Two accused, jointly charged with possession of cocaine for purpose of trafficking, applied for exclusion of evidence. One accused was also charged with possession of proceeds of crime. Accused were travelling in rented KIA motor vehicle and were stopped for speeding. During stop, two officers detected smell of marijuana. Questions about smell were asked by police and answers were provided by accused. One officer noticed plastic bag protruding from the pants pocket of passenger and asked about it. That accused was asked to step out of vehicle and retrieved from that pocket was small amount of marijuana after which accused was arrested for simple possession of marijuana. Driver remained in KIA and was investigated for speeding pursuant to Highway Traffic Act (Ont.) (HTA). That accused was asked to step out of KIA so that it could be searched incidental to arrest of passenger. Found beneath passenger seat of KIA was shopping bag containing significant amount of crack cocaine. Thereafter, both accused were charged with possession of cocaine for purpose of trafficking. Application dismissed. Police proceeded to stop KIA for proper regulatory purposes. Fact that they also had criminal investigative interests which, standing alone would not have justified stop, did not give rise to arbitrary detention. Police smelled marijuana, investigated and made observations and they arrested passenger. Arrest occurred within very short period of time on grounds that were developed independent of anything either of accused said in their exchange with police. Questions posed and answers received played no causal role in arrest. Grounds existed independent of this breach due to smell of marijuana and observations of baggie. Court satisfied that both officers had enough experience to identify smell of fresh marijuana in KIA that night; their actions on videotape supported such finding. Question asked (“what’s that”) by officer was more of rhetorical one based on his smell of marijuana, his questions about marijuana and his use of flashlight to direct attention of those present to baggie. Officer persisted in asking “what is that?” two more times because he remained of view that it was marijuana in that pocket. Court accepted that it was intention of police to conduct investigation for speeding pursuant to HTA. That changed when they smelled marijuana and observed baggie.
R. v. Cousins (Oct. 7, 2014, Ont. S.C.J., Kelly J., File No. CR/14/900000/550000) 116 W.C.B. (2d) 585.