R. v. Boyd Date:, 2011 BCPC 137

Citation: R. v. Boyd Date: 20110613 2011 BCPC 0137 File No: 32132 Registry: Duncan IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. CRAIG THOMAS BOYD REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE WOOD Counsel for the Crown: C. J. Gibson Counsel for the Defendant: S. Sheets Place of Hearing: Duncan , B.C.

Dates of Hearing: February 11, March 17, May 5, 2011 Date of Judgment: June 13, 2011 INTRODUCTION [ 1 ] Craig Thomas Boyd is charged that he: ...on or about the 31 st of December, 2009, at or near Lake Cowichan, in the Province of British Columbia, 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. [ 2 ] At the commencement of his trial, on February 11 th last, counsel advised that, pursuant to notice served on the Crown, the reasonableness of the search which produced the evidence on which the charge is based was challenged, with the result the accused would be seeking to have that evidence excluded pursuant to s. 24(2) of the Charter of Rights and Freedoms .

Accordingly, all evidence to date has been heard on a voir dire. These reasons are my reasons for judgment on those voir dire issues. THE EVIDENCE

[3] On December 31, 2009, officers of the local RCMP detachment were conducting a road block screening for impaired drivers onKing George Road at the intersection of South Shore Road in Lake Cowichan. At 19:10 hrs. Const. Cranmer stopped a car driven byMr. Boyd who was the lone occupant of the vehicle. [4] Const. Cranmer approached and stood next to the open driver’s door window. He asked Mr. Boyd if he had had anything todrink that evening.

The officer was, to use his words, “looking for the possible odour of liquor.” With what he described as the firstbreath he took in he noted the smell of freshly burnt marihuana. He immediately advised Mr. Boyd that he was under arrest forpossession of marihuana. [5] The officer testified that at that time he had had several occasions to smell burnt marihuana which he described as a verydistinctive smell, different from vegetative marihuana. He characterized the odour on this occasion as strong, leading him to believe ithad been smoked within 15 minutes prior to the stop. [6] Mr.

Boyd was directed to move his vehicle to a parking lot a short distance away so as not to impede traffic. As he did so, Const.Cranmer noticed that he accelerated his vehicle more quickly than was necessary. Once the vehicle was parked, the officer noted thatMr. Boyd appeared to be moving around inside very quickly “as if he were trying to conceal or attempting to retrieve something.” Thesemovements the officer described as “not typical” of those by persons who are the subject of traffic stops and are trying to retrievedriver’s licences or other papers. [7] Const. Cranmer instructed Mr.

Boyd to get out of his vehicle. As he did so he was observed to put one hand into the hood of hisjacket, a movement which caused the officer to believe he had put something into that hood. He was handcuffed and taken to theofficer’s police truck. The officer then placed his hand into the hood of Mr. Boyd’s jacket and retrieved a plastic baggie containing 4other smaller plastic baggies each of which contained a white powder which he believed to be cocaine. [8] The larger bag, containing 3 of the smaller baggies each of which were found to weigh .5 grams, was marked as Exhibit A on the voir dire.

The 4th small baggie was marked as Exhibit B and the certificate of analysis corresponding to it was marked as Exhibit C. Also seized from Mr. Boyd was a cell phone which was marked as Exhibit D. [9] After placing Mr. Boyd in the back of his police vehicle, Const. Cranmer consulted with Const. Butler, who was on scene, andwho confirmed his suspicion that the items he had seized were consistent with Mr. Boyd being in possession of cocaine for the purposeof trafficking. As a result he advised Mr. Boyd that he was under arrest for that offence. It was then 19:20 hrs. [10] Const. Cranmer testified that in placing Mr.

Boyd under arrest for possession of marihuana immediately upon detecting the smellof burnt marihuana, which he believed had been “burnt” 15 minutes prior to stopping the latter’s vehicle, he was hoping to gain evidenceas it has been his experience that the odour of freshly burned marihuana leads to finding both marihuana and contaminated paraphernalia.

As to his experience as of that date, he testified that he had conducted at least 30 investigations for possession of marihuana where theodour of burnt or burning marihuana was detected by him and he had made many drug seizures as a result of finding marihuana andcontaminated drug paraphernalia incidental to arrest at those traffic stops. DISCUSSION (

a) Was the search of Mr. Boyd unreasonable and therefore in violation of his rights under s. 8 of the Charter? [11] In supporting the admissibility of the voir dire Exhibits, the Crown relies only on the decision of Const. Cranmer to arrest Mr.Boyd based upon that officer’s conclusion that he smelled burnt marihuana when standing at the open window of the latter’s car. Noreliance is placed on any of the officer’s observations after he told Mr.

Boyd to move his car into the position in which it was ultimatelyparked. [12] A warrantless search is presumed to be unreasonable unless the Crown can show on a balance of probabilities that the search wasreasonable: R. v. Evans, (SCC), [1996] 1 S.C.R. 8. The common law power of search incidental to arrest, is oneexception to that presumption. However, leaving aside such issues as its scope, purpose and the manner of execution, a pre-requisite tothe reasonableness of such a search is that the arrest itself must be lawful: Cloutier v. Langlois, (SCC), [1990] 1 S.C.R.158, R. v.

Backhouse (2005), (ON CA), 194 C.C.C. (3d) 1 (Ont.C.A.). [13] The power of a peace officer to arrest without warrant is described in s. 495 of the Criminal Code. The following is the portionof that

section relevant to this case: 495.

