILLIAM DENNIS CLEVELAND EXCERPTS FROM PROCEEDINGS RULING ON VOIR DIRE OF THE HONOURABLE JUDGE PHILLIPS Counsel for the Crown: D. Hartney, C. Coulson Counsel for the Defendant: K. Tousaw Place of Hearing: Vancouver , B.C. Date of Hearing: February 28, 2017

Date of Judgment: February 28, 2017 [ 1 ] THE COURT: This is the decision of the court on a voir dire in the case involving Mr. Cleveland where he is charged with two counts of possessing drugs for the purpose of trafficking contrary to s. 5(2) of the Controlled Drugs and Substances Act . I have had little time to edit my decision and I apologize to those involved if it is rough in places. However, even if I had more time to polish my decision, the result would not change and it is appropriate, in my view, to give my ruling now. [ 2 ] The court heard from two Crown witnesses in this voir dire .

Constable Mazloum told the court he has been a member of the Vancouver Police Department for eight years and was on routine patrol with his partner, Constable D'Andrea, on October 5th, 2015. Constable Mazloum testified he was driving his unmarked police car when he saw a black VW Jetta waiting for a car in front to parallel park.

The officer saw the Jetta make an abrupt turn to go around the vehicle attempting to park causing a vehicle travelling in the opposite direction to brake in order to avoid hitting the Jetta. [ 3 ] Constable Mazloum said his interest was piqued by this driving and he immediately decided he wanted to initiate a stop of the Jetta. He said his intention in wanting to stop the car was to give the driver a lecture about his driving.

He said he was aware of the prospect of driving without due care and consideration, but told the court he was not planning on issuing a ticket to the driver and that his style is to give drivers lectures so they understand the problems in the manner of their driving. [ 4 ] Constable Mazloum testified after he had made the decision to stop the car, his partner ran a police computer check on the licence plate.

He said Constable D'Andrea advised him checks on the licence plate revealed the registered owner of the vehicle had been suspected of dealing drugs and the vehicle was associated with hits in the PRIME database regarding drug activity. The officer denied this information in any way impacted his decision to stop the vehicle. [ 5 ] Constable Mazloum said they followed the Jetta as it turned north onto Alder Street from 8th Avenue and that he activated his cruiser's emergency equipment as the turn was made. The Jetta pulled over between 6th and 7th in the 2200 block of Alder.

The officer walked up to the driver's side of the Jetta and Constable D'Andrea went to the passenger side. The driver was the only occupant of the vehicle and it was conceded that person was Mr. Cleveland. [ 6 ] Constable Mazloum said at this point he was investigating Mr. Cleveland for a motor vehicle matter and that he wanted to ask him why he was driving the way he was. He said, although he could potentially ticket him, he mainly wanted to caution him about the manner of his driving leading to accidents and putting people's safety at risk.

Constable Mazloum said he asked the driver to see his driver's licence and he scanned inside the car as per his normal practice. He said as he did so, he saw a BlackBerry phone in the rear driver's side foot well and he was going to speak further with the driver about the phone, but did not. [ 7 ] At that point, Constable D'Andrea asked Mr. Cleveland whether there was any marihuana in the car. Constable D'Andrea then told Constable Mazloum there was marihuana in the car which caused Constable Mazloum to direct Mr. Cleveland to get out of the vehicle.

Constable Mazloum said the matter shifted from a traffic stop to a Controlled Drugs and Substances Act investigation at the point his partner said she smelled marihuana and she told him the driver had vegetative marihuana in the car. [ 8 ] Constable Mazloum said he opened the driver's door and told the accused he was under arrest for possession and he was given his rights and then handcuffed at the rear of his vehicle. The officer estimated about a minute had elapsed from the time the vehicle pulled over to the point of arrest. After the accused was arrested, Constable Mazloum then conducted a search of Mr.

