Citation: R. v. S.T.P., 2009 NSCA 86
Date: 20090821
Docket: CAC 304906
Registry: Halifax
Between:
S.T.P.
Appellant
v.
Her Majesty the Queen
as represented by the Director of Public Prosecutions Service of Canada
Respondent
Restriction on publication: Section 110(1) of the Youth Criminal Justice Act
Judges: MacDonald, C.J.N.S.; Saunders and Fichaud, JJ.A.
Appeal Heard: June 15, 2009, in Halifax, Nova Scotia
Held: Appeal dismissed per reasons for judgment of MacDonald, C.J.N.S.; Saunders and Fichaud, JJ.A. concurring.
Counsel: Ian Hutchison, for the appellant
Timothy McLaughlin, for the respondent
Section 110(1) of the Youth Criminal Justice Act
110. (1) Subject to this section, no person shall publish the name of a young person, or any other information related to a young person, if it would identify the young person as a young person dealt with under this Act.
Reasons for judgment:
[1] The appellant young person’s conviction for cocaine possession rested largely on the legality of a police search incidental to his arrest. Following a voir dire hearing, Provincial Court Judge Jamie S. Campbell found the arrest to be lawful and S.T.P. now appeals to this court citing errors of both law and fact. For the reasons that follow, I would dismiss the appeal.
BACKGROUND
[2] On the evening of June 20, 2007, S.T.P. and two young friends were driving along Herring Cove Road in Halifax. S.T.P. was in the backseat. After parking at a local McDonald’s Restaurant, they were approached and then detained by two members of the Halifax Regional Police who had pulled up behind in their police vehicle. Upon detecting the smell of burnt marijuana, the officers arrested all three boys for possession of that drug. In the search incidental to S.T.P.’s arrest, the cocaine was discovered.
[3] Judge Campbell succinctly described the events leading up to the arrest including the officers’ motivations in detaining and then arresting the three young men:
¶ 4 Constable Jason Shannon and Constable Robbie Baird were on patrol in the Spryfield area of Halifax that evening. The patrol was part of a response to violent incidents, including fire bombings, that had taken place in the area. The constables were instructed to show a police presence in the community and generally get to know the people of the area. They indicated that this could be achieved by speaking with people and finding out as much as they could about "who was who".
¶ 5 That evening, they were traveling north on Herring Cove Road behind a blue Pontiac Sunbird. Both constables gave evidence that they saw an individual in the back seat of the vehicle appear to take notice of them and quickly turn around. S.T.P. was the young man in the back seat. He confirmed that he did indeed see the police and believed that they saw him.
¶ 6 The vehicle then turned off the street, at the first opportunity, into a McDonald's fast food outlet.
¶ 7 The police checked the license plate for the vehicle and determined that on two occasions it had been associated with bail violations, once on April 3 of that year and again, only two days before, on June 18. The computer check of the license plate would not determine whether any individual in the car had been involved or connected in any way with a bail violation or even whether the owner of the vehicle had been associated with such a violation. It meant simply that the vehicle had in some way be connected to such violations.
¶ 8 Upon receiving that information, the officers turned their police vehicle around and went into the same McDonald's parking lot. There they parked behind the Pontiac Sunbird. They estimated that 15 to 20 seconds had passed from the time they had seen the vehicle turn into the parking lot. The occupants were still in the vehicle.
¶ 9 The officers approached the car. Constable Shannon said that he could detect the smell of burned marijuana coming from the open window of the car. Constable Baird testified that he detected a strong smell of marijuana when the passenger door was opened.
[4] No marijuana was found and the boys denied smoking any that evening.
[5] In his Charter application to exclude the seized cocaine from the evidence, S.T.P. maintained that the police had insufficient grounds to arrest him because the smell of burnt marijuana was indicative of no more than possession at some time in the past. Thus if the arrest was unlawful, then so was the search incidental thereto. The judge disagreed. After considering “the larger supporting context” in addition to the smell of marijuana, he deemed the arrest to be lawful:
¶ 53 Constable Shannon did smell a substance that he reasonably believed to be recently burned marijuana. While he had no special training and could not lay claim to extraordinary olfactory acuity, but he was, like many people, aware of what burned marijuana smells like. That was in the context of a situation where the vehicle involved had been involved in bail violations, the back seat passenger was behaving nervously having seen the police, and the driver had apparently tried to put some distance between the car and the police as soon as possible.
