R. v. Herritt, 2015 NBCA 33

COURT OF APPEAL OF COUR D'APPEL DU NEW BRUNSWICK NOUVEAU-BRUNSWICK 69-14-CA HER MAJESTY THE QUEEN APPELLANT SA MAJESTÉ LA REINE APPELANTE - and - - et - DONALD JOSEPH HERRITT RESPONDENT DONALD JOSEPH HERRITT INTIMÉ R. v. Herritt, 2015 NBCA 33 CORAM: The Honourable Justice Larlee The Honourable Justice Richard The Honourable Justice Quigg R. c.

Herritt, 2015 NBCA 33 CORAM : l’honorable juge Larlee l’honorable juge Richard l’honorable juge Quigg Appeal from a decision of the Court of Queen’s Bench: May 15, 2014 Appel d’une décision de la Cour du Banc de la Reine: le 15 mai 2014 History of Case: Historique de la cause : Decision under appeal: 2014 NBQB 126 Décision frappée d’appel : 2014 NBBR 126 Preliminary or incidental proceedings: N/A Procédures préliminaires ou accessoires : s.o. Appeal heard: February 25, 2015 Appel entendu : le 25 février 2015 Judgment rendered: June 11, 2015 Jugement rendu : le 11 juin 2015

Reasons for judgment: The Honourable Justice Quigg Concurred in by: The Honourable Justice Larlee The Honourable Justice Richard Counsel at hearing: For the appellant: David Schermbrucker For the respondent: Robert L. Rideout Motifs de jugement : l’honorable juge Quigg Souscrivent aux motifs : l’honorable juge Larlee l’honorable juge Richard Avocats à l'audience : Pour l’appelante : David Schermbrucker Pour l’intimé : Robert L. Rideout THE COURT The appeal is allowed. The verdict is set aside and a new trial ordered. LA COUR Accueille l’appel, écarte le verdict et ordonne la tenue d’un nouveau procès.

The judgment of the Court was delivered by QUIGG, J.A. I. Introduction [ 1 ] Following a routine highway vehicle stop on November 7, 2012, during which drugs were found in his vehicle, Mr. Herritt was charged with trafficking and possessing, for the purpose of trafficking, cannabis marihuana and resin contrary to ss. 5(1) and (2) of the Controlled Drugs and Substances Act , S.C. 1996, c. 19. Mr. Herritt elected trial in the Court of Queen’s Bench and pleaded not guilty. His trial commenced on May 30, 2013, by way of a pretrial motion, under s. 24(2) of the Canadian Charter of Rights and Freedoms ,

Part I of the Constitution Act , 1982 , being

Schedule B to the Canada Act 1982 (UK), 1982, c. 11, seeking to exclude evidence. He argued that: (1) the officer initially detained him without reasonable suspicion, thus violating his right to be free from arbitrary detention under s. 9 of the Charter , and (2) the officer lacked reasonable grounds to arrest him for possession of illegal tobacco, making the arrest unlawful and the ensuing vehicle search unreasonable under s. 8 of the Charter . The motion was successful, and the trial judge acquitted the respondent after excluding the evidence of cannabis marihuana and resin.

The Crown appeals against the verdicts of acquittal on grounds involving questions of law alone, and asks this Court to set aside the verdicts and order a new trial. II. Background [ 2 ] To set out the background against which this appeal is decided, I borrow liberally from the written submissions, as well as from the trial judge's ruling on the motion for exclusion of evidence (see R. v. Herritt , 2014 NBQB 126 , 418 N.B.R (2d) 81 ). There does not appear to be any factual dispute.

[ 3 ] On November 7, 2012, Mr. Herritt, whose vehicle had Newfoundland and Labrador licence plates, was stopped by Constable Stephane Raymond of the RCMP’s Roving Highway Traffic Unit on Highway 2 near Havelock, New Brunswick. The stop was effected pursuant to s. 15(1) (

d) of the Motor Vehicle Act , R.S.N.B. 1973, c. M-17, which allows an officer to stop a vehicle to check licence and registration, etc. Within four minutes of the stop, Mr. Herritt was arrested for possession of contraband tobacco, leading to a vehicle search incident to arrest that resulted in the discovery of substantial amounts of cannabis marihuana and resin in the trunk, but no contraband tobacco. Mr. Herritt was then re-arrested for possession of marihuana for the purpose of trafficking. No illegal tobacco was ever found in the vehicle. Mr.