(1) Arrest without warrant by peace officer – A peace officer may arrest without warrant (

a) a person who has committed an indictable offence or who, on reasonable grounds, he believes has committed or is about to commitan indictable offence, (

b) a person whom he finds committing a criminal offence, or (

c) a person in respect of whom he has reasonable grounds to believe that a warrant of arrest or committal, in any form set out in PartXXVIII in relation thereto, is in force within the territorial jurisdiction in which the person is found. [14] Possession of marihuana in an amount less than 30 grams is an offence punishable on

summary conviction. There was no basisupon which the smell of burnt marihuana alone could determine the quantity of any such drug that might be in Mr. Boyd’s possession. The Crown accepts that in order for Mr. Boyd’s arrest to be lawful it could only have been effected under s. 495(1)(

b) of the CriminalCode. Thus, the issue in this case involves a determination of the limits of the power of arrest described in that provision. [15] Defence counsel relies on the judgment of the Saskatchewan Court of Appeal in R. v. Janvier (2008), 2007 SKCA 147 ,227 C.C.C. (3d) 294. In that case Janvier was charged both with possession of, and possession for the purpose of trafficking in,

marihuana. The circumstances giving rise to those charges were that a police officer stopped his vehicle, in which he was the loneoccupant, because it had a broken headlight. As soon as the officer walked up to the open driver’s window he detected the “verystrong” odour of burnt marihuana from which he concluded that marihuana had been smoked in that vehicle perhaps within the last 20minutes. The officer immediately arrested Janvier for possession of marihuana. A search of Janvier and his vehicle produced a total of 8grams of marihuana, money and a list of possible contacts. [16] Like Const.

Cranmer in this case, the investigating police officer in that case testified that he had located actual marihuana insearches he had conducted in similar cases, following arrests based on the smell of burnt marihuana coming from a vehicle. [17] The trial judge found the smell of burnt marihuana alone raised a suspicion that marihuana had been recently consumed, but didnot provide what he described as “reasonable and probable grounds for an arrest and search.” [18] In her judgment, dismissing the Crown’s appeal on behalf of the Court, Jackson J.A. reviewed a large number of conflictingauthorities.

As is common ground in this case, she concluded that if the arrest of Janvier was lawful it could only have been effectedunder s. 495(1)(

b) of the Criminal Code. [19] In analysing what is meant by the phrase “finds committing” in s. 495(1)(

b) Jackson J.A. concluded that the power of arrest inthat paragraph is limited to those circumstances in which the police officer finds the accused in the very act of committing the offence inquestion, and that the smell of burnt marihuana alone did not provide grounds for an arrest under that section. [20] In the argument before me Crown counsel relied on the assertion, found in R. v. Hardenstine, [2010] B.C.J. 1266 (BCSC) atpara. 56, that in R. v. Webster (2008), 2008 BCCA 458 , 238 C.C.C. (3d) 270, the British Columbia Court of Appeal “declinedto endorse” Janvier.

With respect, I do not think that is a fair way to characterize what that Court said about Janvier in Webster. Tobegin with, the facts in Webster were such as to make it unnecessary for the Court even to consider the reasons in Janvier. Furthermore,as acknowledged by Crown counsel in the written submissions made in this case, the following appears at para. 37 of the judgment inWebster: [37] On this appeal, I need not decide whether Janvier is correct with respect to what inferences can and cannot be drawnfrom the odour of smoked marihuana.

That judgment may be inconsistent with this Court’s decisions in cases such as Dubois andSchulz, or distinguishable on the basis of the evidence that the odour could have lingered in Mr. Janvier’s vehicle for as long as 20minutes after someone had smoked marihuana inside it.

Regardless of whether the treatment of odour in marihuana in Janvier is correcton the facts in that case, the facts in the present appeal are materially different. (emphasis added) In my view, nothing more can properly be inferred from the foregoing passage than that the British Columbia Court of Appeal hasneither endorsed nor rejected the decision in Janvier. [21] In written submissions filed on March 1, 2011, Crown counsel also relied on the decision of the Alberta Court of Appeal in R. v.Loewen, 2010 ABCA 255.

In that case the police officer who stopped Loewen for speeding noticed a strong smell of burnt marihuana ashe approached and stood by the driver’s window. When Loewen failed to produce a driver’s licence, he was asked to accompany theofficer to the police car. In conducting a pat down search before placing Loewen in his vehicle, the officer noted a large bulge inLoewen’s pant pocket. When the pocket was checked as part of the pat down search, the bulge proved to have been caused by a largebundle of cash totalling $5,410.

The smell of burnt marihuana and the large amount of cash, together with the fact that Loewen gave twofalse names before finally admitting his real identity, led the officer to arrest him for possession of a controlled substance.

