2014 MBPC 12, 2014 MBPC 12

Cite: 2014 MBPC 12 THE PROVINCIAL COURT OF MANITOBA BETWEEN Her Majesty the Queen ) Christina Kopynsky, Q.C., ) for the Crown - and – ) ) Aaron Beaudry, Accused, ) ) ) Eric Wach, for the Accused ) ) ) Decision on Voir Dire delivered: February 28, 2014 ) MARY KATE HARVIE, P.J. Introduction [ 1 ] On December 16, 2012, the accused Kevin Aaron Beaudry (“Beaudry”) was arrested by members of the Lac de Bonnet Royal Canadian Mounted Police (“RCMP”) and charged with simple possession of marijuana. The accused asserts that his arrest was unlawful, that the search conducted violated

section 8 of the Canadian Charter of Rights and Freedoms , and that the evidence should be excluded pursuant to section 24(2) of the Charter . The Court heard all of the evidence in a voir dire , at the conclusion of which the matter was adjourned for written submissions. The following is my decision on the voir dire. The Facts [ 2 ] On December 16, 2012, Beaudry was a passenger in a cargo van which was pulled over as part of the Lac du Bonnet RCMP annual Christmas check stop program.

Constable Jenvenne attended to the vehicle and the driver rolled down his window, at which time the officer noted what he described as a “striking” and “instantaneous” smell of “raw” or un-smoked marijuana. Two occupants were in the front portion of the van, which was separated by a partition from the rear portion of the vehicle. [ 3 ] The officer testified that given the strength of the smell, he believed there to be a “rather large quantity of marijuana in that vehicle.” He testified that he was satisfied that “there was nobody in that vehicle that (

a) didn’t have it on their person, or (

b) wouldn’t have knowledge that that cannabis marijuana was inside that vehicle.” [ 4 ] As a result, the officer immediately advised the occupants that they were under arrest for possession of marijuana. While he dealt with the driver, Constable Jenvenne called for assistance and directed Constable Thurber to arrest Beaudry. [ 5 ] Constable Thurber asked Beaudry to step out of the vehicle, handcuffed him and gave him a generalized overview of his rights.

Beaudry, who was described as “cooperative and respectful”, was escorted to the rear of the cruiser car where Constable Thurber conducted a “methodical” search, looking at that time for “weapons and a means of escape”. As a result of the search, Constable Thurber located a cell phone, approximately $1000 in Canadian currency and a clear ziplock baggie in his upper right hand jacket pocket containing approximately 30 grams of marijuana. No weapons were located. [ 6 ] Simultaneously to this, Constable Jenvenne dealt with the driver.

A search of the driver’s jacket, which was located between the front seats of the van, located approximately 9 grams of marijuana in a jacket pocket. The driver was issued a promise to appear at the roadside and was released. [ 7 ] Beaudry was transported to the Lac du Bonnet detachment, where he was searched again, eventually being released on a promise to appear. Charter

Section 8- Arrest and Search [ 8 ] Both counsel agree that Beaudry was arrested for a

summary conviction offence pursuant to section 4(4)(

b) of the Controlled Drugs and Substances Act and as such, Criminal Code section 495(1)(

b) applies. The

section states:

Arrest without warrant by peace officer 495.

(1) 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 commit anindictable 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. [9] In order to arrest under this section, an officer must find a person “committing” an offence. In R. v. Biron, ;[1976] 2 S.C.R. 56 (S.C.C.) Martland J noted that s. 495(1)(b) “deals with the situation in which the peace officer himself finds anoffence being committed.

His power of arrest is based on his own observation” or, as in this case, his own sense of smell. [10] In order for the arrest to be lawful, Crown counsel must establish on a balance of probabilities that the arresting officer mustsubjectively believe that he has reasonable grounds to arrest the accused, and those grounds must be justifiable from an objectiveviewpoint. In R. v. Storrey, Cory J. stated In

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

Specifically they are not requiredto establish a prima facie case for conviction before making the arrest. [11] There is no issue that Constable Jenvenne subjectively believed that he had reasonable grounds to arrest the accused. At issue iswhether the totality of the circumstances objectively support Constable Jenvenne’s conclusion, which was based exclusively on what hedescribed as the strong odor he detected within the vehicle.

