R. v. Taylor Date:, 2012 BCPC 112

Citation: R. v. Taylor Date: 20120315 2012 BCPC 0112 File No: 54692 Registry: North Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. GERRIT GRANT TAYLOR REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE C. BAIRD ELLAN Counsel for the Crown: Peter Whyte Counsel for the Defendant: John Conroy Place of Hearing: North Vancouver , B.C. Dates of Hearing: November 9 and December 12, 2011 Date of Judgment: March 15, 2012

[ 1 ] The defendant is charged with possession of marihuana on January 26, 2011 at Whistler B.C. He challenges the admissibility of a 232 gram bag of marihuana discovered in his vehicle after a traffic stop, asserting breaches of his

section 7, 8, 9 and 10 Charter rights. [ 2 ] The issues are whether the officer who arrested Mr. Taylor had sufficient grounds, and whether he read Mr. Taylor his rights within a reasonable time. With respect to the arrest, the question centres on whether the officer arrested Mr. Taylor based solely on the smell of fresh marihuana. Facts [ 3 ] The primary investigating officer, Sgt. Lemay, is a 20 year member of the RCMP now posted to Whistler. He testified to considerable experience investigating drug offences. His evidence established that he had the ability to identify the smell of fresh marihuana. [ 4 ] Sgt.

Lemay said that he provides supervisory guidance to other officers in his charge, in relation to drug investigations. In particular he said that he instructed them that it was important to look for other indicia of possession, not just the odour, which he conceded may be indicative of someone who had just been around the substance, or socializing with someone who had been smoking it. He said it was his practice to look for other indicators, to ensure he was dealing with someone who he believed to have drugs on him or with him. [ 5 ] On the offence date, Sgt. Lemay and Cst.

Stables were in an unmarked patrol car shortly before 8:00 p.m., when they saw the defendant’s black Jeep pass by them at an intersection. The Jeep had very frosted windows, and Sgt. Lemay was concerned that the driver would not be able to see through them. He mentioned this to Cst. Stables and initiated a traffic stop. [ 6 ] Cst. Stables testified that the front windshield, the driver’s side window and the passenger window were heavily frosted and the inside of the Jeep was not visible through them. [ 7 ] Mr. Taylor stopped his Jeep about 50 yards ahead. Sgt.

Lemay approached the driver’s side, and asked him to roll down the window. He observed the defendant to start to roll down the window and then to roll it back up. He said it was broken. Sgt. Lemay had seen similar manoeuvres before, and had seen the window start to go down, so he believed the defendant was attempting to mask something inside or avoid talking to him. [ 8 ] Within seconds, Sgt. Lemay said, he noticed a “very, very strong” odour of marihuana. He described it as overpowering. Sgt. Lemay said he concluded that Mr.

Taylor’s behaviour was consistent with not wanting him to smell what was likely in the vehicle. [ 9 ] Cst. Stables was at the passenger side, and observed the window rolled down to about one inch. Through that opening he also detected an odour of marihuana. He described it as strong and unmistakable up to two feet from the vehicle. [ 10 ] Sgt. Lemay added that he had “scanned” the vehicle as he approached the driver’s side, and that as he was standing outside the driver’s door, he could see inside the windows, which he said by that time had cleared.

He said with the assistance of the police car overhead light and high beams, he was able to see a fan, some pipe, and what he believed to be black landscaping carpet commonly used to cover windows to control lighting at a cultivation. These were all items, he said, that he was aware were commonly used for marihuana grow operations. [ 11 ] Sgt. Lemay arrested the driver. He recalled that he arrested initially for both possession of marihuana and possession for the purpose of trafficking. Cst. Stables recalled that the arrest had been for possession. [ 12 ] Sgt.

Lemay said he was able to conclude based on his observations that there was a large quantity of marihuana in the vehicle. He believed that one of the boxes was full of marihuana. He said that his experience permitted him to detect the odour of just a few grams, and this was much stronger. He was sufficiently confident in his observations that he told Mr. Taylor he knew that he had rolled the window up because he had drugs in the vehicle. [ 13 ] Sgt. Lemay also observed that Mr. Taylor had red, blood shot eyes.

He said he was in the process of sorting out in his mind whether he might be an impaired driver, as he had seen this type of window behaviour with impaired drivers in the past. He did not detect an odour of alcohol. He concluded that he had reason to believe that Mr. Taylor had recently consumed marihuana, based on the red, blood shot eyes, although he did not perceive the smell of burnt marihuana. [ 14 ] After Mr. Taylor rolled his window back up, Sgt. Lemay said “don’t touch your window”.