The ensuingsearch of his vehicle produced 100 grams of cocaine which led to a charge of, and his subsequent conviction for, possession of thatsubstance for the purpose of trafficking. [22] Writing for himself, Slatter J.A mentioned the decision in Janvier only in connection with the conclusion by Jackson J.A., withwhich he disagreed, that the removal of the words “and probable” from s. 495(1)(

a) in the 1985 Revised Statutes, had no effect on thescope of the power of arrest in that section. However, he then went on to conclude that Loewen’s arrest was lawful whether effectedunder s. 495(1)(

a) or (b). In reaching that conclusion with respect to s. 495(1)(b), he engaged in an analysis similar to thatexplicitly rejected by the Court in Janvier. [23] In separate reasons, concurring in the dismissal of Loewen’s appeal, Hunt J.A. concluded his arrest was lawful under s. 495(1)(a), the same conclusion arrived at by the trial judge in that case. At para. 45 of her judgment she noted this: [45] Subsection 495(1)(

a) is the relevant provision because the officer stated he never saw the appellant committing an offence:A.R. 145/1-5. As a result, the arrest could not be justified under subs. 495(1)(b) (‘finds committing a criminal offence”): R. v.Biron, (SCC), [1976] 2 S.C.R. 56 at pp. 72 and 75, 23 C.C.C. (2d) 513; R. v. Janvier, 2007 SKCA 147, 302 Sask. R.190; R.v. Abel and Corbett, 2008 BCCA 54, 229 C.C.C. (3d) 465. (emphasis added) [24] The Loewen case went on appeal to the Supreme Court of Canada by virtue of a dissent by Berger J.A. who, without referring toJanvier, noted that an arrest under s. 495(1)(

b) was “problematic” because, at the very moment he was arrested, Loewen was not“engaged in criminal activity.” In reaching that conclusion, he referred, as did Hunt J.A., to the British Columbia Court of Appealdecision in R. v. Abel. [25] In reasons released on May 5, 2011, McLachlin C.J.C. for the Court dismissed Loewen’s appeal on the ground that, based on thefacts as found by the trial judge, his arrest was lawful under s. 495(1)(a).

In light of that conclusion the Chief Justice noted that it wasunnecessary to consider s. 495(1)(b) “which was not fully argued on appeal.” [26] In further written submissions filed on May 6, 2011, Crown counsel offered the recent decision in R. v. Ashby, 2011 BCSC 513as supporting the view that Janvier ought not to be followed in this province. Ms. Ashby was stopped for speeding while driving in amanner that the officer found unusual, including the fact that she had the sun roof of her vehicle open and her driver’s window partiallyopen in -23° Centigrade weather.

As he approached the driver’s side of her vehicle he noted a strong odour of vegetative marihuana. Healso noted other indicia consistent with the car and driver being in the process of transporting drugs. A computer check of Ms. Ashby’s

name, as it appeared on her driver’s licence, revealed that she had an old conviction for possession of narcotics. The strong odour ofvegetative marihuana persisted as he returned to the vehicle after checking her driver’s licence. At that point he arrested Ms. Ashby forpossession of marihuana. A subsequent search of the vehicle revealed the presence of 21 kilos of marihuana and approximately $17,000in cash. Ms. Ashby was then charged with possession of marihuana for the purpose of trafficking. [27] Notwithstanding the foregoing briefly recounted evidence, counsel for Ms. Ashby apparently argued that her arrest wasunlawful irrespective of whether it was effected under s. 495(1)(

a) or (b). In support of both prongs of this argument, it would appear thecourt was presented with a multitude of cases, including Janvier, a circumstance which, in turn, led the Crown to produce a text bookanthology of cases in reply. The learned trial judge thoroughly examined all of the cases presented. I do not intend to refer to all, or evenmany of those cases.

Suffice it to say that, for the most part, they support the proposition that each case falls to be decided on its ownfacts, and that generally speaking there is little point in offering a fact based decision as having any precedential value. [28] In his reasons in Ashby Powers J. concluded that, based on the “circumstances” in that case, the decision in Janvier wasdistinguishable (para. 96).

However, in spite of that conclusion, he went on to note that Janvier was not binding on him and furtherstated that he was “... not satisfied that it reflects the law in British Columbia.” [29] In offering that opinion, Powers J. apparently relied upon his view that the British Columbia Court of Appeal in Webster haddecided the decision in Janvier was “...inconsistent with Dubois and Schultz or distinguishable” (para 41).

He also considered the threejudgments in Loewen and, after quoting from that portion of the judgment of Slatter J.A., in which the latter concluded that Loewen waslawfully arrested under s. 495(1)(b), said he found that judgment “persuasive.” [30] I am bound to consider the decision in Ashby with respect and deference, particularly given the extent to which Powers J.carefully considered the vast number of authorities inflicted upon him by counsel. However, I am not satisfied that his apparent rejectionof the analysis in Janvier is binding on me.

To begin with, having concluded that decision was distinguishable, I am of the view that thebalance of his thoughts on the analysis it contains amounts to obiter dictum. Furthermore, I am not able to agree with his view of whatthe British Columbia Court of Appeal said about Janvier in its decision in Webster. As noted in para. 20 above, after explicitly statingthat it was not necessary for him to decide whether Janvier was correct, Frankel J.A. mused that it “may” be, not that it was, eitherinconsistent with, or distinguishable from, the Court’s decisions in Dubois and Schultz.

I also note that in the long passage from Webster,quoted at para. 39 of the decision in Ashby, the decisions of Dubois and Schultz are discussed in the context of the lawfulness ofWebster’s initial detention following which the Court concludes that those cases “at a minimum” supported a reasonable suspicion thatWebster or his passenger were engaged in criminal activity and were thus lawfully detained for investigation. [31] Turning to the judgments in R. v. Dubois, 2004 BCCA 589 , [2004] B.C.J. 2426 (BCCA) and R. v.