Constable Thurber, who affected the arrest, relied on the instructions given tohim by Constable Jenvenne. [12] Recognizing that evidence about “odors” is highly subjective, the authorities have paid careful attention to the circumstancesunder which this type of “evidence” is detected. In R. v. Polashek, , 134 C.C.C. (3d) 187 (Ont.C.A.) Rosenberg J.A.discussed the application of principle described in American jurisprudence as the “plain smell doctrine” as it related to the arrest of theaccused, the lone occupant in a vehicle which had been stopped for a Highway Traffic Act violation.

The arresting officer detected a“strong odor” of marijuana, but could not tell whether it was burned or fresh. In responding to the argument that the presence in a vehicleof the odor of marijuana alone cannot provide reasonable grounds for arrest, Rosenberg, J.A. made the following comments: I agree, in part, with the appellant's position. Had Constable Ross based his arrest of the appellant solely on the presence of the odour Iwould have held that there were not reasonable and probable grounds to make the arrest.

Given Constable Ross' admission that he couldnot from the odour alone determine whether the marijuana had been smoked recently or even if he was detecting the smell of smokedmarijuana, the presence of odour alone did not provide reasonable grounds to believe that the occupant was committing an offence. Thesense of smell is highly subjective and to authorize an arrest solely on that basis puts an unreviewable discretion in the hands of theofficer. By their nature, smells are transitory, and thus largely incapable of objective verification. A smell will often leave no trace. AsDoherty J.A. observed in R. v.

Simpson, at p. 202: ". . . subjectively based assessments can too easily mask discriminatory conduct basedon such irrelevant factors as the detainee's sex, colour, age, ethnic origin or sexual orientation." On the other hand, I would not go so far as was urged by the appellant that the presence of the smell of marijuana can never provide therequisite reasonable and probable grounds for an arrest. The circumstances under which the olfactory observation was made willdetermine the matter.

It may be that some officers through experience or training can convince the trial judge that they possessessufficient expertise that their opinion of present possession can be relied upon.

Even in this case, the Crown adduced sufficient evidencefrom which the trial judge could reasonably conclude that Constable Ross accurately detected the odour of marijuana rather than someother substance. [13] Rosenberg, J.A. went on to note that the officer had not based his arrest of the accused solely on the odour of marijuana, anddeclined to interfere with the trial judge’s conclusion that the officer had requisite grounds for an arrest. [14] Some distinction is drawn in the jurisprudence between situations in which a peace officer smells recently burned marijuana andthose where the officer detects raw or un-smoked marijuana.

This distinction is important when assessing whether an officer finds anaccused “committing a criminal offence” and is therefore empowered to arrest pursuant to Criminal Code s. 495(1)(b). [15] In R. v. Janvier (2008), 2007 SKCA 147 , 227 C.C.C. (3d) 294 the Saskatchewan Court of Appeal considered whethera strong smell of burned marijuana provided grounds for the arrest of a sole occupant of a vehicle. The accused had been stopped for abroken headlight.

When the patrol officer was within a meter of the truck he noted the very strong smell of burned marijuana, causinghim to conclude that someone had smoked marijuana in the truck within the previous 20 minutes. The trial judge concluded that theodour alone did not provide the necessary grounds for arrest. [16] Jackson J.A. conducted a lengthy review of the case law related to the powers of arrest conferred by Criminal Code s. 495(1)(b)where the arrest is based on the smell of burned marijuana.

