R. v. Ruiz Date:, 2012 BCPC 457

Citation: R. v. Ruiz Date: 20120123 2012 BCPC 0457 File No: 83940-1 Registry: Port Coquitlam IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. Renata RUIZ REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE D.A. ST. PIERRE Counsel for the Crown: Parveen Bachra Counsel for the Defendant: John Conroy, Q.C. Place of Hearing: Port Coquitlam , B.C. Date of Hearing: September 29, 2011 Date of Judgment: January 23, 2012

[ 1 ] Renata Ruiz is charged with unlawfully possessing cannabis (marihuana) for the purpose of trafficking on March 30 th , 2010. This is contrary to Section 5(2) of the Controlled Drugs and Substances Act . [ 2 ] The trial commenced on September 29 th , 2011 with a Voir Dire to determine the admissibility of about 4.5 kilograms of marijuana bud that was seized from Ms. Ruiz’ vehicle after she had been pulled over for a seatbelt violation. [ 3 ] The defence has raised several breaches of Ms.

Ruiz’ charter rights (Sections 7, 8, and 9) and submits that, pursuant to Section 24(2) of the Charter , the seized marihuana should be excluded The Evidence [ 4 ] Cst. Gordon was doing seatbelt enforcement on March 30, 2010. At 1359 hours he observed Ms. Ruiz’ vehicle approaching. She was apparently reaching over to put her seatbelt on. I find that Cst. Gordon at that time effected a lawful Motor Vehicle Act stop in order to investigate the seat belt infraction. [ 5 ] Upon approaching the vehicle he found the driver’s side window half way down. Ms. Ruiz was holding a Guess perfume bottle in her lap. Cst.

Gordon testified that he could smell a mixture of a strong odour of fresh (or unburnt) marijuana along with perfume. The officer testified that, in his opinion, Ms. Ruiz was trying to mask the smell of marijuana with perfume. There was no evidence that Ms. Ruiz appeared nervous or anxious in any way. There was no further investigation conducted prior to Ms. Ruiz being asked to exit her vehicle where she was placed under arrest for the possession of marijuana. [ 6 ] Ms. Ruiz was advised that her vehicle would be searched. According to Cst. Gordon the search was incident to the arrest. Cst.

Mainwood, another officer on the scene, found a black garbage bag on the back seat containing approximately 4.5 kilograms of freshly cut marijuana. [ 7 ] Ms. Ruiz was then arrested for Possession for the Purpose of Trafficking as well as Possession. [ 8 ] With respect to his experience, Cst. Ruiz testified that he had attended 4-5 marijuana grow operations. He had been involved in 20-25 seizures of marijuana (including vehicle searches). He has seized amounts varying from one joint up to 4.5 kilograms of fresh marijuana, with most seizures in the range of 7-20 grams.

He described the odour of fresh marijuana as a unique smell, very skunky in nature. The burned marijuana is smoky and sweet, but still skunky at the same time. [ 9 ] In cross-examination, Cst. Gordon agreed that the odour of fresh marijuana can linger on clothes. Cst. Gordon conceded that he has come home from executing a search warrant for marijuana and his clothes still emitted the odour of fresh marijuana. [ 10 ] He agreed that nowhere in his notes did he record any observation that there was an odour of perfume or cologne present when he was dealing with Ms. Ruiz.

The only thing he did note was the presence of the bottle of perfume. [ 11 ] Cst. Gordon testified that he formed a belief that Ms. Ruiz was in possession of marijuana and arrested her for that offence. He confirmed that the two factors he considered in arresting Ms. Ruiz were 1) a strong smell of fresh marijuana and 2) the smell of perfume that in his mind was an attempt to cover up the smell of the marijuana. [ 12 ] With respect to the lack of any notes regarding the odour of perfume, the defence submitted by way of letter (after oral argument had finished) dated October 5, 2011 that Cst.

