R. v. Valentine 2014 ONCA 147, involved a traffic stop on Highway 401, where drugs were later found. The police searched a car based on the smell of marijuana. The Ontario Court of Appeal upheld the legality of a search, despite several problematic issues.

Background

Valentine was speeding down the 401 at 128 km/hour.— A poor choice if one has 18 pounds of marijuana in the trunk. The police discovered that Valentine was breaching the curfew condition in his bail.

Valentine was placed in the back of the police cruiser. The police had had not yet decided whether to take the appellant to the station or release him.

The possibility of releasing Valentine from the scene gave the police a concern for officer safety. As a result, the police decided to search the car for weapons. The police found a large bundle of cash in Valentine’s coat, located on the passenger seat. While searching the car, the police smelled “strong smell of raw marijuana.” The police re-arrested Valentine, this time for possession of marijuana, and searched the trunk incident to arrest. – In the trunk, the police found nine vacuum-sealed cylinders that held 18.1 pounds of marihuana.

At trial, Valentine called an expert witness who testified that the police could not have smelled the marijuana in the trunk. The trial judge ruled that the search and seizure was legal.

Court of Appeal re-affirms that smell evidence is sufficient to justify a search

The Court of Appeal found that it was reasonable to search the car for weapons, given that the police were considering releasing Valentine at the roadside. (Note: It would be abnormal for the police to release someone on the scene for breaching bail in any circumstance. Here, releasing Valentine would have been even stranger, as it would have permitted him to keep breaching his curfew condition.)

With respect to the trial judge’s acceptance of the police officers’ testimony about smelling the marihuana, the Court of Appeal stated:

[54]       The appellant raises an argument previously considered by this court regarding the precarious reliability of “smell” evidence given that the sense of smell is highly subjective and largely incapable of objective verification: R. v. Polashek (1999), 45 O.R. (3d) 434 (C.A.).

 [55]       While this court has cautioned against placing undue reliance upon evidence of smell, it has also recently confirmed that “there is no legal barrier to the use of such evidence”: R. v. Morris, 2013 ONCA 223, 305 O.A.C. 47, at para. 8; see also R. v. Hoang, 2013 ONCA 430, [2013] O.J. No. 2922, at para 5.

 [56]       In Polashek, Rosenberg J.A. expresses concern about basing an arrest solely on the presence of odour.  However, as in Polashek, here Constable Dowling did not make his arrest solely on that basis.  This officer, who gave evidence about his considerable experience in occurrences involving raw marihuana, testified that his decision to arrest the appellant for possession of marihuana was based not only on the smell of raw marihuana in the car but also on his finding the cash and the second cell phone and his observations about the appellant’s misconduct during the course of his interaction with the police.

 [57]       It was open to the trial judge to accept Constable Dowling’s evidence that as he entered the car for the safety search, he noted a powerful smell of raw marihuana. I am not persuaded that, on this record, there is a basis to interfere.

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