A "finds committing" arrest may be justified by drawing an inference that an offence is being committed from observed facts, but the smell of burnt marijuana wasn't enough in a BC case.
In R. v. Boyd, 2013 BCCA 19 a police officer working a roadblock screening for impaired drivers stopped a car. Standing next to the open driver's door window, he asked Boyd, the driver and sole occupant, if he had anything to drink that evening and smelled freshly burnt marijuana.
Boyd was immediately arrested for possession, searched and found to have a cell phone and four small plastic baggies each containing 0.5 grams of cocaine. He was then arrested and charged with possessing cocaine for the purpose of trafficking.
In BC Provincial Court the officer testified that he had on several occasions smelled burnt marijuana, which he described as having a very distinctive smell, different from vegetative marijuana. He characterized the odour as strong, leading him to believe it had been smoked within 15 minutes prior to the stop. The officer also said he had conducted at least 30 investigations during traffic stops where he detected the odour of burnt or burning marijuana and made many drug seizures (marijuana and contaminated paraphernalia) incidental to arrest.
The trial judge found Boyd's arrest for possession was unlawful. Possession of marijuana in these circumstances could only amount to a summary offence, for which the officer would be required to find the offence being committed – s. 495(1)(b) Criminal Code: "A peace officer may arrest without warrant ... a person whom he finds committing a criminal offence."
In the judge's view, the smell of burnt marijuana alone was insufficient to justify the conclusion that Boyd possessed it at the time. The officer did not see any marijuana nor did he see Boyd engaged in any act from which actual possession could properly be inferred.
The reasonable inference to be drawn from the smell of burnt marijuana, whether one estimates the burning to have taken place in the immediate past or hours previously, is that the marijuana which was the source of that smell no longer exists, said the judge.
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.
Since the arrest was unlawful, the search incident to that arrest was unreasonable under s. 8 of the Charter, the cocaine was excluded under s. 24(2) and Boyd was acquitted.
The Crown challenged the acquittal to the BC Court of Appeal, which first examined whether the power of arrest for a summary only offence requires an officer to actually see an offence being committed or whether it is enough that he/she observes facts from which an inference may be drawn that an offence is being committed. Justice Hall, delivering the court's unanimous opinion, found an officer can rely on inferences arising from observed facts:
(I)t 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...
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 (paras. 6-7).
The question: was the odour of burnt marijuana by itself sufficient to provide a lawful basis for arrest? All relevant circumstances must be considered, the court stated. If they objectively support an inference that criminal activity is occurring, a judge will be entitled to find an arrest justifiable under s. 495(1)(b).
Different judges could reach differing conclusions about the adequacy of the arrest in this case since the grounds – burnt odour plus officer experience – were close to the line. The trial judge's decision was therefore entitled to deference and the acquittal was upheld.
The court also noted a difference between the odour of vegetative marijuana, which indicates the actual drug substance is being detected, and the odour of burnt marijuana, which merely indicates that some marijuana has been consumed by fire.
Hall also twice cited the case of R. v. Webster, 2008 BCCA 458, where it was stated that the odour of freshly-smoked marijuana emanating from a vehicle objectively supported, at a minimum, a reasonable suspicion that the driver and/or passenger were then engaged in possessing marijuana. It thus appears that the odour of burnt marijuana will at least support an investigative detention.