Case Name:
R. v. Hibbert

Between
Her Majesty the Queen, and
Quenston Hibbert

[2003] O.J. No. 5897

Ontario Court of Justice
Toronto, Ontario
Casey J.

Heard: June 16, 2003.
Oral judgment: June 16, 2003.
(19 paras.)

       Constitutional law — Canadian Charter of Rights and Freedoms — Legal rights — Protection against arbitrary detention or imprisonment — Protection against unreasonable search and seizure — Remedies for denial of rights — Specific remedies — Exclusion of evidence — Where administration of justice brought into disrepute — Criminal law — Controlled drugs and substances — Possession or trafficking — Powers of search and seizure — Search — Warrantless search — Compelling appearance, detention and release — Arrest — Without a warrant — Reasonable and probable grounds.

       Application by the accused, Hibbert, from a declaration that his rights under the Canadian Charter of Rights and Freedoms were violated. Hibbert was charged with possession of cocaine. Five police officers were doing a walk-through of Hibbert's apartment building when they smelled marijuana, heard voices, and saw one individual throw something down the stairwell. The officers arrested Hibbert and the others. During the search, the officer located cocaine in Hibbert's back pocket.

       HELD:  Application allowed. The cocaine evidence was excluded from the trial. The officer did not have reasonable grounds to arrest Hibbert. There was no object in Hibbert's possession which would justify the officer's belief that Hibbert recently possessed marijuana. There were three persons present and no evidence as to who had smoked the marijuana. While the officer was motivated by his belief that an offence had been committed, he did not act in good faith. The breach was serious. If Hibbert had not been arrested, the cocaine may not have been discovered. The offence was not insignificant. The evidence seized was essential to the prosecution.

Statutes, Regulations and Rules Cited:

Canadian Charter of Rights and Freedoms, 1982, ss. 8, 9, 24.

Controlled Drugs and Substances Act, s. 4(3).

Counsel:

Ms. W. Levant, Counsel for the Crown.

Mr. N. Gorham, Counsel for the Accused.


RULING ON CHARTER APPLICATION

 1      CASEY J. (orally):— This is a ruling on a Charter application brought pursuant to a Notice of Application filed May 22nd of this year alleging a violation of Mr. Hibbert's rights under s. 8 and s. 9 of the Charter of Rights and Freedoms.

 2      My. Hibbert is charged that on or about the 16th day of December in the year 2002, in the City of Toronto, in the Province of Ontario, did unlawfully possess a controlled substance, to wit: a quantity of Cocaine, contrary to s. 4(3) of the Controlled Drugs and Substances Act.

 3      On the Charter motion three witnesses gave evidence. Mr. Hibbert was called by the defence and Officers Davis and Bradley, both members of the Toronto Police Services, were called by the Crown. It is not my intention to set out in detail all of the evidence given by the various witnesses. I found that all of the witnesses appeared to give their evidence in a forthright manner. I note that much of the evidence of the witnesses is consistent and such discrepancies as exist I believe are attributable to reasonable differences in recollection between the witnesses.

 4      The evidence on the motion revealed that on December the 16th Officers Davis and Bradley, along with three other members of the Toronto Police Services, were doing a floor by floor walk-through of the apartment building located at 1381 Eglinton Avenue East in Toronto. The officers had completed their patrol and were at the west stairwell on the sixth floor when they heard voices and smelled what Sergeant Davis indicated he believed was the smell of fresh Marijuana which appeared to be getting heavier or stronger. Sergeant Davis further indicated that he associated the voices with the smell of the Marijuana and directed two officers to take the elevator while he and two other officers descended by way of the stairs. It was Sergeant Davis' evidence that when he attended at the fourth floor he observed through the glass in the door which separated the stairwell from the hall Officers Green and Kostiac, whom he had directed to take the elevator, speaking with an individual. The officer further indicated that he observed an individual try to go through that door. Sergeant Davis indicated he prevented the person from going any further and noticed that person throw something down the stairwell. Officer Davis then advised all three persons who were present that they were all under arrest for possession of Marijuana and took control of Mr. Hibbert. During his dealings with Mr. Hibbert, Officer Davis asked Mr. Hibbert his name and when Mr. Hibbert replied, Officer Bradley reminded Officer Davis that there was a warrant outstanding for Mr. Hibbert and Mr. Hibbert was also then arrested on the outstanding warrant. During the search of Mr. Hibbert, Officer Davis located numerous items including, in Mr. Hibbert's back pocket, the substance which is the subject matter of the charge before the Court.