Herritt was charged with trafficking and possession for the purpose of trafficking cannabis marihuana, in excess of 3 kg, and cannabis resin, in an amount less than 3 kg. [ 4 ] The initial arrest was based on Constable Raymond detecting a strong odour of raw tobacco emanating from the vehicle, Mr. Herritt’s unexplained nervousness, and the constable’s observation of two packages of cigarettes in the vehicle with a Québec stamp on them.

According to the constable, when he had approached the vehicle from the passenger side and reached the front passenger side window, he was struck by an overwhelming smell of raw tobacco. He advised Mr. Herritt of the reason for the stop, that is to check his documents, and asked to see his licence, registration and insurance documents. When Mr. Herritt opened the glove compartment to retrieve these, the constable noted what he described as an unfamiliar cigarette package bearing a stamp from the province of Québec. Mr.

Herritt had confirmed to Constable Raymond that he was travelling from New Brunswick back home that day. By the time he had returned to his vehicle, the constable had already determined he had reasonable and probable grounds to arrest Mr. Herritt for possession of illegal tobacco. [ 5 ] Despite having these grounds, the constable did not immediately place Mr. Herritt under arrest, as he first wanted to return to his vehicle to check in the police computer system to confirm Mr. Herritt’s identity, to determine if Mr. Herritt had any prior offences, cautions or warrants and to arrange for backup assistance.

While in the process of doing this, the constable observed Mr. Herritt exit his vehicle and move toward the passenger side while exhibiting further nervousness. Mr. Herritt was walking around and stretching. He then lit a cigarette. According to Constable Raymond, all of these actions amounted to additional grounds to arrest Mr. Herritt. The constable explained that Mr. Herritt had retrieved his jacket by getting back into the vehicle on the driver side when he could have easily done so through the open passenger window, without re-entering the vehicle from the other side.

Moreover, the constable did not know what, if anything, Mr. Herritt had in his jacket. At this point, Constable Raymond decided to implement the arrest that he had determined he was going to make in any event, as Mr. Herritt’s actions made him nervous. After effecting the arrest, the constable placed Mr. Herritt in the rear of the police vehicle before the backup officer arrived and arranged for him to call counsel on Mr. Herritt’s cell phone. [ 6 ] Incident to what Constable Raymond thought to be a lawful arrest, he then searched Mr. Herritt’s vehicle to locate evidence related to the suspected offence.

The constable discovered three cartons of cigarettes in the back seat (two behind the passenger seat and a further carton in a duffel bag), as well as four cardboard boxes that contained sealed packages in the trunk of the vehicle. Upon opening the first box, Constable Raymond discovered the sealed packages held what appeared to be marihuana. After re- arresting Mr. Herritt for possession of marihuana for the purpose of trafficking, the constable assisted him in making another call to counsel, and returned to conduct a further search of the trunk for the illegal tobacco he was convinced was present.

However, in the end, no illegal tobacco was found in the vehicle. The backup officer, Constable LeBlanc, arrived at the scene and took Mr. Herritt to the Codiac Police Detachment. Constable Raymond arranged a tow truck for Mr. Herritt’s vehicle and then also attended at the Detachment. [ 7 ] Constable Philippe Giroux had been tasked to assist in the vehicle stop in this case and also attended at the Codiac Detachment. At the time of trial, he had been a member of the RCMP for seven years, and stationed at Moncton Federal Operations East for the past three years.

He served his first four years in general duty in Petitcodiac, following which he transferred to Customs and Excise in Moncton where his primary work involved contraband tobacco. When he arrived at the Codiac Police Detachment, Constable Giroux observed a tow truck backing Mr. Herritt’s vehicle into the secure garage bay. Approximately 10 minutes later, he noticed an “overwhelming odour of raw tobacco”, also described by him as a “real potent, distinct smell of raw tobacco, immediately coming in” from the bay where Mr. Herritt’s vehicle was situated.

Constable Giroux had not noticed the odour prior to his entry to the garage bay, before Mr. Herritt’s vehicle was placed inside. Constable Giroux had a closer look at Mr. Herritt’s vehicle and determined that the smell was definitely coming from the vehicle. He explained that due to life experience and being around raw tobacco throughout his childhood, he knew the strong odour of raw tobacco could not have come from the small quantity of cigarettes that were seized from Mr. Herritt’s vehicle. [ 8 ] In the Codiac Detachment garage, the police searched Mr.

