Odour of Fresh Marijuana Not Enough to Justify Arrest

Our latest Canlii Connects case summary reviews a decision from Saskatchewan which considered grounds for arrest for marijuana trafficking at a Motor Vehicle stop. The landscape has changed with the legalization of small amounts of marijuana and this case provides an example.

R. v. Santos, 2022 SKCA 50

The Trial Judge found grounds to arrest existed but that was reversed on appeal

Issue: Did the trial judge err when they found that reasonable grounds to arrest for possession of marijuana for the purpose of distribution existed?

Facts: Mr. Santos was stopped on February 3, 2020 driving a rental car near Swift Current Saskatchewan. Mr. Santos told the officer he was driving a rental because his own car was in the shop. Mr. Santos appeared to be flustered and had difficulty locating the rental agreement. Mr. Santos said he was travelling from Calgary to Winnipeg. The rental agreement stated that Mr. Santos had rented the vehicle in Calgary on February 2, and that he was required to return it there on February 6. Mr. Santos had a Red Bull energy drink in the cup holder, and there was fast food trash on the floor behind the passenger seat. The cargo compartment of the vehicle was also covered with a factory-installed cover. The officer noted the odour of fresh (i.e., raw, unsmoked) cannabis coming from the vehicle. The officer also located information in police databases which suspected Mr. Santos possibly being involved in drug trafficking. 

Mr. Santos was arrested and a search of the vehicle located a kilogram of cocaine. The trial judge found that there were grounds for his arrest.

On appeal it was argued that that conclusion was incorrect, Mr. Santos’ Charter rights were breached and the cocaine ought to be excluded. 

Innocuous circumstances can not be piled onto each other to support reasonable grounds to arrest

Ruling:  The Court allowed the appeal, set aside the convictions and substituted acquittals. There were insufficient grounds to arrest and the cocaine needed to be excluded. 

The case is noteworthy for a few reasons. Firstly, for the court’s comments on the various pieces of information relied on by the arresting officer. In that regard the court  concluded that the factors upon which the arrest was based were individually completely innocuous and, even when the potentially inculpatory factors were added to the mix and weighed in the light of the officer’s experience and training, the evidence as a whole did not reveal a strong enough connection between Mr. Santos and the criminal activity alleged – namely, possession of cannabis for the purpose of distribution.

Secondly, in relation to the role of the arresting officer’s experience and the extent to which it can tip the scales towards a lawful arrest. Specifically, the court commented that they “must be careful not to allow the fact that an officer has certain experience and training to function as a thread that automatically sews a patchwork of exclusively innocuous circumstances into a quilt of reasonable grounds to believe a person has committed an offence”. 

Finally, this decision addresses what information may be required for an arrest under the Cannabis Act. Prior to legalization of marijuana it had been held that the odour of raw or fresh marijuana provided a lawful basis for arrest. Now that Canadians are able to possess quantities of marijuana the landscape has changed. For an arrest under the Cannabis Act an officer must have a belief that an individual is in possession of more than 30 grams. On the evidence lead at trial there was no basis to connect the odour to any particular amount.