



COURT OF APPEAL FOR BRITISH COLUMBIA




Citation:



R. v. Boyd,









2013 BCCA 19




Date: 20130117

Docket:
CA039172

Between:

Regina

Appellant

And

Craig Thomas Boyd

Respondent




Before:



The Honourable Madam Justice Newbury





The Honourable Mr. Justice Hall





The Honourable Madam Justice D. Smith




On appeal from:
Provincial Court of British Columbia, June 13, 2011
(
R. v. Boyd
, 2011 BCPC 137, Duncan Registry 32132)




Counsel for the Appellant:



W.P. Riley





Counsel for the Respondent:



R.L. Neary





Place and Date of Hearing:



Victoria, British
  Columbia

October 24, 2012





Place and Date of Judgment:



Vancouver, British
  Columbia

January 17, 2013









Written Reasons by:





The Honourable Mr. Justice Hall





Concurred in by:





The Honourable Madam Justice Newbury

The Honourable Madam Justice D. Smith








Reasons
for Judgment of the Honourable Mr. Justice Hall:

[1]

The Crown appellant appeals from a decision of the Honourable Judge Wood
pronounced June 13, 2011.  In that decision, the learned judge ruled
inadmissible as evidence a plastic bag containing four smaller plastic baggies
of cocaine.  The bag had been seized by a police officer from the respondent,
Craig Boyd, on December 31, 2009.  The drugs had been discovered following
a search of Mr. Boyds person incidental to his arrest.  Mr. Boyd was
charged with possession of cocaine for the purpose of trafficking.  The ruling of
the judge resulted in Mr. Boyds acquittal.

[2]

Some background facts of the case are conveniently set forth in the
reasons of the judge:

[3]        On December 31, 2009, officers of the local RCMP
detachment were conducting a road block screening for impaired drivers on King
George Road at the intersection of South Shore Road in Lake Cowichan.  At 19:10 hrs.
Const. Cranmer stopped a car driven by Mr. Boyd who was the lone occupant
of the vehicle.

[4]        Const. Cranmer approached and stood next to the
open drivers door window.  He asked Mr. Boyd if he had had anything to drink
that evening.  The officer was, to use his words, looking for the possible
odour of liquor.  With what he described as the first breath he took in he
noted the smell of freshly burnt marihuana.  He immediately advised Mr. Boyd
that he was under arrest for possession of marihuana.

[5]        The officer testified
that at that time he had had several occasions to smell burnt marihuana which
he described as a very distinctive smell, different from vegetative marihuana.  He
characterized the odour on this occasion as strong, leading him to believe it
had been smoked within 15 minutes prior to the stop.

[3]

The police officer also stated in his evidence that he had conducted at
least 30 investigations where the odour of burnt or burning marihuana was
detected by myself and Id made many drug seizures, finding marihuana and
contaminated paraphernalia incidental to arrest at those traffic stops.

[4]

At a trial held over a series of dates in the winter and spring of 2011,
a
voir

dire
was conducted to determine whether the search of
Mr. Boyd was unreasonable and in violation of his rights under s. 8
of the
Canadian

Charter of Rights and Freedoms
.  The judge noted
in his reasons that the Crown relies only on the decision of Const. Cranmer
to arrest Mr. Boyd based upon that officers conclusion that he smelled
burnt marihuana when standing at the open window of the latters car.

[5]

Mr. Boyd had been arrested for possession of marihuana.  Having
regard to the circumstances of the case (smell only emanating from the vehicle),
it is common ground that the offence, if any, could only amount to an offence
punishable on summary conviction.  This makes applicable the following
provision of the
Criminal Code,
R.S.C. 1985, c. C-47, which defines
the powers of a peace officer to arrest:

495. (1) A peace officer may
arrest without warrant

...

(b)  a
person whom he finds committing a criminal offence;

...

[6]

As the Crown notes in its factum, there may be some debate in the cases
as to whether the power to arrest exists only when an officer sees an offence
being committed or observes facts from which an inference may be drawn that an
offence is being committed.  It would be well to avoid undue casuistry in this
area and it seems to me that a peace officer could legitimately arrest a person
if it is
apparent
that an offence is being committed by such person.  This
requirement has both subjective and objective components.  A peace officer exercising
the arrest power must provide some sensible reason for believing an offence was
being committed by the person arrested.

[7]

In the case of
R. v. Biron
, [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 apparently committing an offence.  I take the word apparent to
require an objectively sensible apprehension by the arresting officer that an
offence 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
, [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.