Cleveland incidental to the arrest for the safety purposes and to look for vegetative marihuana which his partner could smell. The officer said he found a pill bottle on the accused. [ 9 ] Constable Mazloum then conducted a search of the Jetta looking for vegetative marihuana. The officer said he found a soft- shelled briefcase-type bag in the rear passenger foot well.

In the bag, the officer found the following: a pill bottle containing $30 cash; $220 in loose cash bills; in two compartments of the case, a total of 18 pill bottles full of what was believed to be vegetative marihuana; and two Ziploc bags with a total of eight flaps containing a sticky, malleable solid believed to be a drug.

Constable Mazloum also found a baseball bat wedged between the driver's seat and the front door, a tire iron between the centre console and the driver's seat, an empty pill bottle in the centre console, the BlackBerry phone in the rear foot well, and an iPhone in the cup-holder area. [ 10 ] Upon finding the items in the car, Constable Mazloum advised Mr. Cleveland he was under arrest for possession of drugs for the purpose of trafficking. He was told he had the right to call a lawyer and he could access Legal Aid.

In answer to the question of whether he wished to speak with a lawyer, Constable Mazloum testified Mr. Cleveland said no. When he cautioned Mr. Cleveland about his right to silence, Mr. Mazloum said the accused responded saying, "All I will say is it is for personal use." [ 11 ] Constable Mazloum was asked about his grounds for arresting Mr. Cleveland for possession for the purpose of trafficking. The officer said that in his seven years as a patrol officer, he has dealt with numerous persons being investigated for possession for the purpose of trafficking.

He said he has also learned in the police academy that it is not unusual for persons involved in drug dealing to have two cellphones and Mr. Cleveland had a BlackBerry as a second phone. He said it was also the manner by which the drugs were packaged individually and in separate containers, the small bill denominations, and the money and the drugs stuffed together in the bag that led him to believe the accused was trafficking in drugs.

As for the arrest for simple possession initially, Constable Mazloum said he relied on his partner's grounds for arrest and that he had smelled marihuana afterward when he searched the Jetta. [ 12 ] When asked about the initial vehicle maneuver the officer had witnessed, in cross-examination, Constable Mazloum agreed the Jetta did not have to cross over a painted yellow middle line marker to get around the vehicle which was attempting to park. He also agreed the oncoming vehicle had not squealed its brakes nor had it honked its horn at the Jetta.

He said the Jetta accelerated quickly to get around the car and then swerved rapidly to get back into its own proper lane of travel. [ 13 ] Constable Mazloum said although he immediately decided to stop the vehicle, he did not do so right away and that he never does that. He agreed his partner was telling him as they followed the Jetta that there were numerous entries relating to that car in the

PRIME database and the person who was driving it before was suspected of drug dealing. Although Constable Mazloum denied that the information revealed by the computer checks played a role in the decision to pull the Jetta over, he agreed that after learning of the results, he activated the emergency equipment on the cruiser and the Jetta pulled over. [ 14 ] The plainclothes officer who was carrying a handgun under his clothing then walked up to the driver's side of the Jetta and asked the driver for his name and driver's licence.

Constable Mazloum said he also asked the driver where he was going and received the answer, "7-Eleven." In cross-examination, Constable Mazloum initially said the question about the driver's destination was not relevant to a Motor Vehicle Act investigation. However, the officer returned to this question later and offered it is somewhat relevant to motor vehicle investigations because people will often explain to him they are late or in a hurry and this information can change the nature of the lecture he gives to a driver.

Constable Mazloum told the court that while he had already made up his mind that he was going to give the driver a lecture about his driving, to this point, he had not told the driver why he had been pulled over. [ 15 ] Upon being directed to his investigative notes, Constable Mazloum agreed he had asked Mr. Cleveland about the BlackBerry cellphone he could see in the car. He conceded questions about the cellphone were not relevant to the motor vehicle investigation and that Mr. Cleveland had not been told why he was detained when he was questioned about the phone, but that he was going to do so.