The Court also considered the alternate argument that the smell of recentlyburned marijuana provides objectively reasonable grounds to believe that un-smoked marijuana would be present. The Court referenced R. v. Huebschwerlen (1997), (YK TC), 10 C.R. (5th) 121(Whitehorse Terr. Ct.) in which Chief Judge Lillesreviewed numerous authorities, concluding that, for the most part, the courts have been reluctant to find reasonable grounds based on thesmell of burned marijuana alone. Chief Judge Lilles summarized his conclusions regarding the jurisprudence:

19 As the above cases indicate, courts have been reluctant to find reasonable and probable grounds based on the presence of burntmarihuana odour alone, unless it is established, as in Guberman (1985), (MB CA), 23 C.C.C. (3d) 406], that the smellwas fresh, recent and very strong.

More often, other observations are made in conjunction with the odour, such as evidence of some otheroffence justifying arrest (open liquor), physical observations of drug impairment, some marihuana in the vehicle, or an admission by theaccused that he/she had been using drugs earlier in the evening. 20 A detailed and most helpful analysis of the relevant considerations in such cases is found in the American case of People v.Hilber (1978) 269 N.W.2d 159 (U.S. Mich. S.C. 1978). The following points have been summarized from that decision. 1.

A distinction is to be made between the odour of unburned and burned marihuana. The former indicates the actual presence ofmarihuana, while the odour of burned marihuana indicates only that at some time in the past marihuana was present and burned. 2.

Reliance on the smell of burnt marihuana as the basis for reasonable and probable grounds relies on several inferences: • that the odour in the vehicle was caused by the driver/occupant having smoked marihuana • that marihuana smokers, like tobacco smokers, carry a supply with them But we know that other odours in vehicles, such as tobacco, beer, spoiled food, etc. are often caused by someone other than thedriver/occupant at the time the odour is detected. And there is no reason to believe that tobacco smokers and their behaviours providestandards from which to judge marihuana smokers.

Because of the multiple inferences involved, it is not reasonable to infer that anoccupant of a motor vehicle either smoked marihuana or has it in his/her possession, solely from a residual odour of marihuana in a motorvehicle. [Emphasis added.] [17] Commenting on Chief Judge Lilles’ conclusion, the Jackson J.A. noted “that it is not reasonable to infer that an occupant of amotor vehicle having smoked marihuana would have more in his or her possession” and that since his decision, “almost all of thereported decisions have concluded, as he did, that the smell of burned marihuana alone does not provide an objective basis for areasonable belief that there is more marihuana present.” [18] A somewhat different approach had been taken in R. v.

Guberman, [1985] M.J. 181 (Man.C.A.), where the Court overturnedthe acquittal of a passenger in a vehicle where the officer detected the “strong odor of marijuana smoke”. It is noteworthy that the policealso located a plastic bag containing a “green substance thought by the constable to be marijuana”. Given the totality of thecircumstances, the Court was satisfied that the officer had the requisite grounds to arrest. [19] Consistent with the American jurisprudence, some cases dealing with vehicles which emit the smell of “raw” marijuana haveresulted in a different outcome. In R. v.

Harding 2010 ABCA 180, the Alberta Court of Appeal considered the role of “odor” in theconviction of the accused for possession for the purpose of trafficking. The accused was the sole occupant of vehicle which was pulledover because the licence plate and registration tag were obscured by mud. The officer, who had considerable experience dealing withmarijuana, detected a strong odour of “raw” marijuana, conducted some further investigation, and placed the accused under arrest.

It wasagreed that other factors identified by the officer were merely suspicions, and that the strong odour was the only objective factor to beconsidered. The Court drew a distinction between those cases involving burnt marijuana and concluded (at para 29): Here, Sgt. Topham smelled the very strong odour of raw marijuana, not burnt marijuana. The smell of raw marijuana, given Sgt.Topham’s experience with marijuana, constituted the observation that a crime, namely, possession of marijuana, was being committed.No inference was necessary.

The possession of marijuana was not a past event and the officer did not need to infer that he could findmore marijuana by searching the appellant or his vehicle. The smell of raw marijuana alone was sufficient to conclude that the appellantwas at that time in possession of marijuana. [20] The Court did go on to note that while the smell of raw marijuana could provide sufficient grounds for arrest, such a conclusionwould depend on the officer’s experience.