Schulz, 2001 BCCA601 , [2001] B.C.J. 2164 (BCCA), it is my view that neither conflict with the reasoning or the result in Janvier as both areindeed distinguishable on their facts. In Dubois the odour of burning marihuana was noted by police officers, who were on bicycles, asthe appellant’s vehicle passed them travelling in the opposite direction. On following and ultimately catching up to the vehicle where ithad parked, the officers observed that smell to persist.

Once beside the vehicle they also noted: 1) the appellant was drinking beer; 2)there was an open can of beer in the centre console and 3) there was what one officer believed was residual marihuana leaf sprinkledthroughout the vehicle. Both occupants of the vehicle were told they were being “detained” for investigation of possession of marihuanaand another officer with a police dog was called to the scene to search the vehicle for that substance.

That search revealed bothmarihuana and cocaine and ultimately Dubois was convicted of possession of the latter substance. [32] The Court of Appeal reasons quote several passages from the reasons below which suggest the trial judge considered that, ifDubois was arrested before the search, that arrest was justified under either of s. 495(1)(

a) or (b). The Court of Appeal does not discussthe basis for, or the timing of, Dubois’ arrest but simply concludes that both the subjective and objective grounds for an arrest existedbefore the dog search began. In support of the arrest the Court noted: It cannot be said that the evidence of odour alone is insufficient in all circumstances to found an objective belief that a crime has beencommitted or is about to be committed. As this Court noted in R. v. Schultz, [2001] B.C.J.

No. 2164, 2001 BCCA 601, at para. 5, eachcase turns on its own facts and whether the odour of marihuana will suffice to justify an arrest will depend on the surroundingcircumstances. The testimony of Constable Pineo supports the trial judge’s finding that she had a subjective belief that she hadreasonable and probable grounds for an arrest. (emphasis added) The first highlighted portion of the above quote indicates that the power of arrest under consideration by the Court of Appeal in that casewas not s. 495(1)(

b) at all, but rather s. 495(1)(a). [33] In the Schulz case the appellant was arrested when a police officer, who was invited to enter his residence after knocking on thedoor, smelled what is described as “burning” marihuana.

The Court upheld the conclusion of the trial judge that the smell combinedwith “the behaviour of the appellant, in quickly moving to exclude the officer once the appellant saw who was at the door”, provided asufficient basis for the arrest as the officer was entitled to draw the inference that the appellant was attempting to conceal the fact that atthat very moment in time he was in the act of smoking, and therefore in possession of, marihuana. [34] The trial judge in Schultz relied upon an earlier decision of the Court of Appeal, R. v. Ewart, (BC CA), [1995]B.C.J.

No. 742, 58 B.C.A.C. 70, in finding that the odour in that case, together with the “other circumstances” justified Schultz’s arrest. In dismissing the appeal, Donald J.A., for the Court, noted: 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 orfor 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 R. v. Seivert and R. v. Barron 2000 BCCA 575, [2000] B.C.J. No. 2209 and R. v.

Seney (1994) (BC CA), 91 C.C.C. (3d) 550 B.C.C.A., that odour alone will never be enough. [35] The issue Ewart was whether the results of a search, conducted under the so-called “knock on” investigative procedure, shouldbe excluded under s. 24(2) of the Charter, by reason of the decision in R. v. Evans (1994), (BC CA), 93 C.C.C. (3d)130 (BCCA), which had found that search procedure to be unconstitutional. The evidence was that a “knock on” search had resulted in

the investigating police officers smelling the odour of “burning” marihuana and seeing a cloud of marihuana smoke when the appellantanswered their knock on his door. A subsequent search of the house produced evidence of a marihuana grow operation. [36] In the course of reaching a conclusion that the police officers acted in good faith, the Court noted that the arrest of the appellant,based upon the officer’s initial observations, was justified under s. 495(2)(d)(

i) and (ii) of the Criminal Code both to establish theappellant’s identity and to preserve evidence. In short, the decision says nothing about the power of arrest under s. 495(1)(b).

At bestEwart is a case, like so many others, in which the smell of burnt or burning marihuana was combined with other circumstances – in thatinstance a cloud of marihuana smoke indicating the contemporaneous act of smoking marihuana - which justified a conclusion that theoffence of possession was then in the process of being committed, although that was clearly not the basis upon which the arrest in thatcase was considered by the Court. [37] The cases of Sievert & Barron and Seney (and, indeed, Ashby and Hardenstine) were all cases in which the smell attracting theattention of the investigating police officers was the smell of vegetative as opposed to burnt marihuana.

As noted at para. 44 of thereasons in Janvier, the smell of vegetative marihuana supports a conclusion that marihuana is then present and that accordingly anongoing offence of possession of marihuana is then and there being committed. [38] In each of Ewart, Schultz and Dubois there were “circumstances” in addition to the smell of burnt or burning marihuana thatsupported an arrest under either sub-s. 495(1)(

a) or (b). In that sense, the statement in Schultz to the effect “...it cannot besaid...that odour alone will never be enough” was a gratuitous observation, in the sense that it was unnecessary to a determination of theissue before the Court in that case, although it would clearly be relevant in the context of those cases cited involving the smell ofvegetative marihuana. [39] All of the foregoing leads me to the conclusion that it is open to me to apply the analysis in Janvier if, indeed, I agree that it iscorrect as a matter of law. [40] The majority judgment of the Supreme Court of Canada in R. v.

