New & Notable: Definitely not that "new car smell"...ONCA reiterates propriety of dual purpose stops

Kwesi Morris was pulled over by the police because they wanted to verify his documentation under the Highway Traffic Act (“HTA”).  The police smelled fresh marijuana and so arrested Morris and searched him and the car.   They found drugs and a loaded handgun in the car.  Morris argued that the drugs and gun should have been tossed out as evidence by the trial judge because, according to him, the police used the HTA as a pretext for an unauthorized stop and search.  The Ontario Court of Appeal disagreed: 2013 ONCA 223.


The sections 8 & 9 issue

Shortly after midnight, police were on patrol and were running license plate checks on cars on the road.  They ran Morris’ plate and learned that there was a “caution” flag on the file for the registered owner.  The report also contained the warnings “armed and dangerous”, “violent” and “domestic violence.”   Police pulled the car over to identify the driver and ensure that the documentation was in order.  Both officers understood that if the HTA documents were in order, they would have to allow the driver to be on his way.

While conducting the traffic stop, the officers noticed a strong smell of fresh marijuana emanating from the car.  The police believed Morris to be in possession of marijuana and so they arrested him and searched him and his vehicle.  They found crack cocaine, marijuana and a loaded handgun in a hidden compartment at the base of the gearshift: 2011 ONSC 5142.

The Ontario Court of Appeal upheld the trial judge’s dismissal of Morris’ applications alleging breaches of ss. 8 and 9 of the Charter.  The trial judge found that the officers had a valid reason under the HTA for stopping the car and that their intention was only as stated (to check documentation) until they detected the odour of fresh marijuana.  The fact that the officers may have had a particular interest in identifying the driver of Morris’ vehicle because of the flags they saw on their police information system did not render the stop improper.  The Court reiterated the comments of Doherty, J.A. in Brown v. Durham Regional Police Force (1998), 43 O.R. (3d) 223 (C.A.):

 “...The gathering of police intelligence is well within the ongoing police duty to investigate criminal activity.  As long as the additional police purpose is not improper and does not entail an infringement on the liberty or security of the detained person beyond that contemplated by the purpose animating s. 216(1) of the HTA, I see no reason for declaring that a legitimate police interest beyond highway safety concerns should taint the lawfulness of the stops and detention.”

The trial judge went on to find that the odour of fresh marijuana provided the officers with reasonable and probable grounds for the arrest and incidental search.  Morris challenged this finding.  The Court of Appeal held that while placing undue reliance upon “smell” evidence is to be avoided, there is “no legal barrier to the use of such evidence” and the trial judge’s finding on this point was not open to appellate review.

The section 10(b) issue

Morris also alleged that in failing to immediately advise him of his right to counsel and in asking him questions before his arrest but after the formation of reasonable and probable grounds, the officers breach his s. 10(b) Charter rights.  The trial judge agreed that there was a breach but that it was relatively minor and that there was no nexus between the breach and the discovery of the drugs and gun.  The Crown did not rely on any statements made by Morris in justifying the search under s. 8.  Applying the factors set out in R. v. Grant, 2009 SCC 32, the trial judge found that the evidence should be admitted, pursuant to s. 24(2), notwithstanding the breach of s. 10(b).  The Court of Appeal upheld this finding.

The enhanced credit for pre-trial custody issue

Lastly, the trial judge held that although Morris was not detained under ss. 524(4) or (8) of the Criminal Code, the fact that he`d been on bail and bound by a weapons prohibition when he was arrested for these offences was analogous to ss.  524(4) and (8).  She accordingly denied him enhanced credit for pre-trial custody.  The Court of Appeal agreed with her approach in taking all of the circumstances into account as well as with her conclusion that enhanced credit was not appropriate in this case.