



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Smeltzer, 2021 ONCA 472

DATE: 20210625

DOCKET: C64381

Hourigan, Paciocco and Zarnett
    JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Jordan Smeltzer

Appellant

Lance C. Beechener, for the appellant

Sarah Egan, for the respondent

Heard: June 22, 2021 by
    videoconference

On appeal from the conviction entered on
    July 5, 2017 by Justice Wayne G. Rabley of the Ontario Court of Justice.

REASONS FOR DECISION


FACTUAL BACKGROUND

[1]

On September 1, 2015, experienced drug unit
    officers were on Proudfoot Lane in London, an area known for drug activity,
    conducting an unrelated drug trafficking investigation.

[2]

After setting up to conduct surveillance for
    that unrelated investigation, they observed the driver of a vehicle behave in
    what they considered to be a suspicious manner. The driver first parked in a
    lot in front of 565 Proudfoot Lane, one of a cluster of apartment buildings, where
    he appeared to be looking around and texting. He then circled around one of the
    buildings, exited the parking lot, and parked on a nearby public road which
    bordered the parking lot.

[3]

Jordan Smeltzer, the appellant, then approached
    the vehicle on foot from the direction of the parking lot of the Proudfoot Lane
    apartment complex. He entered the vehicle. The vehicle drove a short distance
    down the road, turned around, and then returned to the parking lot, this time coming
    to a stop near the front of 585 Proudfoot Lane, in what the arresting officer
    described as a more secluded spot than the exposed parking area in front of
    565 Proudfoot Lane. Once the vehicle stopped, officers observed the appellant
    passing something to the driver. Approximately 30 seconds later, the appellant
    exited the vehicle and the vehicle left.

[4]

As the appellant was about to enter the building
    at 585 Proudfoot Lane, the arresting officer, by ruse, induced the appellant to
    approach him. The arresting officer testified that when the appellant got close
    to him, he began to smell the strong odour of marijuana coming from the area
    of [the appellants] person and the backpack. He then arrested the appellant.

[5]

A search incident to arrest of the backpack
    disclosed approximately 259 grams of marijuana and a large bundle of cash.
    During the search of the appellants person, three cellphones were also located.

ISSUES ON APPEAL

[6]

The appellant appeals his conviction for
    possession of marijuana for the purpose of trafficking. He submits that the
    trial judge erred in finding that the arresting officer had reasonable and
    probable grounds to arrest and search him, and thereby improperly dismissed his
    application under ss. 8 and 9 of the
Canadian Charter of Rights and
    Freedoms
.

[7]

Under this umbrella ground, the appellant raises
    three specific grounds of appeal:

(1)

The arresting officers explanation of his
    grounds for the arrest relied on the fact that it occurred in a low-income,
    high-crime area, and the trial judge failed to consider how this class-based
    discrimination contaminated the arresting officers subjective grounds for
    arrest.

(2)

The trial judge erred in concluding that the arresting
    officer had objectively reasonable grounds for arresting and searching the
    appellant, since the observed conduct of the parties was neutral and therefore
    an unreliable indicator of drug trafficking activity.

(3)

The trial judge erred in accepting the arresting
    officers evidence that he had smelled marijuana coming from the appellant and
    his backpack.

[8]

During oral submissions, the appellants appeal
    counsel (appeal counsel) pressed only this third ground of appeal. He did not
    argue the second ground of appeal, and, although he made submissions on the
    first ground, he acknowledged candidly that he did not expect the appeal to
    turn on that ground.

[9]

At the end of the hearing, we dismissed the
    appeal for reasons to follow. These are our reasons.

ANALYSIS

[10]

Although appeal counsel gave focused oral submissions,
    since none of the grounds of appeal were formally abandoned, we will address
    each of them in turn. We begin with the third ground, as listed above, which appeal
    counsel emphasized before us.

The Smell of Marijuana

[11]

Appeal counsel urges that the trial judge erred
    in his analysis of the arresting officers testimony that he had smelled
    marijuana coming from the appellant and his backpack. He submits that the trial
    judge was obliged to give this evidence more scrutiny than he did because this was
    the key observation relied upon by the arresting officer to form his grounds, and
    the appellants trial counsel (trial counsel) challenged the credibility of
    this evidence.

[12]

In what we interpret to be a related argument, appeal
    counsel says that the trial judge failed to consider the unreliability of smell
    evidence when determining whether reasonable and probable grounds existed,
    which appeal counsel argues he was obliged to do.

[13]

Finally, appeal counsel argues that the trial
    judge erred in accepting the arresting officers evidence based on circular
    reasoning.

[14]

We do not agree that the trial judge was obliged
    to say more than he did in accepting the arresting officers evidence that he had
    smelled marijuana. First, trial counsel did not make the credibility of this
    specific testimony as central a focus of the trial as appeal counsel now suggests.
    During cross-examination, trial counsel merely asked the arresting officer if
    he was exaggerating his claim that he had smelled marijuana. By the way trial
    counsel posed his questions, he did no more than imply that it was implausible that
    the arresting officer could have detected the odour of marijuana while it was wrapped
    in plastic and concealed in a backpack.

[15]

During his closing submissions, trial counsel
    did make a bald general assertion that the arresting officers testimony was concocted.
    However, he did not provide a basis for that assertion, nor did he tie it to
    the arresting officers testimony that he had smelled marijuana prior to
    arresting the appellant. The sole related argument that trial counsel made in
    his closing submissions was that the arresting officer didnt smell anything
    until he approached [the appellant] and arrested him. Put otherwise, the
    ultimate challenge made at trial was not that the arresting officer had not
    smelled marijuana, but that he had not smelled it before the appellant was
    arrested.

