R. v. Tait, 2015 ONCJ 144

Information No. 13-428 Citation: R. v. Tait , 2015 ONCJ 144 ONTARIO COURT OF JUSTICE HER MAJESTY THE QUEEN v. JEFFREY TAIT REASONS FOR JUDGMENT BEFORE THE HONOURABLE JUSTICE B.E. PUGSLEY on January 13, 2015 at ORANGEVILLE, Ontario APPEARANCES :

A. Woodley Counsel for the Federal Crown H. Lewin Counsel for Jeffrey Tait ONTARIO COURT OF JUSTICE T A B L E O F C O N T E N T S Reasons for Judgment ...starting at page one

Transcript Ordered: January 13, 2015 Transcript Completed: February 28, 2015 Ordering Party Notified: March 2, 2015 TUESDAY, JANUARY 13, 2015 REASONS FOR JUDGMENT PUGSLEY, J. (Orally): Jeffrey Tait is charged with possession of more than 30 grams of marijuana, contrary to subsection 4(1) of the Controlled Drugs and Substances Act , and possession of under 3 kilograms of marijuana for the purposes of trafficking, contrary to subsection 5(2) of the Controlled Drugs and Substances Act , and further, trafficking. He was tried in this court.

He also brought an application to redress alleged breaches of the Canadian Charter of Rights and Freedoms . The trial and Charter application proceeded in a blended fashion. On the trial proper the evidence was not complex. Sergeant Andrew Kinapen of the Caledon Detachment of the O.P.P. was participating in a RIDE checkpoint on Airport Road in Caledon when the defendant drove his motor vehicle up to the spot check at about 11:30 p.m. on Saturday, March 30 th , 2013. The officer stopped Mr. Tait’s vehicle.

When the defendant lowered his window Sergeant Kinapen immediately detected a strong odour of marijuana coming from inside the vehicle. Mr. Tait was the only occupant. He pulled to the roadside at the request of the officer. The officer described Mr. Tait appearing to be nervous and fiddling with his cell phone. A record check suggested past police contact regarding drugs. Sergeant Kinapen believed that he had reasonable and probable grounds to arrest the defendant for possession of marijuana and did so at 11:36 p.m.

Search of the defendant’s motor vehicle incident to that arrest located a backpack in the trunk of the vehicle. The backpack contained five individually wrapped one-pound bags of marijuana. Sergeant Kinapen then re-arrested Mr. Tait on the possession for the purpose of trafficking charge. After processing, Mr. Tait was released on a promise to appear. Sergeant Kinapen described the smell, first quickly noted at the RIDE stop, as a smell of fresh burnt marijuana. After the vehicle was pulled over to a safer location he noted what he described as a strong smell of raw marijuana coming from within the vehicle.

Sergeant Kinapen agreed in cross-examination that he had no knowledge as to whether Mr. Tait was legally entitled to possess marijuana, nor did Mr. Tait ever claim to be so entitled. No drugs or associated paraphernalia was found in the passenger compartment of the defendant’s vehicle, save for some hemp paper. After argument and a ruling I qualified Detective Scott McPhail of the O.P.P. as an expert witness in the indicia of possession of drugs for the purpose of trafficking. His report is Exhibit Five on the trial.

Detective McPhail described the basis of his knowledge of the quantity of drugs typically possessed for personal use. In cross-examination he agreed that he based his opinion on recreational use of marijuana and those who smoke marijuana primarily. He had little experience with those who cooked, inhaled marijuana vapour or converted marijuana to hash oil. The defence called no evidence on the trial proper nor on the Charter application.

The affidavit filed with that application is that of an employee of the defendant’s law firm and did not yield admissible evidence of assistance to the defendant on his application. The entire record of evidence on the trial and application comes from the evidence of the four Crown witnesses here. The Crown submits that all three charges are proven beyond a reasonable doubt, that there was no Charter breach and should I find such a breach the evidence should not be excluded under subsection 24(2) of the Charter . The defendant submits that the Crown has failed to prove that (

a) the defendant actually possessed the marijuana found in his truck and (

b) that if possessed that the marijuana was possessed for the purpose of trafficking or that he trafficked in marijuana. On the Charter application the defendant asserts breaches of

section 8 and subsection 10(

b) of the Charter and seeks to exclude the marijuana seized from the defendant’s trunk. On the merits the Crown has proven the possession of marijuana and the possession for purpose of trafficking. There is no evidence there was actual trafficking here. Mr. Tait drove south on Airport Road into a RIDE spot check. Sergeant Kinapen duly stopped him as he is entitled to, to check on his sobriety. When Mr. Tait lowered his window Sergeant Kinapen immediately smelled what he described as a strong odour of marijuana. He directed Mr. Tait to pull over to a safer place to continue his investigation.

