R. v. Cairns, 2015 ONCJ 41

ONTARIO COURT OF JUSTICE CITATION: R. v. Cairns , 2015 ONCJ 41 DATE: 2015 01·28 COURT FILE No.: Regional Municipality of Durham 998 13 25302 BETWEEN: HER MAJESTY THE QUEEN — AND — Joshua Cairns Before Justice J. De Filippis Heard on December 4, 2014 Ruling on Charter Motion Released on January 28, 2015 Mr. Raven ................................................................................. …………. counsel for the Crown Mr.

Balka ........................................................................................... counsel for the defendant De Filippis, J.: [ 1 ] The defendant is charged with possession of cocaine for the purpose of trafficking. The charge arises as a result of the seizure of cocaine from a car after the defendant was arrested following a traffic stop. The defendant claims the arrest was unlawful and violated his rights as guaranteed by sections 8 and 9 of the Charter of Rights and Freedoms . He applied to exclude the evidence of the cocaine, pursuant to subsection 24(2) of the Charter .

For the reasons that follow, I dismiss the application. [ 2 ] On July 12, 2013 at 10:19 PM, PC Aukema observed a black Honda Accord in the Township of Scugog. He followed the vehicle to the area of Water Street and Scugog Street. A query of the plate confirmed the officer’s observation that the validation for the vehicle expired in May 2013. The vehicle entered a plaza parking lot in which there is a convenience store. The officer maintained observations of the now unoccupied vehicle prior to seeing two males enter it and drive away.

It was followed south on Water Street, before turning west onto Scugog Street, at which time the officer initiated a traffic stop by activating his emergency lights. [ 3 ] PC Aukema testified the vehicle did not immediately stop, but drove up the hill slowly with the right turn signal on, before turning onto John Street and stopping “a couple of houses north of the corner”. He added that as he approached the vehicle, the interior light for the vehicle was turned on and he noted that the driver appeared to be putting something into the centre console of the vehicle.

The interior light was turned off as the officer reached the driver’s window. According to the officer, the driver acted strangely by not making eye contact with him and staring straight ahead. He asked the driver what he had placed in the centre console and the latter replied that he had removed items. PC Aukema believed the stack of papers on the driver’s lap to be too large to have fit in the console. [ 4 ] The driver produced, upon demand, documents for licence, registration and insurance. The name and photograph on the licence matched that of the driver; that is, the defendant, Joshua Cairns.

P.C Aukema testified that while speaking with him, he could smell odours that he knew to be freshly burnt and unburnt marihuana and he was able to determine the smell was emanating from inside the vehicle. There was also a strong odour of air freshener. The officer said he saw that the defendant’s hands were shaking. Inside the vehicle, he observed tobacco flakes “all over” and a cigarette that had tobacco removed from the end and was twisted. The officer testified that in his experience some people who use marihuana will mix cigarette tobacco in with it.

The defendant was advised about the odour of marihuana and the officer’s belief that he was in possession of the drug. The defendant replied that the officer was smelling cigarette smoke. [ 5 ] The officer conceded he is not part of the drug squad and has not been trained for duties in that unit. He testified he that he was

exposed to the odour of marihuana at Police College and “too often to count since then”. He had no explanation for why he did notapproach the driver of the vehicle when the two males entered it in the parking lot, except to say, “I decided to wait until he put the car inmotion and stop him on the roadway”. P.C. Aukema confirmed that neither male had aroused any suspicion and that the traffic stop wasfor the purpose of investigating the invalid sticker. He resisted the suggestion he was incorrect in stating the defendant delayed stoppinghis car after the cruiser emergency lights had been activated.

He insisted that it appeared the defendant was putting something into thecentre console, not “the other way around”. The officer agreed that the odours of burnt and fresh marihuana are distinct and said hedetected both. He stated he did not smell tobacco notwithstanding that the defendant had a lit cigarette in hand. [6] PC Aukema arrested the defendant and passenger for possession of marihuana at 10:40 PM, “within minutes” of the traffic stop. Hetestified that, as he did so, he told the defendant he could smell marihuana on him and that the latter explained he had been with a personwho smoked it.