In Harding, supra, the trial judge described the arresting officer as having a “great deal ofexperience” with a “well trained nose.” [21] Similar comments were made in R. v. Meyers, 2012 BCPC 50 , [2012] B.C.J. No.374; 284 C.C.C.(3d) 248(B.C.Prov.Ct.). When a sports utility vehicle was pulled over for speeding, the officer noted a strong odour of fresh marijuana comingfrom the driver’s side window. The accused driver was effectively arrested and the vehicle was searched, resulting in the seizure ofmarijuana and “magic mushrooms”.

The Court referenced other cases where the experience level of the arresting officer was consideredin relation to his ability to detect the smell of marijuana (see R. v. Burgess, [2009] BCJ 449 (B.C.Prov.Ct.); R. v. Costain, [2010] B.C.J.No.1268 (B.C.Prov.Ct); R. v. Ashby (2011), BCSC 513 .

In weighing the arresting officer’s experience with drugs the Courtnoted: [68] It seems to me that, as illustrated above, all or many of these cases have considered the officer's experience and/or trainingtogether with that officer's observations made at the scene in determining the existence of the objective grounds for the subjective belieffor arrest. [69] The past experience of the officers involved in each of the cases mentioned above was more than minimal or trifling. Rather,they are quite significant and far more than that of Constable Blair.

They were able to convince the trial judge that their experience ortraining was such that they possessed sufficient expertise that their opinion of present possession could be relied upon. [70] I am not persuaded that the same can be said of Constable Blair with his very limited exposure and experience. At the time, hehad been an active police officer for only seven or eight months, had probably been involved in only five or six grow operations as wellas in some seizures, but in all of which he played a minor role.

He does not appear to have had any experience in checking motorvehicles based on a strong smell of marihuana whether fresh, vegetative or burnt and in which marihuana was in fact subsequentlyfound.

[71] With such minimal experience, can it be said that he qualifies on the basis as stated above in Polashek, supra, that his experienceor training is such that he possesses sufficient expertise that his opinion of present possession can be relied upon? In my view, it fallsshort. [22] The smell of un-smoked marijuana, along with other factors, provided sufficient grounds for arrest in R. v. Yaremus, 2008ABPC 322 .

In that case, both investigating officers, who were consider very experienced, testified as to the distinctive odour ofboth fresh and burned marijuana which was emanating from a vehicle stopped in a known drug trafficking location. [23] The case law is clear that while the smell of “raw” or “un-smoked” marijuana can provide a foundation for an arrest, given thehighly subjective nature of this evidence, the experience of the arresting officer and the totality of the circumstances must be carefullyconsidered.

The Evidence of Constables Jenvenne and Thurber [24] Constable Jenvenne, a member of the RCMP for approximately 13 years, was participating in the local Christmas check stopprogram on December 16, 2012 with Constable Thurber and others. Constables Jenvenne and Thurber were directly involved in thearrest of the accused. [25] Constable Jenvenne had experience dealing with marijuana, specifically having been involved with a special operation where hehad picked “thousands” of plants for destruction.

While on highway patrol, he testified to having encountered vehicles with both smokedand un-smoked marijuana. [26] Describing his initial interaction with the vehicle, Constable Jenvenne testified (at transcript p.8) as follows: Q Okay. What happened then, sir? A The window was rolled down and I detected an overwhelming odour of fresh marihuana coming from the, coming fromthe window of the vehicle. Q Okay. A It was cold outside and the heat on the inside, it was very striking, just instantaneous. Q Okay. And when you say fresh marihuana, what do you mean by fresh?

A Fresh being not smoked. [27] No further description was provided by the officer as to the nature of the smell or why he concluded it was “fresh” marijuana.In cross examination the officer agreed that he made no note as to whether the marijuana was “fresh” or “burnt”. He also acknowledgedthat “smells” can linger, particularly a pungent smell like marijuana, but would not accept the suggestion that a substance like marijuanacould have recently been in the vehicle but removed before the occupants entered.

