Having a dual purpose in mind when arbitrarily stopping a car did not render the stop illegal, provided the officer did not exceed the scope of the regulatory nature of the stop.
In R. v. Morris, 2013 ONCA 223 two police officers on general patrol were checking car licence plate numbers shortly after midnight. A black Honda Civic with tinted windows returned a CPIC hit flagging the registered owner with "caution," "armed and dangerous," "violent" and "domestic violence".
They pulled the car over and both officers detected a strong, pungent smell of fresh marijuana, providing them with what they believed were reasonable grounds to arrest the driver (Morris) for possession. After requesting his driver's licence, ownership and insurance papers, they asked Morris if he had been smoking marijuana that night and whether he had any in the car.
"(T)o be honest, I smoked a joint," Morris replied. He was arrested for possession, read his rights and the car was searched. Crack cocaine, fresh marijuana and a loaded handgun were discovered in a hidden compartment at the base of the gearshift.
At trial in the Ontario Superior Court of Justice the lead officer testified that the car would not have been stopped but for the CPIC "caution". However, he also said that under s. 216(1) of Ontario's Highway Traffic Act (HTA) he could only ask the driver for his licence, proof of ownership and insurance documentation and didn't intend to go beyond that authority.
The smoking of a joint could not account for the smell of marijuana detected, the officers noted, since the odour was of fresh, rather than burned, marijuana. Morris did not appear impaired nor was there any smoking paraphernalia noticed.
The trial judge believed the officers, finding them to be "very candid, credible and reliable witnesses." She concluded police had HTA-related reasons for pulling the car over. The stop wasn't a ruse such that its arbitrariness could not be saved by s. 1 of the Charter.
"They intended to check the driver's licence, ownership and insurance documentation and did so," said the judge. "They did not, at the time they stopped the car, intend to search the car or to do anything beyond the scope of their authority pursuant to the HTA. They had, in my view, the requisite subjective motivation."
Hence, the presence of a dual HTA/criminal investigatory purpose did not invalidate the lawfulness of the stop. The strong smell of fresh marijuana then provided reasonable grounds for Morris' arrest and the search that followed was proper as an incident of that arrest.
Although there were no s. 9 (arbitrary detention) or s. 8 (unreasonable search) Charter breaches, the judge did find a s. 10(b) violation when the officers failed to inform Morris of his right to counsel and asked questions about drugs when they had reasonable grounds for arrest. This breach was described as relatively minor and did not warrant excluding evidence. Morris was convicted of several firearms related offences and sentenced to 50 months in prison.
Morris challenged the finding that police had a valid HTA reason to stop his car to the Ontario Court of Appeal. In his view, the asserted HTA purpose to check documents was merely a pretext for an unauthorized stop and search for evidence of criminal activity. He also argued that police did not have reasonable grounds to believe that he possessed marijuana.
The appeal court found the trial judge accepted the police officers' evidence and did not err in holding that a legitimate criminal investigatory interest beyond highway safety concerns did not taint the lawfulness of the stop, as long as they did not infringe upon Morris' liberty or security interests beyond what s. 216(1) permitted. It stated:
In her careful reasons, the trial judge found as a fact that the police officers had a dual purpose in stopping the (accused's) vehicle.They candidly admitted that the reason they stopped the (accused) was that a CPIC check of the licence plate number produced a "caution" in relation to the registered owner, followed by "armed and dangerous," "violent" and "domestic violence."
The lead officer testified that he wanted to verify the driver's documentation pursuant to the HTA. Both officers testified that they understood that they were under constraints in conducting such a stop and that if the HTA documents were in order, they would have to allow the (accused) to go on his way...
She concluded that the officers had a valid HTA-related reason for stopping the car, that their intention was to check the driver's licence, ownership and insurance documentation and that at the time they stopped the car they did not intend to search it or do anything beyond what was permitted by the HTA. The trial judge further found that this remained their intention until the point at which they detected the odour of fresh marijuana emanating from the car(paras. 5-6).
It was open to the trial judge to find that the stop remained lawful for regulatory purposes despite the additional criminal investigative interest.
The trial judge found the smell of fresh marijuana provided reasonable grounds to arrest Morris and search him and the vehicle as an incident of the arrest. Although previous court cases have cautioned against placing undue reliance upon "smell" evidence, the appeal court noted that "there is no legal barrier to the use of such evidence." The trial judge's conclusion that the arrest was lawful and the search that followed reasonable was upheld.
Right to counsel
The appeal court agreed that the breach of s. 10(b) was relatively minor and that there was no nexus between it and the discovery of the evidence. Furthermore, the Crown did not rely on anything said by Morris to justify the search. The trial judge properly considered the s. 24(2) admissibility factors in concluding that the evidence should be admitted.
Morris' conviction appeal was dismissed.
Note: Additional case facts taken from R. v. Morris, 2011 ONSC 5142