¶ 54 That context supports the reasonableness of the conclusion of one who, though without special olfactory gifts or training has a normal sense of smell and not the altogether unusual ability to at least recognize the smell of burned marijuana. Had the smell of marijuana been the sole foundation of the grounds for arrest, the officer would have to show something beyond those rather unremarkable abilities. Where, as here, the smell is part of a larger supporting context, and with that context forms a practically coherent and logically consistent basis for a reasonable conclusion that marijuana may be present, there is no requirement for special training or ability.
ISSUES
[6] S.T.P. lists the following grounds of appeal.
1. The Trial Judge failed to direct to or apply the proper legal principles when assessing the reliability and credibility of witnesses;
2. The Trial Judge misapprehended certain critical evidence which had a bearing upon the substantive issues that arose in this case;
3. The Trial Judge failed to rule that the Appellants initial detention by the police was unlawful and a violation of his Constitutionally protected rights, as guaranteed by Section 9 of the Canadian Charter of Rights and Freedoms;
4. The Trial Judge failed to determine that the Appellants arrest was unlawful;
5. The Trial Judge failed to rule that the search of the Appellant following his arrest was unlawful and a violation of his Constitutionally protected rights, as guaranteed by Section 8 of the Canadian Charter of Rights and Freedoms;
6. The Trial Judge failed to rule that the Appellants detention, after arrest, was unlawful and a violation of his Constitutionally protected rights, as guaranteed by Section 9 of the Canadian Charter of Rights and Freedoms;
7. The Trial Judge failed to exclude the evidence seized as result of the unlawful detention, unlawful arrest and unlawful search of Appellant in accordance with s.24(2) of the Canadian Charter of Rights and Freedoms.
8. And such further and other grounds that may arise or may come to our attention from a review of the transcript.
[7] As noted, the legality of the arrest - ground #4 - is the key issue in this appeal. However, before addressing it, let me briefly discuss and summarily dispose of S.T.P.’s other grounds of appeal. They include an attack on the legality of the initial detention.
[8] To advance many of his grounds, S.T.P. challenges the judge’s factual conclusions that preferred the evidence of the police over that of the boys. Respectfully, these assertions have no merit. I say this because the judge is to be accorded deference when it comes to his factual findings and with his handling of the evidence generally. For example, in the context of a reasonable verdict analysis, this court in R. v. C.S.B., 2005 NSCA 133, considered the level of deference owed to the trier of fact. The following observations are equally apt in our voir dire context:
¶ 16 The essence of the appellant's submission on this point is that the trial judge should not have believed the complainants or in other words that the verdict is unreasonable or not supported by the evidence. In challenging the trial judge's verdict, the test is whether or not the verdict is one which a properly instructed jury acting judicially could reasonably have rendered. In making that assessment, findings of fact and credibility by the trial judge are owed great deference. In conducting our assessment, we must review and analyze and within the limits of appellate disadvantage, weigh the evidence. See R. v. Yebes, [1987] 2 S.C.R. 168 and R. v. Biniaris, [2000] 1 S.C.R. 381. The appellate court must be particularly conscious of the advantages enjoyed by a trial judge in assessing credibility: R. v. W.R., [1992] 2 S.C.R. 122. It is only if the judges' assessment of credibility cannot be supported on any reasonable view of the evidence that the court is entitled to intervene: see R. v. Burke, [1996] 1 S.C.R. 474.
[Emphasis added.]
[9] See also R. v. C.S.M., 2004 NSCA 60 at ¶ 50.
[10] Applying this standard, I conclude that all of the judge’s material factual findings are supported by the evidence and reflect no error. Nor did the judge misapprehend any of the evidence. In short, I adopt the respondent’s submission on these issues as contained in its factum:
20. The Appellant highlights discrepancies regarding the evidence of Cst. Shannon and Cst. Baird. These discrepancies were outlined by the Appellant’s counsel at the conclusion of the voir dire as well.
21. In his factum the Appellant outlines the following specific discrepancies for purposes of assessing credibility.
. Evidence Regarding Justification For Detaining The Appellant
22. Cst. Shannon wanted to confirm driver details, but was also concerned with respect to the behaviour of the vehicle and its occupants, in conjunction with his specific duties that night (AB, p. 100, lines 8-22, p. 101, line 1-12). Cst. Bairds’ evidence, in its totality, is to the same effect (AB, p. 153, lines 18-22, p. 154, lines 1-18).
