In a surprising number of cases people are arrested when the police smell hidden marijuana in a car. One Ontario criminal judge recently decided that he did not believe this old story.

In R. v. Newell, 2015 ONCJ 564, a police officer testified he could smell marijuana coming from the accused’s coat pocket from outside the car, which had rolled up windows. The judge had this to say:

[16]           The sole basis for the arrest was the smell of marijuana Cst. Lucas testified to noticing.  According to Cst. Lucas, the odour of these seven grams of dried marijuana permeated the plastic bag containing the marijuana as well as the pocket of the winter coat where the bag was located.  Not only did this smell permeate the bag and the pocket, it did so to the degree that it was noticeable to a person standing outside of the vehicle.  Not only was it noticeable, according to Cst. Lucas (at least during his examination-in-chief), the smell was “very strong”, like the odour of a skunk.

[17]           I do not believe Cst. Lucas’s testimony on this issue.  It defies credulity that a relatively small amount of dried plant matter would create such a strong smell that it would permeate both the plastic bag and the coat to the extent that it would be apparent to somebody standing outside of the vehicle.  Quite apart from the implausibility of Cst. Lucas’s evidence, I note as well that he was inconsistent in his description of the odour.  He initially testified that he could “immediately” detect a “strong odour” of this marijuana when Mr. Newell opened the door and that it was “getting stronger and stronger” as he spoke to him.  So strong, in fact, that he likened it to the smell of a skunk.  In cross-examination, however, he described the initial odour as “very faint” but that it became stronger when he put his head down nearer to the vehicle.

[18]           Even if I had believed Cst. Lucas’s testimony, on the facts of this case I would not have concluded that the smell of marijuana constituted reasonable and probable grounds for an arrest.  Courts must be cautious about concluding that arrests based on smells are justified, as was made clear by Rosenberg J.A. in R. v. Polashek (1999), 1999 CanLII 3714 (ON CA), 45 O.R. (3d) 434 (C.A.).

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