Gordon’s testimony that he smelled the odour of perfume in the vehicle should be either: 1) rejected due to a lack of reliability (i.e. important details absent from contemporaneous records of the events are suspect in their reliability). (See R. v. McConnell [2008] BCSC 505 at par. 133; R. v. Lozanovski [2005] ONCJ 112 at par. 14 and 21; R. v. Givens [2009] BCSC 824 at par. 44; R. v. Joseph [2011] BCJ No. 1232 (Prov. Ct.) ; R. v. Sundberg [2010] BCJ No. 1543 at par. 49 (Prov. Ct.) ; R. v. Zack [1999] OJ 5747 at par. 16 (Ont. C.J.) ); or 2) excluded due to an alleged breach of

Section 7 of the Charter (right to full answer and defence). (See R. v. Mercier [2000] BCPC 0212) [ 13 ] I have to agree that where a professional investigator, in circumstances like this where it is incumbent upon them to establish the grounds for a lawful arrest, fails to include in their notes a material fact going to this very issue, the reliability of this fact is seriously undermined. On the basis of the authorities above I have concluded that I cannot rely upon the assertion that there was an odour of perfume present when Cst. Gordon was dealing with Ms. Ruiz.

The analysis following, therefore, will not consider this asserted fact. [ 14 ] Cst. Gordon also conceded that even a small amount of unburnt marijuana can emit a strong odour and he could not know the quantity of marijuana possessed. He could not know whether there was over or under 30 grams of marijuana present. ISSUES [ 15 ] Mr. Conroy, on behalf of the defendant, argues that: 1) The arrest was unlawful in that, based upon the evidence of Cst. Gordon in this case, there is an insufficient subjective and objective basis upon which Cst. Gordon could have reasonably concluded that Ms.

Ruiz was found committing (under Section 495(1)(

b) of the Code) the criminal offence of possession of marijuana and that therefore her arrest was unlawful and in violation of

Section 7 and9 of the Charter; 2) If the arrest was not lawful, the search of the vehicle, which was warrantless and presumptively unreasonable, was inviolation of

Section 8 of the Charter. 3) The evidence seized during the search should be excluded pursuant to Section 24(2) of the Charter. [16] For the purposes of this case the Crown relied upon the statutory power of arrest found in Section 495(1)(

b) of the Code. TheCrown maintains that Cst. Gordon reasonably concluded that, due to his observations, Ms. Ruiz was in current possession of unburntmarijuana and was therefore “found” committing a criminal offence. They also argue that the law pertaining to presence of an odour ofburnt marijuana is different than the law relating to the presence of an odour of unburnt or fresh marijuana. DISCUSSION [17] If the arrest was lawful, then the accused and her surroundings may lawfully be searched incidental to arrest. The search mustbe related to the arrest (par. 46 of R. v. Ashby, 2011 BCSC 513) [18] If the arrest was unlawful, the detention of Ms. Ruiz violates

Section 7 and 9 of the Charter. In that case, the search cannot besaid to be incidental to a lawful arrest, and hence would violate s. 8 of the Charter. The first question is therefore whether the arrest waslawful. Was it reasonable for Cst. Gordon to believe that Ms. Ruiz was committing a criminal offence? [19] I emphasize that in this case I am not dealing here with an arrest under Section 495(1)(

a) of the Code (although many of thearguments relating to the inferences that can be drawn from established facts are relevant). On the evidence of Cst. Gordon, he had noreason to believe that Ms. Ruiz was in possession of an amount of marijuana over 30 grams. Possession of marijuana in an amount under30 grams is a

summary offence. The arrest powers under Section 495(1)(

a) only allow an arrest if there are grounds to believe that anindictable offence has been or is about to be committed. The Crown has conceded, in this case, that the arrest here could only have beenmade under Section 495(1)(

b) which allows for an arrest, by a peace officer, of a person who is “found committing” a criminal offence. [20] I invited further written submissions from counsel on the question of whether “finds committing” could include considerationsof beliefs based on reasonable grounds outside of that which may be actually observed. The case law on this point is not at all consistent.I thank counsel for their careful arguments with respect to this matter. [21] Essentially, after careful consideration of the cases that I was provided I have to say that I agree with the Honourable JudgeWood in R. v.