[9]

The question posed by the circumstances of this case is whether what was
apparent to the nose of the officer during his interaction with Mr. Boyd
on the date of the arrest sufficed to render the arrest of Mr. Boyd a
lawful one.  The officer testified that he had previously encountered what he
described as the burnt odour of marihuana and he described the odour emanating
from the respondents vehicle as strong, leading him to believe that marihuana
had been smoked within 15 minutes prior to the stop.

[10]

The judge said this about the arrest:

[57]      As was the case in
Janvier
,
the decision to arrest Boyd in this case was made by Const. Cranmer on his
observation of the smell of burnt marihuana alone, without any other
observation apparent to him from which it could properly be concluded that Mr. Boyd
was then in possession of marihuana.  At no time prior to the arrest did Const. Cranmer
see any marihuana in Mr. Boyds possession, nor did the officer see Mr. Boyd
engaged in any act from which actual possession could properly be inferred.  There
was no evidence of any ongoing criminal activity taking place in the presence
of Const. Cranmer when he stood beside Mr. Boyds car and sniffed the
smell of burnt marihuana.  The best that could be said is that Const. Cranmer
suspected, on what he believed were reasonable grounds, namely his past
experience, that Mr. Boyd was in possession of marihuana.  Indeed, as the
officer himself testified, he arrested Mr. Boyd in the hope that he would
find some evidence of a drug related criminal offence.

[11]

The judge expressed his conclusion about the lawfulness of the arrest
thus:

[56]      ... The law requires
that inferences drawn from proven facts must be reasonable.  The reasonable
inference to be drawn from the smell of burnt marihuana, whether one estimates
the burning to have taken place in the immediate past or hours previously, is
that the marihuana which was the source of that smell no longer exists.  It has
been consumed by fire.  In my view, it would be unreasonable, as a matter of
both law and logic, to draw an inference of present possession from nothing
more than evidence of past possession.

[12]

The trial judge placed reliance upon the decision of the Saskatchewan
Court of Appeal in
R. v. Janvier
, 2007 SKCA 147, 227 C.C.C.
(3d) 294.
Janvier
, somewhat like the instant case, was a case where a
peace officer had stopped a person for a motor vehicle infraction and detected
a smell of burnt marihuana emanating from the vehicle.  The accused was
arrested for possession of marihuana and a search of the vehicle turned up
drugs and other items that resulted in the accused being charged with
possession of marihuana for the purpose of trafficking.  A trial judge found
the arrest and consequent search unlawful, and acquitted the accused.  The
Saskatchewan Court of Appeal sustained the acquittal.

[13]

In the course of her reasons, Jackson J.A. said this:

[30]      When one examines the
decisions where courts have sustained an arrest based on the smell of burned
marihuana, and no other sensory perception, they rely, in addition to the smell
of burned marihuana, upon an inference that more marihuana will be discovered.
In
Biron
, however, Martland J. makes it clear that the Court
interprets the phrase finds [a person] committing a criminal offence as
implying that the officers belief an offence is being committed is based on
his or her observation of that offence being committed (or apparently being
committed) and not merely an inference from some other observation
. [Emphasis
added.] That is why Martland J. went on to say there is no reason to
refer to a belief based upon reasonable and probable grounds.

27
Thus, s. 495(1)(b) does not permit the officer to say based on my
experience, I believed I would find other marihuana present because I smelled
recently burned marihuana. Observation (i.e., the smell) of recently smoked
marihuana is not an observation of current possession of additional unsmoked
marihuana. One might
infer
the presence of more marihuana, but one is
not
observing or smelling
it and one is therefore
not finding
the
person committing the offence of possession of additional, unsmoked, marihuana
within the meaning of s. 495(1)(b). [Emphasis in original.]
Section 495(1)(b)
does not permit an arrest made on inference derived from the smell of burned
marihuana alone
.  [Emphasis added.]

[14]

Jackson J.A. appears to be saying that an inference drawn by the
peace officer from observed facts may not be sufficient grounds to render
lawful an arrest made under s. 495(1)(b) of the
Code
.  She went on
to say:

[31]      As I have indicated, s. 495(1)(b)
does not permit an arrest based on inference, at least in these circumstances,
but if I am wrong on this, I will address the Crowns alternative argument,
which is that an officer is entitled to infer from the presence of the smell of
burned marihuana alone that there will be more, unsmoked marihuana present. My
view, formed by a review of the case law, is that the inference suggested by
the Crown is not objectively reasonable.

