R v. Eld Date:, 2014 BCPC 112

Citation: R v. Eld Date: 20140521 2014 BCPC 0112 File No: 94085-1 Registry: Kamloops IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. COREY JOSEPH ELD RULING ON VOIR DIRE OF THE HONOURABLE JUDGE C.D. CLEAVELEY Counsel for the Crown: Mr. Anthony Varesi Counsel for the Accused: Mr. John W. Conroy, Q.C. Place of Hearing: Kamloops , B.C.

Date of Hearing: February 11, 2014 Date of Judgment: May 21, 2014 INTRODUCTION [ 1 ] Corey Joseph Eld is charged with unlawfully possessing Cannabis. On November 3, 2012 at Barriere, BC, Mr. Eld was stopped at a road check and inside his Ford Aerostar van were found 73 marijuana plants, each about one foot high. [ 2 ] Mr. Conroy, on behalf of Mr. Eld, submits that the investigating officer, Constable King, did not have reasonable and probable grounds pursuant to s. 495(1) (

b) of the Criminal Code to arrest Mr. Eld and that his rights as contained in s. 7 , 8 , and 9 of the Canadian Charter of Rights and Freedoms have been infringed. As a result of these Charter violations, the marijuana found in Mr. Eld’s vehicle should be excluded from evidence, pursuant to s. 24(2) of the Charter . [ 3 ] On this Voir Dire the Crown called two witnesses, Constable King, the lead investigator, and Constable Clack, who assisted Constable King with the investigation. There was no defence evidence.

SUMMARY OF THE EVIDENCE [ 4 ] On November 3, 2012 shortly after 8:00 p.m., Constable King and three or four other members of the Interior Road Safety Unit were conducting a road check at Barriere. [ 5 ] Constable King has been a member of the RCMP for approximately seven years. In that time he has been involved in the investigation of four large marijuana grow operations, many “no case seizures” of marijuana, and situations similar to the one before me.

He is very familiar with the smell of fresh marijuana. [ 6 ] At 8:32 p.m., a red Aerostar van, which was northbound on Highway 5, approached Constable King’s location. He signalled for the vehicle to stop. [ 7 ] When the vehicle was approximately 10 to 15 feet away from his location, Constable King saw that the driver’s side window was rolled down. He could smell a strong odour of fresh marijuana coming from the interior of the van. [ 8 ] After the vehicle stopped, Constable King saw that Mr. Eld was the driver and there was a male passenger in the other front bucket seat. In the cargo

section of the van, Constable King saw a tarp, extending from the back of the front bucket seats to the rear of the van. Constable King believed that marijuana was concealed under the tarp. [ 9 ] After Mr. Eld provided his driver’s licence, Constable King directed Mr. Eld to pull his vehicle over to the shoulder of the road. At that point, Constable King requested the assistance of Constable Clack, to deal with the passenger. [ 10 ] Constable King described the smell as fresh vegetative marijuana, not burnt marijuana. [ 11 ] After Mr.

Eld pulled over to the shoulder and stopped, Constable King walked up to the driver’s side and advised Mr. Eld and the passenger that they were under arrest for possession of marijuana. It was 8:33 p.m. [ 12 ] Constable King asked Mr. Eld and the passenger to get out of the vehicle and they complied. They were both searched for officer safety and Mr. Eld was placed in Constable King’s police car and the passenger was placed in Constable Clack’s police car. [ 13 ] Constable King testified that he arrested Mr.

Eld because of the consistent, strong odour of fresh marijuana and the tarp which covered the rear cargo area of the van. [ 14 ] After Mr. Eld was placed in the rear of Constable King’s police car, he was told his rights. Mr. Eld exercised his right to counsel. [ 15 ] At approximately 8:40 p.m. Constables King and Clack searched the van and found 73 marijuana plants under the tarp. The plants were removed from the van, placed in the tarp and secured in the trunk of Constable King’s police car. [ 16 ] After the van was searched, Constable King arrested Mr. Eld for possession for the purpose of trafficking. Mr.

Eld then spoke to legal aid a second time. [ 17 ] At approximately 9:30 p.m. Mr. Eld was released at the roadside on a Promise to Appear. [ 18 ] On November 19, 2012 Constable King phoned Health Canada and determined that neither Mr. Eld or the passenger had a licence to transport marijuana. [ 19 ] In cross examination Constable King testified that he was familiar with the Health Canada Medical Marijuana Program and knew that a licence holder may possess marijuana lawfully. [ 20 ] Constable King believed that he did not have to ask Mr. Eld if he had a licence to lawfully possess the marijuana.