 5      It is the submission of Mr. Gorham who appears as agent for Mr. Hibbert that Sergeant Davis lacked reasonable and probable grounds to arrest Mr. Hibbert, therefore, violating Mr. Hibbert's rights under s. 9 and that the subsequent search which he submits was carried out pursuant to the power of arrest was a violation of Mr. Hibbert's rights under s. 8 of the Charter.

 6      It is the submission of Ms. Levant, Crown counsel, that the officer had reasonable grounds to arrest Mr. Hibbert, specifically the strong smell of the Marijuana; the fact that the area was described as one of high criminal activity; the combination of the odour of Marijuana and the loud voices heard by the officers in the stairwell and the actions of the male whom Officer Davis described as exiting the door. She further submits that, in any event, Mr. Hibbert was simultaneously arrested on the strength of the outstanding warrant and that the search would have been lawful as incident to that arrest.

 7      The search being without warrant, the burden is upon the Crown to establish that the search was reasonable. See the decision of the Supreme Court of Canada in Regina v. Collins, reported [1987] 1 S.C.R. 265, C.C.C. (3d) 1. In the recent decision of the Ontario Court of Appeal in Regina v. Polashek, [1999], 134 Canadian Criminal Cases (3d), 187, Justice Rosenberg, speaking for the court noted at page 194, paragraph 13:

"I agree in part with the appellant's position. Had Constable Ross based his arrest of the appellant solely on the presence of the odour, I would have held that there were not reasonable and probable grounds to make the arrest. Given Constable Ross' admission that he could not, from the odour alone, determine whether the Marijuana had been smoked recently, or even if he was detecting the smell of smoked Marijuana. The presence of odour alone did not provide reasonable grounds to believe that the occupant was committing an offence. The sense of smell is highly subjective and to authorize an arrest solely on that basis puts an unreviewable discretion in the hands of the officer. By their nature, smells are transitory and thus largely incapable of objective verification. A smell will often leave no trace. As Doherty J. observed in Regina v. Simpson, 12 O.R. (3d) 182, page 202, 'subjectively based assessments can too easily mask discriminatory conduct based on such irrelevant factors as the detainee's sex, colour, age, ethnic origin, or sexual orientation'. Justice Rosenberg continued, 'on the other hand, I would not go so far as was urged by the appellant that the presence of the smell of Marijuana can never provide the requisite reasonable and probable grounds for an arrest. The circumstances under which the olfactory observation was made will determine the matter. It may be that some officers through experience or training can convince the trial judge that they possess sufficient expertise that their opinion of present possession can be relied upon'. Even in this case the Crown adduced sufficient evidence from which the trial judge could reasonably conclude that Constable Ross accurately detected the odour of Marijuana rather than some other substance."

 8      While there is no evidence before me as to the experience or training of the officers, there is, however, evidence regarding the location, specifically that it was an area of concern to the police. I also accept the evidence of Sergeant Davis regarding his observations of the person whom he testified he first encountered, including the hand motion of the individual which was described by the officers.

 9      Finally, I also note the comments of Justice Rosenberg in Regina v. Polashek at page 197, paragraph 19, where His Lordship notes:

"I am not satisfied that based on this record the finding of reasonable grounds was unreasonable. I recognize that this is a close case. There is no cloud of smoke attending the smell. The officer did not observe any object in plain view in the car that would support the recent possession of Marijuana. The evidence does not disclose the extent of the officer's experience in making arrests for Marijuana offences although there is an indication of his participation in many such arrests. However, in Regina v. Golub, 34 O.R. (3d) 743, (citation omitted) Doherty, J.A. held that the test for finding reasonable grounds for arrest is not as exacting as it might be in other situations where reasonable grounds are required such as considering the validity of a search warrant."

