R. v. Janvier .2007 SKCA 147 Docket: 1218
Between: Docket: 1218
Her Majesty the Queen
- and -
Archibald Valentine Janvier
Klebuc C.J.S., Jackson & Smith JJ.A.
Douglas G. Curliss for the Appellant
Ronald P. Piche for the Respondent
From: Provincial Court
Heard: June 4, 2007
Disposition: Appeal Dismissed
Written Reasons: December 14, 2007
By: The Honourable Madam Justice Jackson
In Concurrence: The Honourable Chief Justice Klebuc
 This appeal concerns the question whether the law permits a police
officer to arrest or search someone for the summary conviction offence of
possession of marihuana, without a warrant to do so, if the officer smells
burned marihuana alone.
 Archibald Janvier was originally charged with possession of marihuana
based on the smell of burned marihuana. Subsequent searches of his person
and vehicle revealed eight grams of marihuana and what was thought to be a
list of contacts, resulting in a charge of possession of marihuana for the
purpose of trafficking contrary to s. 5(2) of the Controlled Drugs and
 Kalenith P.C.J. found that the search was unreasonable, excluded the
evidence of marihuana and acquitted Mr. Janvier. The Crown appeals,
pursuant to s. 676(1)(a) of the Criminal Code. I would dismiss the Crown’s
appeal, and sustain the acquittal.
 The Crown sought to support the police authority to conduct the search
on three separate bases: (i) pursuant to the common law power incidental to
a warrantless arrest made in accordance with s. 495(1) of the Criminal Code;
(ii) pursuant to the warrantless search power contained in s. 11(7) of the
Controlled Drugs and Substances Act; and (iii) pursuant to the common law
power incidental to a lawful detention.
 Section 676(1)(a) permits the Crown a right of appeal from an acquittal
on any ground of appeal that involves a question of law alone. These are the
questions of law:
1. Does s. 495(1)(b) of the Criminal Code permit a police officer to arrest
someone for possession of marihuana based on the smell of burned
2. If not, does the smell of burned marihuana alone give rise to reasonable
grounds to effect a warrantless search under s. 11(7) of the Controlled
Drugs and Substances Act?
3. If not, does a lawful detention justify a search based on the smell of
burned marihuana alone?
4. If the trial judge did not err in finding the search to be unreasonable, did
he err in excluding the evidence, resulting from the search, pursuant to
s. 24(2) of the Canadian Charter of Rights and Freedoms?
Defence counsel did not assert that if the arrest was found to be unlawful, it
was also arbitrary so as to engage s. 9 of the Charter. Nothing turns on this
in the result, such that the issue need not be addressed.
III. Circumstances of the Case
 On February 1, 2004, at 1:04 a.m., a police officer, Cst. Amundsen, saw
a truck with a broken front headlight being driven by Mr. Janvier in La Loche
in northern Saskatchewan, and stopped him directly in front of the RCMP
 Cst. Amundsen testified that when he was within a meter of the truck,
he could smell burned marihuana. The strength of the odour of burned
marihuana led him to conclude that someone had been smoking marihuana in
the truck possibly within the past 20 minutes:
Q Okay. Just backing up, you were describing a smell and I'm not sure if the
Judge was observing you. You were motioning with your hands. Can you give us
a sense of how strong the smell was.
A It was very strong and it was windy out that night, windy and cold, and for
me there was – it was no question that in my opinion that either someone, him I
presume, had either been smoking marihuana in there as I pulled the vehicle over
or possibly within the last 20 minutes, something like that.
A But it was very strong.
Q Okay. And this very strong smell of marihuana, could you identify – I think
you – you mentioned about somebody possibly smoking. Can you identify whether
it was burning marihuana or raw marihuana product that you smelled?
A Well, my experiences, though aren't vast, I find that burnt marihuana has a
more pungent odour, has a different odour to it, and in my opinion it was burnt
marihuana, not packaged or raw or unburnt marihuana.