In response to the question of whether he had asked the accused about the cellphone due to the police database entries, Constable Mazloum said he could not recall his motivation for asking. The officer denied the absence of any motor vehicle related questions of the accused and lack of notes on point was due to the real reason for the investigation being drug related. [ 16 ] It was at this point Constable D'Andrea asked Mr. Cleveland whether he had marihuana in the car, but Constable Mazloum said he could not hear the answer given.

His partner then told him that she could smell marihuana in the car, although neither officer could see any marihuana in the vehicle. Constable Mazloum said he then immediately arrested the accused for simple possession and asked him to get out of the car. Constable Mazloum told the court that other than Constable D'Andrea saying she could smell marihuana in the Jetta, there were no other grounds for the arrest.

The officer said he believed the accused did have marihuana in the car based on his long-term partnership with Constable D'Andrea. [ 17 ] Constable Mazloum agreed he was aware that persons in Canada may now lawfully possess marihuana pursuant to Health Canada provisions, but Mr. Cleveland was not asked about this. [ 18 ] Constable D'Andrea also testified on the voir dire . She told the court she had been with the Vancouver Police Department for about three-and-a-half years as of the offence date and in the patrol division throughout that time.

She testified she has had experience with drug investigations including about 25 to 30 involving marihuana, specifically simple possession and possession for the purpose of trafficking, and that she had also been to a couple of marihuana grow-ops. The officer said, in those drug cases, she has filled various roles including exhibit officer, arresting officer, and searching.

She added she has been involved in about a half a dozen cases where she smelled marihuana where an investigation was conducted and items seized were later determined to be marihuana. [ 19 ] Constable D'Andrea was asked about her experience with the smell of marihuana and said in the police academy they are exposed to all types of drugs and have the opportunity to smell and see them. She said she is familiar with the smell of vegetative marihuana and said it has a plant-like smell, a distinct smell, a vegetative smell.

She said she is also familiar with burnt marihuana and said it has a burning smell, different from a plant-based smell. She said in one of the grow-op investigations she was involved with, 200 plants were seized and she handled some of the plants and noted they had a very distinct plant-based, strong odour. [ 20 ] Constable D'Andrea described the maneuver the Jetta made as being a sudden one and that the car almost collided with another vehicle. She said she queried the licence plate on various police databases and it came back to a black Jetta and the registered owner was Devon Cleveland.

She said the checks revealed a bit of history on the car and it was suspected to be involved in drug-type offences. Constable D'Andrea said she communicated this information to Constable Mazloum.

Constable D'Andrea said it was the police intention to initiate the stop before conducting the computer search on the licence plate and they always check the vehicle on the computer to see whether they are dealing with anyone who is dangerous. [ 21 ] Constable D'Andrea said after the information was received, the Jetta signalled to turn right onto Alder and Constable Mazloum turned the emergency equipment on to initiate a stop of the Jetta.

After the vehicle stopped and while her partner was speaking with the driver, Constable D'Andrea walked up to the passenger side of the vehicle and as she approached the passenger door she could smell a very fresh odour of marihuana coming from the vehicle.

She said she could detect a very strong potent smell of plant-based marihuana and said, from her experience, it would be a larger amount, a bulky amount. [ 22 ] In answer to the question of why she thought there was marihuana currently present in the car, Constable D'Andrea testified the smell was so strong, she knew it was coming from the car and that she did not smell it until she got right to where she was standing near the passenger door. Constable D'Andrea said she relayed the information to her partner telling him what she was smelling and directing him to arrest the accused.

She told the court what she relayed to her partner was intended to result in the arrest of the driver. She said the grounds for the arrest were the smell coming from the Jetta and that the driver was the only occupant. She told the court she had asked the driver whether he had any marihuana in the car and that he had said no. [ 23 ] Constable D'Andrea said Mr. Cleveland was handcuffed after he got out of the car and then he was advised of his Charter rights and declined to speak to counsel.