 10      His Lordship then quotes:

"Mr. Harris' reliance on the search warrant cases is misplaced. Both the justice and arresting officer must assess the reasonableness of the information available to them before acting. It does not follow, however, that the information which would not meet the reasonableness standards on an application for a search warrant will also fail to meet the standard in the context of an arrest. In determining whether the reasonableness standard is met, the nature of the power exercised and the context within which it is exercised must be considered. The dynamics in play in an arrest situation are very different from those which operate on an application for a search warrant. Often the officer's decision to arrest must be made quickly in a volatile and rapidly changing situation. Judicial reflection is not a luxury the officer can afford. The officer must make his or her decision based on available information which is often less than exact or complete. The law does not expect the same kind of inquiry of a police officer deciding whether to make an arrest that it demands of a justice faced with an application for a search warrant."

 11      His Lordship then continued, as Cory, J. pointed out in Regina v. Storrey, [1990] 1 S.C.R. 241, (citation again omitted):

"The Criminal Code requires that an arresting officer must subjectively have reasonable and probable grounds on which to base the arrest. Those grounds must, in addition, be justifiable from an objective point of view. On the other hand, the police need not demonstrate anything more than reasonable and probable grounds. Specifically, they are not required to establish a prima facie case for conviction before making the arrest."

 12      In this case I note that Sergeant Davis does not testify to noting any object in the possession of Mr. Hibbert which would support his belief in Mr. Hibbert's recent possession of Marijuana. While the witnesses used the word "smoke", I am uncertain as to whether they actually meant odour instead of actual smoke. And perhaps most importantly, since there were three persons present when the officers attended, there is no evidence as to by whom the Marijuana had been smoked.

 13      In the decision of the Supreme Court of Canada in the case of Feeley v. The Queen, which is reported (1952), 104 C.C.C. 255, Chief Justice Cartwright speaking for the court noted at page 258:

"There was evidence that Reed, Pergo, and Meechan were all found by the police in the cellar room under the building in question containing the oil furnace. There was evidence from which it would have been open to the jury to draw the inference that one or more of them had been burning in the furnace pieces of paper which it was open to the jury to infer were betting slips. But there was no evidence from which the jury could infer that all three of them taken in part in this, or from which it could be determined which one had been doing it. This being so, the effect of this item is only to warrant the drawing of an inference that each of the three were present while betting slips were being destroyed. It does not warrant the drawing of the inference as to any one of them that he destroyed betting slips."

 14      In my opinion, these comments are applicable to this case. I am not satisfied that Sergeant Davis when he first attended had reasonable grounds to arrest Mr. Hibbert and find that in arresting and searching him on the charge of possession of Marijuana he violated Mr. Hibbert's rights under s. 8 and s. 9 of the Charter.

 15      Turning to the issue of the s. 24 analysis. As indicated, I am not satisfied on the evidence before me that Sergeant Davis had reasonable grounds to believe that Mr. Hibbert was in possession of Marijuana.

 16      Dealing first with the aspect of fairness of the trial. I note that the evidence is non-conscriptive as that term has been used in the jurisprudence. See in the decisions of the Supreme Court of Canada in Regina v. Simmons, [1988]2 S.C.R. 495 45 C.C.C. (3d) 296, and Regina v. Stillman, [1997] 1 S.C.R. 607. Accordingly, its admission would not affect the fairness of the trial.

 17      Turning to the second category, the seriousness of the violation. In considering the factors under this section I consider whether the violation was committed through inadvertence or in good faith, rather than being deliberate, wilful, or flagrant. I also consider whether the violation was motivated by urgency or necessity to prevent the loss or destruction of evidence. While I believe that Sergeant Davis was motivated because of a belief on his part that an offence had been committed, I cannot say that he was acting in good faith as that term has been defined in the cases. The breach was serious and I cannot say that had Mr. Hibbert not been arrested on the possession of Marijuana charge that the evidence would have been discovered.

 18      Finally, dealing with the factors relating to the effect of excluding the evidence, I note that this is not an insignificant offence and that the evidence seized is essential to the prosecution of the accused. When I take into account, however, all of the evidence and the factors set out in Collins I am satisfied that the administration of justice could be brought into disrepute if the evidence were admitted. As Justice Yacaboucci stated in Regina v. Burlingham (1995), 97 C.C.C. (3d) 385, at page 408:

"The goals of preserving the integrity of the criminal justice system as well as promoting the decency of investigatory techniques are of fundamental importance in applying s. 24(2)."

 19      In the result, the evidence of the finding of the substance will be excluded from the trial.

CASEY J.

QL UPDATE:  20041001
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