. The Constables’ Failure To Record The Appellant’s Actions In The Motor Vehicle
23. The failure to record the actions of the Appellant in their notebook is of little or no value in that the Appellant corroborates their observation in his evidence in chief. (AB, p. 262, lines 6-10).
. The Contradictions In The Constables’ Evidence Regarding When They First Saw the Appellants’ Vehicle
24. The evidence highlighted by the Appellant is not contradictory, but rather reflects the Constables’ recollection of when each of them first saw the vehicle.
. The Constables Gave Contradictory Evidence Whether Cst. Shannon Could See The Police Computer
25. With respect, the evidence is not contradictory. Cst. Baird, in his evidence, was not certain if Cst. Shannon did see the computer screen (AB, p. 173, lines 17-22, p. 174, lines 1-5).
. Cst. Shannon Testified That The Appellant’s Vehicle Was Parked As Far As Possible From The Restaurant Door
26. In fairness to the evidence called, Cst. Shannon stated it was “probably” furthest from the door (AB, p. 99, lines 7-8). Cst. Shannon also described it as “probably 40 feet” from the door (AB, p. 99, line 5). This distance is corroborated by defence witness Fitzsimmons who describes the distance as “I suppose, 30, 40 feet, if that” (AB, p. 188, lines 2-5). Fitzsimmons also indicates that there are parking spots closer and further away from the one the vehicle pulled into (AB, p. 189, lines 6-12).
. Constables’ Baird and Shannon Provided Different Descriptions With Respect To The Odour of Cannabis Marihuana
27. Constables Baird and Shannon did provide different descriptions with respect to the strength of the odour of cannabis emanating from the vehicle. This evidence must be considered given the different positions and circumstances of the constables as they approached the vehicle. Cst. Shannon approached an open window on the driver’s side of the vehicle (AB, p. 103, lines 12-21). Cst. Baird approached the vehicle from the passenger side, which had a slightly opened window (AB, p. 155, lines 9-16).
28. The discrepancies suggested by the Appellant are not of the magnitude required to interfere with findings of fact. Here, there is not a series of inconsistencies sufficient to give a court concern as to the credibility of the two officers. R. v. DDS 2006 NSCA 34 (ABA, Tab 7, para. 40, 41).
[11] However, as noted, the legality of S.T.P.’s arrest does merit further consideration and my analysis will follow. At the outset, I will address the standard upon which we should review that aspect of the judge’s decision.
ANALYSIS
Standard of Review
[12] As noted, I am not prepared to interfere with any of the judge’s factual findings. That said, when applying the appropriate legal principles to these facts, the judge must be correct. In other words, in concluding that the arrest was lawful based on the facts as he found them, the judge is not entitled to deference. The Saskatchewan Court of Appeal in R. v. Nguyen, 2008 SKCA 160, explains it this way:
¶ 72 Whether there are objectively reasonable grounds for arrest may be a question of mixed law and fact and, for that reason, engage a degree of deference. In R. v. Feeney, [1997] 2 S.C.R. 13, the Supreme Court addressed the issue of appellate review of a finding of reasonable and probable grounds for arrest as follows:
The finding by a trial judge of whether, objectively speaking, reasonable and probable grounds for arrest existed clearly has a significant factual element and thus is owed some deference by an appellate court. (at para. 30)
¶ 73 A similar conclusion was recently expressed by the Alberta Court of Appeal in R. v. Rajaratnam, 2006 ABCA 333, 214 C.C.C. (3d) 547:
For that reason, the standard of review for each of these questions [detention, search, and reasonable and probable grounds for arrest] is highly deferential. The trial judge's fact findings deserve deference absent a palpable and overriding error ... When credibility is a trial issue, an appellate court should show great deference to findings made at trial ... It is only when a legal error can be extricated from the analysis that the standard of review is correctness. (at para. 10, citations omitted)
¶ 74 However, where the facts are not in dispute, whether these meet the test for objectively reasonable and probable grounds is a question of law, for which the standard of review is correctness. R. v. Shepherd, 2007 SKCA 29, 218 C.C.C. (3d) 113.