He did agree that he had no knowledge as to how longthe two occupants had been in the vehicle or what use had been made of the vehicle prior to being stopped. He made no attempts todetermine the identity of the registered owner of the vehicle. [28] When asked why he didn’t make any observations from the passenger’s window, Constable Jenvenne answered (at page 41): You could have walked to the other side and smelled Mr. Beaudry's window; right?

A Under the circumstances, being in such a tight and confined space as the cabin was set up in that van, there was no need, therewas no difference between me standing at the driver's side door and the -- or the passenger's. Q Well, you wouldn't know that because you didn't go to the other side and smell, did you?

A Your Honour, based on my experience and -- smell travels outward from the vehicle, you know, when I get into my policecruiser, when I am conducting an impaired driving investigation in the winter, and I remove somebody from that vehicle, to bring themback to my vehicle, the first thing I do is I turn up the heat so that I can detect, if I suspect somebody has been drinking, operating in animpaired driving situation, I turn up the vehicle to assist in obtaining an odour. In this case, I'm the one on the outside, it's cold. Theinterior of that vehicle is hot, smell will travel out of the vehicle.

Whether I was on the driver's side of that vehicle or the passenger sideof the vehicle is inconsequential, the odour would have been the same whether I was on the driver's side or the passenger side. When I --when, when, when the vehicle was searched, subsequent to the arrest of the accused and Mr. Gregson, the jacket was located betweenthe two seats of the vehicle. It was located in the middle of the vehicle. Whether I was on the driver's side of the vehicle or the passenger side of the vehicle -- Q But in all -- A -- it doesn't -- Q Sorry.

A It's going to be the same, no matter where I was standing on the side of the highway. [Emphasis added]

[ 29 ] This evidence must be considered in conjunction with the evidence of Constable Thurber, who at the time of the incident had been a member of the RCMP for approximately two years. He confirmed that as part of his training he handled fresh marijuana and had taken a course on the transport of illicit substances. He was called over to assist Constable Jenvenne, and was immediately instructed to arrest Beaudry, who showed no signs of intoxication or otherwise having been under the influence of drugs.

While the passenger vehicle window was up, Constable Thurber testified that he attended to the passenger side of the vehicle where he requested that Beaudry remove himself from the vehicle, placing him under arrest. At no time did he note a smell of marijuana, either from the vehicle or from the accused.

This is significant given that the bulk of the marijuana located in the vehicle was ultimately found in Beaudry’s jacket, albeit sealed within a ziplock baggie. [ 30 ] Given that the smell of marijuana provided the sole basis for the arrest of the driver and Beaudry, the evidence in this regard requires careful scrutiny and the cautionary words of the Ontario Court of Appeal in Polashek , supra , bear repeating: “The sense of smell is highly subjective and to authorize an arrest solely on that basis puts an unreviewable discretion in the hands of the officer.

By their nature, smells are transitory, and thus largely incapable of objective verification.” [ 31 ] In this case, the verification of what Constable Jenvenne described as an “overwhelming” smell by his partner Constable Thurber is surprisingly absent. While possessing less experience than his partner, Constable Thurber did attest to being familiar with marijuana and its unique odour. Even recognizing that the passenger window was up, it seems likely that an odour as “overwhelming” as the one purportedly detected by Constable Jenvenne would have been easily detected when Beaudry exited the vehicle.

Constable Jenvenne was certainly of this view, testifying that he didn’t attend to the passenger side of the vehicle because “Whether I was on the driver's side of that vehicle or the passenger side of the vehicle is inconsequential, the odour would have been the same whether I was on the driver's side or the passenger side.” [ 32 ] The Court is left with a question as to whether the smell emanating from the vehicle was as strong as was suggested by Constable Jenvenne, and by extension, whether it was strong enough, standing alone, to provide reasonable grounds to believe that an offence was being committed.