Boyd [2011] BCJ No. 1175 (BC Prov. Ct.) and his thorough analysis and treatment of R. v. Janvier (2008), 2007 SKCA147 , 227 CCC (3d) 294 (Sask. C.A.). [22] In my view the message to take from all the cases that I reviewed (a list of which are attached as an appendix) is that the lawrequires that inferences drawn from the proven facts must be reasonable.

It is my view that the analysis with respect to the odour of burntor fresh marijuana is dependant on the evidence in each case. [23] This case involves the alleged presence of a smell of unburnt marijuana and the inferences that can be drawn from the presenceof that smell. However, cases involving the smell of burnt marijuana may be relevant in so far as it may be appropriate to adopt theanalyses that have taken place in those scenarios. [24] The Crown maintains that the presence of a smell of unburnt or fresh marijuana attracts a different inference than that of burntmarijuana.

The former inevitably invites the inference that the marijuana is present whereas the latter may only indicate recentconsumption. [25] Again, while other cases may be helpful for the legal propositions contained therein, the facts are different in every case. In thiscase, Cst. Gordon knew that unburnt marijuana lingers just the same as burnt marijuana. He testified that even if you remove the unburntmarijuana from a bag the bag will still emit the odour. He agreed that the odour can become enmeshed in clothes.

He conceded that hehas returned home from executing a search warrant at a marijuana grow operation still smelling like fresh marijuana even though therewas no marijuana present around him at the time. He agreed that even a small amount of unburnt marijuana can emit a strong odour. [26] The only conclusion to draw from this evidence is that a vehicle could emit the odour of unburnt or fresh marijuana whetherthere is marijuana actually present or not. [27] Furthermore, a CBC story dated March 10, 2011 quoted Cpl.

Derek Cooke from the Langley RCMP where he confirmed thatthere are about 800 legal Medicinal marijuana grow operations in B.C. now. [28] The Health Canada website publishes statistics with respect to medicinal marijuana license holders and advise that (numbers arefrom 2010) 1372 persons in British Columbia hold an Authorization to Possess dried marihuana under the Marihuana Medical AccessRegulations (MMAR). In Canada in 2010 there were 3576 persons lawfully allowed to cultivate/produce marihuana for medicalpurposes. [29] It is appropriate, in my view, to take judicial notice of the above notorious facts.

Judicial notice dispenses with the need forproof of facts that are clearly uncontroversial or beyond reasonable dispute. A court may properly take judicial notice of facts that areeither: (1) so notorious or generally accepted as not to be the subject of debate among reasonable persons; or (2) capable of immediateand accurate demonstration by resort to readily accessible sources of indisputable accuracy (See R. v. Spence 2005 SCC 71). [30] In this case in order for Cst. Gordon to establish that he found Mr. Ruiz committing an offence (and therefore lawfully arrested

her) it must be shown that it was reasonable to conclude that 1) there was marijuana currently present in the vehicle and 2) that Ms. Ruiz was in possession of that marijuana and that 3) the possession of that marijuana was illegal. [ 31 ] The question is really, what is the inference to be drawn from the presence of an odour of unburnt or fresh marijuana given the evidence and circumstances of this case? Section 495(1)(b) [ 32 ] It is clear that Section 495(1)(

b) provides a very narrow scope for interfering with the liberty of a citizen. [ 33 ] The Crown’s reliance on Section 495(1)(

b) of the Code distinguishes this case from the analysis made in R. v. Loewen , 2011 SCC 21 . In that case Mr. Loewen was pulled over and an odour of freshly burnt marijuana was detected. It seemed clear there that the officer did not have reasonable grounds to arrest the accused under Section 495(1)(

a) of the basis of the smell alone. It was the discovery of $5,410 dollars in the accused pocket that persuaded the officer there that he was dealing with more than 30 grams of marijuana. The Court did not have to deal with the issue of whether the arrest would have been justified under Section 495(1)(b) (“finds committing”). [ 34 ] The case of R. v. Harding 2010 ABCA 180 (Alta C.A.) is representative of the different analysis engaged in by some courts when the odour involved is that of unburnt marijuana.