Herritt’s vehicle and discovered 59 ½ pounds of cannabis marihuana in vacuum-sealed bags and one kilogram of cannabis resin (hashish).

[ 9 ] At the conclusion of the hearing, the trial judge excluded the evidence seized from Mr. Herritt’s car pursuant to s. 24(2) of the Charter . As a result, Crown counsel called no evidence and the trial judge acquitted Mr. Herritt. III. Grounds of Appeal [ 10 ] Crown counsel relies on several grounds of appeal. He submits the trial judge erred as follows: 1. In concluding that, objectively, the arresting officer lacked reasonable grounds to arrest Mr. Herritt for possession of contraband tobacco; 2.

In being influenced on his analysis of the central issue by an apparent disconnect between the arresting officer’s smell of a strong odour of raw tobacco in Mr. Herritt’s vehicle and the unexplained fact that no substantial quantity of illegal tobacco was later found in the vehicle; and 3. In incorrectly attributing to the arresting officer an obligation under law to consider exculpatory (i.e. innocent) reasons why Mr. Herritt’s vehicle might smell strongly of raw tobacco when none was present. IV.

Standard of Review [ 11 ] The powers of this Court in determining whether to allow appeals from an acquittal, such as this, are set out in ss. 686(4) and 676(1) (

a) of the Criminal Code . When appeals involve questions of law alone, as a Crown appeal from acquittal must, the standard of review is one of correctness. The failure of a trial judge to correctly apply a legal standard to a set of facts is one such error of law reviewable by the court: see R. v. Tran , 2012 NBCA 74 , 393 N.B.R. (2d) 66 , at para. 4 . In R. v. Shepherd , 2009 SCC 35 , [2009] 2 S.C.R. 527 , at para. 20 , the Supreme Court established the following proposition: whether the facts accepted at trial give rise to reasonable grounds to arrest is a question of law. In Tontarelli v.

R. , 2009 NBCA 52 , 348 N.B.R. (2d) 41 , Drapeau C.J.N.B. states: In R. v. Goodine , this Court held that "once a trial judge identifies and applies the correct legal test, his or her finding that an arresting officer acted on the basis of reasonable and probable grounds is a finding of fact" (para. 3). However, in R. v. Shepherd , [2009] S.C.J.

No. 35 (QL) , 2009 SCC 35 , the Court expressed the view that the issue of whether the facts accepted at trial amount at law to reasonable and probable grounds is a question of law: While there can be no doubt that the existence of reasonable and probable grounds is grounded in the factual findings of the trial judge, the issue of whether the facts as found by the trial judge amount at law to reasonable and probable grounds is a question of law.

As with any issue on appeal that requires the court to review the underlying factual foundation of a case, it may understandably seem at first blush as though the issue of reasonable and probable grounds is a question of fact. However, this Court has repeatedly affirmed that the application of a legal standard to the facts of the case is a question of law: see R. v. Araujo , 2000 SCC 65 , [2000] 2 S.C.R. 992 , at para. 18 ; R. v. Biniaris , 2000 SCC 15 , [2000] 1 S.C.R. 381 , at para. 23 . In our view, the

summary conviction appeal judge erred in failing to distinguish between the trial judge's findings of fact and his ultimate ruling that those facts were insufficient, at law , to constitute reasonable and probable grounds.

Although the trial judge's factual findings are entitled to deference, the trial judge's ultimate ruling is subject to review for correctness. [para. 20] [para. 61] [ 12 ] In this case, the Crown’s position is that the evidence incontrovertibly established, and the trial judge accepted, that the arresting officer did have a subjective belief that there were reasonable grounds sufficient to arrest Mr. Herritt; the only issue was whether the constable’s perceived grounds were objectively reasonable. V.

Analysis [ 13 ] The central issue in this case is whether the arresting officer had reasonable grounds to believe that there was a large amount of contraband tobacco in Mr. Herritt’s vehicle, entitling him to arrest Mr. Herritt. In his decision, the trial judge correctly summarizes the issue:

The determination of whether or not Mr. Herritt's Charter rights were violated rests primarily on the finding of whether or not ConstableRaymond had reasonable and probable grounds to arrest Mr. Herritt for the suspected possession of illegal tobacco and under which hisvehicle was searched incidental to the arrest. There is no real issue that the initial roadside stop to conduct the random documents checkunder section 15(1)(

d) of the Motor Vehicle Act, R.S.N.B. 1973, c. M-17 was lawful. Likewise, if it is established that ConstableRaymond had reasonable and probable grounds to believe that Mr. Herritt was committing a criminal offence, which in this instance wasinitially possession of illegal tobacco, and lawfully arrested Mr. Herritt on that basis then the warrantless search conducted by ConstableRaymond incidental to the initial arrest was lawful and resulted in no breach of Mr. Herritt's

section 8 Charter rights. [para. 12] [14] In O’Kane v. R., 2008 NBCA 58, 333 N.B.R. (2d) 274, this Court held that s. 15(1)(

d) of the Motor Vehicle Actallows a constitutionally valid random (arbitrary) motor vehicle stop for purposes relating specifically to vehicle registration and safety,and driver licensing, insurance and sobriety.