He then arrested him, and he was confident that the defendant clearly heard him say that he was under arrest for possession of drugs for the purpose of trafficking. [ 15 ] Sgt. Lemay told Cst. Stables that there were drugs in the car. He directed Mr. Taylor to step out, walked him along the vehicle to the back and had him lean against the front hood, in order to conduct a search incidental to arrest, for weapons and drugs. [ 16 ] As they walked back, Sgt. Lemay said, he explained to Mr. Taylor that he had the right to counsel. Later, once he had Mr.

Taylor in the police car, he read the Charter rights from the card, and as well the police caution. His practice, he said, is to ensure the accused understands their rights and the caution. Once it is safe to do so, he reads from the card word for word. [ 17 ] Sgt. Lemay’s notes reflect that he read the defendant his rights at 20:07 hours. He has the notation, “10(a)” to reflect that he told the defendant he was arrested for possession for the purpose of trafficking. The defendant responded, “If that is what you are

saying.” The next note was “10b [from card]”. He recalled that Mr. Taylor said he understood, but did not provide a response when asked if he wanted to call a lawyer. Sgt. Lemay asked him if he had a lawyer and he said, “Yes, John Conroy.” [ 18 ] Sgt. Lemay said he also read the secondary caution to Mr. Taylor, from the card. He asked Mr. Taylor when was the last time he had marihuana or drugs, and Mr. Taylor said he did not have to talk to him. He said he asked that question for the purpose of an impaired driving investigation. He then handed that portion of the investigation over to Cst.

Stables and also asked him to search the truck. [ 19 ] Cst. Stables opened the back of the Jeep, which was not locked. He searched the contents, and found some cardboard boxes, one labelled “oscillating fan;” some car parts; and a black BC Liquor bag with a plastic bag inside it, which contained a large quantity of marihuana. It was later weighed and found to be 232 grams. The marihuana was inside a sealable “shopvac” type of bag which was inside a freezer bag. Cst.

Stables said there was no odour coming from that, but he could still smell marihuana. [ 20 ] He continued to look and found that the odour was coming from a yellow oscillating fan that was inside an open cardboard box. There was some residue on the fan which looked like marihuana, and appeared to be the source of the odour. [ 21 ] In describing the location of the two fans in the back of the Jeep, Cst. Stables said the yellow fan was inside an open box inside the back door and to the left, within arm’s length of the back. The box was deteriorating, or well used, with tape on the top that had come open.

He could see the fan from outside the box, after he had shifted it from its original position. [ 22 ] Cst. Stables could not recall if the white box with the picture of the fan on the outside was open when he found it, or where it was, specifically. Cst. Stables identified photographs that had been taken at the detachment as the items were pulled out, to show where they had been. [ 23 ] In cross-examination Cst. Stables said both of the fans had residue on them, and that he also found two nets, also with residue, within close proximity to the fans. He said that the yellow fan had been under the netting.

He was able to see the fan under the netting when he looked from the top of the box. It was not visible from the back without opening the door. [ 24 ] Cst. Stables could not recall if the box with the picture on it was visible from outside, but he confirmed his recollection that as they approached the vehicle, all the windows were frosted. He did not specifically check the driver’s side. He also said that the back windows of the Jeep were tinted. [ 25 ] In the photographs the cardboard box is depicted with the top flaps sticking up, such that nothing can be seen from the side.

The white box is lying flat with the picture facing up. It is directly behind and about a foot shorter than the top of the rear seats. In the photographs from the front driver’s side, the back compartment of the Jeep is not visible. [ 26 ] After the discovery of the marihuana and fans, the officers decided to continue the search back at the detachment. Nothing further was found and the residue on the fan was not measured or analyzed, nor is it the subject of a charge. [ 27 ] Cst. Stables seized the bag of marihuana and proceeded with an impaired investigation of the driver. [ 28 ] Sgt. Lemay said that when Cst.

Stables opened the back of the Jeep, he saw that the contents included the items he had seen when he walked up beside the truck. [ 29 ] In summarizing his grounds for arrest, Sgt. Lemay said that based on the frosted windows, he believed the defendant was committing a motor vehicle infraction, and may be an impaired driver. When at the driver’s side, seeing the defendant manipulate the window, detecting the overwhelming odour of fresh marihuana in what he perceived to be a large quantity, and after seeing what he perceived to be cultivation equipment in the back, he concluded that Mr.