The officer said the time which had elapsed between the initial stop and the formation of her grounds for arrest was about two to three seconds. More specifically, the officer said the Jetta was first noted at 1704 hours or 5:04 p.m., the stop was initiated at 1706 hours, the strong odour observed by her also at 1706, and the arrest occurred at 1707 hours. Constable D'Andrea's notes indicate the re-arrest for the possession for the purpose of trafficking occurred later at 1746 hours. [ 24 ] The officer said both she and her partner formed the grounds for the PPT arrest.

She said the grounds she had were how the marihuana and the other unknown substance were located, packaged for sale in her experience; the various pill bottles were labelled with different names; the items were in a suitcase; the packaging was associated, in her mind, with dial-a-dope operations; and the presence of weapons in the vehicle. [ 25 ] The officer said she later weighed the contents of the 18 pill bottles of marihuana and the total weight was 61.93 grams. The

weight of the cannabis resin found was 5.06 grams. [ 26 ] In cross-examination, Constable D'Andrea testified the driving observed was unsafe, but she did not recall what traffic was like at the time, although she agreed that they were not moving quickly. She said she would have to look up in the Motor Vehicle Act what the nature of any violation the Jetta might have committed was. She said, after observing the overtaking by the Jetta, she ran the licence plate right away and got the answer to the query back in about 20 seconds.

She said she got back more than 30 entries relating to drugs, trafficking, and gangs. [ 27 ] Constable D'Andrea said after the Jetta pulled over, she approached the partially opened passenger-side window and, as she did so, she could smell marihuana. She then asked Mr. Cleveland whether he had marihuana and he said no. Constable D'Andrea acknowledged that when she asked the accused this question, she had not yet advised him he was being investigated for a CDSA matter. The officer agreed at no point did she advise Mr. Cleveland why he had initially been pulled over.

At that point, she told her partner that she smelled marihuana in the car and her partner then made the arrest for simple possession. [ 28 ] In cross-examination, Constable D'Andrea said she told her partner she smelled fresh marihuana coming from the car. She added she did not recall the exact words used, but said, from working together, her partner knew he was to arrest the accused.

The officer agreed she did not have a memory of telling Constable Mazloum to arrest and her notes did not address what was communicated on point. [ 29 ] Constable D'Andrea produced a large clear exhibit bag with multiple pill bottles containing what was understood to be vegetative marihuana. The officer told the court when she retrieved the bag from the property office before coming to court she could smell the marihuana in it right away.

When the bag was provided to me to examine, I could not detect a smell of any sort emanating from the sealed bag or from the sealed containers inside. [ 30 ] The officer was asked in cross-examination whether the amount of marihuana produced for the court was what she would describe as a bulky amount and she said it was a larger amount.

She conceded that her training at the police academy did not include the ability to determine whether the amount of marihuana smelled was large or small and offered what she smelled coming from the Jetta was very powerful. [ 31 ] I will turn briefly, then, to the positions of the parties at this trial. Counsel for the Public Prosecution Service of Canada takes the position that the police here were engaged in a valid motor vehicle stop and that Mr. Cleveland was lawfully detained for that purpose.

While subject to that initial detention, the officers made some brief inquiries which then led to a lawful arrest under s. 495(1) (

b) for simple possession of marihuana. [ 32 ] The Crown reviewed with the court a number of cases wherein courts have held that the smell of marihuana alone may be sufficient to ground a lawful arrest and submitted the facts in this case provide sufficient justification for such an arrest of Mr. Cleveland. The Crown submitted such a lawful arrest enabled the police to then search the Jetta as a result of which the police obtained the grounds necessary to then properly arrest the accused for possession for the purpose of trafficking.

The Crown submitted there were no Charter breaches committed in this investigation and, even if there were, the evidence should be admitted pursuant to a 24(2) Charter analysis. [ 33 ] Counsel for Mr. Cleveland noted the search of the vehicle was fundamentally a warrantless one and, thus, a breach and the burden in the voir dire falls to the Crown.