Q Okay. If you could just talk for a minute, please, about your – your
experience and training, if that applies, regarding the smell of marihuana, burnt or
A Right. Well, my life prior to becoming a police officer I was exposed to
marihuana on various occasions in social situations but once I became a police
officer it was – I would estimate that I made 10 to 15 very similar arrests in
Assiniboia Detachment area, traffic stop, the smell of burnt marihuana coming
from a vehicle and search based on that and arrest – or arrest and then search based
on that and finding marihuana. Similar circumstances on previous occasions.
Q Okay. And then did you have some experience with marihuana smell after
you were posted to La Loche but before this particular stop.
A I believe this was the first marihuana seizure that I made in La Loche.
Q Okay. And since this incident of February 1, 2004, have you had other
investigations or opportunities to smell marihuana?
A Yes, I have.
Q Tell us about that, please.
A Well, we did a search – executed a search warrant on a house in November
of 2004 where there was a lot of marihuana in that residence. Numerous times
we've arrested people and searched them and found various states of marihuana,
either in baggies or little pinners they call them up here, they're, little tiny, thin
joints. There's been other vehicle stops made by other members where there's –
Q Okay. I'm interested in what –
A – similar smell.
Q I'm interested in what your observations –
A Oh, well, but I was with –
Q All right.
A – that they initiated where a similar smell could be identified coming from
Q Okay. You mentioned earlier that the – the smell from Mr. Janvier's vehicle
that he was operating was very strong and you mentioned the – the wind. Why did
you mention the wind?
A Because it was—it was surprising to me that even prior to – on previous
occasions you might get a hint of marihuana when the driver rolls the window
down and so you'll try and get closer to get a better, I guess, olfactory indication as
to whether or not there is marihuana in the vehicle, but I was still probably from
here to the table away, the edge of the table.2
 Cst. Amundsen immediately arrested Mr. Janvier, the truck’s sole
occupant, and proceeded to search him and his truck. He found one gram of
marihuana in a clothing pocket, seven grams in a boot and a trace amount in
the truck’s console. The officer also found what he believed to be a list of
contacts and money in denominations consistent with trafficking; hence, the
replacement of the charge of possession with a trafficking charge.
2 Trial Transcript, p. 8, line 5 to p. 10, line 25.
IV. Trial Judge’s Decision
 The trial judge found that the officer's basis for proceeding to arrest and
then to search Mr. Janvier for possession of marihuana was the smell of
burned marihuana and suspicion as to the presence of more, unsmoked
marihuana. He held that this was insufficient to provide the necessary
grounds to arrest or search:
... the odour of burnt marihuana alone does not provide the necessary
grounds to arrest someone. They do not provide the necessary reasonable and
probable grounds. And I come to that conclusion with respect to the reasonable and
probable grounds because it's my view, having considered a number of cases that
have considered this, that the odour of marihuana alone indicates only that
marihuana has been consumed. When it's in a confined space and, as the Crown
argues in this case it being in a confined space provides reasonable and probable
grounds to arrest the person who's in that confined space, I disagree with that
argument. I conclude that the odour in a confined space causes suspicion, a
reasonable suspicion that a person has consumed marihuana but does not provide
the reasonable and probable grounds for arrest or for search. It's my view,
considering the case law, that something more than mere odour is necessary.
