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Odour and observation justify arrest

An odour of vegetative marijuana plus other visual observations may provide the necessary circumstances justifying an arrest for a summary offence.

In R. v. Ashby, 2013 BCCA 334, a police officer clocked a vehicle travelling 94 km/h in an 80 km/h zone and being driven outside the tracks in the snow made by other vehicles. The driver’s window was down about one-quarter of the way and the sun roof was also partly open, even though it was -21 Celsius. Concerned about the driver’s level of sobriety, the officer pulled the Hyundai over.

The vehicle was a rental and the officer noted a strong odour of vegetative green marijuana, similar to the smell in a grow operation. He noted a red bag on the passenger’s seat, fast food wrappers on the floor and an odour of men’s cologne. The officer asked Ashby for her driver’s licence and the rental agreement. A computer search revealed she had a conviction for possessing a narcotic about 22 years earlier.

When the officer returned to issue a warning ticket, he arrested Ashby for possessing marijuana, advised her of the right to counsel and patted her down. She wasn’t permitted to speak to counsel at the roadside, instead access was provided at the police station.

A vehicle search turned up about 21 kgs. of marijuana in the trunk and $17,000 cash in the travel bag on the front passenger seat. Ashby was subsequently charged with possession for the purpose of trafficking.

In British Columbia Supreme Court the officer testified he was familiar with three distinct marijuana related odours: (1) burnt (ie. smoked), (2) bud (ie. harvested) and (3) plants (ie. vegetative/growing). He said the odour, along with other possible indicators of drug-related activity, provided him with the necessary grounds to believe Ashby possessed marijuana. The possible indicators of drug related activity included:

• A rented vehicle – often used by drug couriers to avoid detection and seizure of their own vehicles. Also used to deny knowledge of any drugs that may be found;

• The smell of men’s cologne – often used by drug couriers to mask the smell of marijuana;

• Fast-food wrappers – as drug couriers do not wish to stop for very long or leave their vehicles unattended, they will pick up food from drive-through or fast-food restaurants; and

• The partially open driver’s window and sun-roof in minus 21 degree weather – Ashby may have been trying to vent the smell of marijuana from the vehicle.

The trial judge concluded the arrest was lawful under s. 495(1) of the Criminal Code. First, he found that the “the strong odour of vegetative marijuana… was sufficient on its own to support a reasonable belief that Ms. Ashby was in possession of marijuana, or had committed the indictable offence of being in possession of marijuana.”

There were also other indicators that added significance to the odour and informed the officer’s decision to arrest. In the judge’s view, the arrest was justified under s. 495(1)(a) (reasonable grounds to believe an indictable offence had been committed) or s. 495(1)(b) (finds committing a criminal offence), and the search of the vehicle was incident to that arrest. Ashby was convicted of possessing marijuana for the purpose of trafficking.

Ashby appealed her conviction to the BC Court of Appeal, arguing her arrest was unlawful. In her view, the officer did not have reasonable grounds to believe that an indictable offence had been committed or was about to be committed (s. 495(1)(a)), nor did he make sufficient observations to support a reasonable inference that she was committing the crime of possessing marijuana (s. 495(1)(b)).

The arrest

Although the trial judge upheld the legality of Ashby’s arrest under both subsections, Justice Frankel, delivering the unanimous Court of Appeal judgment, found the arrest only justifiable under s. 495(1)(b). Possession of more than 30 grams of marijuana, a dual or hybrid offence, is deemed an indictable offence at the investigative stage but possession of 30 grams or less is only a summary offence.

The officer subjectively believed Ashby possessed marijuana but had no idea how much was involved and did not testify he believed more than 30 grams were present.

“Absent a subjective belief that the amount of marijuana present was more than 30 grams, (the officer’s) powers of arrest were limited to those applicable to summary conviction offences,” said Frankel. “He only went as far as saying that he believed some unknown amount of marijuana was present.”

Thus, the arrest could not be supported under s. 495(1)(a).

Under s. 495(1)(b) – finds committing a criminal offence – the officer was required to have reasonable grounds to believe Ashby was apparently committing the offence of possessing marijuana in his presence.

“An arrest will be lawful if the arresting officer subjectively believes he or she has the requisite reasonable grounds and those grounds are objectively reasonable,” said Frankel. Since there were additional factors considered by the arresting officer, it was unnecessary for the court to determine whether the odour of marijuana by itself was sufficient to support a reasonable belief.

The court concluded that “the factual matrix that existed at the time the arrest decision was made satisfies the objective criterion.” Although some of the factors considered by the officer “standing alone can be consistent with non-criminal activity, their combined effect, when viewed through the lens of a police officer’s experience, cannot be ignored.”

The court found that a reasonable person standing in the officer’s shoes would believe that Ashby was apparently committing the offence of possessing marijuana:

In addition to detecting the strong odour of vegetative marijuana emanating from the Hyundai, (the officer) observed a number of things which, based on his experience, were consistent with Ms. Ashby being a drug courier. It was the cumulative effect of what his senses perceived – the totality of the circumstances – that gave rise to his belief that she was in possession of marijuana. When all of (the officer’s) olfactory and visual observations are assessed on a practical, non-technical and common sense basis, his decision to arrest is objectively justified (reference omitted, para. 59).

Ashby’s appeal was dismissed.