The Evidence on Arrest versus Detention [ 33 ] The Crown must only establish on a balance of probabilities that the officers had reasonable grounds to arrest, and that those grounds are justified from an objective point of view. Given that the officers clearly stated that they arrested the accused, an examination of the issues related to the powers of “investigative detention” might seem at first blush to be unnecessary.

However, given the officers’ evidence in this area, some comment is required. [ 34 ] Constable Jenvenne testified that he arrested both the driver and Beaudry immediately after detecting the smell of marijuana. The evidence he gave on this point reflects what appears to be some confusion in his mind about the power to arrest versus the authority of a peace office to detain an accused for investigative purposes. When asked in cross examination about the distinction between arrest and investigative detention, Constable Jenvenne stated (at page : In terms of a criminal investigation.

We have the option to arrest and/or detain. Q Okay. A I prefer to arrest people. Q Okay. And why -- A You can -- I could just as easily have detained him for the purposes of the investigation but based on my experience I choose to arrest people. They can always be released without charge. Q Okay. So that's a practise you use? A Yes. Q Okay. That's interesting. And do you know the difference in standard between arrest and detention? A Of what can be searched for? We, we can still go into the preservation of evidence under both circumstances.

Q So, in other words, you can search a vehicle to preserve evidence if you just -- A That has to be done -- Q -- detain them? A -- subsequent to arrest. Q Sorry? A That has to be done subsequent to arrest. Q So then -- A That's why I arrest people. Q How can you preserve evidence --

A I don't like to -- like I said, I do not like to detain people. I arrest people. I can release them without charges. My practise is I do not detain people. If the grounds exist to make an arrest, I will make the arrest. Q Okay. Now, I appreciate you don't like to detain people but -- A Yes. Q -- do you understand the grounds for detention versus the grounds for an arrest? A Yes. Q And what's the difference? A For detention? Q Yeah. A Well, when I turn on the, the lights on the police vehicle, that person is detained, they cannot leave until I tell them to -- that they are allowed to leave. Q Okay.

And so say if -- so in the circumstances -- give me an example of when you detain somebody, rather than arrest them? Or it, it sounds like, to me, you generally just arrest them. A Yes. Q Okay. A That is my practise. Q Okay. And that's fair. A I arrest people for impaired driving although they, they -- other people think -- detain, other members do detain, I arrest. Q Okay. A If the grounds exist, I arrest. [ 35 ] As long as reasonable grounds exist, Constable Jenvenne’s “practice” of arresting individuals, rather than detaining them, is acceptable.

What is concerning is that reliance on a “practice” can lead to an officers being inattentive as to whether grounds for arrest have actually been established. [ 36 ] Constable Jenvenne’s evidence respecting the distinction between detention and arrest is important insofar as it relates to the instructions he provided to his partner Constable Thurber.

Constable Jenvenne testified that he placed both Beaudry and the driver of the car under arrest, and then instructed Constable Thurber to arrest Beaudry. [ 37 ] Interesting, Constable Thurber also indicated that he would arrest rather than detain an accused when conducting a drug investigation (at page 84): Say in this circumstance, or any circumstance that's similar to this, and I'll give you the similarities, okay, and I'll give you the hypothetical, your partner says, say the check stop situation, hey, we're -- can you investigate, do an investigative detention on, on the passenger, search him, describe or tell the court, based on the fact that it's an investigative detention and it's not an arrest, what do you search for and how do you conduct your search?

A In that situation? Q Right. A Though hypothetical, I would like the court record to, to show that that goes against the grain of all of my training. Any time that drugs are involved in a stop, if my partner told me to -- advised me to detain somebody, that he was conducting a drug investigation, I would arrest. My training has shown me that in the conveyance of, of drugs and illicit substances there are often weapons involved and I have been directed, through the course of my training, that it isn't -- that we are to arrest in the interest of officer safety.