Defence counsel submitted the police cannot simply stop a driver to lecture them about their driving and noted Constable Mazloum never identified what motor vehicle infraction he thought the driver had committed nor did he ever talk to the driver at all about his driving or any improprieties. [ 34 ] Defence counsel submitted the police suggestion that the PRIME check had no impact on the pullover of the Jetta was not believable and that the driving complained of was merely a pretext for the CDSA investigation and search.

Counsel for the accused also submitted, in these circumstances, there were insufficient grounds to effect an arrest for simple possession and, thus, the search of the car was not authorized by law. Given the breaches involved, the defence asked the court to find the evidence inadmissible under a 24(2) analysis. [ 35 ] I have had the opportunity overnight and this morning to review all of the cases counsel for both Crown and defence referred the court to. While I have considered all of them in coming to my decision, I may not mention each case in this ruling.

The cases are instructive on the applicable law, but ultimately the cases make clear the court has to make findings of fact and apply the law to the factual matrix in this case involving Mr. Cleveland. [ 36 ] Section 495(1) (

b) of the Criminal Code sets out the requirement that an arresting officer on a

summary matter must personally witness the facts which provide the basis for an arrest. The

section requires both that the officer hold a subjective belief that an offence is being committed and that the grounds for that belief be objectively reasonable. The support for this proposition is in R. v. Acosta , 2014 BCCA 218 , at paragraph 12 . [ 37 ] Acosta also makes clear that the lawfulness of an arrest may be made out upon the detection of the odour of recently used marihuana (at paragraph 20), and the odour of vegetative marihuana may similarly do so.

As stated by the court in Acosta (at paragraph 22 ): In my view, even more than freshly-smoked marihuana which engages the possibility that the marihuana has all gone up in smoke, the odour of vegetative marihuana from a vehicle may form the basis for the objective grounds required for an arrest under s. 495(1)(b). Viewed from the perspective of this experienced police officer, I conclude that the odour of vegetative marihuana emanating from the vehicle provided objective grounds for the constable’s subjective belief, such that no error was made by the judge in finding the initial arrest of Mr.

Acosta was within s. 495(1) (

b) of the Criminal Code and accordingly in admitting the evidence.

[38] An officer's testimony that he or she smelled marihuana may establish the requisite subjective belief to constitute reasonablegrounds for arrest (at paragraph 16 of Acosta). In assessing the objective grounds, it is clear from Acosta (at paragraph 17) that theCrown is not required to establish a prima facie case for a conviction nor that the police belief is the only reasonable conclusionavailable. [39] In R. v. Lefaive, 2015 BCSC 1305, Mr. Justice Silverman noted that an officer's experience is something to be considered inassessing the grounds for the arrest.

The court stated (at paragraph 19): While it is clear that the smell of marihuana, without more, may in appropriate cases be sufficient to form the reasonable and probablegrounds for a lawful arrest, it is equally clear that it will not always be sufficient. It depends on all of the circumstances. Thosecircumstances will often include the officer's experience or lack of it. In this case, the officer's lack of relevant experience leaves meunclear, even to the low threshold required at this stage, that there was a satisfactory objective ground for his belief. [40] In R. v.

Whitaker, 2008 BCCA 174, the Court of Appeal considered the odour of marihuana and the question of whether certainskill or training was needed to identify the smell. The court stated (at paragraph 51): Given the prevalence of marihuana in our society it was open to both the justice of the peace and the trial judge to accept that theperson(

s) who prepared those reports could identify its odour. Marihuana is but one of many substances whose odour is recognizable bya large segment of the population. The fact that marihuana is illegal does not mean that its odour should be treated any differently thanthe numerous other smells to which people are regularly exposed. [41] Judge Pothecary, in R. v. Ghorbanpoor, 2014 BCPC 157 , 2014 BCPC 0157, considered the matter of random motorvehicle stops.