Biron, [1975] 2 S.C.R. 56 was the starting point for Jackson J.A.in her analysis of the proper construction to be given to s. 495(1)(b). In order to appreciate the context of that decision, I think it is usefulfirst to review the earlier decision of the Saskatchewan Court of Appeal in R. v. Pritchard (1961), (SK CA), 130C.C.C. 61, as that decision featured in both the majority and the minority judgments in Biron. [41] Pritchard was one of six men initially arrested for causing a disturbance by fighting, a

summary conviction offence. At somepoint after his arrest, and in the confusion caused by one of the other men attempting to escape police custody, Pritchard himself slippedaway only to be arrested later some distance from the scene of the original arrest. He was charged with both causing a disturbance byfighting and with escaping from lawful custody. At trial he was acquitted on the charge of causing a disturbance by fighting.

That ledthe Magistrate to the conclusion that his arrest, under the equivalent of what is now s. 495(1)(b), was unlawful as he had not been“committing” that offence when the arrest was effected.

In the result Pritchard was also acquitted on the charge of escaping lawfulcustody. [42] On appeal the Crown argued that, if under all the circumstances the police officers had reasonable and probable grounds forbelieving that Pritchard was committing the offence of causing a disturbance, the arrest under that provision was lawful notwithstandinghis subsequent acquittal on the merits of the charge. [43] That appeal was dismissed.

After noting that the remedy lay with Parliament if the Court’s duty to interpret and apply the lawproduced an undesirable result, Culliton J.A., as he then was, stated: [8] The general rule seems to be that where a statute confers the power to arrest, without a warrant, a person found committing acriminal offence, but does not expressly give the right to arrest on reasonable and probable grounds that such person is committing acriminal offence, then the arrest cannot be justified if the person was not in fact committing a criminal offence: ...[citations omitted] ... [15] While a peace officer has no right to arrest without warrant a person he finds committing an offence unless an offence was in factcommitted, nevertheless, even if the officer was in error in so arresting, if he acted on reasonable and probable grounds, he is givenprotection under s. 25 of the Code. [44] The issue in Biron, was an appeal from conviction for resisting arrest in circumstances where the appellant had been acquitted ofthe

summary conviction offence for which he had originally been arrested. In his judgment dismissing Biron’s appeal, Martland J. forthe majority addressed the proper construction to be given to the predecessor of s. 495(1)(

b) by first noting the scope of the power ofarrest in what is today s. 495(1)(a): This paragraph, limited in its application to indictable offences, deals with the situation in which an offence has already been committedor is expected to be committed. The peace officer is not present at its commission. He may have to rely upon information received fromothers. The paragraph therefore enables him to act on his belief, if based on reasonable and probable grounds. Paragraph (

b) applies in relation to any criminal offence and it deals with the situation in which the peace officer himself finds an offencebeing committed. His power to arrest is based upon his own observation. Because it is based on his own discovery of an offenceactually being committed there is no reason to refer to a belief based upon reasonable and probable grounds. If the reasoning in the Pritchard case is sound, the validity of an arrest under s. 450(1)(

b) can only be determined after the trial of theperson arrested and after the determination of any subsequent appeals. My view is that the validity of an arrest under this paragraphmust be determined in relation to the circumstances which were apparent to the peace officer at the time the arrest was made.... If the words “committing a criminal offence” are to be construed in the manner indicated in the Pritchard case, para. (

b) becomesimpossible to apply. The power of arrest which that paragraph gives has to be exercised promptly, yet, strictly speaking it is impossible

to say that an offence is committed until the party arrested has been found guilty by the courts. If this is the way in which this provisionis to be construed, no peace officer can ever decide, when making an arrest without a warrant, that the person arrested is “committing acriminal offence”.

In my opinion the wording used in para. (b), which is oversimplified, means that the power to arrest without a warrantis given where the peace officer himself finds a situation in which a person is apparently committing an offence. (pp. 71-2 and 75,emphasis added) [45] In his reasons on behalf of the minority, Laskin C.J.C. focused on the absence of the words “reasonable and probable grounds” inboth what was then s. 449(1)(a), the predecessor to what is today s. 494(1)(a), and what was then s. 450(1)(

b) and concluded: Moreover, it is plain to me, on grounds of context in aid of construction, that when s. 449(1)(

a) is read with s. 449(1)(b), the formercould not possibly embrace arrest without warrant on apparency or on reasonable and probable grounds. Further, reasonable andprobable grounds for an arrest without warrant govern s. 450(1)(

a) and s. 450(1)(

c) but the words are excluded from s. 450(1)(b), and Isee no textual or policy justification for reading them or the equivalent term “apparently” into s. 450(1)(b). (p. , emphasis added) [46] It will be noted that nothing in the passages from the majority judgment suggests that a peace officer making an arrest under s.495(1)(

b) is entitled to base his or her conclusion that a criminal offence is apparently being committed on anything other than that whichhe or she has actually observed. In other words, what Laskin C.J.C. referred to as the “apparency” test, applies to the conclusion of thepeace officer based upon what he or she actually observes the arrested person doing at that moment in time and not to any belief basedupon reasonable grounds that extend beyond those observations. [47] Jackson J.A also referred to the Supreme Court of Canada decision in R. v. Roberge, (SCC), [1983] 1 S.C.R.312.