So, regardless of the member that I am working with and his service or rank, if we're dealing with a drug related stop I am, I am performing an arrest. [ 38 ] The lack of clarity with respect to the powers of arrest versus the powers of detention is important when objectively considering whether the officers had the requisite grounds to arrest Beaudy.

The officers appear to view the power of arrest to essentially be interchangeable with the power to detain for investigative purposes, and a reliance on the “practice” of arresting a suspect leads to the concern that the officers did not give proper attention and weight to the need for “reasonable grounds”.

This must all be considered when weighing the officers’ clearly articulated views that they had the authority to “arrest” the driver and Beaudry based on the odour that only Constable Jenvenne detected. [ 39 ] Nor does it appear that Constable Jenvenne provided to Constable Thurber any information about the basis for his conclusion

that two occupants should be arrested. This must to be assessed when considering that Constable Thurber did not make any observationson his own which would provide grounds to arrest Beaudry, and that he seemed to consider that the simple fact that this was a “drugrelated stop” conferred upon him the power to arrest Beaudy. [40] Noteworthy as well is the evidence of Constable Thurber respecting his understanding of the powers of search ancillary to aninvestigative detention. Constable Thurber testified that he would not conduct a physical search of a person who was merely beingdetained rather than arrested.

It is difficult to conclude, in light of this evidence that the items located by Constable Thurber during thesearch following the arrest would have been located in any event as part of a search ancillary to detention.

Summary and Findings on the Voir Dire [41] The crown must establish on a balance of probabilities that the arresting officer subjectively believed that an offence was beingcommitted, therefore giving them reasonable grounds to arrest the accused. Those grounds must be objectively reasonable.

ConstableJenvenne, an officer with experience in drug investigations, relied exclusively on the smell of raw marijuana coming from the vehicle.Despite describing this smell as “overwhelming”, it was not noted by Constable Thurber, who actually arrested the accused. [42] A further complicating factor is the lack of clarity from both officers as to the fine but important distinction betweencircumstances in which an accused can be arrested versus those circumstances which would support only an investigative detention. [43] Given the unique, subjective and highly transitory nature of “smells” as a basis for arrest, special attention must be paid to thistype of evidence.

Taking all of the circumstances into consideration, I am not satisfied that the evidence in this case objectively supportsthe arrest of the accused. While Constable Jenvenne had previous experience in dealing with marijuana, his evidence on this importantpoint is not supported by Constable Thurber, who while less experienced than his partner, was in a position to have noted the smell. [44] Therefore I am satisfied that the accused Beaudy’s arrest was not lawful and that he was searched in violation of

section 8 of theCharter. Charter Section 24(2)- “Grant analysis” [45] Both counsel agree that the decision of the Supreme Court of Canada in R. v. Grant, 2009 SCC 32 , [2009] 2 S.C.R353 sets out the analysis respecting the admissibility of the evidence.

The three factors to be weighed in determining whether theadmissibility of the evidence would bring the administration of justice into disrepute are: (1) the seriousness of the Charter-infringingstate conduct which led to the discovery of the evidence; (2) the impact on the Charter-protected interests of the accused; and (3)society’s interest in an adjudication of the case on the merits. [46] The Court provided an overview of the approach to be taken when undertaking a Charter section 24(2) analysis [67] The words of s. 24(2) capture its purpose: to maintain the good repute of the administration of justice.

The term “administration ofjustice” is often used to indicate the processes by which those who break the law are investigated, charged and tried. More broadly,however, the term embraces maintaining the rule of law and upholding Charter rights in the justice system as a whole. [68] The phrase “bring the administration of justice into disrepute” must be understood in the long-term sense of maintaining theintegrity of, and public confidence in, the justice system. Exclusion of evidence resulting in an acquittal may provoke immediatecriticism. But s. 24(2) does not focus on immediate reaction to the individual case.

Rather, it looks to whether the overall repute of thejustice system, viewed in the long term, will be adversely affected by admission of the evidence. The inquiry is objective. It askswhether a reasonable person, informed of all relevant circumstances and the values underlying the Charter, would conclude that theadmission of the evidence would bring the administration of justice into disrepute. [69] Section 24(2)’s focus is not only long-term, but prospective. The fact of the Charter breach means damage has already been done tothe administration of justice.