Taylor was transporting material from a grow operation or had recently dismantled one. [ 30 ] Sgt. Lemay said that the odour from the defendant’s vehicle was one of the strongest he had smelled in a motor vehicle stop. He was not familiar with different strains of marihuana or the relative strength of their odour. He agreed that “skunk” marihuana may be stronger than others, and that a strong smell could arise from a particular strain as opposed to a large quantity. He also agreed that he had detected strong odours from items that had previously held marihuana where there was none present. [ 31 ] Sgt.

Lemay did not recall where in the vehicle they had ultimately determined the odour was coming from. To him, the whole truck smelled like fresh marihuana. He agreed that when the bag was found, although it was a significant amount, he had believed there was a lot more. He did not recall any other location in the vehicle from which the odour may have emanated. [ 32 ] Sgt. Lemay said it was primarily the front window that was frosted, and that the side windows were less so.

His notes read, “frosted, blood shot eyes, and arrest for possession.” There was nothing in his notes about the window going up and down. [ 33 ] Sgt. Lemay was aware that for a

summary possession offence, he must find the defendant committing the offence in order to arrest him and that for hybrid offences, he could arrest if he had reasonable grounds. Normally, with the odour as the only indication, he would ask the person out of the car, but with the equipment he had seen in the vehicle, he was convinced that the defendant was a drug runner or was coming from a cultivation with drugs. [ 34 ] Sgt. Lemay agreed that the photographs showed two living room lamps and a rug or carpet still in its wrapping in the back seat.

He said that his view was much better than depicted in the photograph. There is no photograph showing his exact vantage point, looking into the back of the truck from the driver’s side. [ 35 ] The photograph that shows the view toward the back shows a backpack, a liquor bag, and a closed cardboard box with a photograph of a fan on the outside. A closer image of the box shows that one cannot see into it, but that the photograph on the outside depicts an oscillating fan. Sgt. Lemay believed that what he saw was the actual fan, above the backpack. He agreed that what he thought

was tape to cover windows was in fact the rolled up carpet. He also agreed there was no piping in the back of the truck and he may have seen the stems of the lamps. He said that the remnants of marihuana on the fan would not be enough, in his experience, to account for the strong smell he perceived. He had not followed up since the offence date to ascertain whether any larger quantity had been discovered. Submissions [ 36 ] Mr. Conroy for the defendant submits that Sgt.

Lemay could not have seen what he says he saw from the front driver’s side of the Jeep, and that his grounds must be taken as limited to the smell of marihuana and the window manoeuvre. With respect to the latter he says it cannot be taken as adding to the grounds because it is amply explained by the frosted state of the window. [ 37 ] He points out that Sgt. Lemay conceded that the items in the back were later found not to be related to a grow operation, except the fans. Sgt.

Lemay also said that he would not rely on the odour of marihuana alone, and always looked and instructed other officers to look for additional indicia. [ 38 ] Further, Mr. Conroy says that Sgt. Lemay did not give Mr. Taylor his Charter of Rights until after Cst. Stables found the bag of marihuana. He submits that establishes that Lemay himself did not believe he had grounds until then. He says Cst. Stables is the more credible despite Lemay’s level of experience, and he confirmed that Sgt. Lemay could not have seen the contents of the vehicle from his vantage point.

Case Law [ 39 ] The primary case in favour of the defence position that the odour of marihuana alone is not sufficient for grounds to arrest is the case of R. v . Janvier , 2007 SKCA 147 , a case which involved the smell of burnt marihuana. The case stands for the proposition that the odour of burnt marihuana alone is not sufficient for grounds to arrest under section 495(1) (

a) of the Criminal Code , as it does not support a belief on the part of the arresting officer in the indictable offence of possession in a greater quantity than 30 grams. In order to arrest on the

summary offence of possession under 30 grams, the officer must find a person apparently committing the offence and arrest under section 495(1) (b). [ 40 ] As pointed out by the Crown, Janvier was considered by Powers J. in the B.C. Supreme Court in R. v . Ashby , 2011 BCSC 513 , cited by the Crown. Ashby was in turn considered in this Court by Wood PCJ, in R. v . Boyd , 2011 BCPC 137 , and Smith PCJ in R. v . Fletcher , 2011 BCPC 232 . The Crown also refers to R. v . Ingle , 2007 BCCA 445 , and R. v . Sewell, 2003 SKCA 52 , R. v . Omelusik , 2003 BCCA 319 .