Roberge was a Quebec police officer who pursued a taxi, which he believed was being driven in a manner dangerous to the public,into the province of New Brunswick where, in one of a series of unsuccessful attempts to apprehend the driver, he fired his servicerevolver at the fleeing vehicle.

He was convicted of the careless use of a firearm in New Brunswick, whilst the taxi driver was acquittedof dangerous driving in Quebec. [48] In a lengthy judgment, the focus of which was whether the police officer was justified in using his weapon in the circumstances,Lamer J. (as he then was) revisited the judgments in both Pritchard and Biron. [49] In considering the scope of the power of arrest under what is now s. 495(1)(b), and referring to the above passages from themajority judgment in Biron, and to para. 15 of the judgment in Pritchard, which was cited with approval by Laskin C.J.C. in the minorityjudgment in Biron, he said: The disagreement between the judges of this Court in Biron was as regards the test when applicable to a party resisting arrest.

I haveunderlined the test the minority recognized as applicable to the arresting officer when he is the accused. The majority would have thesame test for the arresting party and the party being arrested. As regards the accused arrestor, I see no disagreement even though themajority refer only to apparently committing. Indeed, I do not read the test laid down by Martland J. as suggesting that it is sufficientthat it be “apparent” to the police officer even though it would be unreasonable for the police officer to come to that conclusion.

Surelyit must be “apparent” to a reasonable person placed in the circumstances of the arresting officer at the time. This is no different than what Culliton C.J.S. had said in Pritchard, an officer acting “on reasonable and probable grounds”.

Thereforethis Court in Biron was unanimous as regards the test for the arresting officer when he is the accused. [50] I believe it is important to keep in mind that these remarks were very clearly made and intended to apply in the context of acase where the arresting officer was himself charged with an offence arising out of the circumstances of the arrest, and where hisdefence under s. 25 of the Criminal Code depended, in part at least, on the lawfulness of that arrest.

Thus, in my view, nothing said byLamer J. should be taken as extending what Martland J. said in Brion, about the sense in which the word “apparently” should be usedwhen considering whether an arrest is lawful under what is now s. 495(1)(b), in those cases where the person arrested has been acquittedof the

summary conviction offence giving rise to the arrest. [51] That said, once again it will be noted that nothing said by Lamer J. in Roberge can be taken as suggesting that in making thedecision to arrest under s. 495(1)(

b) the officer in that case was entitled to take into account anything other than his own personalobservations of the taxi driver’s conduct. Thus, in any event, the decision in Roberge cannot be said to have diluted the narrow scope forarrest found in s. 495(1)(

b) of the Criminal Code, by expanding an arresting officer’s powers under that

section beyond those describedin Biron. [52] In her judgment in Janvier, Jackson J.A. adopted the words of Brown J. in R. v. Wright,

(2007) ONCJ 493 at para. 65: In my view, what Biron stands for is that when the peace officer with his or her own eyes and ears observes all the elements of asummary conviction offence, the fact that the accused is later acquitted on a technicality does not negate that the officer “found himcommitting” the offence. (emphasis added) I agree with that statement as one that is consistent with the facts in Biron and accurately reflects what Martland J. intended when he usedthe word “apparently” in his judgment in that case. [53] Following her review of the case law devoted to the construction of s. 495(1)(b), Jackson J.A. said this at para. 30 of her reasonsin Janvier: [30] When one examines the decisions where courts have sustained an arrest based on the smell of burned marihuana, and no othersensory perception, they rely, in addition to the smell of burned marihuana, upon an inference that more marihuana will be discovered.

In Biron, however, Martland J. makes it clear that the Court interprets the phrase “finds [a person] committing a criminaloffence” as implying that the officer’s belief an offence is being committed is based on his or her observation of that offence beingcommitted (or apparently being committed) and not merely an inference from some other observation. That is why Martland J.went on to say “there is no reason to refer to a belief based upon reasonable and probable grounds.”...Thus, s. 495(1)(

b) does not

permit the officer to say “based on my experience, I believed I would find other marihuana present because I smelled recently burnedmarihuana.” Observation (i.e. the smell) of recently smoked marihuana is not an observation of current possession of additionalunsmoked marihuana. One might infer the presence of more marihuana, but is not observing or smelling it and one is therefore notfinding the person committing the offence of possession of additional, unsmoked, marihuana within the meaning of s. 495(1)(b). Section495(1)(

b) does not permit an arrest made on inference derived from the smell of burned marihuana alone. (emphasis added) [54] In my view, the analysis of the power of arrest in s. 495(1)(

b) by Jackson J.A. in Janvier is consistent with the more recentdecision of the British Columbia Court of Appeal in R. v. Abel (2008), 2008 BCCA 54 , 229 C.C.C. (3d) 465.

In that case thesimilar language of s. 494(1)(a), authorizing anyone to arrest without warrant a person “whom he finds committing an indictableoffence”, was considered in the context of a citizen’s arrest of a person for possession of stolen property in circumstances where theperson arrested did not have actual possession at the time the arrest was effected. [55] Writing for the Court, Frankel J.A. reviewed early English statutes antecedent to our Criminal Code provisions, ancient casesdecided under those old statutes, authorities decided under our Criminal Code provisions, including the very passages from Biron andRoberge relied upon by Jackson J.A. in Janvier, and a comparison of the two official language provisions.

