 |
| Patrick Ducharme |
In R. v. Loewen the Supreme Court of Canada dealt with the following circumstances as given by the investigating officer:
After stopping the accused for speeding, the police officer smelled freshly burnt marijuana coming from the vehicle and found $5,410 in the accused’s pocket. He arrested the accused for possession of a controlled substance, searched the vehicle, and found 100 grams of crack cocaine. The trial Judge admitted the evidence of cocaine. The accused was convicted of possession of cocaine for the purpose of trafficking. A majority of the Court of Appeal upheld the conviction.
The Supreme Court of Canada unanimously dismissed the appeal. Chief Justice McLachlin wrote as follows:
Lawfulness of the Arrest under Section 495(1)(a) of the Criminal Code;
The trial Judge, Ross J., held that the arrest of Mr. Loewen was lawfully made pursuant to ss. 495(1)(a), which allows the officer to arrest an individual whom he believes on reasonable grounds has committed an indictable offence (2008 ABQB 660, 461 A.R. 193).
In the case of marijuana, possession in excess of 30 grams is required to constitute an indictable offence: Controlled Drugs and Substances Act, S.C. 1996, c. 19, s. 4. The trial Judge held that Sergeant Topham had reasonable grounds to believe that Mr. Loewen was in possession of sufficient marijuana to constitute an indictable offence, having regard to the totality of the evidence, including the smell of burnt marijuana in the car and the sum of $5,410 found in Mr. Loewen’s pocket, mostly in $20 bills, which suggested that he was involved in the drug trade.
Like the majority in the Court of Appeal, we find no error in the reasons of the trial Judge on this point. Both Slatter and Hunt JJ.A. correctly upheld the arrest under s. 495(1)(a) (2010 ABCA 255, 32 Alta. L.R. (5th) 203). (The correctness of this conclusion is not affected by the fact that Slatter J.A. mistakenly held that the requirement of “reasonable grounds” in s. 495(1)(a) is different from the requirement of “reasonable and probable grounds”.)
Berger J.A., dissenting, took the view that the evidence did not support the trial Judge’s inference that under s. 495(1)(a) it was reasonable to believe that more than 30 grams of marijuana were in the car. He noted the absence of testimony as to the amount of marijuana Sergeant Topham believed was in the car.
We see no error in the conclusion of the trial Judge that Sergeant Topham had reasonable grounds to arrest Mr. Loewen for possession of a controlled substance under s. 495(1)(a). The evidence was sufficient to support her inference that the necessary grounds for arrest existed. The trial Judge stated:
The large amount of cash was evidence that might have persuaded the sergeant to believe that he was dealing with something beyond 30 grams of marijuana. The sergeant was not examined or cross-examined on exactly this point, but he was clear that in his view he did not have reasonable grounds based on the smell alone, but he did as soon as he became aware of the cash. What the cash adds to the smell is an indication of buying or selling drugs in a relatively large quantity…
…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. The sergeant’s subjective belief in the ground is not in doubt, and in my view that subjective belief was objectively reasonable in the circumstances. [paras. 23 and 26]
In our view, the evidence supports these conclusions, and the arrest under s. 495(1)(a) was lawful. It follows that the arrest did not violate the Charter’s protections against wrongful detention.
The above is the an excerpt of Patrick J Ducharme's book, Canadian Criminal Procedure, available at Amazon or in bulk through MedicaLegal Publishing along with Criminal Trial Strategies.
Subscribe to Patrick Ducharme's Youtube Channel