She held (at paragraph 27): It is clear from the authorities that random stops for motor vehicle checks are valid, but it is equally clear that they are not allowed to beused as a ruse for another investigation. That can be a very fine line, because what may appear on its own could be perfectly legitimate,when the surface is scratched may in fact appear to be simply an illegitimate means of going about a different investigation. [42] Section 150(1)(

a) of the Motor Vehicle Act provides that a: ... driver of a vehicle must confine the course of the vehicle to the right hand half of the roadway if the roadway is of sufficient width andit is practicable to do so, except when overtaking and passing a vehicle proceeding in the same direction ... [43] Having set out the applicable law, I will then turn to my analysis, firstly, by considering whether the initial detention of Mr.Cleveland was lawful. The police testified about the Jetta pulling out to pass by a vehicle parallel parking on 8th Avenue and said thedriving was abrupt or aggressive.

Nowhere in the testimony of Constable Mazloum did he articulate what, if any, motor vehicleinfraction might have been committed by the Jetta driver as a result. He also testified he did not intend to conduct a Motor Vehicle Actticket investigation, but rather to give a lecture to the driver about what he had observed. Neither counsel provided the court with anycase law dealing with whether Constable Mazloum's practice of pulling over drivers to lecture them is lawful. [44] Constable D'Andrea testified she also witnessed the Jetta pull out to pass the car which was in the process of parallel parking.

Constable D'Andrea made a vague reference to the offence of driving without due care and attention under the Motor Vehicle Act as apotential infraction, but it is not clear to me that would, in fact, be the case or that the officer specifically turned her mind to that matteron the day in question at the roadside. [45] Counsel for the Crown also directed the court in their submissions to the provisions of s. 150(1)(

a) of the Motor Vehicle Act, butit is not apparent to me that the Jetta driver was committing a violation of this

section of the Motor Vehicle Act. Moreover, there is nosuggestion s. 150 was in any way considered by either officer in their dealings with Mr. Cleveland. [46] Both officers denied the information they received through the police computer database query impacted Constable Mazloum'sintent to pull the vehicle over and lecture him about his driving. This testimony must be scrutinized in light of the evidence as to whatactually took place at the roadside when the officers first approached the Jetta and dealt with Mr. Cleveland.

Constable Mazloum beganby asking the driver for his name and to produce his driver's licence. However, he next asked the driver what his destination was andabout his cellphone. The officer offered a link with the query about the destination with his motor vehicle lecture practice, but heprovided no such link regarding the cellphone. [47] Upon smelling the vegetative marihuana and Constable D'Andrea then asking Mr. Cleveland whether he had any marihuana,she was clearly conducting a CDSA investigation and not a motor vehicle matter herself.

In these circumstances, I find the evidence doesnot establish the intent of the officers in stopping the accused was to conduct a lawful traffic investigation. [48] Although the driving observed may have been abrupt or aggressive and caused the driver of the on-coming vehicle to brake andswerve, the evidence falls far short of establishing a motor vehicle infraction was observed and noted by the officers.

That ConstableMazloum intended to lecture the driver rather than to investigate a traffic violation and the inability of the officer to articulate any offencehaving been witnessed is significant in assessing what was the real intent of the officers. [49] The evidence of both officers that the computer database information did not impact the decision to stop the Jetta for a Motor

Vehicle Act investigation strains credulity and it is simply not believable. The officers had witnessed some relatively minor driving andit is simply not believable their interest in pulling over and engaging the driver was not significantly impacted by the information theyobtained when they ran the licence plate on the computer. [50] While the police may have had a very minor interest in speaking with the operator of the Jetta about his driving, I find the realreason Constable Mazloum activated his emergency equipment after the computer checks were conducted was to investigate thepossibility of a drug offence.