[15]

In my view, the judgment in
Janvier
seems to differ from what was
said by this Court in
R. v. Webster
, 2008 BCCA 458, 238 C.C.C.
(3d) 270, a case decided a year after
Janvier
.  That case was however a
situation, at least initially, of investigative detention.  Frankel J.A. said
this at para. 31 of
Webster
:

In my view, the odour of
freshly-smoked marihuana emanating from a vehicle objectively supports, at a
minimum, a reasonable suspicion that the driver and/or passenger are then
engaged in criminal activity, namely, possession of marihuana.  It is
reasonable to suspect that persons who have just used marihuana will have more
of that drug in their possession. ...

[16]

This Court, in the earlier case of
R. v. Dubois
, 2004
BCCA 589, 205 B.C.A.C. 156, had found an arrest legal where police officers
smelled an odour of burning marihuana coming from a vehicle and upon stopping
the vehicle observed what appeared to be marihuana leaves on a passenger and in
the vehicle.  Huddart J.A. said at para. 9:

[9]        ... It cannot be said
that the evidence of odour alone is insufficient in all circumstances to found
an objective belief that a crime has been or is about to be committed.  As this
Court noted in
R. v. Schulz
, 2001 BCCA 601, at para. 5,
each case turns on its own facts and whether the odour of marihuana will
suffice to justify an arrest will depend on the surrounding circumstances.  The
testimony of Constable Pineo supports the trial judges finding she had a
subjective belief that she had reasonable and probable grounds for an arrest.  Her
inference that there would probably be marihuana in the car was reasonable.

[17]

In
R. v. Schulz
, 2001 BCCA 601, 159 B.C.A.C. 146, a
police officer attended a residence, rather ironically as it turned out, to
return to a person some exhibits from an earlier drug investigation that had
not resulted in charges.  The following passage from the reasons of
Donald J.A. encapsulates the facts of the case:

[6]        ...

[4]        Constable Meyer attended the Schulz residence and
knocked on the door. A voice from within stated come-in, upon which Constable
Meyer opened the door and observed an individual, later determined to be the
accused, Mr. Schulz, seated at the table. Mrs. Schulz immediately
arose and quickly came to the door and closed it behind him. Constable Meyer
stated that he was able to smell burning marihuana emanating from within the
residence. Constable Meyer advised the accused that he had smelled the
marihuana and as a result the residence would be searched. He then arrested the
accused for possession of a controlled substance. ...

[18]

The conclusion of the Court as to the legality of the arrest is set
forth in para. 12 of the reasons:

[12]      Much of the appellants
argument relied on cases which dealt with the smell of burnt marihuana or
marihuana in a raw or some other form. However, in the instant case the trial
judge found that Constable Meyer smelled
burning
marihuana in a room
occupied only by the appellant. Having examined the transcript of Constable
Meyers testimony, and having considered the evidence as a whole, I think the
trial judges finding was reasonable and cannot be interfered with. The odour
that the officer detected, together with the behaviour of the appellant in
quickly moving to exclude the officer once the appellant saw who was at the
door, combined to provide a sufficient basis for the belief founding the
arrest.  [Emphasis in original.]

I note the phraseology belief founding the arrest.  This
language seems to me to lend some support to the proposition that an arresting
officer can rely on inferences arising from observed facts.

[19]

The trial judge appeared to place considerable reliance upon the
decision of this Court in
R. v. Abel and Corbett
, 2008 BCCA
54, 229 C.C.C. (3d) 465.  That case raised an issue concerning the power of a
citizen to arrest someone believed to have committed a crime.  The appellant
and a companion, one C, had attended at a residence where one H was believed to
be.  The appellant believed H could be in possession of a rifle stolen from the
premises of the appellant about a week earlier.  The appellant had learned that
H had offered to sell the rifle to a third party.  The appellant had
information as to the whereabouts of H but no knowledge as to where the rifle
might be.  He decided to seek out and confront H with a view to recovering the
missing rifle.  He was accompanied on this mission by C who took a tire iron. 
An altercation occurred when they came upon H in the premises of a friend:

[13]      There are also
conflicting accounts as to what happened inside the townhouse.  There is,
however, no dispute that a physical altercation occurred between Mr. Holl
and Mr. Abel, and that Mr. Corbett hit Mr. Holl with the tire
iron.  It is also not disputed that Mr. Holl was overpowered and
restrained using zap straps Mr. Abel had brought with him for this
purpose.

