Judge didn’t believe officer, excluded evidence

Mike Novakowski
August 01, 2010
By Mike Novakowski
Although the odour of raw marijuana may be sufficient to justify an arrest, if the judge doesn’t believe the officer smelled it the arrest is unlawful and the evidence may be thrown out. In R. v. Noel, 2010 NBCA 28, a police officer, accompanied by a specially trained drug-sniffing dog, saw a vehicle traveling at a speed slightly in excess of the posted limit and decided to stop it and warn the driver. A license plate query indicated “no record found” and Noel, the lone occupant, was pulled over

Although the odour of raw marijuana may be sufficient to justify an arrest, if the judge doesn’t believe the officer smelled it the arrest is unlawful and the evidence may be thrown out.

In R. v. Noel, 2010 NBCA 28, a police officer, accompanied by a specially trained drug-sniffing dog, saw a vehicle traveling at a speed slightly in excess of the posted limit and decided to stop it and warn the driver. A license plate query indicated “no record found” and Noel, the lone occupant, was pulled over.

The officer told Noel he stopped him so he could check the vehicle’s registration certificate. Noel explained that the vehicle was rented and handed over the rental agreement. He also produced his driver’s license when asked. The officer saw two cell phones and some food wrap- pers inside but no luggage. He went back to his car to check the vehicle and discovered that the return date was nine days overdue.

The officer was unable to reach the rental company and went back to tell Noel that he would keep trying, so the investigative process would take a little longer. Once at the window, the officer said he was “hit” by an odour of raw marijuana but did not confront Noel about it. Instead, he obtained a phone number from him to call for rental details. A second officer, arriving to assist, reached the rental company and was told Noel remained authorized to operate the vehicle.

Noel was arrested for “possession of mari- juana.” Nothing untoward was found following a search of the passenger compartment, however the smell of raw marijuana became stronger dur- ing a search of the back seat area. The trunk was opened and a closed duffel bag containing nu- merous vacuum-sealed plastic bags of marijuana was located – 56 bags weighing a total of 30.8 pounds (14 kilograms), it was later determined.

The officer put his dog through a drug sniffing exercise for training purposes after the discovery and the dog pointed to the presence of drugs in the trunk. Noel was released from custody at the roadside after promising to appear in court. He was charged with possession of marijuana for the purpose of trafficking.

At trial in New Brunswick Provincial Court the officer said he didn’t smell marijuana when he first approached the vehicle from the pas- senger side but “was hit with a smell of raw marijuana” on his second approach, in the same place, just a few minutes later. That was the sole basis for Noel’s arrest. He did not ask the second officer to corroborate the odour or deploy his drug sniffing dog prior to the arrest and search.

The trial judge did not accept the officer’s evidence. The officer noted no suspicious odour during the initial contact, yet on his second visit, in exactly the same conditions as the first encoun- ter, smelled it. There was nothing to explain this. Furthermore, the trial judge reviewed some of the officer’s other court cases where his sense of smell failed him – drugs were found in vehicles but no odour was noted.

The judge rejected the officer’s key testimo- ny that he smelled raw marijuana, concluded the arrest was “groundless” and that the follow-up search had been undertaken on a mere “hunch.” Since the arrest was unlawful, the incidental search was both unlawful and unreasonable un- der s.8 of the Charter. The evidence was excluded under s.24(2) and Noel was acquitted.

The Crown appealed to the New Brunswick Court of Appeal, submitting the trial judge erred by relying on other cases the officer was involved with, facts which were not part of the evidentiary record. Chief Justice Drapeau agreed but concluded the judge’s rejection of the of- ficer’s testimony about the odour wasn’t tied to this information, thus Noel’s acquittal wasn’t a product of this extraneous information.

Drapeau acknowledged that had the trial judge believed the officer, reasonable grounds would have existed. The court also recognized there were two avenues by which the officer could have searched the trunk – with and without a warrant.

h3. search with warrant

The Criminal Code provides a potential av- enue of relief for RCMP highway patrol officers who believe that an indictable offence has been committed and that it would be impracticable to appear personally before a provincial court judge to make application pursuant to s. 487 for a warrant to search a vehicle stopped at roadside, Drapeau noted.

Section 487.1 is on point and provides that they may apply for a warrant by telephone or other means of telecommunication. That provi- sion applies to indictable offences under the CDSA by virtue of s.11(2) of that statute. Noth- ing in the record suggests that both processes under s.487 and s.487.1 were unavailable to (the officer). Had he obtained a search warrant, whether under s.487 or s.487.1 by means of (a) cellular phone, the onus would have been on (the accused) to establish the search of his vehicle was “unreasonable” within the meaning of s.8 of the Charter.

As is well known, meeting that onus is relatively difficult having regard to the deference owed by the reviewing court to the issuing judge’s decision (para. 37).

h3. search without warrant

Since the officer proceeded without a war- rant, the onus shifted the burden of establishing the search’s reasonableness to the Crown. This could have been established by demonstrating that the arrest was authorized under the Criminal Code.

Section 495(1) states that a peace officer may arrest without warrant a person who has committed an indictable offence or who, on reasonable grounds, he or she believes has committed or is about to commit an indictable offence. It also authorizes a peace officer to ar- rest without a warrant a person whom he or she finds committing any criminal offence (para. 39).

Noel contended that the officer acted without the reasonable grounds that section requires and the trial judge agreed. The court concluded that the Crown failed to show that the judge’s error in referencing the extraneous information in her reasons ultimately caused her to reject the officer’s evidence that he smelled raw marijuana.

Since the trial judge found the arrest ground- less, it was unlawful, as was the warrantless search, which breached s.8. The Crown’s appeal to overturn Noel’s acquittal was dismissed.

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