R. v. Hussey

R. v. Hussey

The court held that the smell of fresh cannabis alone, absent corroborating contextual factors or independent expert reliability, did not provide objectively reasonable grounds to arrest; the detention and warrantless search were therefore unlawful breaches of s.8 and s.9 of the Charter, and under the Grant analysis the primary seized evidence (the two large bags of cannabis) must be excluded under s.24(2).

Citation
2017 NSPC 59
Parties
Crown: Her Majesty the Queen; Accused: Johnathon Hussey; Accused: Terri Hawley
Court
Nova Scotia Provincial Court
Jurisdiction
Canada
Judgment Date
25 September 2017
Procedural Posture
Criminal Controlled Drugs and Substances Act S.5(2) / Pre Trial Charter Application (voir Dire)
Outcome
Charter application granted; arrest and search ruled unlawful; impugned evidence excluded
Legal Topics
Charter S.8 Search and Seizure, Charter S.9 Arbitrary Detention, Section 24(2) Exclusion, Olfactory Evidence (cannabis Smell), Arrest Powers
Source Language
English
Criminal Law Constitutional Law Evidence Law Charter S.8 Search and Seizure Charter S.9 Arbitrary Detention Section 24(2) Exclusion Olfactory Evidence (cannabis Smell) Arrest Powers

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Parties

Her Majesty the Queen

Crown

Johnathon Hussey

Accused

Terri Hawley

Accused

Procedural Posture

Criminal Controlled Drugs and Substances Act S.5(2) / Pre Trial Charter Application (voir Dire)

Legal Issues

  1. 1 Whether the smell of fresh cannabis alone provided reasonable grounds to arrest and detain
  2. 2 Whether the resultant warrantless search was lawful as incidental to arrest
  3. 3 Whether the accused's s.8 and s.9 Charter rights were breached

Ratio Decidendi

The court held that the smell of fresh cannabis alone, absent corroborating contextual factors or independent expert reliability, did not provide objectively reasonable grounds to arrest; the detention and warrantless search were therefore unlawful breaches of s.8 and s.9 of the Charter, and under the Grant analysis the primary seized evidence (the two large bags of cannabis) must be excluded under s.24(2).

Court Disposition

Charter application granted; arrest and search ruled unlawful; impugned evidence excluded

Orders

  • Application to exclude evidence granted; the two large bags of cannabis (259 grams and 350 grams) seized from the vehicle are excluded under s.24(2) as obtained in breach of s.8 and s.9 of the Charter
  • Detention and warrantless search of the accused ruled unlawful