Section 495 of the Criminal Code provides: 495.

(1) A peace officer may arrest withoutwarrant (

a) a person who has committed an indictableoffence or who, on reasonable grounds, hebelieves has committed or is about to commitan indictable offence; (

b) a person whom he finds committing acriminal offence; or (

c) a person in respect of whom he hasreasonable grounds to believe that a warrantof arrest or committal, in any form set out inPart XXVIII in relation thereto, is in forcewithin the territorial jurisdiction in which theperson is found. 495.

(1) Un agent de la paix peut arrêter sansmandat :

a) une personne qui a commis un acte criminelou qui, d’après ce qu’il croit pour des motifsraisonnables, a commis ou est sur le point decommettre un acte criminel;

b) une personne qu’il trouve en train decommettre une infraction criminelle;

c) une personne contre laquelle, d’après cequ’il croit pour des motifs raisonnables, unmandat d’arrestation ou un mandat de dépôt,rédigé selon une formule relative aux mandatset reproduite à la

partie XXVIII, estexécutoire dans les limites de la juridictionterritoriale dans laquelle est trouvée cettepersonne. [15] In R. v. Storrey, (SCC), [1990] 1 S.C.R. 241, [1990] S.C.J. No. 12 (QL), Cory, J. articulates: Section 450(1) makes it clear that the police were required to have reasonable and probable grounds that the appellant had committed theoffence of aggravated assault before they could arrest him. Without such an important protection, even the most democratic societycould all too easily fall prey to the abuses and excesses of a police state.

In order to safeguard the liberty of citizens, the Criminal Coderequires the police, when attempting to obtain a warrant for an arrest, to demonstrate to a judicial officer that they have reasonable andprobable grounds to believe that the person to be arrested has committed the offence. In the case of an arrest made without a warrant, itis even more important for the police to demonstrate that they have those same reasonable and probable grounds upon which they basethe arrest. The importance of this requirement to citizens of a democracy is self-evident. Yet society also needs protection from crime.

This needrequires that there be a reasonable balance achieved between the individual's right to liberty and the need for society to be protected fromcrime. Thus the police need not establish more than reasonable and probable grounds for an arrest. The vital importance of therequirement that the police have reasonable and probable grounds for making an arrest and the need to limit its scope was well expressedin Dumbell v.

Roberts, [1944] 1 All E.R. 326 (C.A.), wherein Scott L.J. stated at p. 329: The power possessed by constables to arrest without warrant, whether at common law for suspicion of felony, or under statutes forsuspicion of various misdemeanours, provided always they have reasonable grounds for their suspicion, is a valuable protection to thecommunity; but the power may easily be abused and become a danger to the community instead of a protection.

The protection of thepublic is safeguarded by the requirement, alike of the common law and, so far as I know, of all statutes, that the constable shall beforearresting satisfy himself that there do in fact exist reasonable grounds for suspicion of guilt. That requirement is very limited. The policeare not called on before acting to have anything like a prima facie case for conviction; but the duty of making such inquiry as thecircumstances of the case ought to indicate to a sensible man is, without difficulty, presently practicable, does rest on them; for to shutyour eyes to the obvious is not to act reasonably.

There is an additional safeguard against arbitrary arrest. It is not sufficient for the police officer to personally believe that he or she hasreasonable and probable grounds to make an arrest. Rather, it must be objectively established that those reasonable and probable groundsdid in fact exist. That is to say a reasonable person, standing in the shoes of the police officer, would have believed that reasonable andprobable grounds existed to make the arrest. See R. v. Brown (1987), (NS CA), 33 C.C.C. (3d) 54 (N.S.C.A.), at p. 66;Liversidge v. Anderson, [1942] A.C. 206 (H.L.), at p. 228. 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. [paras. 14-17] [16] The reasonable ground standard (consisting of an officer’s objectively reasonable subjective grounds to makean arrest) is what is required in order to make an arrest constitutional, and is established using less than the criminal standard of proof. InR. v. Debot, (SCC), [1989] 2 S.C.R. 1140, [1989] S.C.J. No. 118 (QL), Wilson J. explains: The question as to what standard of proof must be met in order to establish reasonable grounds for a search may be disposed of quickly.