[20]

The appellant was convicted of assaulting H, and C was convicted of
possession of a weapon for a dangerous purpose.  At trial, the two accused
persons had unsuccessfully sought a direction to the jury from the trial judge
that when the affray had occurred, their actions were justified because they
were engaged in a citizens arrest.  This Court found the judge was correct
to refuse to give such an instruction.  Frankel J.A. said at
para. 64:

In this case, although Mr. Abel
and Mr. Corbett reasonably believed Mr. Holl had stolen Mr. Abels
rifle, they had no information as to where the rifle might be.  They certainly
did not come upon Mr. Holl in possession of it.  As a result, it was not
open to them to seek to justify their actions on the basis that Mr. Holl
was found committing the offence of possession of stolen property at the
Corlett Street townhouse.

[21]

I am not of the view that
Abel
is a particularly apposite
authority to consider on the issue arising in the case at bar.  The law has
always sought to circumscribe within very narrow limits the powers of a citizen
to effect an arrest.  It is a species of self help and as the
Abel
case
amply demonstrates, a fertile source of breaches of the peace.  The case of
Abel
contains a useful discussion of cases such as
Biron
and
Roberge
but throws up considerations somewhat different from those pertinent to arrests
made by a peace officer.

[22]

In his reasons, the judge made reference to cases such as
R. v. Ashby
,
2011 BCSC 513, where a smell of vegetative marihuana emanating from a vehicle
was found to afford a proper basis for an arrest for possession of marihuana.  I
think it reasonable to observe that this factual situation could afford a
stronger foundation for an arrest under s. 495(1)(b).  That is so because
the actual drug substance is being detected by olfactory means.  The question
in the case at bar is whether a burnt smell supports an arrest under this
section.

[23]

I agree with the trial judge in the instant case that the smell of burnt
marihuana is an indication that some marihuana has been consumed by fire.  It
is clearly the situation that that particular portion of marihuana no longer
exists.  In the terminology of
Roberge
, what may be reasonably
apparent
from such an observation?  I advert again to what was said by Frankel J.A.
in
Webster
:

[31]      In my view, the odour
of freshly-smoked marihuana emanating from a vehicle objectively supports, at a
minimum, a reasonable suspicion that the driver and/or passenger are then
engaged in criminal activity, namely, possession of marihuana.  It is
reasonable to suspect that persons who have just used marihuana will have more
of that drug in their possession. ...

[24]

I should note that the facts in
Webster
were more supportive of affording
grounds for arrest after the stopping of the vehicle than the facts in the
present case.  In that case, the arresting officer had observed a vehicle and
followed it.  As he proceeded he detected a smell of burning marihuana and
stopped the vehicle.  As he stood by the vehicle, he continued to smell the
burnt odour.  He noted what appeared to be a joint of marihuana behind the ear
of a passenger in the vehicle and in response to a question of the officer
about marihuana, the passenger handed the joint to the officer.  The driver and
passenger were forthwith arrested for possession of a controlled substance.  In
a search of the vehicle, the officer discovered a plastic bag containing a
considerable quantity of marihuana, a scale, zip lock baggies and a score
sheet.  The men were charged with possession of the marihuana for the purpose
of trafficking.  After a
voir

dire
, the judge found the arrest
and search lawful and a conviction resulted.  This Court sustained the
conviction.

[25]

Among the many cases cited to us, a case that demonstrates similarity to
the present one is
R. v. Polashek
(1999), 45 O.R. (3d) 434, 134
C.C.C. (3d) 187 (C.A.).  In that case, a police officer at a traffic stop
detected a strong odour of marihuana emanating from a vehicle.  The officer
could not determine whether the odour was of burnt or unburned marihuana.  In
response to a question, the driver asserted that there was no such smell in the
vehicle.  The officer said that the use of drugs was fairly predominant in
the area and he had made many seizures of marihuana in the area.  A trial judge
concluded that the officer had reasonable and probable grounds to arrest the
accused for the possession of a narcotic upon smelling the strong odour of
marihuana inside the vehicle.

[26]

In a search incidental to the arrest of the appellant, a sufficient
amount of marihuana was found in the trunk of the vehicle to support a charge
of possession for the purpose of trafficking and a small amount of LSD was also
found.  The appellant was convicted of the offences of possession for the
purpose of trafficking of marihuana and possession of LSD.