He believed that Mr. Eld was committing an offence. The smell and tarp were sufficient to arrest. [ 21 ] Constable King testified that the smell of marijuana was consistent throughout his investigation and did not get stronger when he was at the driver’s side of the van. He conceded that it is difficult to determine the amount of marijuana, by smell alone.

[ 22 ] Constable King also conceded that in a marijuana “tear down”, the smell of marijuana may get on your hands and clothes, but it will dissipate over time. This is also different than the consistently strong odour of marijuana, which he smelled on this occasion. [ 23 ] Constable King agreed that his notebook does not contain any reference to the interaction with Mr. Eld, or his observations, prior to Mr.

Eld’s arrest, when he was seated in the rear of the police car. [ 24 ] The Report to Crown Counsel, which was prepared on November 12, 2012, contains references to Constable King noting the smell of marijuana as the vehicle approached and seeing the tarp.

There is no reference to smelling the marijuana from a distance of 10 to 15 feet in either the notebook or the Report to Crown Counsel. [ 25 ] The synopsis, which was prepared at the roadside, contains a reference that Constable King noted a “strong odour of fresh marijuana in the vehicle and arrested the driver.” [ 26 ] Constable Clack testified that he has approximately 26 years’ experience as a peace officer, including 13 years with the RCMP. In his career, he has dealt with grow operations and marijuana seizures from vehicles.

While stationed in Lumby, he dealt with dozens of grow operations. [ 27 ] Constable Clack testified that he is familiar with and knows the difference between vegetative marijuana and burnt marijuana. He is also aware that individuals may have the smell of marijuana on their clothes. He has personal experience with that because of his involvement in marijuana investigations. He also acknowledged that the smell of marijuana alone cannot determine quantity. [ 28 ] At the road check, Constable Clack was checking southbound traffic when Constable King caught his attention.

Constable King pointed to his nose, and then to a northbound van. [ 29 ] Constable Clack then became aware of a smell of marijuana, which became stronger as he approached the van. Constable Clack first noted the smell of marijuana when he was 8 to 10 feet away from the vehicle.

As he approached the van, he determined that the odour was coming from inside the van. [ 30 ] After Constable King directed the van to the shoulder of the road, Constable Clack went to the passenger side of the vehicle. [ 31 ] At the side of the van, Constable Clack opened the passenger side door and heard Constable King arrest the occupants for possession of marijuana. [ 32 ] Constable Clack took charge of the passenger. After searching and providing the passenger with his Charter rights, Constable Clack placed him in his police car. [ 33 ] Constable Clack then assisted Constable King in the search of the van.

He saw the marijuana plants under a tarp in the back portion of the van. Constable Clack, due to the number of marijuana plants, chartered and warned the passenger for possession for the purpose of trafficking. [ 34 ] The marijuana plants were placed inside the tarp and secured in Constable King’s police car. [ 35 ] The first entry in Constable Clack’s notes is at 2032 hours. Amongst other entries, he noted that he could smell the marijuana through the open driver’s window.

Later in his notes, when describing the securing of the plants inside Constable King’s police car, Constable Clack made his first reference to the green tarp which had been covering the plants. His notes do not contain any reference to the tarp at an earlier point in the investigation, such as when he opened the passenger side door. ANALYSIS [ 36 ] The substantive issue in this case is the lawfulness of Constable King’s arrest of Mr. Eld. [ 37 ] Mr. Conroy argues that I should find that Constable King arrested Mr. Eld based on the smell of marijuana alone.

Consequently, there would be insufficient subjective and objective grounds to find that Mr. Eld was committing an offence as required by s. 495(1) (

b) of the Criminal Code . It follows, that if the arrest was unlawful, there has been a pattern of breaches of Mr. Eld’s rights as contained in ss. 7 , 8 and 9 of the Charter and that the evidence ought to be excluded pursuant to s. 24(2) . [ 38 ] Before I deal with the substantive issue, Mr. Conroy has raised an evidentiary matter relating to Constable King’s lack of notes, which I must first resolve. [ 39 ] Constable King’s notes do not contain any reference to his initial dealings with Mr. Eld. His notes begin with Mr. Eld sitting in the police car.

In other words, there are no notes relating to the first 10 minutes of Constable King’s investigation. [ 40 ] The argument is that Constable King may have reconstructed the events and is using the tarp as a means of justifying his arrest of Mr. Eld. [ 41 ] Mr. Conroy has provided me with a Book of Authorities which deal with this issue. [ 42 ] The common thread running through the cases is R. v.