Iagree with Martin J.A. that the appropriate standard is one of "reasonable probability" rather than "proof beyond a reasonable doubt" or"prima facie case". The phrase "reasonable belief" also approximates the requisite standard. [para. 47] [17] In R. v. Tran, Larlee J.A. emphasizes that the assessment of reasonable grounds is done on a case by casebasis: In R. v. Debot, (SCC), [1989] 2 S.C.R. 1140, [1989] S.C.J.

No. 118 (QL), the Supreme Court of Canada held that inassessing whether the police had reasonable grounds to arrest or detain, courts are required to apply the "totality of circumstances" test.That test applies to the determination of whether the police had "reasonable grounds to suspect" which is both an objective andsubjective standard (see R. v. Mann, 2004 SCC 52, [2004] 3 S.C.R. 59, at paras. 33-35, 40, and 45). In R. v. Tran, 2007 BCCA 491,[2007] B.C.J.

No. 2341 (QL), at para. 12, Levine J.A. explained that the objective reasonableness of the arresting officer's grounds"must be assessed from the standpoint of the reasonable person 'standing in the shoes of the police officer'". The same rule applies to theobjective criteria relating to reasonable grounds to detain. Different outcomes in the application of this test do not stem from the state ofthe law, but simply from the finding of whether a set of facts meets the applicable legal threshold.

There are no hard and fast rulesconcerning investigative detention and the assessment of articulable cause, and no fixed checklist of factors: the matter of sufficiency ofgrounds must be resolved on a case by case basis (see R. v. Simpson, (ON CA), [1993] O.J. No. 308 (C.A.) (QL) atpage 203; R. v. Mann, at para. 28.; R. v. Bramley, 2009 SKCA 49, [2009] S.J.

No. 219 (QL), at para. 60). [para. 6] [18] In this case, after reviewing the unchallenged evidence as to the experience and training of the arresting officer,the trial judge concluded that Constable Raymond lacked reasonable grounds to believe there was a large quantity of illegal tobacco inMr. Herritt’s vehicle sufficient to justify an arrest. This was the critical finding in the proceedings. Once the lawfulness of the arrest fell,so too did the lawful basis for the search of Mr.

Herritt’s vehicle. [19] The trial judge found that Constable Raymond did smell raw tobacco when he had his exchange with Mr.Herritt at roadside.

As the trial judge phrased it, “his grounds were largely based upon the described overwhelming smell of raw tobaccoin the vehicle and his past police experience which told him that such an overwhelming odour was indicative of the presence of a largequantity of illegal tobacco” (para. 18). [20] However, it appears that the judge found Constable Raymond should have been more restrained in his beliefsbecause of the possibility that the strong smell of raw tobacco was due to a prior presence of a large quantity of tobacco in therespondent’s vehicle. In other words, the constable’s subjective belief that Mr.

Herritt was liable to arrest for possession of contrabandtobacco, based on the overwhelming smell of raw tobacco, is not an issue; what is an issue is whether the constable’s belief wasobjectively reasonable. The judge says: I am satisfied that Constable Raymond's experience is consistent with what his testimony reflected. There was no evidence presented to

suggest otherwise. Be that as it may, I have not been persuaded that his testimony relating to his past experience constitutes a subjective belief on his part that Mr. Herritt was transporting illegal tobacco in his vehicle at the time of his arrest. In saying this, I am not suggesting that Constable Raymond was being untruthful in relating his personal experience with respect to past illegal tobacco seizures.

I am not satisfied however, that he was fully disclosing his knowledge in the field and more particularly with respect to his actual knowledge of what he, or an ordinary officer in a similar situation, ought to have known in relation to other possible causes of strong or overwhelming tobacco odours in vehicles, in particular such an odour being equally consistent with some other explanation such as tobacco being present in the vehicle on another occasion but not at the time of the stop.

This possibility was in fact borne out by the evidence in this case and was supported by the testimony of Constable Giroux, an officer with much less experience in policing than Constable Raymond, who testified that such a strong smell could be due to a variety of other factors including prior presence in the vehicle. […] Constable Giroux was also an impressive witness with knowledge and experience in the same field of tobacco seizures and investigations, albeit somewhat less experienced than Constable Raymond.