For example, when considering that issue in the – in the decision – the
Cornell decision, a decision of Judge Stanfield of British Columbia who is now the
Head Chief Judge of the Provincial Court of British Columbia, he made reference
to a situation, a personal experience where he and his wife entered onto a gondola
at a ski hill area and in entering onto the gondola he stepped into a cloud of
marihuana smoke, a thick, dense cloud of marihuana smoke, he indicated, and he
suggested that had he been asked at the time he would have thought it absurd to
suggest there weren't reasonable and probable grounds to believe the persons who
just exited from the confined space had been in possession of marihuana and would
have thought it would have been reasonable for a police officer to go to the next
step and undertake an investigation. What existed in that case, though, was not just
the odour of marihuana smoke but the dense cloud and that is one of the things that
the cases refer to. The cases, in my view, refer to something more than simply the
odour. The presence of a dense cloud, in my view – it doesn't even have to be a
dense cloud – the actual visible smoke indicates recency of marihuana having been
In other cases the odour of marihuana on an accused person's breath, signs
of the accused that are consistent with consumption of marihuana or in this case
other physical things such as ash from consumption of the marihuana or butts that
would indicate recent consumption are all consistent with the person in the
confined space having consumed the marihuana but there is no evidence of any of
those things in this case and it's my view that, given the evidence of Constable
Amundsen that he hadn't been following the vehicle before, that consumption – or
that the detection of the odour could mean anything from recent consumption to
consumption as long ago as 20 minutes, that while it is suspicious that the accused
is present in the vehicle I conclude it shows only that marihuana was consumed in
the vehicle, not necessarily that the accused is the person who consumed the
marihuana in the vehicle and it's my view in the circumstances that therefore there
are no the reasonable and probable grounds for arrest and there also are not the
reasonable and probable grounds necessary for – that are necessary for search and
that in the circumstances that amounts to a violation of section 8 which protects the
accused against unreasonable search and seizure.3
Having found no authority for the warrantless search, the trial judge found a
violation of Mr. Janvier’s s. 8 Charter right to be free from unreasonable
search and seizure. The trial judge then proceeded to determine the
appropriate remedy for the Charter breach. After assessing the factors to be
examined under s. 24(2) of the Charter, he excluded the evidence and
acquitted the accused. From this, the Crown took the within appeal, arguing
error with respect to the trial judge’s conclusions regarding the arrest power,
s. 8 and s. 24(2) of the Charter.
1. Search Incident to Arrest
1.1 Was Mr. Janvier arrested under s. 495(1)(a) or (b) of the Criminal
 The starting point in a case concerning the power to arrest is to
determine under what authority the accused was arrested. Police powers of
arrest without warrant are contained in s. 495(1) of the Criminal Code:
495 (1) Arrest without warrant by peace officer – A peace officer may arrest
3 Ibid. at p. 94, line 16 to p. 97, line 6.
(a) a person who has committed an indictable offence or who, on reasonable
grounds, he believes has committed or is about to commit an indictable
(b) a person whom he finds committing a criminal offence, or
(c) [not applicable].
Thus, the arrest power depends on the type of offence for which the person is
being arrested. A police officer may arrest anyone he or she finds committing
an offence. But if a police officer only believes, albeit on reasonable grounds,
that someone has committed or is about to commit an offence, the offence
must be an indictable one before the police officer can arrest. The distinction
is a significant one in that it means, with respect to summary conviction
offences, a police officer can only arrest a person he or she finds committing
 Cst. Amundsen testified that he arrested Mr. Janvier for possession of
A Okay. As I approached the vehicle I approached on the driver's side and as
I walked up to the window the driver, who was the lone occupant of the vehicle,
rolled the window down and as soon as I got there, there was the smell of
marihuana coming from the vehicle and my first words were to him – it was either,
"step out of the vehicle, you're under arrest for possession of marihuana," or,
"you're under arrest for possession of marihuana, please step out of the vehicle." It
was one of those things. 4
 The Crown raised the possibility that Cst. Amundsen had arrested Mr.
Janvier for transporting marihuana, which is an indictable offence created by
s. 5(1) of the Controlled Drugs and Substances Act, so as to be able to rely on
4 Ibid. at p. 7, lines 7 to 17.
s. 495(1)(a) of the Criminal Code as opposed to s. 495(1)(b), but this is
contrary to the above evidence.
 Section 495(1)(a) does not refer to an offence that may be either
indictable or summary conviction, but to "an indictable offence." Possession
of marihuana, however, can be either an indictable or a summary conviction
offence depending, in part, on the quantity of the drug. Sections 4(1), (4) and
(5) of the Controlled Drugs and Substances Act provide:
4. (1) Except as authorized under the regulations, no person shall possess a
substance included in Schedule I, II or III.