Lozanovski [2005] ONCJ 112, where Justice Feldman said: … It is necessary for the officer to at least somewhere … put the significant observation he made … the absence of the questioned observations in his notebook lead to the conclusion that those observations were not, in fact, made at the time but are perhaps something that over the course of time the officer has come to believe that he saw”. I respectfully agree with this view of the diminished reliability of this kind of evidence.

It is important to the proper functioning of the judicial fact finding role that significant facts be recorded by police and not left to the whim of memory. [emphasis added]

[43] I do not understand the law to be that the failure to properly record observations in a notebook automatically leads to a rejectionof the controversial evidence. In this case, the tarp. [44] It is my view that I must consider the entirety of the evidence before making a determination as to what weight, if any, I give tothe evidence in question. [45] The facts before me are different than in some of the authorities which deal with notebook deficiencies. [46] In R. v.

Ruiz, Port Coquitlam No. 83940-1, the court rejected the assertion of the single investigator that there was an odour ofperfume (a masking agent) present. [47] In R. v. Givens, [2009] BCSC 824, the trial judge took into account the three and a half years between the event and the trial,and the discrepancies, including the notebook, in the evidence of the investigating officer and concluded that his evidence was notsufficiently reliable to prove the offence. [48] In R. v.

Joseph, [2011] BCJ 1232, the trial judge said, in referring to the lack of notes, “it is not out of the question that lookedat in the best light, he has simply confused this incident with one or more of the others in his memory”. [49] In R. v. McConnell, [2008] BCSC 505, the trial judge was faced with an assertion of slurred speech which was not supportedby a note, and the conflicting evidence of the senior police officer and a nurse. The evidence was rejected. [50] In R. v.

Sundberg, [2010] BCJ 1543, the trial judge was also concerned about the general credibility of the investigatingofficer. [51] These foregoing considerations which I have listed do not play a significant role in the case before me. [52] Following cross examination, I have no reason to doubt the credibility of either Constable King or Constable Clack, or thereliability of their evidence. [53] Constable King has considerable experience in dealing with marijuana investigations, including road checks.

His evidence as tothe strong odour of fresh marijuana, which could be detected from a distance of 10 to 15 feet, is consistent with the observations ofConstable Clack. Similarly, there is no issue as to the existence and placement of the tarp. It extended from the rear of the front bucketseats to the back of the van.

In this context, it would be reasonable to believe that the tarp was being used to conceal marijuana. [54] Notwithstanding the deficiencies in Constable King’s note taking, the Report to Crown Counsel, prepared on November 12,2012, confirms that he smelled the marijuana as the van approached and that he subsequently saw the tarp, which is consistent withsomeone covering or hiding something. [55] The conclusion I have reached is that based on all the evidence, I believe Constable King’s evidence that his decision to arrestto Mr.

Eld was based on both the smell of marijuana and the tarp which covered the rear cargo area of the van. I accept his evidence. [56] To determine whether Constable King lawfully arrested Mr. Eld I must first consider s. 495(1)(

b) of the Criminal Code: 495(1) A peace officer may arrest without warrant (

b) a person whom he finds committing a criminal offence [57] Before an arrest can be justified under this section, the Crown must establish that Constable King found Mr. Eld committing acriminal offence. [58] Mr. Conroy and Crown Counsel both provided me with Books of Authority dealing with s. 495(1)(

b) in the context of thelawfulness of an arrest based on smell and, at times, other factors. [59] Mr. Conroy poses the question, what would a reasonable person infer in these circumstances? Additionally, it is suggested tome that the investigating officers, before arresting Mr. Eld for possession of marijuana, must determine if he possessed a medicalmarijuana licence under Marijuana Medical Access Regulations SOR/2001-227, and that neither officer took the opportunity todetermine if the smell of marijuana was coming from Mr. Eld’s clothes. [60] Recently, in R. v. Boyd 2013 BCCA 19, Mr.

Justice Hall said: [6] As the Crown notes in its factum, there may be some debate in the cases as to whether the power to arrest exists onlywhen an officer sees an offence being committed or observes facts from which an inference may be drawn that an offence is beingcommitted. It would be well to avoid undue casuistry in this area and it seems to me that a peace officer could legitimately arrest aperson if it is apparent that an offence is being committed by such person. This requirement has both subjective and objectivecomponents.

