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Odour alone justified drug arrest


September 15, 2014
By Mike Novakowski

The BC Court of Appeal has upheld a drug suspect’s arrest on the basis of marijuana odour detected by an officer during a traffic stop.

In <R. v. MacCannell, 2014 BCCA 254> a police officer stopped the accused after observing his truck speeding along a highway, approached the driver’s side and spoke to MacCannell through an open window. He obtained a driver’s licence and other documents and began walking back to his car.

The officer smelled vegetative marijuana as he passed the rear door and immediately returned, told MacCannell he could smell an “overpowering smell of marijuana” coming from inside and arrested him. A cardboard box containing 50 starter marijuana plants was found behind the driver’s seat during a vehicle search.

The officer also found marijuana in a Mason jar and baggie on the passenger side and four pounds of dried marijuana in the truck’s canopy area. A further 34 pounds of marijuana, cannabis resin and $4,000 in cash was located at the police station.

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In BC Provincial Court the officer testified that the overwhelming odour of vegetative marijuana was the only basis for his conclusion that he had reasonable grounds for the arrest, but he could not estimate the quantity from smell alone. The officer found the smell so overpowering that he formed the opinion “there was marijuana actually present in the pickup, not the remnants of smells from marijuana being there at some time previously.”

The judge noted the officer’s extensive experience involving marijuana investigations and ability to distinguish between the distinctive smells of “burnt,” “growing or vegetative” and “dried” marijuana.

The judge concluded that the smell of vegetative marijuana, without any other factors, was sufficient for the officer to form the necessary reasonable grounds to arrest MacCannell for possession. The judge also held that the existence of other possible explanations for the smell did not mean that the officer could not have reasonable grounds to arrest based on the odour alone. MacCannell was convicted of possessing marijuana for the purpose of trafficking.

MacCannell appealed his conviction before BC’s top court, suggesting that his arrest was unlawful and the vehicle search incidental to that arrest was unreasonable.

He first suggested that under <s. 495(1)(a)> a peace officer may only arrest for an indictable offence. Since the officer could not determine the quantity of marijuana, he could not have reasonable grounds to believe the accused possessed more than 30 grams (making it indictable); possession of 30 grams or less is a summary only offence.

Second, if the arrest was made under <s. 495(1)(b),> odour alone was insufficient to constitute reasonable grounds.

Third, the officer failed to consider other possible explanations of the presence of marijuana such as a medical access authorization.

{Reasonable grounds}

Justice Garson, speaking for the court, rejected MacCannell’s arguments. He found the arrest was lawful under <s. 495(1)(b),> which “permits an officer to arrest an individual who is committing a criminal offence, either summary conviction or indictable.

“An officer may only arrest an individual for an offence under ss. (495(1)) (b) where the officer personally witnesses facts or events that can support an objectively reasonable belief that the suspect is presently committing an offence,” said Garson. He continued:

<(A)n arrest for possession of marijuana in the circumstances of… this case is based on ss. (b) not ss. (a). As the Crown argues in this case, ss. (b) provides for the arrest of an individual whom the arresting officer “finds committing any offence,” whether summary or indictable.

The significance of the arrest being under ss. (b) is that proof of the offence of possession does not depend on the amount of marijuana being greater than 30 grams. Mr. MacCannell’s argument that the officer could not have known or have had reasonable grounds to believe he was in possession of more than 30 grams is irrelevant> (para. 33).

The court found that the odour of marijuana alone, in this case, was sufficient to ground a credible belief that an offence was being committed. The officer had a subjective belief that MacCannell possessed marijuana. This belief was also objectively reasonable.

“Standing in the shoes of the officer, with his extensive experience, objectively he could easily have held a credibly based belief that (the accused) was in possession of vegetative marijuana,” said Garson.

{Alternate explanations}

The court also rejected MacCannell’s submission that the officer was required to consider and rule out other potential innocent explanations for possession of the marijuana, such as an authorization to possess for medical needs, or that the odour could have been left from earlier use of the vehicle to transport.

<(The reasonable grounds) standard does not require an officer to satisfy him or herself that there is evidence of proof beyond a reasonable doubt or even a prima facie case. All that the officer must have is an objectively reasonable basis for believing the suspect is presently in possession of marijuana, without necessarily ruling out potentially innocent inferences, defences or lawful excuses> (para. 45).

The arrest was lawful and the search incidental to arrest did not breach <s. 8> of the Charter. MacCannell’s appeal was dismissed.


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