There, the same officer as in Loewen (above) noticed a strong odour of fresh marijuana coming from the vehicle and two large hockey bags in the back. Interestingly, the trial judge had relied upon several factors (in addition to the odour) in concluding the arrest was warranted, including the fact that the vehicle was a rental car and had out-of- province plates. These factors have been deemed in more than a few pipeline cases to be reasonable factors to take into account in the formulation of reasonable grounds. Despite that, the Alberta Court of Appeal found that the only relevant factor was the odour.

The Alberta Court of Appeal concluded that “no inference was necessary”. They were of the opinion that the smell alone, given the officer’s experience, constituted the observation that a crime was presently being committed. Because of that conclusion the court found that an arrest under Section 495(1)(

b) of the Code was warranted. [ 35 ] This is the same argument that is advanced by the Crown in the case of Ms. Ruiz. [ 36 ] I have already indicated that I agree with the analysis of Judge Wood in Boyd (above) wherein he discusses the meaning of an officer “finding a person conducting a criminal offence”. I am cognizant that his assessment of the application of Janvier (above) is in the context of a scenario where there is the detection of burnt marijuana.

The question involved there is whether an officer can infer the presence of more marijuana given the fact that burnt marijuana means that at least the cause of the odour has been consumed already. However, can it be said that in the case of unburnt marijuana, no inferences are required? The Difference between Circumstantial and Direct Evidence [ 37 ] One issue that does not seem to have been the subject of much judicial discussion in these cases is the issue of direct versus circumstantial evidence.

It seems clear that the Alberta Court of Appeal in Harding (above) proposes that the detection of a smell of unburnt marijuana during a vehicle stop is direct evidence that the person in control of that vehicle possesses marijuana and is therefore “found committing” a criminal offence. [ 38 ] The difference between direct and circumstantial evidence is the number of inferences which must be drawn by the person determining the fact in order to connect the observation to the fact to be established. With direct evidence an observer need make no inferences that what he observed actually happened and is “a fact”.

But with circumstantial evidence one or more additional inferences must be drawn from the observation fact to the material fact. [ 39 ] The difference between inference and conjecture or speculation is also important. There can be no inference unless there are objective facts from which to infer the facts which are to be established. If there are no positive proven facts from which the inference can be made, the method of inference fails and what is left is mere speculation or conjecture. [ 40 ] The question is, given the evidence of Cst.

Gordon, assuming he is correct in detecting an odour of unburnt marijuana, whether that proven fact is direct evidence that a criminal offence is taking place? The answer, in my mind, is clearly that it is not. There are several inferences that can be drawn on the facts as known to Cst.

Gordon at the time of his decision to arrest the accused: 1) unburnt marijuana, in an amount under 30g, was present in the vehicle and the accused was unlawfully in possession of it; 2) unburnt marijuana, in an amount over 30g, was present in the vehicle and the accused was unlawfully in possession of it; 3) unburnt marijuana was present in the vehicle prior to the vehicle pullover but was no longer present; 4) unburnt marijuana was present in the vehicle and lawfully possessed by the accused. [ 41 ] There were no proven positive facts in this case that would allow Cst.

Gordon to narrow the number of inferences to be drawn to the first two above. His decision, therefore, in my mind, to do so then was based upon mere speculation or conjecture. [ 42 ] On the evidence heard in this case, there is no basis upon which to accept the proposition posited by the court in Harding (above) (and cases that follow the same line of reasoning) that “no inference was necessary” in order to conclude that a crime was presently being committed. [ 43 ] There are two reasons why the actions of Cst. Gordon were not justified in this case.