A peace officer exercising the arrest power must provide some sensible reason for believing an offence was beingcommitted by the person arrested. [7] In the case of R. v. Biron, (SCC), [1976] 2 S.C.R. 56, 23 C.C.C. (2d) 513, Martland J. observed at 75,"the power to arrest without a warrant is given where the peace officer himself finds a situation in which a person is apparentlycommitting an offence".

I take the word "apparent" to require an objectively sensible apprehension by the arresting officer that anoffence is being perpetrated by the person arrested. [8] That appears to be consistent with what Lamer J. (as he then was) said in R. v. Roberge, (SCC), [1983] 1

S.C.R. 312 , 4 C.C.C. (3d) 304 , at 324 : ... I do not read the test laid down by Martland J. as suggesting that it is sufficient that it be "apparent" to the police officer even though it would be unreasonable for the police officer to come to that conclusion. Surely it must be "apparent" to a reasonable person placed in the circumstances of the arresting officer at the time. [ 61 ] Also in the Boyd decision, Mr.

Justice Hall affirmed that in this province an arresting officer may rely on “inferences arising from observed facts”. [ 62 ] Based on the Boyd decision, I must determine whether the arrest was reasonable, taking into account all the circumstances which existed at the time of the arrest, or to put it in the language of the decision, is there “some sensible reason for believing an offence was being committed by the person arrested”? [ 63 ] In R. v. Ashby 2013 BCCA, the Court of Appeal adopted the reasoning in R. v.

Jir 2010 BCCA 497 and said that “the question is whether the factual matrix that existed at the time the arrest decision was made satisfies the objective criterion”. [ 64 ] In my view the arrest was lawful, as it has both a subjective and objective basis. This conclusion is based on Constable King’s considerable experience in dealing with marijuana, the strong odour of marijuana coming from Mr.

Eld’s vehicle (a fact confirmed in Constable Clack’s evidence), the tarp, which extended from the back of the front bucket seats to the rear of the cargo area, and Constable King’s reasonable belief that marijuana was concealed under the tarp. [ 65 ] The Defence relied heavily on the Ruiz decision, where it was held that the smell of marijuana alone, could not justify an arrest under s. 495(1) (b). Factually, the Ruiz decision is different than the case before me. In Mr. Eld’s case, there is the additional fact that the rear cargo area of the van was covered by a tarp. This is similar to R. v.

Ingle 2007 BCCA 445 , where the court held that the smell of marijuana and the presence of garbage bags in the cargo area of the vehicle provided the necessary reasonable and probable grounds to justify the arrest. [ 66 ] As well, in R. v. Acosta, 2013 BCSC 436 , Mr.

Justice Greyell had this to say about Ruiz decision: [43] I am doubtful whether the Ruiz decision can stand, in view of its endorsement of the trial level decision of Boyd ( 2011 BCPC 137 ) and Janvier , given the Court of Appeal’s comments in Boyd and Janvier . [ 67 ] It was suggested to me that the police officers should have investigated the possibility that the smell of marijuana was confined to Mr. Eld’s clothes. I do not agree with this submission.

In Acosta , the court held that an officer making an arrest “is not required to rule out other possible explanations for the smell …” [ 68 ] I also do not believe that the police officers need to determine whether Mr. Eld had a marijuana licence before arresting him. It was submitted to me that this situation is no different than a peace officer asking a motorist to produce his driver’s licence. I do not agree with this analogy. First, as I understand motor vehicle stops, the police have access to a data base to quickly determine the status of a motorist’s driver’s licence.

Second, the circumstances which presented themselves to Constable King, and his belief that there was marijuana under the tarp, are somewhat inconsistent with Mr. Eld being in lawful possession. Third, this argument has been rejected in the context of marijuana investigations because of the burden and impediment it would place on police: see Acosta , paragraph 45 . [ 69 ] This same argument has also been made and rejected in the context of possession of firearms. In R. v.

Radjenovic , 2011 BCSC 1839 , it was rejected because it would require the police to negative an exception, and it also would put them to a higher standard of proof than is required. [ 70 ] In my view, the cumulative circumstances, the strong odour of marijuana, and the tarp covering the rear cargo area of the van, as observed by an experienced police officer and his reasonable inference that there was marijuana under the tarp, establish subjective and objective grounds for finding that Mr. Eld was committing the offence of possession of marijuana. CONCLUSION [ 71 ] I find that Mr.

Eld was lawfully arrested for possession of marijuana pursuant to s. 495(1) (

b) of the Criminal Code . __________________________ C.D. Cleaveley Provincial Court Judge