He confirmed his knowledge that an overwhelming smell of raw tobacco emanating from a motor vehicle such as he experienced in this case can be due to a variety of causes other than a contemporaneous presence of a large quantity of illegal tobacco. I believe, based on Constable Raymond's extensive experience and training he, as would any ordinary police officer with similar experience, training and knowledge in the same position, would have this same knowledge and appreciate such a possibility, substantially lessening the reasonableness of the inference that illegal tobacco was present at the time of Mr.

Herritt's arrest. Constable Raymond testified prior to Constable Giroux and did not offer or allude to any possible scenario inconsistent with the presence of illegal raw tobacco in the vehicle at the time of the arrest.

In fact, Constable Raymond's testimony was such that it did not move beyond the bald assertion that in his experience when he smelled such an overwhelming odour he always discovered illegal tobacco in the vehicle and on that basis, together with the other much less significant indicators of nervousness and the presence of unrecognized packages of cigarettes from Quebec, which ultimately were confirmed as not being illegal, he had reasonable and probable grounds to arrest.

Although, the court was presented with very categorical anecdotal evidence of Constable Raymond's actual experiences with tobacco seizures in the past, no evidence was presented relating to his training and knowledge, apart from his personal experiences, with respect to other possible causes for such a strong odour. Logic would suggest to even a layperson that there would likely be other possible and plausible explanations for such a strong odour inconsistent with a contemporaneous presence of illegal tobacco.

Certainly, Constable Giroux, a police officer with significant experience in the field, was aware that the cause of such an overwhelming odour could be due to a variety of other causes inconsistent with the contemporaneous presence of illegal tobacco in the vehicle. Quite frankly, I am more troubled and concerned with the information that was not provided to the court relating to Constable Raymond's knowledge and training in this regard. I note that no evidence was led by the Crown and Constable Raymond offered no explanation to account for the fact that no illegal tobacco was found in the vehicle.

The issue was only raised during the cross examination of Constable Giroux after Constable Raymond had already completed his testimony. It seems to me that for the Crown to establish the existence of reasonable and probable grounds on the balance of probabilities upon a review of the validity of an arrest that was largely based upon such a significant error requires some explanation.

In my view, in assessing whether reasonable and probable grounds exist an officer cannot rely solely on past personal experience while disregarding knowledge and/or training on the subject matter that might be contrary to or call into question the reasonability of the officer's inferences and conclusions drawn from those experiences. If there are other logical potential explanations in the officer's knowledge or training inconsistent with suspected criminal conduct, then they cannot be conveniently ignored and should be assessed by him on a rational basis prior to determining to make an arrest.

Again, in the instant case we are dealing with the higher standard of reasonable and probable grounds to believe that the accused was committing a criminal offence at the time and to arrest him on that basis. I am not satisfied that Constable Raymond met his obligations in that regard prior to deciding that he would place Mr. Herritt under arrest.

[…] In my view, Constable Raymond, in failing to consider and assess other possible exculpatory alternatives for the cause of the strongsmell of raw tobacco, improperly adopted and applied a reasonable suspicion standard in determining that he had reasonable andprobable grounds for arresting Mr. Herritt. In light of his significant experience in the field and based on his testimony, I am satisfied thatConstable Raymond understood the important distinction between the two standards but nevertheless knowingly disregarded hisobligations to apply the higher standard in this case.

Constable Raymond's stated personal subjective belief must also be assessed from the perspective of the ordinary officer in the sameposition. I am satisfied that Constable Giroux' experience and knowledge would provide a more reliable perspective in assessing thereasonableness of Constable Raymond's stated belief that there was illegal tobacco present in the vehicle. The circumstances of this case raise two important considerations in the analysis.

First, as no illegal raw tobacco was found in thevehicle, it has been demonstrated that Constable Raymond's olfactory capabilities and the conclusions that such a strong smell isindicative of a contemporaneous presence of illegal tobacco is unreliable. None was found. I am satisfied that both he and a similarlysituated officer would have known or ought to have known of the inherent weakness in the inferences being drawn from the stated pastexperience.

Likewise, Constable Raymond's purported knowledge and expertise with respect to recognizing illegal cigarette packaging,another purported indicator of the presence of illegal tobacco in the present case, was also demonstrated as being unreliable. Secondly, evidence was disclosed to establish what an ordinary officer with the same or similar experience, or in this case even lessexperience than that of Constable Raymond, would know.