. . .
(4) Subject to subsection (5), every person who contravenes subsection (1)
where the subject-matter of the offence is a substance included in Schedule II
(a) is guilty of an indictable offence and liable to imprisonment for a term not
exceeding five years less a day; or
(b) is guilty of an offence punishable on summary conviction and liable
(i) for a first offence, to a fine not exceeding one thousand dollars or to
imprisonment for a term not exceeding six months, or to both, and
(ii) for a subsequent offence, to a fine not exceeding two thousand dollars
or to imprisonment for a term not exceeding one year, or to both.
(5) Every person who contravenes subsection (1) where the subject-matter of
the offence is a substance included in Schedule II in an amount that does not exceed
the amount set out for that substance in Schedule VIII is guilty of an offence
punishable on summary conviction and liable to a fine not exceeding one thousand
dollars or to imprisonment for a term not exceeding six months, or to both.
Marihuana is a substance included in Schedule II, but the quantity established
in Schedule VIII is 30 grams. Thus, in relation to the simple possession of
marihuana, s. 4(5) applies in this case to dictate summary conviction
proceedings as Mr. Janvier had less than 30 grams of marihuana in his
 In any event, Cst. Amundsen never advised Mr. Janvier that he was
being charged with possession of marihuana as an indictable offence. There
was no other evidence that might have persuaded Cst. Amundsen to believe in
a quantity in excess of 30 grams and there would be no basis, on smell alone,
to determine a precise quantity. Thus, he must be taken to have placed Mr.
Janvier under arrest for the summary conviction offence of possession of
marihuana, which means that the police authority to arrest must be found in
 The trial judge spoke of "reasonable and probable grounds" and did not
identify the section under which he was addressing the police power of arrest.
Judges and authors continue to speak of "reasonable and probable grounds"
(see, e.g., R. v. Storrey5), perhaps because of the way in which s. 495(1)(a) was
amended. Section 495(1)(a) was re-enacted as part of the 1985 revision of
statutes (see Criminal Code, R.S.C. 1985, c. C-46 which came into effect
December 12, 1988). Section 495(1)(a) was formerly s. 450(1)(a), prior to the
1985 revision, which read:
450. (1) A peace officer may arrest without warrant
(a) a person who has committed an indictable offence or who, on reasonable
and probable grounds, he believes has committed or is about to commit an
indictable offence. [Emphasis added.]
"[A]nd probable" was dropped in the revision, but s. 4 of the Revised Statutes
of Canada, 19856 makes it clear that no change in the law was effected:
4. The Revised Statutes shall not be held to operate as new law, but shall be
construed and have effect as a consolidation of the law as contained in the Acts and
5  1 S.C.R. 241.
6 c. 40 (3rd Supp.)
portions of Acts repealed by section 3 and for which the Revised Statutes are
 In Baron v. Canada, 7 the Supreme Court of Canada indicated that
"reasonable grounds" and "reasonable and probable grounds" import the same
standard, as the word "reasonable" alone encompasses a requirement of
probability. The standard is the same for both "reasonable grounds" and
"reasonable and probable grounds": one of credibly based probability.8 The
normal statutory phrase, however, is "reasonable grounds."9 Thus, I do not
read anything more into the trial judge’s reasons than a repetition of a
common error, which is permitted by s. 4 of the Revised Statutes of Canada,
1985, and conclude Mr. Janvier could only have been arrested under s.
1.2 What is the meaning of "finds" a person "committing a criminal
offence" in s. 495(1)(b)?
 I agree with Crown counsel that possession of marihuana at a
determined and proven time in the past is an offence, assuming such a crime
to be provable. We are not, however, addressing the question of whether the
crime of having possessed marihuana exists, which would be a relevant
inquiry for the purposes of s. 495(1)(a), but instead we are interpreting s.