[16]

Appropriately, in his reasons for decision, the
    trial judge addressed the modest challenges trial counsel had made to the
    credibility and reliability of the arresting officers smell evidence. As he
    was entitled to do, the trial judge accepted the experienced arresting officers
    evidence that marijuana has a strong pungent odour and that he could smell it
    on the day in question. In doing so, the trial judge was clearly rejecting trial
    counsels suggestion that it was implausible that the arresting officer had smelled
    wrapped marijuana inside a backpack. Having rejected the sole basis for trial
    counsels challenge to the smell evidence, the trial judge concluded that he
    had no reason to reject the arresting officers testimony. Simply put, before
    accepting the arresting officers evidence, the trial judge considered and
    rejected the challenge that had been made to it. He was not obliged to say
    more.

[17]

Nor was the trial judge obliged to demonstrate in
    his reasons that he had considered that smell evidence can be highly subjective
    and suspect. In
R. v. Gravesande
, 2015 ONCA 774, 128 O.R. (3d) 111, at
    para. 40, Pardu J.A. was rightly critical of the trial judges failure to
    allude to this concern where there was a case-specific reason to doubt an officers
    smell evidence. Specifically, two correctional officers who had interacted with
    Mr. Gravesande only moments earlier had not smelled the odour of marijuana that
    a third correctional officer claimed to have smelled. Moreover, Pardu J.A. raised
    this point as one of several examples from the trial judges reasoning that
    reflected his uneven scrutiny of the evidence. Similar concerns are not present
    in the appeal before us.

[18]

Finally, we do not accept appeal counsels
    submission that the trial judge engaged in circular reasoning. We do not
    interpret the trial judges reasons, at para. 21, as stating that the arresting
    officer must have smelled marijuana or else he could not have arrested the
    appellant. Rather, the trial judges comments must be read in the context of
    trial counsels submission on smell. It thus becomes apparent that in the
    impugned passage the trial judge was rejecting the suggestion that the
    arresting officer had not smelled the marijuana until he had already arrested and
    detained the appellant. The trial judges point was the arresting officers objective
    in calling the appellant over in order to obtain the grounds for his arrest, supported
    his testimony that he secured the grounds  the smell  before arresting the
    appellant.

Relying on Neutral Behaviours

[19]

Appeal counsel was correct in not pressing the second
    ground of appeal listed above, which was based on the contention that the
    behaviours observed by the officers were neutral and thus not objective indicia
    of a drug transaction.

[20]

The relevant series of events included: the
    conduct of the driver upon arrival; the pickup of the appellant on a public
    road rather than out front of the building he came from; the otherwise
    pointless movement of the vehicle to a secluded area after the pickup; the
    apparent hand-off of something within the vehicle from the appellant, who was carrying
    a backpack; and the short duration of the meeting. The trial judge was entitled
    to accept the testimony of experienced drug officers that, viewed together, this
    series of events was consistent with a drug trafficking transaction.

[21]

We are satisfied that the cumulative behaviours
    of the parties, coupled with the smell of marijuana coming from the appellant
    immediately after departing the vehicle, provided reasonable and probable
    grounds for arresting and searching the appellant.

The Character of the Neighbourhood

[22]

Appeal counsel was also correct not to press the
    argument, advanced in the appellants factum, that the arresting officers
    grounds were undermined by his reliance on the fact that these events occurred
    in a low-income, high-crime area.

[23]

We agree that ones mere presence in a high-crime
    area is not an objective indicium that one is involved in criminal activity:
R.
    v. O.N.
, 2009 ABCA 75, 448 A.R. 253, at para. 40, citing
R. v. Mann
,
    2004 SCC 52, [2004] 3 S.C.R. 59, at para. 47. As such, the arresting officer
    should not have considered this factor in determining his grounds for arrest. However,
    as indicated, based on the remaining grounds the arresting officer considered,
    his conclusion that he had reasonable and probable grounds to arrest the
    appellant was objectively reasonable.

[24]

We do not accept that the arresting officers
    reliance on the fact that the apparent transaction occurred on the Proudfoot
    Lane apartment complex constituted discrimination based on perceived class,
    thereby contaminating and undermining the arresting officers subjective
    grounds. The arresting officer found relevance in his knowledge that the Proudfoot
    Lane apartment complex was a high-crime area, not that it was a low-income area.
    He mentioned the low rents in the buildings when explaining why it is common
    for the apartments to be used as drug stash houses. We see no indication that
    he relied on the alleged poverty of the neighbourhood as an indicium of
    criminal activity.

[25]

Had the arresting officer done so, or had he
    expressed suspicion of criminal activity because the area was low-income, closer
    consideration of the appellants submission on this point may have been
    warranted. That submission, by analogy to this courts racial-profiling
    decision in
R. v. Dudhi
, 2019 ONCA 665, 147 O.R. (3d) 546, is that reliance
    on discriminatory stereotypes about poverty and crime should be treated as
    tainting, and therefore undermining, an officers subjective grounds for
    interfering with the liberty of a suspect. In the circumstances of this appeal,
    however, we need not address this matter.

CONCLUSION

[26]

On the evidence, the trial judge was entitled to
    find that the arresting officer had subjective grounds to believe there was a
    credibly-based probability that the appellant had engaged in drug trafficking,
    and that the arresting officers belief was objectively reasonable.

[27]

The appeal is therefore dismissed.

C.W. Hourigan J.A.

David M. Paciocco J.A.

B. Zarnett J.A.