In this case Constable Giroux stated that in his experience that theoverwhelming smell of raw tobacco could be due to various factors, which would not be indicative of illegal tobacco being present in thevehicle at the time of the stop such as the smell being caused by prior possession of tobacco. For instance, he testified that he had beeninvolved in several seizures of vehicles which had been used to transport contraband tobacco and it is difficult to get that smell out of thevehicle.

Having considered all of the evidence, including the other indicators Constable Raymond purportedly relied upon in concluding that hehad reasonable and probable grounds to arrest Mr. Herritt, I have not been persuaded that the Crown has established, on the balance ofprobabilities, that Constable Raymond had reasonable and probable grounds to arrest Mr. Herritt for a tobacco related offence as allegedor that the warrantless search was lawful. Accordingly, I find that Mr.

Herritt's rights under sections 9 and 8 of the Charter not to bearbitrarily detained and to be secure against unreasonable search or seizure were breached. [paras. 30, 32-37, 39-43] [Emphasis added.] [21] In my view, there are multiple errors in this assessment of Constable Raymond’s belief. To begin, the fact thatno large amount of tobacco was ever found in the vehicle cannot ex post facto undermine the belief that tobacco was there. Although theconstable was not correct in this assumption, the reasonableness of the belief is unaffected by this result.

This is simply the obverse sideof the proposition that the results of a positive search cannot retroactively verify the belief (see R. v. Kim, 2014 ABPC 91, [2014] A.J.No. 514 (QL), at para. 28; R. v. Kokesch, (SCC), [1990] 3 S.C.R. 3, [1990] S.C.J. No. 117 (QL), per Sopinka, J., at p.29; R. v. Greffe, (SCC), [1990] 1 S.C.R. 755, [1990] S.C.J. No. 32 (QL), per Lamer, J. (as he then was), at p. 775). [22] The trial judge erroneously engaged in such an analysis.

He discounted Constable Raymond’s belief byrequiring some explanation for the lack of illegal tobacco turned up by the search: “[i]t seems to me that for the Crown to establish theexistence of reasonable and probable grounds on the balance of probabilities upon a review of the validity of an arrest that was largelybased upon such a significant error requires some explanation” (para. 36). The constable’s belief cannot be disparaged because he wasunable to explain why he smelled an overwhelming odour of raw tobacco and yet found only a small amount.

It is true that ConstableGiroux ventured an explanation that the odour of raw tobacco possibly lingered after the tobacco was removed; however, that was adifferent officer’s opinion, and the constable had to rely upon his own experience and knowledge to substantiate his belief. Thepossibility that the strong odour of raw tobacco confronting Constable Raymond may have been attributable to the past presence oftobacco simply does not outweigh the constable’s experience. [23] Constable Raymond had been a member of the RCMP for almost 23 years.

In 2002, he was assigned to a pilotproject on a highway patrol unit that eventually became the Roving Traffic Unit, for which he has been on full-time duty since 2004. Inaddition to his general and other more specific police training, the constable took a two-day pipeline course in 1995. He described thiscourse as being designed to train officers to look beyond traffic tickets and detect, by recognizing certain indicators of criminal conduct,criminals travelling with illegal contraband along known corridors or pipelines such as main highways, which would include Route 2 inNew Brunswick.

Constable Raymond took this course a second time prior to the Roving Traffic Unit being established on a full-timebasis. Since then, he has attended conferences respecting travelling criminals every two years. He was trained as an instructor of the

pipeline course in 2009 and now teaches this course to other officers. Constable Raymond is also a trained dog handler and has had adrug detection dog as an aid in performing his duties for the past eight years. On a typical day, he can perform 40 to 50 licence platechecks and actually stop 15 to 30 vehicles. He estimated that, in an average year, he is involved in 25 to 30 seizures of contraband suchas illegal drugs, tobacco or firearms.

At the commencement of the trial on the motion, the constable testified that he had seized illegaltobacco on approximately 30 to 35 occasions and assisted on an additional 10 to 12 occasions in his career. He testified that in all suchinstances, when he smelled a strong or overwhelming odour of raw tobacco similar to what was emanating from Mr. Herritt’s vehicle,the discovery of a large quantity of illegal tobacco resulted. [24] When Constable Raymond stopped Mr. Herritt, he noticed a number of indicators that convinced him Mr.Herritt was transporting illegal tobacco. As mentioned, these factors included Mr.