He then re-attended at the vehicle and again smelled a strong odour of marijuana. Mr. Tait appeared to be nervous, fiddled with his cell phone, and Sergeant Kinapen asked his dispatcher for a CPIC check. The check suggested past police contact for drugs. Sergeant Kinapen combined all of his observations and arrested Mr. Tait for possession of marijuana. Incidental to that arrest the vehicle was searched and five pounds of marijuana was found, and seized, from the trunk. Possession is defined in the Controlled Drugs and Substances Act to mean possession as it is defined in subsection 4(3) of the Criminal Code .

Possession may be actual or constructive possession and in either case engages a concept of actual knowledge and control. Here the large quantity of marijuana was seized from the trunk of the defendant’s own motor vehicle. He was the sole occupant. The smell of marijuana within the vehicle was pervasive. There can be no doubt that the marijuana found in his vehicle was in the possession of Mr. Tait. The defendant argues that the Crown has not proven beyond a reasonable doubt that the five pounds of marijuana seized was possessed by the defendant for the purpose of trafficking.

The defendant points out that the sole evidence on this issue comes from the evidence of Detective McPhail. No indicia of trafficking was found, such as a scale, debt list or large sums of cash. Only the quantity serves to show possession for the purpose of trafficking in this case, it is submitted. In this regard the defendant noted that the officer could not state the ratio of hash oil that could be created by reducing the raw marijuana to oil, nor precisely how much oil might be consumed for personal use. The defendant also submitted that R. v.

Sekhon in the Supreme Court of Canada , 2014, stands for the proposition that no weight should be accorded to the officer’s evidence that he had never encountered a person who had five pounds of marijuana in his possession for personal use. In my view this takes Sekhon beyond the area intended by the Supreme Court . In Sekhon the expert’s opinion was that he had never encountered a drug courier who did not know he was transporting drugs. That opinion was apparently a small part of the trial court’s reasons on an otherwise overwhelming case.

The obvious problem in Sekhon was the implication that because the expert had not seen a blind courier before that blind couriers do not exist. The issue here is different. Detective McPhail carefully set out the basis for his opinion that the most he has seen purchased for personal use was one pound, including: 1 . How much smokable marijuana one pound will create; 2 . The cost of purchasing marijuana in large quantities for personal use; and, 3 . That marijuana users want fresh, not stale, marijuana.

The expert’s opinion that five times the typical personal use quantity of marijuana is an indicia of possession for the purpose of trafficking is far from over-reaching his expert role under Mohan . Rather, it is a reasonable opinion heard frequently by courts on such matters, both long before and also after the release of Sekhon . The defendant further submits that unless Detective McPhail can relate the five pounds seized to alternate methods of personal consumption the Crown cannot be said to have proven possession for the purpose beyond a reasonable doubt.

In particular it is noted that the expert could not say how much hash oil would be made from five pounds of marijuana with any precision, nor whether that quantity could be consumed in other forms personally. Again, with respect, the Crown is not required to negative every possible question of possible alternate consumption never disclosed by the evidence in order to reach proof beyond a reasonable doubt.

Detective McPhail’s occasional uncertainty as to modes of consumption that, frankly, are not generally used in his experience, potentially goes to the weight to be accorded to his opinion, not to its admissibility. Here the quantity found was not just over the typical one pound personal use quantities he had identified in his expertise. Rather, the quantity is grossly over that level by a factor of five. In considering whether the Crown has proven the subsection 5(2) charge beyond a reasonable doubt I must consider all of the admissible evidence on point.

Here the sole expert opinion reached in a reasonable, even handed and fair manner, demonstrates beyond a reasonable doubt that the five pounds of marijuana possessed by the defendant in the trunk of his car in five separate one-pound packages was indeed possessed by him for the purpose of trafficking. Therefore unless the defendant is successful on his Charter application he will, of necessity, be convicted of the first two counts. There is no evidence, however, on the count of trafficking and that charge is dismissed. That is count three. What then of these two alleged breaches of the Charter ?

The defendant first submits that Sergeant Kinapen had no basis to arrest him and that therefore the search of the motor vehicle was undertaken without any authority, and the seized marijuana ought to be excluded from evidence. Second, the defendant states that there was a breach of his subsection 10(

b) right to counsel and that again the seized marijuana ought to be excluded under subsection 24(2) of the Charter . A central submission by the defendant under the alleged

section 8 breach engages a supposed duty on the arresting officer to make sure

that the marijuana he detected was not for medical use, even if such a right to possession is never claimed. After all, submits the defendant, he is entitled throughout to rely on his right to silence. Quere then how an officer could ever leap the hurdle raised up by the defendant in this case? The officer cannot have reasonable and probable grounds to believe that a defendant possesses marijuana illegally until he or she is able to establish, without any input from a defendant pro or con, that the possession might conceivably, somehow, be legal possession.