[13] As well, in the context of police detention, Fichaud, J.A. of this court in R. v. Cooper, 2005 NSCA 47, applied the same reasoning:
¶ 22 The trial judge's factual findings are entitled to deference, absent manifest or palpable and overriding error. The correctness standard governs the trial judge's application of legal principles: R. v. P.S.B., [2004] N.S.J. No. 49, 2004 NSCA 25 at para. 37; R. v. Johnson, [2004] N.S.J. No. 280, 2004 NSCA 91 at para. 12; R. v. Calderon (2004), 188 C.C.C. (3d) 481 (O.C.A.), at para. 71.
[14] This brings me to the ultimate issue: Based on the facts as the judge determined, was the arrest was lawful?
The Legality of the Arrest
[15] Let me begin by considering a police officer’s statutory authority to arrest without a warrant. It is noteworthy that these powers differ depending upon whether the arrest involves a more serious offence punishable by indictment or whether it involves a less serious summary offence matter. In the former, the arresting officer need only have “reasonable and probable grounds” to believe that the suspect has committed or is about to commit the offence while for a summary conviction offence, the officer must find the suspect committing the offence. Here is the relevant Code provision:
495. (1) A peace officer may arrest without warrant
(a) a person who has committed an indictable offence or who, on reasonable grounds, he believes has committed or is about to commit an indictable offence;
(b) a person whom he finds committing a criminal offence;
[Emphasis added.]
[16] This raises an interesting issue in this appeal because the offence of possessing marijuana is a hybrid offence; that is, it is punishable either by indictment or by summary conviction. (Controlled Drugs and Substances Act, S.C. 1996, c. 19, as am., ss. 4(4), 4(5), Schedule VIII.) To further complicate matters, should the amount involved be less than 30 grams then the matter is deemed punishable on summary conviction (s. 4(5)).
[17] Now in this case no marijuana was ever found, nor were any of the young men so charged. So the amount involved, whether 30 grams or less, would be purely hypothetical. Taking the appellant's argument at its strongest, I will assume, without deciding the issue, that the summary conviction regime under s. 495(1)(b) applies. Thus, to be lawful, the police would have to "find" S.T.P committing the contemplated offence, namely possession of marijuana.
[18] At first blush, this may appear to be a challenge considering the fact that no marijuana was ever found. However that does not end the matter. It was still open to the judge to conclude that s. 495(1)(b) had been complied with in these circumstances. I say this because courts in this country have consistently interpreted the reference to “finds committing” in s. 495(1)(b) to mean apparently finds committing. For example, in R. v. Janvier , 2007 SKCA 147, the Saskatchewan Court of Appeal summarized the two leading Supreme Court of Canada decisions on this issue: R. v. Biron, [1976] 2 S.C.R. 56, 1975 CanLII 13, and Roberge v. R., [1983] 1 S.C.R. 312, 1983 CanLII 120:
¶ 19 Oddly enough, there is little authority in Canada as to what is meant by "finds" a person "committing a criminal offence" in s. 495(1)(b). The two Supreme Court of Canada decisions that construe s. 495(1)(b) do so not in the context faced here, where it is necessary to determine powers of arrest to delineate a search power, but in the context of assessing police comportment for other purposes.
¶ 20 In R. v. Biron the issue was whether a person could be found guilty of resisting arrest for a summary conviction offence if the officer had no authority to make the arrest because he did not "find" the accused "committing a criminal offence." There were several reasons given for sustaining the conviction for resisting arrest, even though the accused had been acquitted of the charge for which he had been arrested. One reason related to the construction of s. 495(1)(b).
¶ 21 Martland J., writing for the majority in Biron, concluded that a police officer may arrest a person he or she finds "apparently committing" any offence. Notwithstanding this seeming expansion of s. 495(1)(b), he wrote:
Paragraph (b) applies in relation to any criminal offence and it deals with the situation in which the peace officer himself finds an offence being committed. His power to arrest is based upon his own observation. Because it is based on his own discovery of an offence actually being committed there is no reason to refer to a belief based upon reasonable and probable grounds.
If the reasoning in the Pritchard [(1961), 130 C.C.C. 61] case is sound, the validity of an arrest under s. 450(1)(b) can only be determined after the trial of the person arrested and after the determination of any subsequent appeals. My view is that the validity of an arrest under this paragraph must be determined in relation to the circumstances which were apparent to the peace officer at the time the arrest was made.
. . .
... In my opinion the wording used in para. (b), which is oversimplified, means that the power to arrest without a warrant is given where the peace officer himself finds a situation in which a person is apparently committing an offence.