Herritt’s nervousness, the overwhelming odour of rawtobacco, the out-of-province licence plates, and cigarette packages bearing Quebec stamps. As Larlee J.A. says in R. v. Tran, “[t]hisconstellation of indicators matched patterns the police officer had seen repeatedly during his career and they were consistent with aperson travelling with contraband” (para. 5). [25] The precise reason Constable Raymond believed there was probably a large quantity of tobacco in Mr. Herritt’svehicle was his experience.

The probability that he was correct, based on his training and experience, was very high. [26] Further, the trial judge erroneously inferred that Constable Raymond must have had training or experience thatgave him knowledge that would contradict his belief in a large quantity of tobacco being the explanation for the strong odour: I am satisfied that Constable Raymond's experience is consistent with what his testimony reflected. There was no evidence presented tosuggest otherwise.

Be that as it may, I have not been persuaded that his testimony relating to his past experience constitutes a subjectivebelief on his part that Mr. Herritt was transporting illegal tobacco in his vehicle at the time of his arrest.

In saying this, I am notsuggesting that Constable Raymond was being untruthful in relating his personal experience with respect to past illegal tobacco seizures.I am not satisfied however, that he was fully disclosing his knowledge in the field and more particularly with respect to his actualknowledge of what he, or an ordinary officer in a similar situation, ought to have known in relation to other possible causes of strong oroverwhelming tobacco odours in vehicles, in particular such an odour being equally consistent with some other explanation such astobacco being present in the vehicle on another occasion but not at the time of the stop.

This possibility was in fact borne out by theevidence in this case and was supported by the testimony of Constable Giroux, an officer with much less experience in policing thanConstable Raymond, who testified that such a strong smell could be due to a variety of other factors including prior presence in thevehicle. [Para. 30] [Emphasis added.] [27] I agree that the training and experience of the officer whose opinion or belief is under review should beconsidered. In effect, in assessing whether there are reasonable grounds for arrest, one should stand in the officer’s shoes. As explainedby Saunders J.A. in R. v.

Acosta, 2014 BCCA 218, [2014] B.C.J. No. 1246 (QL): The question is whether a reasonable person, standing in the shoes of the police officer, would have believed that grounds existed tomake the arrest, see R. v. Storrey, (SCC), [1990] 1 S.C.R. 241. In R. v. Wilson 2012 BCCA 517 Madam JusticeMacKenzie summarized the jurisprudence in this court on this issue and said: [26] In my view, the

interpretation of Storrey as reflected in these decisions is consistent both with common sense and the words used inStorrey, where the Court articulated the reasonable person test as "a reasonable person standing in the shoes of the police officer" and "areasonable person placed in the position of the officer" (emphasis added). The use of the definite, rather than the indefinite article,signals the arresting officer's personal experience and training are relevant to whether there were objective grounds to arrest under s. 495of the Criminal Code. [para. 19] [28] In R. v. Luong, 2010 BCCA 158, [2010] B.C.J.

No. 918 (QL), Bennett J.A. provides similar instructions: The assessment of whether objective grounds exist undertaken by a trial judge is conducted by first looking at the observations of theofficer (which the trial judge has found as facts) through the lens of someone who has the same experience, training, knowledge andskills as the officer who is making the observations, and then deciding if a reasonable person with the same lens would come to the same

conclusion as the police officer. This, in my view, is what the Court was referring to in Kang-Brown , supra . There is no need to call an independent expert to testify. Such evidence would not be admissible as it is irrelevant. It is the arresting officer's lens which is key to the assessment of reasonable grounds. [para. 24] [ 29 ] In this case, the trial judge should not have assumed the constable had additional knowledge that he was withholding from the court. This was pure speculation.

He should only have considered the actual training and knowledge revealed by the evidence, and assessed whether the grounds for arrest were objectively reasonable looking through that lens. In taking the approach he did, the trial judge misapplied the law and fell into error. VI. Disposition [ 30 ] For these reasons, I conclude the judge erred in law in concluding that, objectively, the arresting officer lacked reasonable grounds to arrest Mr. Herritt for possession of contraband tobacco. I would, therefore, allow the appeal, set aside the verdict and order a new trial. __________________________ KATHLEEN A.

QUIGG, J.A. WE CONCUR: _________________________ M.E.L. LARLEE, J.A. _________________________ J.C. MARC RICHARD, J.A.