Section 24(2) starts from that proposition and seeks to ensure that evidence obtained through that breachdoes not do further damage to the repute of the justice system. [70] Finally, s. 24(2)’s focus is societal. Section 24(2) is not aimed at punishing the police or providing compensation to the accused,but rather at systemic concerns. The s. 24(2) focus is on the broad impact of admission of the evidence on the long-term repute of thejustice system.

The Seriousness of the Charter-infringing Conduct [47] Counsel for the accused acknowledges that Constables Jenvenne and Thurber were not acting in “bad faith” but asserts that theydemonstrated a serious lack of diligence in establishing requisite grounds for arrest. I agree, and would add to this the concern about thelack of consistency in the evidence respecting the strength of the odour of marijuana. Given that smell is, by nature, subjective and

transitory, the lack of consistency between the officers raises real concerns as to the actual strength of the smell. This supports theargument that the officers demonstrated a lack of diligence by moving almost immediately to arrest the accused, rather than conductingany further investigation whatsoever. [48] Added to this is the confusion over the powers of arrest versus the powers of investigative detention. This distinction is ofparticular importance in this case given the evidence of Constable Thurber that he would not have searched Beaudry incidental to adetention.

Given that evidence, it cannot be said with any certainty that the marijuana would have been located in any event. The Impact on the Charter-related Interests of the Accused [49] In Grant, supra, the Court noted that the actual impact of a Charter on an accused “may range from fleeting and technical toprofoundly intrusive” (see para 76). In this case the impact on the accused was more than “fleeting”. He was arrested at the scene,detained in a cruiser car, and taken to the detachment. He remained in police custody for a number of hours. The charges have beenbefore the Court for a considerable period of time.

Society’s Interest in Adjudication on the Merits [50] This portion of the analysis is always troubling, particularly when it relates to real evidence. It is also concerning when theCourt considers that evidence seized is both reliable and necessary for the Crown’s case. An assessment of this aspect of the analysiswould support admission of the evidence seized. [51] The need to balance the various considerations was emphasized by the Supreme Court of Canada in R. v.

Cote, 2011 SCC 47 (at para 48) [48] After considering these factors, a court must then balance the assessments under each of these avenues of inquiry in making its s.24(2) determination. There is no “overarching rule” that governs how a court must strike this balance (Grant, at para. 86). Rather,“[t]he evidence on each line of inquiry must be weighed in the balance, to determine whether, having regard to all the circumstances,admission of the evidence would bring the administration of justice into disrepute” (Harrison, at para. 36).

No one consideration shouldbe permitted to consistently trump other considerations. For instance, as this Court explained in Harrison, the seriousness of the offenceand the reliability of the evidence should not be permitted to “overwhelm” the s. 24(2) analysis because this “would deprive thosecharged with serious crimes of the protection of the individual freedoms afforded to all Canadians under the Charter and, in effect,declare that in the administration of the criminal law ‘the ends justify the means’” (para. 40, citing 2008 ONCA 85 , 2008ONCA 85, 89 O.R. (3d) 161, at para. 150, per Cronk J.A., dissenting).

In all cases, courts must assess the long-term repute of theadministration of justice. [Emphasis Added] [52] Applying the analysis as set out in Grant, supra, I consider that the officers’ Charter-infringing conduct to be serious. The lackof consistency between the officers, the complete lack of any further investigative steps, coupled with a serious lack of understandingrelated to the powers of arrest raise serious concerns. I further consider that the impact on the accused was significant and more thantechnical.

While the drugs sought to be introduced represent real and reliable evidence, that consideration cannot be seen to trump thefirst two prongs of the test. [53] Taking all of the forgoing into account, I conclude that the evidence in question should be excluded pursuant to Charter section24(2). “Original signed by” MARY KATE HARVIE, P.J.