Mar 18, 2014

Summary of R. v. Stone

R. v. Stone, 2009 NSPC 10 (CanLII)
The accused was arrested for possession of drugs and a weapon, and for breaching his probation. Police testified they saw him walking down the street at 10am and noticed a strong smell of marijuana. When approached, he was smoking a cigarette in front of the provincial courthouse. He said he had smoked marijuana on the street, but did not have any other drugs on him. After they spoke, he asked to leave, saying he was late for a court appointment. The police asked him to deal with this matter first, ran a CPIC check and discovered the accused was on probation and required to keep the peace and be of good behaviour. He was not cautioned/advised of his right to counsel until he was arrested on the basis of what the Crown claimed was a reasonable belief the accused possessed drugs. Police conducted a 'pat-down' search, and found drugs (marijuana and cocaine) and a weapon. The accused argued his Charter rights were violated (s. 8, 9 and 10(b)) and asked the court to exclude the evidence obtained in the search. He also argued his admission/statement was not voluntary and should be excluded on the basis that it was given in the context of a violation of his Charter rights.Motions to exclude the statement and evidence obtained in the search denied. The accused's s. 8 and 9 rights were not breached. While his s. 10(b) rights were violated when he asked to leave and the officers asked him to deal with this first (which amounted to detention), his admission/statement was made before the detention and was voluntary. Further, no evidence was obtained as a result of the breach since the search only took place after the arrest/cautioning. After reviewing the relevant jurisprudence, the court concluded: the Crown must prove the arresting officer subjectively believed they found an offence apparently being committed; that subjective belief must be objectively reasonable; police may rely on an inference in forming their belief (such as the inference that marijuana smokers typically carry a supply with them); and that inference must be objectively reasonable in light of the circumstances and facts of the case. Here, the officer's subjective belief that the accused was in possession of drugs was objectively reasonable. The court accepted her evidence that she had special training in identifying the smell of marijuana and distinguishing between a strong and faint smell of marijuana. The CPIC check showed he was on probation in relation to a drug charge. Since the officer had the authority to arrest under s. 495(1)(b) of the Criminal Code, the arrest was lawful. The search taking place incidental to the arrest was reasonable. In obiter, the court went on to say that, even if the accused's s. 8 and 9 Charter rights had been breached, an analysis under s. 24 would lead to a decision not to exclude the evidence: it was not conscriptive; the offence was serious; there was no bad faith on the part of police; and the accused could have lawfully been arrested for admitting to what was a breach of his probation.