495(1)(b) to determine whether a police officer can be said to find a person
committing the offence of possession of marihuana based on the smell of
7  1 S.C.R. 416. See also R. v. Jacques,  3 S.C.R. 312 at para. 20; R. v. Schafer, 
7 W.W.R. 670 at paras. 3-4, leave to appeal to S.C.C. refused  3 S.C.R. xi.
8 Ibid. at pp. 446-47.
burned marihuana alone and the suspicion that a search will reveal more,
 In the within appeal, it cannot be said that the statutory provision in
question, s. 495(1)(b), is ambiguous (see: Application under s. 83.28 of the
Criminal Code (Re),10 and CanadianOxy Chemicals Ltd. v. Canada (Attorney
General)). 11 Indeed, it is asserted on behalf of Mr. Janvier that the clause is
clear. In contradistinction to s. 495(1)(a), which permits searches based on
reasonable grounds, s. 495(1)(b) requires the investigating officer to "find"
the person committing the offence, which, I note, is the same in the French
version with the use of the words "trouve en train de commettre." Even when
a legislative provision is not ambiguous, nonetheless, as was said in Re s.
83.28, "[t]extual considerations must be read in concert with legislative intent
and established legal norms."12 A textual consideration at play in construing
s. 495(1)(b) is that it establishes the parameters of a police power of arrest.
 Oddly enough, there is little authority in Canada as to what is meant by
"finds" a person "committing a criminal offence" in s. 495(1)(b). The two
Supreme Court of Canada decisions that construe s. 495(1)(b) do so not in the
context faced here, where it is necessary to determine powers of arrest to
delineate a search power, but in the context of assessing police comportment
for other purposes.
102004 SCC 42,  2 S.C.R. 248.
11  1 S.C.R. 743.
12 Re s. 83.28, supra note 10 at para. 34.
 In R. v. Biron13 the issue was whether a person could be found guilty of
resisting arrest for a summary conviction offence if the officer had no
authority to make the arrest because he did not "find" the accused "committing
a criminal offence." There were several reasons given for sustaining the
conviction for resisting arrest, even though the accused had been acquitted of
the charge for which he had been arrested. One reason related to the
construction of s. 495(1)(b).
 Martland J., writing for the majority in Biron, concluded that a police
officer may arrest a person he or she finds "apparently committing" any
offence. Notwithstanding this seeming expansion of s. 495(1)(b), he wrote:
Paragraph (b) applies in relation to any criminal offence and it deals with
the situation in which the peace officer himself finds an offence being committed.
His power to arrest is based upon his own observation. Because it is based on his
own discovery of an offence actually being committed there is no reason to refer to
a belief based upon reasonable and probable grounds.
If the reasoning in the Pritchard [(1961), 130 C.C.C. 61] case is sound, the
validity of an arrest under s. 450(1)(b) can only be determined after the trial of the
person arrested and after the determination of any subsequent appeals. My view is
that the validity of an arrest under this paragraph must be determined in relation to
the circumstances which were apparent to the peace officer at the time the arrest
. . .
... In my opinion the wording used in para. (b), which is oversimplified,
means that the power to arrest without a warrant is given where the peace officer
himself finds a situation in which a person is apparently committing an offence.14
13 2 S.C.R. 56.
14 Ibid. at pp. 72-75.
 In Roberge v. The Queen 15 s. 450(1)(a) [now s. 495(1)(a)] was
considered in the context of assessing the conviction of a police officer for
having, without lawful excuse, used his revolver in a careless manner contrary
to s. 84(2)(b) of the Criminal Code. Lamer J., as he then was, wrote that "the
test a police officer must meet, in order to be empowered to arrest without a
warrant under s. 450(1)(a) is, to the extent that it differs, at least as easily
satisfied as that under s. 450(1)(b)." 16 Roberge does not eliminate the
distinction between "has committed" in s. 495(1)(a) and "finds committing" in
s. 495(1)(b) but instead is directed to the belief the officer has as to the
presence of the grounds for either type of offence in order to arrest. In this
regard, Lamer J. writes later: "I do not read the test laid down by Martland J.