This is not the law with regard to a peace officer’s right to arrest a person without a warrant. He or she need not negative all possible defences at the roadside when considering whether she or he had reasonable and probable grounds to arrest the defendant. This is, simply put, the worst form of being a Monday morning quarterback and courts are not required to parse every aspect of an officer’s conduct at the scene in such a way.

While a defendant need never answer any question, nor offer up information unsolicited, where a defendant has a legal excuse for his or her act and fails to advance that information, it lies ill in their mouth to later complain that the officer, faced with otherwise reasonable and probable grounds to arrest did so without somehow divining their legal possession. Here Sergeant Kinapen testified that had the defendant stated that he had a medical marijuana licence the officer would have investigated further as he has on other occasions.

There is absolutely no evidence that the defendant had such a licence and there is no basis to criticize the officer’s reasonable grounds to arrest on the basis that he should have acted to eliminate this remote possibility before placing the defendant under arrest. The defendant suggests that even if the defendant remained silent on the issue of legal entitlement to marijuana medically, the officer, before arresting, should have checked the Health Canada database from the scene before he can properly have reasonable and probable grounds to arrest.

Again, I do not accept this submission as setting the bar for reasonable and probable grounds far above where it legally belongs. Plainly put, until a claim is made that marijuana is possessed legally by a defendant, the fact that on some unknown basis it could be so possessed can have no role to play in the officer’s assessment of his or her reasonable and probable grounds to arrest for possession of marijuana, or for a related offence. The defendant also takes issue with the basis on which Mr.

Tait was arrested, noting that at one point Sergeant Kinapen stated that he smelled a very strong odour of fresh burnt marijuana and then moments later after the defendant parked his motor vehicle, referred to a very strong odour of fresh raw marijuana. I take nothing from this distinction, because the context was different: A short smell standing in the middle of the road versus a longer time with the defendant after he parked. Further, Sergeant Kinapen’s detection of the smell of marijuana is seconded by another officer who also smelled that same smell.

Without question both of them know what marijuana smells like. Sergeant Kinapen also did not arrest the defendant based on the strong odour of marijuana by itself. He noted that the defendant was nervous, was chewing gum rapidly and fiddling with his cell phone. He also waited until he had the defendant’s antecedents from CPIC. Combined, I conclude that Sergeant Kinapen had ample grounds to arrest the defendant in this case. In this regard I note that the last best case on point from the Ontario Court of Appeal , R. v. Valentine , 2014, supports an arrest in some cases based upon an odour of marijuana alone.

I am referred to R. v. Ruiz , B.C. Provincial Court , 2012, as standing for the proposition that a slight odour of marijuana is no evidence of the possession of marijuana. In my respectful view Ruiz is not an accurate statement of the law and I note that Ruiz has been expressly overruled by the British Columbia Court of Appeal : in R. v. McCannell , 2014, paragraph 37 states that Ruiz is not to be followed.

Marijuana is still an illegal substance in Canada. It has a distinctive smell as described here. Fresh or burned that smell, combined as it was with Sergeant Kinapen’s other observations, both subjectively and objectively gave him legal grounds to arrest Mr. Tait for possession of marijuana and upon that arrest to search the car. No

section 8 Charter violation exists on this evidence. The defendant also submits that Sergeant Kinapen breached the defendant’s right to counsel in this case. In this regard the chronology could be described as follows: 1. At about 11:30 p.m. Mr. Tait’s vehicle approached the RIDE check checkpoint. 2. Sergeant Kinapen detected a strong odour of marijuana and directed Mr. Tait to pull around the corner, and park in a safe place on the side road. 3. Sergeant Kinapen spoke further to Mr. Tait and detected a strong odour of raw marijuana in the vehicle. 4 . Sergeant Kinapen noted Mr.

Tait to be acting nervously and chewing gum rapidly. The officer checked Mr. Tait’s name by way of dispatch on the CPIC system. There is a past drug related record. 5 . At about 11:36 p.m. Sergeant Kinapen arrested Mr. Tait for possession of marijuana. He had him step out, patted him down and placed him in the rear of his police car. 6 . Sergeant Kinapen then sat in the front seat and started to prepare to read the defendant his right to counsel at the time of another officer approaching. That officer approached and asked if he could help. 7 .

Sergeant Kinapen became sidetracked and he, and Constable Roberts, then attended Mr. Tait’s car to search it. 8 . During that search they found five one-pound bags of marijuana in the trunk. 9 . Sergeant Kinapen immediately left the defendant’s car and returned to his cruiser where he rearrested the defendant at 11:39 p.m. for possession for the purpose of trafficking. 10 . He then completed a more thorough search of Mr. Tait, re-lodged him in the police car and at 11:42 p.m. read the defendant his rights to counsel, which Mr. Tait understood.