First, it was not reasonable, in these circumstances, to conclude that the presence of an odour of unburnt marijuana meant that the marijuana was actually present. Secondly, even assuming Cst. Gordon could reasonably believe that an amount of marijuana was present (the evidence is that even a small quantity

could have produced the detected odour) and that amount was possessed by Ms. Ruiz, it was not a reasonable inference to draw that thepossession was illegal. [44] If I were to conclude otherwise it would mean that Cst. Gordon, on his way home from executing a search warrant at a growoperation, would be subject to arrest. It would mean that the hundreds of individuals who are lawfully entitled to produce or possessmarijuana would be subject to arrest. [45] The circumstances, in my mind, amounted, at best, to a reasonable suspicion that a criminal offence was taking place.

Aninvestigative detention would have been justified and Cst. Gordon may have had a basis to detain Ms. Ruiz for further investigation.Examples of what that “further investigation” might entail are found in cases like R. v. Polashek (ON CA), [1999]134 CCC (3d) 187 (Ont. C.A.) – where the officer simply stated that he smelled marijuana and then gauged the reaction of the detainee, R. v. Corea [2011] BCJ No. 171 (BC Prov. Ct.) – where the officer asked a detainee to step out of vehicle in order to try and isolate thesource of the smell and R. v.

Payette [2010] BCJ No. 1741 (BCCA) – where the court condoned the use of a sniffer dog in cases wherea reasonable suspicion could be established. [46] The arrest was unlawful. It was not justified under Section 495(1)(

b) of the Code. It was unreasonable for Cst. Gordon toconclude that a criminal offence was being committed. At best, the circumstances warranted a suspicion that Ms. Ruiz unlawfullypossessed marijuana. Further investigation was required if Cst. Gordon was to reasonably draw the inference that a criminal offence waspresently being committed. It follows that the Charter breaches alleged by the accused in this case have been established.

If the arrest was not lawful, was the search of the vehicle, which was warrantless and presumptively unreasonable, in violation ofSection 8 of the Charter? [47] It was not argued by the Crown that there was any other lawful basis upon which the search in this case was conducted otherthan a search incident to arrest. Since I have found that the arrest of Ms. Ruiz was unlawful it follows that the search was also unlawfuland a breach of Ms. Ruiz’ rights under

Section 8 of the Charter. Should the evidence seized during the search be excluded pursuant to Section 24(2) of the Charter? [48] R. v. Grant , 2009 SCC 32 , [2009] S.C.J.

No. 32 requires a three part analysis requiring the court to consider thefollowing: (1) the seriousness of the Charter violation (admission may send the message the justice system condones serious state misconduct) (2) the impact of the breach on the Charter- protected interests of the accused (admission may send the message that individualrights count for little) and (3) society's interest in the adjudication of the case on its merits. [49] It was found in Grant (above) that the court must balance the assessments under these lines of inquiry to determine whetheradmission of the evidence would bring the administration of justice into disrepute. [50] Under the first line of inquiry I adopt the remarks of Judge Wood in Boyd (above) relating to the limitations on the power ofarrest under Section 495(1)(

b) of the Code. In addition I adopt the comments of Justice Romilly in the case of R. v. Truong 2011 BCSC1452 at paragraphs 26-29. I find that Cst. Gordon in this case should have known, with the knowledge that he was possessed with, he didnot have the grounds to arrest Ms. Ruiz. [51] Under the second line of inquiry I find that the Charter breaches (First breaches of

Section 7 and 9 - an unlawful arrest andthen a breach of

Section 8 – the warrantless search) impacted Ms. Ruiz’ rights to a great extent. The breaches here resulted in a roadsidearrest and search of Ms. Ruiz’ vehicle without justification. I have taken into account the fact that there is a reduced expectation ofprivacy in a motor vehicle.