He searched the vehicle pursuant to that arrest. Inside the centre console he found a white digital scale with whitepowdery residue on it, a large number of “dime bags”, and two Ziploc bags containing a powder. It is not disputed that the latter iscocaine and that it amounted to nine grams. According to the officer, as soon as the items were seized from the centre console, thedefendant said “they’re mine”. A second officer, P.C. Stevens, arrived on scene to assist. Marihuana was not found in the vehicle. Theofficer did not photograph the tobacco flakes or seize the cigarette with the twisted cigarette. [7] P.C.

Aukema also seized the defendant’s cellular telephone. He testified that he performed a “cursory search” of it to obtain thetelephone number so he could seek judicial authorizations. When he activated the screen he saw this text conversation: Kayla: Do you have any? [Response]: Yes. Kayla: Can you do a B and how much? The officer said this conversation was immediately present on the screen and he did not scroll down. He later obtained a productionorder and search warrant. [8] Hugh Allward is a 25 year old sheet metal apprentice. He was the passenger in the defendant’s motor vehicle.

He testified that as hehad been at a pub on the night in question and was “too drunk to drive”, he contacted the defendant to pick him up. They met at theplaza near the convenience store. After driving away, he noticed a police cruiser following them and the defendant told him to check theglove box for his licence. He testified that on being stopped, the officer asked them if they had been drinking alcohol. Mr. Allwardadmitted as much. The officer then asked if they had “smoked pot”. Both men said no. The defendant produced a [cigarette] butt andsuggested this was the source of the smell. Mr.

Allward testified that he did not smell marihuana or air freshener in the car. He said hedid not know the defendant to be “involved” with marihuana or cocaine but heard him claim ownership of the cocaine found by thepolice. The charge against Mr. Allward was later withdrawn by the Crown. [9]

Section 8 of the Charter provides that "Everyone has the right to be secure against unreasonable search or seizure". This right meansthat the police must have reasonable and probable grounds to arrest and/or search a person.

Section 9 protects against arbitrary detentionor imprisonment. In this case, both sections turn on the existence of reasonable and probable grounds.

Pursuant to subsection 24(2),“Where…a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by thisCharter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in theproceedings would bring the administration of justice into disrepute”. [10] A reasonable and probable ground to arrest and/or search has both a subjective and an objective component. The subjectivecomponent requires that the officer honestly believe the suspect committed an offence.

The objective component means that the officer'sopinion must be supported by objective facts: Storrey v. The Queen (1990) (SCC), 53 C.C.C. (3d) 316 (S.C.C.). Informing reasonable and probable grounds, an officer must take into account all the information available, disregarding only what isunreliable. The officer cannot pay attention only to what incriminates and disregard all that exonerates (Chartier v. Attorney General ofQuebec (1979) (SCC), 48 C.C.C. (2d) 34 (S.C.C.)).This standard must not be inflated to the context of testing trialevidence.

Neither is it to be so diluted as to threaten individual freedom: R. v. Censoni [2001] O.J. No. 5198 (S.C.J.). In other words,there must be enough to justify police interference with individual liberty, but this does not mean a prima facie case or proof beyond areasonable doubt. [11] It is not in dispute that the defendant was lawfully stopped for driving a motor vehicle with an invalid plate sticker. This doesnot mean the officer had the right to arrest the defendant and to search him and the car as an incident of the arrest.

That authoritydepends on whether the officer had reasonable and probable grounds to believe the defendant was in possession of marihuana. [12] The Defence submits that the smell of burnt marihuana is not evidence of its present existence and that the odour of freshmarihuana, as admitted by the officer, is “transient”. Moreover, it is argued that P.C. Aukema is not a credible witness with respect todetection of odours as he did not smell tobacco in the car notwithstanding that both its occupants had been smoking in it and Mr. Allwardtestified he did not smell marihuana (or air freshener) in the vehicle.