I include select passages fromhis judgment reflecting the results of that review: [31] I do not accept the

interpretation of “finds committing” advanced by the appellants. An examination of the common law rootsand historical statutory usage of this expression reveals that it connotes a situation where the arresting party comes upon someone in thevery act of committing an offence. In other words, criminal activity must be taking place in the presence of the arresting party.

This view is further supported by the French version of other federal statutes, discussed below, that authorize arrest on the basis of “findscommitting.” ... [45] From the beginning, Canadian courts have interpreted the words “finds committing” as pertaining to situations wherethe person being arrested is discovered in the very act of committing an offence: R. v. Hills (1924), (AB CA), 44C.C.C. 329 (Alta. S.C. (A.D.)), is an example. In this case, the power to arrest on the basis of “finds committing” was contained in s. 85of the Liquor Act, R.S.A. 1922, c. 266.

Acknowledging that this expression had been taken from the arrest provisions of the CriminalCode, Mr. Justice Clarke, after citing a number of English authorities stated (at 334) that, “a peace officer finds him committing theoffence by seeing the act committed.” ... [63] To the extent that the expressions “finds committing” and “qu’il trouve en train de commettre” used in the Criminal Code maybe ambiguous, which I do not think they are, any ambiguity is resolved by having regard to how Parliament has expressed itself inFrench in these other statutes. The

interpretation common to all versions in both official languages, i.e. their shared meaning, isthat the person effecting the arrest must have come upon someone who, at that very moment and at that very place, is engaged incriminal activity. (emphasis added) [56] In my view, whether one considers the construction given to the words “finds committing” in Janvier or in Abel, where the smellof burnt marihuana is the only observation apparent to a police officer contemplating an arrest under s. 495(1)(

b) the result will be thesame. The law requires that inferences drawn from proven facts must be reasonable. The reasonable inference to be drawn from thesmell of burnt marihuana, whether one estimates the burning to have taken place in the immediate past or hours previously, is that themarihuana which was the source of that smell no longer exists. It has been consumed by fire.

In my view, it would be unreasonable, as amatter of both law and logic, to draw an inference of present possession from nothing more than evidence of past possession. [57] As was the case in Janvier, the decision to arrest Boyd in this case was made by Const. Cranmer on his observation of the smellof burnt marihuana alone, without any other observation apparent to him from which it could properly be concluded that Mr. Boyd wasthen in possession of marihuana. At no time prior to the arrest did Const. Cranmer see any marihuana in Mr. Boyd’s possession, nor didthe officer see Mr.

Boyd engaged in any act from which actual possession could properly be inferred. There was no evidence of anyongoing criminal activity taking place in the presence of Const. Cranmer when he stood beside Mr. Boyd’s car and sniffed the smell ofburnt marihuana. The best that could be said is that Const. Cranmer suspected, on what he believed were reasonable grounds, namely hispast experience, that Mr. Boyd was in possession of marihuana. Indeed, as the officer himself testified, he arrested Mr. Boyd in the hopethat he would find some evidence of a drug related criminal offence. [58] In the circumstances Mr.

Boyd’s arrest under s. 495(1)(

b) was unlawful. As it was not suggested in argument that the search ofMr. Boyd could be sustained on any other ground, it follows that the search incident to his the unlawful arrest was an unreasonablesearch. (

b) Should the results of the search be excluded under s. 24(2) of the Charter? [59] The onus is on Mr. Boyd to establish on a balance of probabilities that admitting the evidence seized from him during the searchfollowing his arrest would bring the administration of justice into disrepute. The issue to which that onus is directed is whether, basedon the evidence on the voir dire, admitting that evidence would, over the long term, have an adverse impact on the integrity of, andpublic confidence in, the reputation of the justice system: R. v. Grant, 2009 SCC 32 , [2009] 2 S.C.R. 353.

The determinationof that issue depends upon a careful balancing of the results of the three lines of inquiry set out in Grant. [60] The first step is to determine the scope of the conduct under scrutiny. In my view, that conduct is not limited to the violation ofMr. Boyd’s s. 8 right to be secure from unreasonable search and seizure, but must include the fact that search was the consequence of anunlawful arrest. [61] Mr. Boyd’s initial detention was authorized by s. 73 of the Motor Vehicle Act.

While that detention was arbitrary, it wasnonetheless justified under s. 1 of the Charter for the reasons explained in R. v. Ladouceur, (SCC), [1990] 1 S.C.R.

1257. In R. v. Duguay, Murphy & Sevigny (1985), (ON CA), 18 C.C.C. (3d) 289 (Ont. C.A.), it was held that notevery unlawful arrest results necessarily in an arbitrary detention. Be that as it may, I am satisfied that in this case, where no grounds forthe arrest existed, the s. 1 justification for Mr. Boyd’s detention under s. 73 of the Motor Vehicle Act was vitiated by that unlawful arrestwith the result that his continuing detention was contrary to his right under s. 9 of the Charter not to be arbitrarily detained Thus, theCharter-infringing state conduct under consideration includes breaches of Mr.

