Article by The Cape Breton Post via Truro Daily News
A RCMP officer’s decision to arrest and search two people because he could smell fresh marijuana in the vehicle has resulted in drug and weapon charges being dismissed against an Ingonish couple.
Provincial court Judge Peter Ross ruled Monday that it is widely held that police officers can give evidence on what they detect or recognize by smell.
“But difficulties arise when the police claim to be able to recognize this particular smell (raw marijuana) as a basis for arrest, with no other supporting grounds,” said the judge.
Ross ruled that the seizure of the marijuana and the arrest of the two individuals violated their rights not to be arbitrarily detained and to be protected from unreasonable search. The decision meant that items seized would not be admitted into evidence at trial.
As a result, the Crown withdrew the charge of possession for the purpose of trafficking and possession of a weapon without a licence.
“Courts treat standalone olfactory (sense of smell) identification evidence with an abundance of caution. Concerns have been raised about potential abuse by those who rely upon it to exercise an arrest or search power,” wrote the judge.
Jonathan Shane Hussey, 38, and Terri Hawley, 44, were both charged with possession for the purpose of trafficking in marijuana and possession of a firearm (a .410 shotgun) without a licence.
The offences were alleged to have occurred Jan. 9, 2016, in Ingonish.
They were charged after being stopped at a roadside check point being conducted by RCMP Cpl. Tyson Nelson, who testified to smelling a strong odour of marijuana coming from the vehicle as he approached the driver’s side window. He said it was fresh marijuana, not burnt. Hawley had told the officer she had just smoked joint in the vehicle.
The officer placed the couple under arrest and after searching both, found a small bag of marijuana in Hawley’s sweater pocket. He also found two other bags of pot stuffed in a gift bag covered with a towel in the back seat. In total, the officer seized some 612 grams of marijuana.