Keywords: Exclusion of evidence (s.24(2) Charter); arbitrary detention (s.9 Charter); search and seizure; speculation; conjecture; Crown appeal; s. 676(1)(a) Criminal Code.
Synopsis: Constable Raymond of the RCMP was stationed in an unmarked vehicle patrolling Highway 2 near Moncton. He recorded the Respondent, Mr. Brodeur, travelling in his vehicle above the posted speed limit using radar and pulled him over. The officer approached the passenger side of the vehicle and detected an odour of perfume. Based on his 23 years of experience and training, perfume is sometimes used by transporters of raw marihuana to camouflage its smell. Eventually the perfume dissipated and Cst. Raymond could smell the raw marihuana. The Respondent was placed under arrest and 14 pounds of the drug were located inside non-vacuum sealed Ziploc bags in the vehicle. At trial, the judge accepted Brodeur’s testimony including speculative evidence concerning what Cst. Raymond was doing while following him prior to the roadside stop. The trial judge rejected virtually all Cst. Raymond’s evidence and the C.A. commented “to be frank, the trial judge concluded the police offer perjured himself about virtually every aspect of the interception” (at para. 11). The judge refused to admit the seized marihuana into evidence as it constituted a violation of Brodeur’s s.9 Charter rights and could not be saved under s.24(2). In the absence of the seizure, the trial judge rendered a verdict of not guilty.The Attorney General appealed arguing the trial judge made critical findings based on speculation and conjecture constituting an error of law. Appeal allowed. The N.B.C.A. set aside the verdict and ordered a new trial.
Importance: Bell, J.A., noted both the N.B.C.A. and the S.C.C. have affirmed that conjecture and speculation on the part of a trial judge may constitute an error of law which the Crown may appeal (R. v. Martin, 2010 NBCA 41 at para. 36; R. v. Rousseau,  2 S.C.R. 38 at para. 16; R. v. Dubois,  2 S.C.R. 21 at para. 1). After a thorough review of the trial record and decision, Bell, J.A. concluded the trial judge erred in making a number of speculative conclusions in light of the totality of the evidence. The trial judge speculated on Brodeur’s rate of speed while in the passing lane and further when concluding the officer was either truthful or deliberately misleading the court in his testimony. The trial judge erred in his factual conclusions concerning contents of a video which captured Cst. Raymond’s interaction with Brodeur. It was an error for the trial judge to use the video to discredit Cst. Raymond by concluding the officer exited his vehicle and only had a two second window to key in Brodeur’s licence plate number. The trial judge further speculated it would be impossible to smell perfume as one walked up to a vehicle in the rain and imputed this to the officer’s credibility concerning detection. Trial evidence revealed a bottle of AXE perfume was both open and in plain view of Cst. Raymond. The Court concluded:
“…the trial judge made several conclusions in the course of the voir dire that were neither rational nor based on the evidence. It is not his findings of fact that I consider to be errors that would allow me to overturn this acquittal. Rather, it is the fact the judge applied the wrong legal test to determine the facts, just as he had done in Martin and Tran” (at para. 47).
Counsel for Appellant: Nicole Poirier, Q.C. (Justice Canada, Moncton)
Counsel for Respondent: James Matheson (James Matheson, Riverview)