The Appellant, Craig Boyd, was charged with possession of cocaine for the purpose of trafficking after a search of his vehicle resulting from a police road block. The officer who stopped his vehicle apparently smelled an odour of burnt marijuana, then placed Mr. Boyd under arrest. The search of the vehicle upon arrest yielded a plastic bag, containing four smaller plastic bags of cocaine.
At trial, the judge found that the mere odour of burnt marijuana is not sufficient to support the inference that an individual is in possession of drugs. The trial judge therefore found that Mr. Boyd’s Charter rights had been infringed and excluded the evidence, resulting in an acquittal.
In considering the Crown’s appeal, the BC Court of Appeal considered a broad range of apparently contradictory case law on the issue of whether the smell of burnt marijuana constitutes reasonable grounds for arrest. Rather than making a decisive statement on this issue, the court provided for judicial discretion, finding that trial judges must engage in a fact-driven analysis when this question comes up.
Mr. Justice Hall, writing for a unanimous court, agreed with the trial judge that the smell of burnt marijuana is not necessarily grounds to perform an arrest, but found that it is one of several circumstances that can be taken into account in determining whether a reasonable person would conclude that the accused is “committing an offence” and can therefore be arrested.
“ Ultimately, I venture to suggest that a court faced with such an issue cannot be too categorical in determining when an arrest under s. 495(1)(b) will or will not be supportable. The jurisprudence in this province seems to support the thesis that a full consideration of all relevant circumstances needs to be made by the trier of fact…
 Since this case can be seen as one near the line where different triers of fact could reach different conclusions, I am not persuaded that this appeal should succeed and accordingly I would dismiss the appeal.”
Decided by the BC Court of Appeal on January 17, 2013.
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