He then provided the standard police caution, which was also understood. 11 . Sergeant Kinapen testified that Mr. Tait did not wish to make a statement and did not wish to speak to a lawyer. 12 . Mr. Tait was released on a promise to appear at around 2:23 a.m. from the station; and, 13 . Mr. Tait was never put in touch with duty counsel or a lawyer either at the scene or the station.

At the time Mr. Tait was arrested, 11:36 p.m., Sergeant Kinapen ought to have continued to provide Mr. Tait with his right to counsel and caution. Instead he let himself be sidetracked, as he put it, by another officer’s offer to assist. As a result Sergeant Kinapen left Mr. Tait momentarily while he and P.C. Roberts searched the vehicle of Mr. Tait, and found the five pounds of marijuana there. This, as has already been established, was a valid search incidental to arrest. There was no reason why the search could not have waited two or three more minutes until the right to counsel had been given. Mr.

Tait’s car was not going anywhere and Mr. Tait was himself under arrest. Sergeant Kinapen made a mistake, however that mistake I find was not a breach of subsection 10(

b) of the Charter . Right to counsel must be given on arrest or detention as set out in that subsection, but there is no stopwatch running to determine whether the right to counsel are given immediately at the time of arrest or a few moments later. Here a new arrest took place only three minutes after the first arrest and rights to counsel then followed soon after. In those three minutes Mr. Tait was asked to step out of his car, was placed under arrest, was handcuffed, was walked across the street and placed in Sergeant Kinapen’s cruiser.

Sergeant Kinapen then sat down in the front seat and then was called away, left, searched the defendant’s car, and returned to the cruiser, and rearrested the defendant at 11:39 p.m. In the interim Mr. Tait was not questioned and no evidence was extracted from him in violation of his right to counsel. He was not in a position to give effect to the rights to counsel in privacy at that time either.

The delay here was probably avoidable, but was also trifling and of no constitutional moment given that it was at most one or two minutes before the first arrest was overtaken by the much more serious second arrest, and timely right to counsel provided. The only evidence on the issue of implementation is that the defendant understood his right to counsel and did not wish to exercise that right. In the end I find no subsection 10(

b) Charter breach. In case I am wrong I will provide short reasons on the applicable subsection 24(2) Charter remedy here. On the alleged

section 8 Charter breach, if I am wrong and Sergeant Kinapen had no reasonable and probable grounds to arrest Mr. Tait, then he would have had no legal authority to search Mr. Tait’s vehicle, and the marijuana would have been seized without a warrant. The issue then, if that had happened, would have been whether the five pounds of seized marijuana ought to be excluded from evidence. On a R. v. Grant analysis I would not have excluded that evidence. First, there is a much lowered expectation of privacy in a motor vehicle, part of a highly regulated endeavour.

Second, there was a clear indication to the police of recent contact of some nature between Mr. Tait and a controlled substance as Sergeant Kinapen smelled that distinct odour of marijuana. Sergeant Kinapen did not act on that smell alone, but gathered some other evidence before arresting Mr. Tait. This demonstrated good faith by the officer. There was no evidence of a systemic violation of

section 8 here. At worst Sergeant Kinapen would have been acting mistakenly. He was clearly professional to Mr. Tait, did not persist in questioning him and released him appropriately on a promise to appear from the station soon after they got there. The seized drugs represent thousands of dollars of a controlled substance. The evidence is real evidence. There is a real public interest in the trial of cases involving large quantities of controlled drugs, particularly when the drugs are seized during the operation of a motor vehicle. If I had found a

section 8 violation I would not have excluded the seized marijuana here. Similarly, had the defendant established a subsection 10(

b) Charter violation based upon the defendant’s delayed right to counsel on being arrested on the simple possession count I would not have excluded the evidence here. My analysis is similar to that of the alleged

section 8 Grant analysis, but to that I would add that the Charter breach was truly inadvertent, that Sergeant Kinapen was in charge of the platoon that night, that the delay was modest and no harm to the defendant resulted. I would not link such a breach, if found, to the exclusion of possession of the five pounds of marijuana in a motor vehicle.

To summarize then the defence Charter application must be dismissed and he is found guilty of count one and count two. Under R. v. Kienapple I will stay the simple possession count. Do you wish to proceed further with the issue of sentencing today, Mr. Lewin? MR. LEWIN: No, Your Honour ...WHEREUPON THIS PROCEEDING IS ADJOURNED. Certification FORM 2 Certificate of Transcript Evidence Act , Subsection 5(2) I, Kendra Kelly certify that this document is a true and accurate transcription of the recording of R. v.

Tait in the Ontario Court of Justice held at 10 Louisa Street, Orangeville, ON. taken from Recording No. 0611_101_20150113_090733__6_PUGSLEB.dcr , which has been certified in Form 1. ____________________ ________________________________

(Date) (Signature of authorized person)