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 Ingonish.
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 zip-lock 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.