However, no one who is put in that situation could possibly characterize this as anything but a serious andsignificant impact on personal liberty and privacy. [52] Under the third line of inquiry The majority in Grant said the following when discussing whether exclusion of evidence due toa Charter breach extracts too great a toll on the truth-seeking process at par. 80: 80 The concern for truth-seeking is only one of the considerations under a s. 24(2) application. The view that reliable evidenceis admissible regardless of how it was obtained (see R. v.

Wray, (SCC), [1971] S.C.R. 272) is inconsistent with theCharter's affirmation of rights. More specifically, it is inconsistent with the wording of s. 24(2), which mandates a broad inquiry into allthe circumstances, not just the reliability of the evidence. [53] The majority of the Supreme Court of Canada in the companion case of R. v.

Harrison 2009 SCC 34 , [2009] S.C.J.No. 34 suggest that courts should exclude evidence to disassociate from police misconduct where the departure from Charter standardswas major in degree, or where the police knew (or should have known) that their conduct was not Charter compliant (See par. 22 of thatdecision). [54] The police officer in this case almost immediately arrested Ms. Ruiz upon detecting an odour of unburnt marijuana. No real

investigation took place on the scene as to whether there existed a proper basis for an arrest. [55] To appear to condone wilful Charter breaches amounting to a significant incursion on the accused's rights does not enhance,but rather undermines the long term reputation of the administration of justice. [56] In balancing those factors, I have concluded that routinely admitting evidence that was obtained as a result of a warrantlesssearch on inadequate grounds would surely bring the reputation of our justice system into disrepute. [57] The evidence will be excluded. ________________________________ The Honourable Judge D.A.

St. Pierre List of Cases Considered – R. v. RUIZ (File No. 83940-1) R. v. Abel (2008), 2008 BCCA 54 , 229 CCC (3d) 465 (BCCA) R. v. Arrance [2008] BCJ No. 2046 (Prov. Ct.) R. v. Ashby, 2011 BCSC 513 R. v. Boyd [2011] BCJ No. 1175 (BC Prov. Ct.) R. v. Burgis [2009] BCJ No. 449 (BC Prov. Ct.) R. v. Corea 2011 BCPC 27 R. v. Costain [2010] BCJ No. 1268 (BC Prov. Ct.) R. v. Dubois 2004 BCCA 589 , [2004] BCJ No. 2426 (BCCA) R. v. Grant 2009 SCC 32 R. v. Harding, 2010 ABCA 180 R. v. Harrison 2009 SCC 34 R. v. Hood [2008] BCJ No. 1441 (BC. Prov. Ct.) R. v. Janvier (2008), 2007 SKCA 147 , 227 CCC (3d) 294 (Sask.

C.A.) R. v. Juan, 2007 BCCA 351 R. v. Kang-Brown, 2008 SCC 18 R. v. Loewen, 2010 ABCA 255; 2011 SCC 21 , [2011] SCJ No. 100 R. v. Mellenthin, (SCC), [1992] 3 SCR 615 R. v. Mondor [2008] BCJ No. 2663 R. v. Nolet, 2010 SCC 24 R. v. Payette 2010 BCCA 392 Robey v. Sup. Court of Santa Barbara Cty, (2011), 2nd AD, Div.6 B231019 R. v. Schulz 2001 BCCA 601 , [2001] BCJ No. 2164 (BCCA) R. v. Sewell, 2003 SKCA 52 R. v. Stansfeld, 2003 BCSC 1457 R. v. Storrey, (SCC), [1990] 1 SCR 241 R. v. S.T.P., 2009 NSCA 86

R. v. Truong 2011 BCSC 1452 R. v. Webster (2008), 2008 BCCA 458 , 238 CCC (3d) 270 (BCCA) R. v. Yeh 2009 SKCA 112