In other words, I find the initial stop was not a traffic stop and was not authorized in law as such. Theinitial questions by both officers about the cellphone and the presence of drugs and the complete absence of any questions or commentsat any time about his driving is consistent with this finding. [51] While the officers' suspicions may have been aroused given the police databank information, I find the evidence establishesthey only had suspicion when they stopped the vehicle. Thus, I find the initial stop was arbitrary and contrary to Mr. Cleveland's s. 9Charter rights. [52] Unlike the facts in R. v.

Grunwald, 2010 BCCA 288, the initial detention of Mr. Cleveland has not been found to be lawful. Thus, this case is not akin to that in Grunwald where the Court of Appeal held that an officer could pursue a new avenue ofinvestigation, in other words, a drug matter, without it becoming arbitrary (at paragraph 23). [53] It is clear law, and support comes from R. v. Suberu, 2009 SCC 33, that not every encounter with the police is tantamount to adetention.

But what is in issue in this case is my finding that the police were acting on a ruse and using the abrupt driving as the basis toinvestigate drug matters involving Mr. Cleveland. I find the police, acting in light of the information they had from the computer check,crossed the line from making general inquiries to conduct a focused drug investigation when they asked Mr. Cleveland about hiscellphone and whether he had drugs in the car. In those circumstances, I find the officers should have told Mr.

Cleveland he had theright to decline to answer the questions put to him about the cellphone and the marihuana in the car. [54] Turning to the smell of marihuana observed by Constable D'Andrea, the officer told the court she had experience in her three-and-a-half years of policing in 25 to 30 drug investigations involving marihuana, including about six where the smell of the drug was aconsideration.

She also told the court about training received at the police academy. [55] From this, counsel for the Crown submitted the officer was experienced to a similar degree as officers in cases provided to thecourt where other judges have found the smell of vegetative marihuana alone to be a sufficient basis for an arrest. I do not find that to bethe case here, however. I find that what Constable D'Andrea described in terms of her exposure at the police academy was what everyVancouver Police officers receives and, thus, she would have no greater experience on that basis.

The court was not provided with anyevidence by which it could assess Constable D'Andrea's level of knowledge or experience regarding the smell of vegetative marihuanaexcept the testimony that, in six cases, the smell was later confirmed to be marihuana and her handling of the plants in one marihuanagrow operation. [56] Unlike the officer in R. v.

MacCannell, 2014 BCCA 254, I was not told anything about Constable D'Andrea's experienceinvolving vehicle stops and the presence of marihuana. [57] I also found the officer's evidence about what burnt and vegetative marihuana smell like not very helpful in that she only saidthat vegetative was a distinct smell and smelled plant-like and that burnt marihuana has a burning smell different than that of a plant-based smell.

I am not confident from these descriptions, on an objective basis, that the officer was able to assess the smell said to beemanating from the partially opened window of the Jetta and determine it so quickly to be vegetative marihuana. [58] I also to take into consideration that Constable Mazloum did not smell vegetative marihuana when he first dealt with Mr.Cleveland and the fact no odour was emanating from the pill containers inside the bag presented in court. [59] Accordingly, I find on an objective basis, Constable Mazloum did not have the grounds to arrest Mr.

Cleveland for possessionof a controlled substance on the basis of the smell of vegetative marihuana his partner conveyed to him. As stated by the Court ofAppeal in MacCannell (at paragraph 38), the question is not whether the odour of marihuana alone is sufficient. Rather, whether thefactual matrix that existed at the time the decision was made to arrest Mr. Cleveland satisfies that objective criterion. I find it does not. [60] The court heard some evidence from both officers as to why the decision was made to arrest and search the accused and hisvehicle.

I find the officers gave this part of their investigation very little thought and their evidence on point was unclear as to what thegrounds for the arrest were, who made the decision to arrest, and whether one officer was acting at the direction of another. It seems theofficers made certain assumptions at the scene, but they did not articulate the basis for those assumptions in their testimony relating tothe arrest of Mr.

