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Odour plus cash provides basis for arrest

The smell of freshly smoked marijuana and a large amount of cash provided the necessary grounds for an arrest, the Supreme Court of Canada has ruled.

In R. v. Loewen, 2011 SCC 21 an officer smelled freshly burnt marijuana coming from the vehicle and saw a duffle bag on the back seat after stopping the accused for speeding. Loewen identified himself verbally by name but could not produce a driver's licence. The officer invited him to move into the cruiser to check his identity, first patting him down for safety reasons and discovering $5,410 in cash. Loewen then admitted he misidentified himself and gave a new name. After issuing a speeding ticket under the second name, the officer arrested Loewen for possessing a controlled substance and indicated he would search the vehicle, which uncovered 100 grams of cocaine.

At trial in the Alberta Court of Queen's Bench the Crown submitted the large bundle of cash implied trafficking, suggesting quantities over 30 grams and justifying an arrest under s. 495(1)(a) (on reasonable grounds), as opposed to s. 495(1)(b) of the Criminal Code (finds committing). Loewen contended the officer did not see any marijuana and therefore did not "find" him committing an offence, as required by s. 495(1)(b). In his view, the smell could not amount to "finding" an offence being committed because it didn't give sufficient grounds for arrest, since burnt marijuana was at best indicative of past possession, not present possession.


December 6, 2011
By Mike Novakowski

The smell of freshly smoked marijuana and a large amount of cash provided the necessary grounds for an arrest, the Supreme Court of Canada has ruled.

In R. v. Loewen, 2011 SCC 21 an officer smelled freshly burnt marijuana coming from the vehicle and saw a duffle bag on the back seat after stopping the accused for speeding. Loewen identified himself verbally by name but could not produce a driver’s licence. The officer invited him to move into the cruiser to check his identity, first patting him down for safety reasons and discovering $5,410 in cash. Loewen then admitted he misidentified himself and gave a new name. After issuing a speeding ticket under the second name, the officer arrested Loewen for possessing a controlled substance and indicated he would search the vehicle, which uncovered 100 grams of cocaine.

At trial in the Alberta Court of Queen’s Bench the Crown submitted the large bundle of cash implied trafficking, suggesting quantities over 30 grams and justifying an arrest under s. 495(1)(a) (on reasonable grounds), as opposed to s. 495(1)(b) of the Criminal Code (finds committing). Loewen contended the officer did not see any marijuana and therefore did not “find” him committing an offence, as required by s. 495(1)(b). In his view, the smell could not amount to “finding” an offence being committed because it didn’t give sufficient grounds for arrest, since burnt marijuana was at best indicative of past possession, not present possession.

The trial judge agreed with the Crown, finding Loewen’s arrest was lawfully made under s. 495(1)(a), which allows an officer to arrest an individual whom they believe on reasonable grounds has committed an indictable offence.

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“What the cash adds to the smell is an indication of buying or selling of drugs in a relatively large quantity,” she said. Although possession of marijuana in excess of 30 grams is required to constitute an indictable offence, the judge held the officer had reasonable grounds to believe Loewen possessed sufficient marijuana to constitute an indictable offence, having regard to the totality of the evidence, including the smell in the car and the money found in his pocket, mostly in $20 bills, which suggested involvement in the drug trade.

“Based on… the smell, the precise nature of it and where it came from, how that smell was associated with the accused and the accused alone and the cash on the accused’s person, the officer came to the conclusion that the accused was currently in possession of marijuana, arrested him for this and searched for evidence in a search incident to that arrest,” she said.

There were no Charter breaches and, even if there were, the evidence would have been admitted under s. 24(2). Admitting the real evidence would not have rendered the trial unfair, the Charter breach wasn’t serious, the officer acted in good faith and Loewen had a reduced privacy interest in the vehicle. He was convicted of possessing a controlled substance for the purpose of trafficking.

Loewen challenged his conviction to the Alberta Court of Appeal, arguing the evidence against him was obtained from an illegal search that followed an unlawful arrest. A majority of the court disagreed. Both Justices Slatter and Hunt agreed that the trial judge made no error and upheld the arrest under s. 495(1)(a). Since the arrest was lawful the search which followed was proper as an incident to arrest and there were no Charter breaches; even if there were, the cocaine evidence was admissible under s. 24(2).

Justice Berger disagreed. In his view the arrest was unlawful, the search was unrelated to the arrest and the evidence was inadmissible under s. 24(2) of the Charter. Loewen appealed to Canada’s highest court.

Arrest: s. 495(1)(a) CCC

The unanimous Supreme Court (7:0) first noted that if Loewen’s arrest was unlawful, his detention violated s. 9 of the Charter. The search could then not have been incidental to arrest, breaching s. 8, but the court agreed the officer did have reasonable grounds to arrest for possession of a controlled substance under s. 495(1)(a).

In its view, “the evidence was sufficient to support (the trial judge’s) inference that the necessary grounds for arrest existed.” In holding that the officer reasonably believed he was dealing with more than 30 grams of marijuana, the trial judge considered not only the smell but also the large amount of cash found in Loewen’s pocket.

The evidence supported the trial judge’s conclusions and the arrest under s. 495(1)(a) was lawful and did not violate the Charter’s protections against wrongful detention.

Search incident to arrest

Since the arrest was lawful, the Supreme Court upheld the trial judge’s conclusion that the search was properly conducted incidental to arrest and did not violate s. 8.

Section 24(2) Charter

Although it was unnecessary to consider s. 24(2) since there was no Charter violations, the court would have nonetheless agreed with the trial judge that the evidence was admissible. She considered and weighed the relevant factors in her analysis. Loewen’s appeal was dismissed.
Editor’s note: More detailed facts of this case were taken from the Alberta Court of Appeal judgement R. v. Loewen, 2010 ABCA 255.