[Emphasis added.]
¶ 22 In Roberge v. The Queen s. 450(1)(a) [now s. 495(1)(a)] was considered in the context of assessing the conviction of a police officer for having, without lawful excuse, used his revolver in a careless manner contrary to s. 84(2)(b) of the Criminal Code. Lamer J., as he then was, wrote that "the test a police officer must meet, in order to be empowered to arrest without a warrant under s. 450(1)(a) is, to the extent that it differs, at least as easily satisfied as that under s. 450(1)(b)." Roberge does not eliminate the distinction between "has committed" in s. 495(1)(a) and "finds committing" in s. 495(1)(b) but instead is directed to the belief the officer has as to the presence of the grounds for either type of offence in order to arrest. In this regard, Lamer J. writes later: "I do not read the test laid down by Martland J. as suggesting that it is sufficient that it be 'apparent' to the police officer even though it would be unreasonable for the police officer to come to that conclusion. Surely it must be 'apparent' to a reasonable person placed in the circumstances of the arresting officer at the time."
[19] Further, this court in R. v. Stevens, [1976] N.S.J. No. 476 (N.S.S.C. - A.D.) concluded similarly:
¶ 24 There appears to me, with respect, to be an apparent misdirection on the part of the learned County Court Judge in his reference to the requirement of the police officers to have reasonable and probable grounds to believe that the respondent was committing a disturbance in violation of the Criminal Code. The requirement of reasonable and probable grounds relates only to arrest without warrant in indictable offences (s.450(1)(a)) not to summary conviction offences such as creating a disturbance. In order to arrest a person without a warrant for a summary conviction offence it is not sufficient for the arresting officer to show that he had reasonable and probable grounds to believe such offence had been, or was about to be, committed; rather, he must go further and show that he found a situation in which a person was apparently committing an offence.
[20] Based on these authorities, in my view an arresting officer must establish three things in order to meet the finds committing standard. Firstly, the police officer’s knowledge must be contemporaneous to the event. Thus he or she must be present while the apparent offence is taking place. In other words, unlike the reasonable and probable grounds standard, it is not enough to believe that an offence has taken place in the past or is about to take place.
[21] Secondly, the officer must actually observe or detect the commission of the offence. Most often this is achieved by actually seeing and/or hearing the offence being committed. However, I would not limit it to those two senses. In fact, as in this case, the sense of smell may suffice. For example, see R. v. Sewell, 2003 SKCA 52, [2003] S.J. No. 391,where Bayda, C.J.S. observed:
¶ 36 The question arises whether it is fair to conclude that the officer had, for the purposes of s.495(1)(b), "found" the appellant committing the offence at the time of the arrest given that the officer had only smelled the marijuana but had not seen it. In my respectful view, it is fair to so conclude. In order for a person to know or believe that there is marijuana in the immediate vicinity, he or she would have to rely on one or more of his or her five senses. ...
[22] Thirdly, there must be an objective basis for the officer’s conclusion that an offence is being committed. In other words, as the Supreme Court noted in Roberge, supra, “it must be ‘apparent’ to a reasonable person placed in the circumstances of the arresting officer at the time”.
[23] With this backdrop, I ask was the judge correct to conclude that the arrest was lawful? In other words, did the arresting officer find S.T.P. apparently possessing marijuana? To answer these questions, I return to the judge’s factual findings.
[24] As noted, the judge relied on more than the fact that the arresting officers detected the smell of burnt marijuana. To that extent, I agree with the appellant that smell alone may not justify the arrest.
[25] Yet, for the judge, many more factors coalesced to justify the arrest. For example, we have S.T.P. upon initially seeing the police appear nervous and quickly turn his head. The vehicle then immediately turned into the McDonald’s parking lot. Arresting officer Robbie Baird described it all this way:
... Three occupants were in the vehicle. The rear passenger appeared to look back at us in the police car, at which time he noticed the police. The vehicle then made a left turn into the McDonald's parking lot, parked at the rear of the parking lot. I queried ...
Q. Okay. So I'm going to take you back to the point when you first notice the Sunbird. You were driving north Herring Cove Road?