Analysis [ 41 ] Dealing firstly with the issue of whether Sgt. Lemay provided Mr. Taylor with his right to counsel and police caution at the time of his arrest, Sgt. Lemay testified that he gave the rights informally as he was walking Mr. Taylor to the back of the Jeep. He said that he later read the rights from the car, once he was in the police vehicle. [ 42 ] No evidence was called by the defence regarding whether the rights were properly explained to the defendant, or understood by him, at the time of his arrest.

As well, even if he did not receive a full version of his rights before he was placed in the police vehicle, the breach would have been a fleeting one. A finding that it affected the search would still turn on the sufficiency of grounds and whether anything the police did violated the duty to hold off pending the fulfillment of the right to counsel. In any event, I find the evidence of Sgt. Lemay sufficient to establish on a balance of probabilities that the defendant was properly advised of his Charter rights. [ 43 ] In relation to the sufficiency of the arrest grounds, it is clear in my view that Sgt.

Lemay was wrong about seeing any grow-op paraphernalia in the back of the Jeep, apart from the oscillating fans. With respect to those, the evidence of Cst. Stables and the photographs of the Jeep make it doubtful that Sgt. Lemay could see and identify the yellow fan from the driver’s window. Sgt. Lemay said initially in his evidence that two fans were present in the Jeep, but later he said he observed only one from outside the vehicle before he made the arrest. [ 44 ] Sgt. Lemay said he did a scan of the outside of the Jeep as he walked to the driver’s door.

He said that the police vehicle lights assisted him to see inside. The second fan, though inside the white box, was clearly labelled and had a large picture of an oscillating fan on the top. As depicted in the photograph, unless something was obstructing the top of it, the photograph may have been visible from outside the Jeep through the rear windows. It was a full size photograph, and may conceivably have appeared to be a real fan. [ 45 ] I am mindful that the windows were tinted and according to both officers, heavily frosted.

I do not have evidence of where the object was, or how visible it was from the driver’s side of the vehicle, apart from the testimony of Sgt. Lemay, that he did see a fan. In particular, if the defendant wished to challenge the credibility of this experienced officer, he could have testified on the voir dire as to the precise location of the box or otherwise called evidence to show the visibility, or lack thereof, from outside the Jeep, given its frosted windows, and tint. [ 46 ] I am asked to conclude, on a balance of probabilities, that Sgt.

Lemay was lying to the Court about his ability to see a fan from outside the Jeep. If in fact he was mistaken about this point, I prefer in the absence of evidence showing that he could not see inside the

Jeep to conclude that at worst he is remembering the sequence of events incorrectly in his zeal, and due to a misguided desire to ensure that his grounds were sufficient. In any event, in light of the view I take about the sufficiency of his grounds without the observation of the fan, little turns on the fact that he may not have seen it before the arrest. [ 47 ] As I have observed, Sgt.

Lemay did not see other paraphernalia of a grow operation inside the Jeep, but in my view the items recovered supported a reasonable conclusion on his part that they were the items he thought he saw, and were items related to a marihuana cultivation, in light of the odour of marihuana and the actions of the driver. [ 48 ] I agree with the submission of the Crown that taken together, the observations of Sgt.

Lemay, even without having seen the fan, would have been sufficient to provide grounds to believe there was marihuana present in the vehicle. [ 49 ] The issue still remains whether it is necessary for the Crown to establish that the officer had a belief that an indictable offence was being committed. Janvier and Boyd relied upon by the defence involved the smell of burnt marihuana. Mr.

Conroy in an innovative and well presented argument seeks to import the analysis from those cases into the situation where the odour of vegetative marihuana is detected. [ 50 ] It is submitted by the Crown that the cases involving the smell of burnt marihuana may be distinguished on the basis that the odour is indicative only of past possession. Mr.

Whyte in his able submissions submits that the odour of fresh marihuana supports a belief that an accused is in current possession, and therefore supports an arrest under section 495(1) (b). [ 51 ] Of the cases cited, those that deal with the odour of vegetative marihuana, Ingle , Sewell and Ashby , hold that the odour, in some cases with additional observations, is sufficient to support an arrest under section 495(1) (b). [ 52 ] In Ashby , as noted by Wood PCJ in Boyd , Powers J. did a thorough and helpful review of the case law in this area. Ashby was followed in Fletcher .