as suggesting that it is sufficient that it be 'apparent' to the police officer even
though it would be unreasonable for the police officer to come to that
conclusion. Surely it must be 'apparent' to a reasonable person placed in the
circumstances of the arresting officer at the time."17
 Of lower court authority, few authorities have specifically considered
s. 495(1)(b). In R. v. Wright,18 a man was arrested for the summary conviction
offence of indecent exposure based on information from others and seeing the
accused zipping up his slacks. The arresting officer did not see any indecent
act. In acquitting the accused, Brown J. wrote:
65 In my view, what Biron stands for is that when the officer with his or her own
eyes and ears observes all the elements of a summary conviction offence, the fact
15  1 S.C.R. 312.
16 Ibid. at p. 318.
17 Ibid. at p. 324-25.
18 2007 ONCJ 493.
that the accused is later acquitted on a technicality does not negate that the officer
"found him committing" the offence.
66 … [T]he offence was complete when Constable Whalen happened upon
him. Because the offence may have been completed mere moments before does not,
in my view, allow me to extend the words "apparently committing" to the
circumstances of this case.
 In R. v. McBurney,19 which predates Biron, the charge was that the
accused "did unlawfully have in his possession a narcotic drug."20 The
majority of the Court of Appeal upheld an acquittal on the basis that there is
no present offence, of having, at some unknown and indeterminable time and
place in the past, possessed cannabis resin.
 In R. v. Beilard,21 the accused was a passenger in a motor vehicle, riding
with four other young men, when the vehicle was stopped by a peace officer.
Upon speaking to the driver, the peace officer detected a smell of what he
believed to be burned marihuana in the car. He proceeded to conduct a groin
search of all occupants, and on one of them discovered a small quantity of
cannabis resin. A charge of possession ensued. On an application to
determine whether the accused’s s. 8 Charter rights were infringed, Porter
 ... It is trite law to point out that it is not an offense "to have smoked"
marihuana but rather it is the current possession of the substance which is
proscribed. In the absence of obtaining more information either by enquiry,
observation or from a third party, the officer could have had nothing more than a
mere suspicion that there might be a narcotic around somewhere, hence his setting
about to search all five occupants at random. The fact that he found something does
19  3 W.W.R. 546 (B.C.S.C.), affirmed  5 W.W.R. 554 (B.C.C.A). I do note, however,
that insofar as trace amounts of a drug are merely evidence of past possession, McBurney is
contrary to our judgment in R. v. Atkinson (30 April 1971), Regina, 4845 (Sask. C.A.).
20 Ibid. at p. 555 (C.A.)
21 (1985), 61 A.R. 321 (Alta. Prov. Ct.).
not alter that situation as to take the result into consideration would be rather like
raising oneself from the ground by pulling on one's own boot straps. In other words
the end does not justify the means, but rather the means themselves must be lawful
and reasonable. Clearly here the officer was simply on a fishing expedition.
Porter P.C.J., as I have indicated, must be taken to have overstated the law
when he said that it is only the "current possession of the substance" that is
proscribed. It is possible, as I have indicated, assuming the offence is capable
of proof, to charge someone with having possessed cannabis resin even though
the offence occurred in the past. But leaving that aside, Beilard makes the
distinction between having possessed and present possession, which is
relevant to the issue in this appeal.
 In R. v. Fotheringham,22 the issue was whether an arbitrary detention
could be justified under s. 1 of the Charter. While not strictly necessary to
do so, Baird Ellan P.C.J. (as she then was) considered whether the smell of
freshly smoked marihuana forms a sufficient basis for concluding that the
offence of possession is being committed by the occupant of the vehicle. She
26 As I understand it, that the test to be employed in determining the sufficiency
of grounds to make a search is the same as that pertaining to the grounds to make
the arrest, as discussed by Ryan J.A. in R. v. Smellie,  B.C.J. No. 2850,
B.C.C.A., December 14, 1994. That is, the Crown must establish on a balance of
probabilities that the circumstances are such that "credibly-based probability
replaces suspicion," (at p. 13, quoting from Hunter v. Southam Inc.