Pubdate: Tue, 26 Sep 2017
Source: Cape Breton Post (CN NS)
Copyright: 2017 Cape Breton Post
Page: A1


A RCMP officer's decision to arrest and search two people because he
could smell fresh marijuana in the vehicle has resulted in drug and
weapon charges being dismissed against an Ingonish couple.

Provincial court Judge Peter Ross ruled Monday that it is widely held
that police officers can give evidence on what they detect or
recognize by smell.

"But difficulties arise when the police claim to be able to recognize
this particular smell (raw marijuana) as a basis for arrest, with no
other supporting grounds," said the judge. Ross ruled that the seizure
of the marijuana and the arrest of the two individuals violated their
rights not to be arbitrarily detained and to be protected from
unreasonable search. The decision meant that items seized would not be
admitted into evidence at trial.

As a result, the Crown withdrew the charge of possession for the
purpose of trafficking and possession of a weapon without a licence.

"Courts treat standalone olfactory (sense of smell) identification
evidence with an abundance of caution. Concerns have been raised about
potential abuse by those who rely upon it to exercise an arrest or
search power," wrote the judge.

Jonathan Shane Hussey, 38, and Terri Hawley, 44, were both charged
with possession for the purpose of trafficking in marijuana and
possession of a firearm (a .410 shotgun) without a licence.

The offences were alleged to have occurred Jan. 9, 2016, in

They were charged after being stopped at a roadside check point being
conducted by RCMP Cpl. Tyson Nelson, who testified to smelling a
strong odour of marijuana coming from the vehicle as he approached the
driver's side window. He said it was fresh marijuana, not burnt.
Hawley had told the officer she had just smoked joint in the vehicle.

The officer placed the couple under arrest and after searching both,
found a small bag of marijuana in Hawley's sweater pocket. He also
found two other bags of pot stuffed in a gift bag covered with a towel
in the back seat. In total, the officer seized some 612 grams of marijuana.

"Today, however, the law is such that where the smell of raw marijuana
alone is offered up as the basis for belief in possession, and the
validity of an ensuing arrest, that opinion must have substantial
underpinnings in training and/or experience and even then should be
treated with caution," said Ross.

In his decision, Ross referred to a number of other cases on the
subject including one that cautioned that because the sense of smell
is highly subjective, basing an arrest solely on smell puts an
unreviewable discretion in the hands of an officer.

In his testimony, the officer said burnt marijuana smells like
charcoal while fresh marijuana is akin to fresh cut grass or something
close to a skunk. He also agreed it could be likened to cat urine.

During the hearing challenging the arrest and seizure, defence lawyers
Ralph Ripley and James Snow produced a vacuum-sealed bag of cat litter
and the officer admitted he could not detect a smell. Some of the
seized drug was contained in a vacuum-sealed bag while other amounts
were found in a ziplock freezer bag.

"Nothing has come to my attention about the accuracy of smell
observations of raw cannabis by police, how such things as packaging
might affect the ability to detect it, whether other smells might be
mistaken for it, and to what extent training and repeated exposure
might enhance the ability to discern the presence of raw cannabis by
smell alone," said Ross.

He concluded there were insufficient grounds for the arrest, which
resulted in an unlawful arrest and search.
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