The Defence also suggests that the officer is unreliable as theCrown has failed to show the officer has relevant expertise in detecting the odour of marihuana. It is asserted that this unreliability is asignificant departure from the standard expected of an investigator in these circumstances. [13] The Crown argues that the Storrey test is met if I accept that the P.C.

Aukema detected an odour of burnt and/or freshmarihuana within the car and on the defendant himself and that he also made these observations; tobacco flakes all over the vehicle, atwisted cigarette, the appearance of something being put inside the console, the defendant’s shaking hands and his strange demeanor inlooking straight ahead and avoiding eye contact.

It is suggested that the tobacco flakes and twisted cigarette are consistent with theofficer’s experience that some people mix marihuana and tobacco and that the other observations reveal nervousness and an attempt toconceal something. [14] I do not accept the submission that P.C Aukema is an unreliable witness with respect to the odour of marihuana. On thecontrary, he has substantial experience with it. I am satisfied that he can identify marihuana by its smell. In this regard, the defendant’s

statement to him, upon arrest, that he was with someone who had smoked marihuana supports the officer’s belief that the odour waspresent. The officer’s testimony about this statement was not challenged and there is no other reason why I should reject it. I amconfident P.C. Aukema detected the odour of burnt marihuana. I do not have such faith in his belief he also smelled fresh marihuana. InR v Harding 2010 ABCA 180, it was held that the “overpowering” odour of raw marihuana can support the observations a person is inpossession of the drug.

In that case, the police found 56 pounds of marihuana in the trunk of the car. In this case, there is no evidencethe odour of fresh marihuana was of such strength and none was found. P.C. Aukema is likely mistaken in identifying this odour. Thisdoes not undermine his reliability about the presence of burnt marihuana. More important, there is nothing to suggest he lied about it. [15] In concluding that P.C. Aukema did smell burnt marihuana within the car and on the defendant himself, I am not troubled bythe fact that he did not detect the odour of tobacco.

Again, there is nothing to suggest he lied about this, especially since he conceded thedefendant had a cigarette in hand. The inference I draw is that if such an odour was present, it did not overwhelm that of the marihuana.Similarly, I am not concerned by Mr. Allward’s testimony that he had also smoked a cigarette in the vehicle and had not detected thesmell of marihuana. I note that Mr. Allward was drunk at the time.

In any event, his testimony does not, in itself, mean the officer isunbelievable or inaccurate in reporting his observations. [16] My finding that there was an odour of burnt marihuana on the defendant and in his car does not constitute reasonable andprobable grounds that the drug was present at that time: See R v Janvier 2007 SKCA. Moreover, smell is highly subjective and, withoutmore, will usually fail the objective component in Storrey. A case such as Harding in which a particular odour is “overwhelming” isexceptional and confirms this cautionary approach.

However, the smell of burnt marihuana, along with other relevant factors, can meetthe Storrey test: See R v Polashek (ON CA), [1999] O.J. No. 968 (Ont. C.A.). The application of these principles willalways be case specific. [17] Along with the odour of burnt marihuana, what additional factors would justify reasonable and probable grounds in thiscase? I am not impressed by the evidence of tobacco flakes and the twisted cigarette. There is nothing in the record before me tovalidate P.C. Aukema’s belief that some people smoke a combination of marihuana and tobacco.

On the other hand, I do accept theofficer’s testimony that the defendant’s hands were shaking and he stared straight ahead when first stopped. These actions are consistentwith anxiety and unease. I also accept that on approaching the motor vehicle, the defendant put something in the centre console.

In thecircumstances of a traffic stop, this reasonably supports the inference that there was something he did not want the officer to see. [18] Having regard to the smell of burnt marihuana, the defendant’s nervousness, and his apparent attempt to hide something, Iendorse the officer’s subjective belief that he was in possession of marihuana. In my opinion, the defendant’s arrest for that offence waslawful and rights as guaranteed by sections 8 and 9 of the Charter were not infringed. His application to exclude the evidence of cocainefound, following the defendant’s arrest is dismissed.

Released: January 28, 2015 Signed: “Justice J. De Filippis”