New & Notable: RPG

The recent decision by the Supreme Court is perhaps not the most ground breaking one of late, although it does offer insight into how relevant an odour of fresh burnt marijuana can be in formulating grounds, nonetheless, it does present an interesting fact scenario that is worth consideration.
The appellant was stopped for speeding.  When the officer approached the appellant he noted an odour that he believed to be "fresh burnt marijuana" that led him to believe that marijuana had been smoked in the car in the last couple of hours.  The appellant was unable to produce a driver's licence and the vehicle was not registered in his name.  The officer asked the appellant to step out of his vehicle and come to the cruiser so he could confirm the appellant's identity.  When the appellant stepped out of the vehicle the officer noted a bulge in his pants pocket.  The officer did a pat down search, for safety, and then asked the appellant to take out what was in his pocket - the appellant produced a large bundle of cash, mostly $20s. 
The appellant was then taken to the cruiser where the officer ultimately ticketed him for speeding.  Interestingly, it appears that the officer had, on the basis of the odour and bundle of cash, formulated grounds for an arrest for possession over 30 grams (relying on the powers of arrest in section 495(1)(a)).  After processing the appellant for the speeding ticket - and, as the officer later testified, refraining from asking the appellant questions about anything other than the traffic offence - the officer arrested the appellant for possession.  The officer then conducted a search of the appellant's car and located 100 grams of crack cocaine.
At trial the appellant sought the exclusion of the evidence based on an alleged violation of section 8 in the context of RPG for the arrest.  The trial judge found there were RPG - notably distinguishing R v Janvier, 2007 SKCA 147 [para 21] - and admitted the evidence: R v Loewen2008 ABQB 660, 2008 CarswellAlta 1637, [2008] AJ No 1187.  A majority of the Court of Appeal dismissed the appeal: R v Loewen, 2010 ABCA 255, 2010 CarswellAlta 1721, [2010] AJ No 980.
On appeal to the Supreme Court the Court unanimously dismissed the appeal: 2011 SCC 21, [2011] SCJ No 100.  The ruling on the central issue is quite succinct and simple: "We see no error in the conclusion of the trial judge...[t]he evidence was sufficient to support her inference that the necessary grounds for arrest existed" [para 7].  In so concluding, McLachlin CJ, on behalf of the Court, found that an odour of fresh burnt marijuana, together with the bundle of cash, provided objectively reasonable grounds for the arrest. 
The two issues that aren't discussed in any detail, interestingly, related to the issue of the "pat down" search and the investigative detention. 
First, on the issue of the pat down search, at trial the trial judge noted, in her reasons on the voir dire, that "[n]o issue was taken with the legitimacy of the search for officer safety of the large bulge in the accused's pants pocket..." [para 18].  Since no issue was taken, the court obviously would not have considered it and accordingly neither would either of the appellate courts, however, it is interesting to note that this very type of search - investigating a soft bulge - was disapproved of by the Supreme Court in Mann [2004 SCC 52, 2004 CarswellMan 303[2004] SCJ No 49] as a legitimate investigative detention pat down search.  The following excerpt from Mann is illustrative: 
The officer's decision to go beyond this initial pat-down and reach into the appellant's pocket after feeling an admittedly soft object therein is problematic. The trial judge found that the officer had no reasonable basis for reaching into the pocket. This more intrusive part of the search was an unreasonable violation of the appellant's reasonable expectation of privacy in the contents of his pockets
On this basis, it seems that the defence may have had a good argument to exclude evidence which was an essential part of the officer's RPG.  Although, perhaps there is a distinction.  In Mann the officer reached in the pocket, whereas here the officer simply asked the appellant to remove that which was in his pocket.  Is it a violation of section 8 to reach in one's pocket, but not if one removes it, while being detained, at an officer's request?  There is no doubt that questions can amount to a search within the meaning of section 8, although it may have required the appellant to testify to establish that in this case.   
Yet, if this distinction is relied upon, it raises the second point noted above: investigative detention.  If the odour of burnt marijuana and the bundle of cash amounts to RPG for an arrest - as the Supreme Court has accepted - then surely the odour alone amounts to reasonable suspicion.  If so, then there is at least a good argument that the appellant was under investigative when asked to remove the items.  Indeed, there seems to be some appreciation of this fact in the trial decision where Ross J notes as follows:
The sergeant said he knew he could not and did not question the accused about drugs until after he had arrested him for possession of drugs, read the Charter rights and caution, and the accused had said he did not wish to contact a lawyer [para 10].
If the appellant was under investigative detention, was there a violation of section 10(b)?  This issue was not canvassed in the courts.  If it had been, perhaps the answer is that although there was a basis for an investigative detention - for the possession charge - the appellant was otherwise lawfully detained for the speeding offence and, so long as the officer held off obtaining evidence from the appellant on the possession charge, he could further that investigation and not provide the right to counsel.  While this situation will frequently arise in motor vehicle stop situations - and perhaps that is the reason why the issue of investigative detention did not arise - the question will undoubtedly arise in the future in the context of a non motor vehicle situation.  
DG Mack