Cleveland. [61] I find the evidence does not establish Constable Mazloum was acting on the direction of his partner, that the accused wasarrestable, and find he did not specifically turn his mind to the grounds for a lawful arrest, but simply went ahead and effected the arrest. While I accept the law permits one officer to act on the basis of information provided by another officer in conducting an arrest, surelythe arresting officer must at least be cognizant of the grounds before restricting the liberty of another person and arresting them. [62] Of course, in law, if Mr.

Cleveland had only been detained for the purpose of the police then investigating the prospect of aCDSA offence rather than being arrested, the search of the vehicle which quickly followed would not have been permissible. The law isclear that the search of the car was only permitted if it was conducted incidental to a lawful arrest. [63] Before turning, then, lastly, to my s. 24(2) assessment, I would summarize by stating I am not satisfied the Crown has proventhe search of the Jetta to have been reasonable in the circumstances.

I find the search was undertaken precipitously and without groundsneeded to move from beyond suspicion. [64] I am also not convinced the stopping of Mr. Cleveland was simply a Motor Vehicle Act matter. In considering, then, s. 24(2),the decision in R. v. Grant, 2009 SCC 32 , [2009] 2 S.C.R. 353, provides the framework (at paragraph 71):

... court must assess and balance the effect of admitting the evidence on society’s confidence in the justice system having regard to: (1) the seriousness of the Charter -infringing state conduct ... (2) the impact of the breach on the Charter-protected interests of the accused ... and (3) society’s interest in the adjudication of the case on its merits.

The court’s role on a s. 24(2) application is to balance the assessments under each of these lines of inquiry to determine whether, considering all the circumstances, admission of the evidence would bring the administration of justice into disrepute. [ 65 ] In terms of the seriousness of the Charter -infringing state conduct, the conduct involved in Mr. Cleveland's case is the warrantless search of his vehicle following his arrest. I have found there were not sufficient grounds for that arrest at the time it was made.

I am of the view that the Charter -infringing state conduct here, taking into consideration both the arrest and the search, is serious. [ 66 ] The impact of the breach on the Charter -protected interests of the accused is also of some significance in the circumstances. I also take into consideration the fact there is a diminished expectation of privacy in a motor vehicle. [ 67 ] Finally, regarding the community's interest in the adjudication of this case on its merits, ordinarily society is interested in having cases go forward to be adjudicated.

However, there are cases when the police investigation is such that permitting a case to go forward could bring the administration of justice into disrepute. Society has an interest in adjudicating a case where there is in excess of 60 grams of marihuana involved, an amount greater than the 30-gram limit set out as one of the tiers in possession cases under the CDSA . However, the amount in this case is still relatively small compared to other cases where the court has conducted s. 24(2) assessments. The drug involved in this matter is marihuana.

Of course, society also has a concern about the actions precipitously undertaken by the police and unlawful detentions and arrests. [ 68 ] In the result, in considering all of the evidence in this case, I am not satisfied that the items seized from Mr. Cleveland should be admitted into evidence. In all of the circumstances, I find the admission of that evidence in this trial would bring the administration of justice into disrepute and I rule the evidence and the marihuana is thus not admissible at trial. [ 69 ] Thank you. [ 70 ] MR. TOUSAW: Thank you, Your Honour. [ 71 ] MS.

COULSON: Sorry, Your Honour, the Crown calls no further evidence. [ 72 ] THE COURT: Thank you. [ 73 ] MR. TOUSAW: Defence calls no evidence. We would ask for a verdict of acquittal. [ 74 ] THE COURT: Thank you. In light of my finding and the Crown calling no further evidence, the court is left, then, to simply direct that Mr. Cleveland be acquitted. There is no evidence for a conviction to be founded. He is acquitted of both Counts 1 and 2 on Information 233492. [ 75 ] Thank you, counsel. [RULING ON VOIR DIRE CONCLUDED]