A. Correct.
Q. Okay. So can you tell the Court why this particular vehicle caught your attention?
A. There was three young males in the vehicle. Just when the rear passenger looked at us, it appeared that he became nervous when he seen the police, because just after he looked and noticed the police car, the vehicle turned into the McDonald's parking lot. [AB, pp. 144-145]
[26] Then when Officer Baird “ran the plates”, the computer showed the vehicle connected to “bail violations”, including a reference to “trafficking cannabis”. Although these notations were connected to the vehicle and not necessarily to the passengers, they nonetheless gave the officers even more reason to believe that something illicit was occurring. Again, Officer Baird explains:
A. Okay. Basically there's a toolbar on the top of the computer screen. There's a button that says "T stop" for traffic stop, okay. You just hit that button, query the license plate, and anything that vehicle has ever been involved in or if the vehicle's stolen or if the license plate's stolen or the driver's license will come back on the next screen. So I'd hear a beep, I'd hit next, and then it will tell me everything that vehicle's involved in, and that's when I noticed that it was involved in bail violations.
Q. And when exactly did you do that?
A. That would have been before they turned into the McDonald's parking lot. So it would have been as we were driving down the Herring Cove Road, well before McDonald's. Just ‑‑ my reason to do so was just to see who owned the vehicle and if it was ever involved in anything.
. . .
Q. Okay. Was there anything ‑‑ or I guess what, if anything, on this screen was remarkable to you at the time?
A. What stood out to me?
Q. Right.
A. The bail violations. Also, obviously, the trafficking cannabis. More so the bail violations just because bail violations, when you type up a report on bail ‑‑ bail violations, it could have been ‑‑ the driver of that vehicle could have been breached on an order with a passenger that was in the vehicle. So the passenger and the driver might have no contact with each other, so the reason they do it this way now so we can investigate a situation like that.
Q. Okay. Could bail violations mean something else?
A. It could mean many things, yeah.
Q. For example?
A. It could mean nothing to do with the driver. Could mean ‑‑ could have been pulled over on a certain day. The passenger could have been on a curfew, could have been on house arrest, could have been on an undertaking to stay away from a certain address.
Q. So it would be fair to say or correct to say, I guess, that the bail violations would attach to the vehicle and not necessarily the people who were in it?
A. Correct.
. . .
A. The fourth and fifth lines down, the bail violations, and two above that, the trafficking cannabis would have stood out as well.
Q. Why did that stand out?
A. The ‑‑ which, all of it?
Q. Well, I guess you've spoken about the bail violations, the trafficking cannabis.
A. Okay. Just ‑‑ it just shows that the vehicle's involved in some kind of trafficking at some point, whether it was the occupants that were in the vehicle on that day or different occupants. [AB, pp. 147-151]
[27] Then superimposed on all of this came the smell of marijuana after the vehicle is stopped. Again, Officer Baird explains:
A. Okay. Like I said, when I was first speaking to the male, it was really brief. When the door opened, I could ‑‑ I didn't have to stick my head in to smell it. I could smell it as soon as the door opened. I mean, it wasn't bad enough that a cloud of smoke came at me, but I could ‑‑ I could smell it.
Q. Okay. What ‑‑ what did you think as a result of smelling that?
A. It smelled like ‑‑ that ‑‑ definitely that they just smoked it. It didn't smell like it was in the interior, like a stale smell. It smelled like it was freshly smoked, like, definitely within minutes. [AB, pp. 156-157]
[28] For his part, fellow officer Jason Shannon found the smell to be strong:
Q. Okay. Describe the smell of marijuana.
A. It was an extremely strong odour coming from inside the vehicle, burnt marijuana. [AB, p. 103]
[29] Therefore, consider this context. The officers see three young men in a vehicle and one of them appears nervous upon seeing the police vehicle. Their car then immediately turns off the road into the McDonald’s parking lot. Then a computer check of the vehicle reveals “bail violations” including references to “cannabis”. This would have given the officers strong reason to believe that something illicit was occurring. Then upon smelling burnt marijuana, it became apparent that the illicit activity involved the possession of marijuana. At that point, the test for a summary conviction arrest was met. Specifically, applying the three criteria noted above: (a) the officer was present when the apparent offence was taking place, (b) he detected the smell of burnt marijuana, and (c) the commission of this offence would have been “ ‘apparent’ to a reasonable person placed in the circumstances of the arresting officer at the time”.
[30] Considering the entire context therefore, the judge did not err in finding the arrest to be lawful.
[31] I would dismiss the appeal.
MacDonald, C.J.N.S.
Concurred in:
Saunders, J.A.
Fichaud, J.A.