Both involved the smell of vegetative marihuana. Powers J. and Smith PCJ both distinguished Janvier and the cases following it on the basis that the smell of burnt marihuana could not support a belief in the presence of a quantity of marihuana exceeding 30 grams. It does not follow from that that the converse is true; that the officer must form a belief in the presence of a particular quantity in order to make an arrest based on a conclusion of present possession. [ 53 ] On a careful reading of the case law, and particularly in light of R. v .

Ashby , I agree with the submission of the Crown that the odour of vegetative marihuana is sufficient to support an arrest under either section 495(1) (

a) or (b). Ashby is binding on this Court. Further, as the Crown has pointed out, the law in relation to the odour of vegetative marihuana appears to have been settled for some time, and with all due respect to the defence, I do not believe it has been unsettled by Janvier . As I read Janvier it holds only that an arrest may not be effected under section 495(1) (

b) if the evidence supports a conclusion that the officer did not believe the accused to possess more than 30 grams: R. v . Boyd , para. 14 ; R. v . Ashby ; R. v . Hood . [ 54 ] The following passage from Sewell illustrates the reasoning behind the distinction between vegetative and burned marihuana: [36] The question arises whether it is fair to conclude that the officer had, for the purposes of s. 495(1)(b), "found" the appellant committing the offence at the time of the arrest given that the officer had only smelled the marihuana but had not seen it. In my respectful view, it is fair to so conclude.

In order for a person to know or believe that there is marihuana in the immediate vicinity, he or she would have to rely on one or more of his or her five senses. (Admittedly, one cannot "hear" marihuana, but one can "hear" someone telling one of the presence of marihuana.) Normally it is the sense of sight alone, often the sense of sight coupled with the sense of smell, and at times the sense of smell alone that alerts one to the presence of marihuana.

If, through experience, a person's sense of smell for marihuana is as highly developed as his sense of sight for marihuana, it undermines logic to discount or discard the knowledge acquired through his sense of smell but accept the knowledge acquired through his sense of sight. Knowledge is knowledge, whether acquired through one sense, more than one sense, or all the senses. … [ 55 ] Mr. Conroy points out that in this case, Sgt. Lemay was of the view that the odour alone was not sufficient, and other indicia were necessary. I have already observed that the actions of the driver and the suspicious items Sgt.

Lemay believed he saw in the back supported a belief on reasonable grounds that there was marihuana present. [ 56 ] Secondly, in my view, one cannot fault the officer on the street for not being up on the state of the law or performing the kind of in-depth analysis that judges such as Powers J. are duty bound to perform. On the current state of the law as I have found it, Sgt. Lemay was wrong in his belief that he could not arrest based on odour alone. He looked for other signs of possession, and found them in the suspicious contents of the vehicle and the suspicious behaviour of the defendant.

As submitted by the Crown, those observations would also have supported an arrest based on reasonable and probable grounds under section 495(1) (a). [ 57 ] Mr. Conroy points to the fact that what actually gave rise to the odour in this case were remnants of marihuana contained on the fan or fans in the back of the Jeep, and not the bag of marihuana that was found.

He says this case is an actual example of the fact that odour of vegetative marihuana alone may not support a conclusion that there is marihuana in a quantity exceeding 30 grams present in the vehicle. [ 58 ] In my view this argument fails for two reasons. The first is that the officer need only believe that some marihuana is present in order to support an arrest under section 495(1) (b), based on a conclusion that the accused is currently committing the offence. The evidence here does not establish that Sgt. Lemay believed there to be less than 30 grams present.

Secondly, the issue for arrest under section 495(1) (

a) is whether the conclusion that there is a large quantity of marihuana present is a reasonable one. Given the strength of the odour described by both officers in this case, that was a reasonable conclusion in this case. The fact that it turned out to be wrong, in terms of the odour, is not material. [ 59 ] As Cst. Stables observed, on occasions where he drew the conclusion that marihuana was present on a person based on odour alone, and turned out to be wrong, he was acting in good faith. I would add that an arrest based on that conclusion would not be

unreasonable. [ 60 ] I find there were grounds to arrest here, and the search of the Jeep was lawfully performed incidentally to that arrest. In light of my finding that no breach occurred, I need not perform the analysis under section 24(2). _______________________________ The Honourable Judge C. Baird Ellan Provincial Court of British Columbia