Boyd’s rights under both s. 8 and s. 9 of the Charter. [62] The first line of inquiry involves a consideration of the seriousness of the Charter-infringing state conduct. Crown counselargued that the issue whether the arrest of Mr. Boyd was lawful was “highly nuanced” and subject to diverging opinions in the case lawsuch that the resulting s. 8 violation ought to be regarded as an “understandable error” and therefore the result of mere inadvertence. However, quite apart from the fact that the limitations on the power of arrest under s. 495(1)(

b) have been clear since at least the 1975decision of the Supreme Court of Canada in Biron, there was no suggestion by Const. Cranmer that he was in any way misled bydiverging opinions in any case law of which he was aware. Nor, frankly, was there any indication in his evidence that he evenconsidered the grounds upon which he could lawfully arrest Mr. Boyd. Rather, his evidence supports the conclusion that, immediatelyupon detecting the smell of burnt marihuana, he suspected that a drug related criminal offence was in progress and his objective was tosecure evidence of that offence. The arrest of Mr.

Boyd was the means by which that end could be achieved and was effected in order toenable him to search for evidence that would confirm his suspicion. [63] An arrest is the ultimate form of state interference with the liberty of an individual. Thus, Parliament has always closelyrestricted the circumstances in which the power of arrest can be exercised. The constitutional right we all have not to be detainedarbitrarily, mandates that police officers who have the authority to exercise that power both observe its statutory limitations and usethoughtful caution when deciding to invoke it. On the evidence Const.

Cranmer’s decision to arrest Mr. Boyd, in order to facilitate asearch for evidence he suspected existed, was made without any, never mind a careful, consideration of the grounds upon which thatarrest would be lawful. [64] The decision in R. v. Harrison, 2009 SCC 34 , [2009] 2 S.C.R. 494, released by the Supreme Court of Canada at thesame time as the decision in Grant, offers guidance on how to approach this first line of inquiry. At para. 22 of her reasons, McLachlinC.J.C. noted: 22.

At this stage the court considers the nature of the police conduct that infringed the Charter and led to the discovery of theevidence. Did it involve misconduct from which the court should be concerned to dissociate itself? This will be the case where thedeparture from Charter standards was major in degree, or where the police knew (or should have known) that their conduct wasnot Charter-compliant. On the other hand, where the breach was of a merely technical nature or the result of an understandablemistake, dissociation is much less of a concern. (emphasis added) [65] As noted by Doherty J.A. in R. v.

Kitaitchik (2002), (ON CA), 166 C.C.C. (3d) 14 (Ont. C.A.), quoted withapproval by McLachlin C.J.C. in Harrison, the spectrum of police misconduct runs from: ...blameless conduct through negligent conduct to conduct demonstrating a blatant disregard for Charter rights.... (para 41) [66] I consider the Charter breaches in this case to be at the serious end of that spectrum. To paraphrase McLachlin C.J.C. inHarrison, at para 24, Const.

Cranmer’s determination, to find evidence of the drug related criminal offence he suspected was takingplace, blinded him to the constitutional requirements of a valid arrest, which in turn resulted in the unconstitutional search of Mr. Boyd. In the circumstances, the breaches are properly regarded as representing what the law considers a blatant disregard for Mr. Boyd’sCharter rights. [67] The second line of inquiry involves an assessment of the impact of the breach on the Charter-protected interests of Mr. Boyd. Crown counsel concedes that the impact upon Mr.

Boyd was “not insignificant”, but suggests that the hood of his clothing was not “anarea where there is a high expectation of privacy.” In my view, the high expectation of personal privacy that attaches to one’s personextends as well to the clothing one wears. I agree that the search of the hood of Mr. Boyd’s jacket was not as profoundly intrusive as, forexample, would be a search of a body cavity, but neither could it be said that the impact of the interference with both his liberty and hisright of privacy was trivial. I agree with the Crown’s concession that the impact of the Charter breaches on Mr.

Boyd was significant. [68] Finally, the third line of inquiry mandated by the decision in Grant focuses on society’s interest in seeing the charge against Mr.Boyd adjudicated on its merits. There is no question but that the “truth seeking” function of the criminal trial process would be betterserved if the Exhibits marked on the voir dire were admitted in evidence.

They are reliable and without them the Crown’s case mustinevitably fail. [69] The Crown relies on those circumstances and argues that, in the result, this line of inquiry supports the admission of the evidenceseized to the extent that this consideration should, in effect, trump the conclusions emerging from the other two inquiries.

With respect,this argument amounts to what, in her dissenting reasons in the Court of Appeal in Harrison, Cronk J.A. described as “... a false contestbetween the misconduct of the police and the alleged criminality of the accused.” While I agree that this line of inquiry will oftensupport admission of unconstitutionally obtained evidence, as it does in this case, where the reliability of that evidence is not in disputeand the evidence is critical to the Crown’s case, I do not accept that by itself it can ever be determinative of the s. 24(2) inquiry. [70] What then is the balance that emerges when these three tests are considered together?

I am of the view that balance favoursexclusion on the ground that admission of the evidence will tend to bring the administration of justice into disrepute. I reach thatconclusion because, in my view, the serious nature of the two Charter breaches by Const. Cranmer together with the significant impactthose breaches had on Mr. Boyd’s liberty and his right to privacy outweigh the fact that the reliability of the evidence seized and theserious nature of the offence favour admission.

Of particular concern is the potential that admitting the evidence will have in fostering apublic perception that the relaxation of the rigour of Charter rights can be justified when serious charges are in issue. Public confidencein the rule of law and the processes by which that rule is enforced will not survive if the state is permitted to ignore those rights on aselective basis depending on the nature of the crimes under investigation or the charges ultimately prosecuted. CONCLUSION

[ 71 ] Exhibits “A”, “B”, “C” and “D” on the voir dire will not be admitted at trial.