[27]

The Ontario Court of Appeal allowed an appeal from conviction on the
basis of a denial of the right to counsel but sustained the finding of the
trial judge about the legality of the arrest.  However, since the Court in its
discussion used the terminology of reasonable and probable grounds for
arrest, it seems the arrest may have been considered to have been made under
s. 495(1)(a) as opposed to s. 495(1)(b).

[28]

The Court did opine that such smell coupled with other circumstances could
afford a proper basis for arrest.  The only other relevant inculpatory circumstance
I can deduce from the report was the opinion of the officer about drug usage in
the area and the many previous seizures he had made.  That seems generally to
track what the arresting officer testified to in the present case.  A possible
lack of similarity of the cases is the fact that the officer in
Polashek
may have been, as he said, detecting an odour of burnt or unburned marihuana.  If
the latter, the circumstances would be analogous to those found to be the
situation in
Ashby
.

[29]

On the face of matters, there does seem to be some divergence of
approach between the
Janvier
and
Webster
cases concerning what inferences
may be drawn from the smell of burnt marihuana.  Indeed, in
Janvier
,
Jackson J.A. appears to suggest it is impermissible for an officer to rely
on inference at all when making an arrest relying on s. 495(1)(b).  The
reasoning of the Ontario Court of Appeal in
Polashek,
however, appears
to suggest that it may be possible to infer from the smell of marihuana and an
officers experience of drug seizures that a vehicle will be found to contain
drugs.

[30]

Ultimately, I venture to suggest that a court faced with such an issue
cannot be too categorical in determining when an arrest under s. 495(1)(b)
will or will not be supportable.  The jurisprudence in this province seems to
support the thesis that a full consideration of all relevant circumstances
needs to be made by the trier of fact.  Such also seems to be the case in Nova
Scotia.  In the case of
S.T.P v. Canada (Director of Public
Prosecutions Service)
, 2009 NSCA 86, 281 N.S.R. (2d) 1, the Nova Scotia
Court of Appeal upheld the legality of an arrest based on a smell of burnt
marihuana, previous involvement of the vehicle in a drug case, and somewhat
apprehensive behaviour by an occupant of the vehicle.  M. MacDonald C.J.N.S.
put it this way:

29        Therefore, consider this context. The officers see
three young men in a vehicle and one of them appears nervous upon seeing the
police vehicle. Their car then immediately turns off the road into the
McDonalds parking lot. Then a computer check of the vehicle reveals bail
violations including references to cannabis. This would have given the
officers strong reason to believe that something illicit was occurring. Then
upon smelling burnt marijuana, it became apparent that the illicit activity
involved the possession of marijuana. At that point, the test for a summary
conviction arrest was met. Specifically, applying the three criteria noted
above: (a) the officer was present when the apparent offence was taking
place, (b) he detected the smell of burnt marijuana, and (c) the
commission of this offence would have been apparent to a reasonable person
placed in the circumstances of the arresting officer at the time.

30        Considering the entire
context therefore, the judge did not err in finding the arrest to be lawful.

[31]

If
Janvier
is taken to stand for the proposition that a police
officer cannot rely on inference from observed circumstances to afford proper
grounds for arrest under s. 495(1)(b), that seems not to accord with the
jurisprudence in this province.  The inference of course must be one that is
objectively supportable to accord with what was said in cases like
Biron
and
Roberge
.  If circumstances objectively support an inference that
criminal activity is occurring, a court will be entitled to find justifiable an
arrest made pursuant to s. 495(1)(b).

[32]

Ultimately, these cases are going to be very much fact driven.  While I
think the learned trial judge might have expressly considered what the
arresting officer said about his previous experience, I doubt that this very
experienced judge overlooked this evidence.  I believe the factual findings he
made that the situation in the case at bar fell short of furnishing adequate
grounds for an arrest under s. 495(1)(b) are ones to which this Court should
give due deference.  I observe that I might not be inclined to adopt the
phraseology used by the trial judge about law and logic, but would prefer to
use phraseology such as in all the circumstances.  That approach seems
consistent with the jurisprudence in this province.

[33]

Since this case can be seen as one near the line where different triers
of fact could reach different conclusions, I am not persuaded that this appeal
should succeed and accordingly I would dismiss the appeal.

The Honourable Mr.
Justice Hall

I agree:

The Honourable Madam Justice
Newbury

I agree:

The Honourable Madam Justice
D. Smith


