



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Stonefish, 2019 ONCA 914

DATE: 20191121

DOCKET: C66666

Lauwers, van Rensburg and Hourigan JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Shannon Stonefish

Appellant

Shannon Stonefish, in person

Megan Savard, duty counsel

Vanita Goela, for the respondent

Heard: November 6, 2019

On appeal from the conviction entered on May 9, 2018 and
    the sentence imposed on January 22, 2019 by Justice David M. Gibson of the Ontario
    Court of Justice, sitting without a jury.

REASONS FOR DECISION

[1]

The appellant was convicted of possession for the purposes of
    trafficking cocaine under s. 5(2) of the
Controlled Drugs and Substances
    Act
, S.C. 1996, c. 19, and of failure to comply with conditions of a recognizance
    contrary to s. 145(3) of the
Criminal Code
, R.S.C., 1985, c. C-46
. He was sentenced
    to 41 months imprisonment.

[2]

Although the appellant appealed both conviction and sentence, he pursued
    only the conviction appeal
.

The Factual Context

[3]

The appellant was driving on the highway near Fort Frances when he was
    stopped because the officer could not read the licence plate number. The plate
    light was not functional, contrary to the
Highway Traffic Act
,

R.S.O.
    1990, c. H.8
. The appellant concedes that the
Highway Traffic
    Act
stop was appropriate.

[4]

When the appellant opened the passenger window, the officer could smell
    the odour of burnt marijuana. The appellant could not produce his driver's
    licence or any other identification but correctly identified himself. He said
    he was driving from Winnipeg to Seine River First Nation, where he intended to
    pick up his sister to bring her back to Winnipeg. He advised the officer he was
    driving overnight to avoid getting caught driving without a licence.

[5]

The officer testified that the appellant appeared nervous, and she
    suspected he was under the influence of marijuana because his eyes were red.
    When the officer asked about the smell of marijuana, the appellant said that he
    had smoked some and pointed to a silver metal marijuana grinder in the cup
    holder of the car. The grinder contained a green leafy substance. The officer
    then arrested the appellant for possession of a controlled substance. She
    searched him and found $1,195 in cash in his pocket. She also seized a cell phone
    from the driver's seat, which was receiving text messages and at least one call
    during the time that they were in contact. While waiting for a second officer
    to arrive at the scene, the officer questioned the appellant about the
    ownership of the vehicle. The appellant said that the car belonged to his
    friend's girlfriend, but then gave the officer an incorrect name for the cars owner.

[6]

Another officer then opened the hood of the car and found a package
    containing 172 grams of cocaine in a ziploc bag. The package was clearly
    visible when the hood was opened. The street value of the cocaine was between $11,000
    and $18,000.

The Charter application

[7]

The appellant brought an
    application for
Charter
relief alleging that his s. 10 right to counsel was violated when
    the officer questioned him about the odour of marijuana in his vehicle, and
    that his s. 8 right to protection against unreasonable search and seizure was
    violated by the search of the car.

[8]

The trial judge's reasons for
    dismissing the
Charter
application set up the nub of the appellant's argument. The trial judge noted:

[T]he
    officer was entitled to follow-up her suspicions concerning the drivers sobriety
    by asking a question that is the functional equivalent in the circumstances of
    the unobjectionable, have you had anything to drink tonight. In this case, why
    does your car smell like burnt marijuana? Mr. Stonefish's answer to that
    question provided ample grounds for the officer to proceed with an arrest. Concerning
    the search of the vehicle, its common ground that the common law power to
    search incident to arrest extends to motor vehicles. The question before this
    court concerns the scope of that power to search. The Supreme Court in
Caslake
has made it clear that such a search must be truly
    incidental to the arrest and that the authority for it arises not because of
    the reduced expectation of privacy of the arrested individual in a vehicle, but
    because of the need for law enforcement to gain control of things and
    information which outweighs the individuals privacy right (See paragraph 17 of
Caslake
). In this matter Mr. Stonefish
    alleges the search for drugs under the hood of his vehicle was not rationally
    connected to his arrest for being in possession of a small amount of marijuana
    and was therefore outside the scope of a lawful search incident to arrest.

The trial judge found that it
    was objectively reasonable to search the vehicle for evidence of more
    controlled substances.
He
    rejected the argument that looking under the hood of the car was unreasonable,
    considering the relatively small and unconcealed amount of marijuana initially
    located. The trial judge concluded [i]n this particular case popping the hood
    of the car to check the engine compartment and finding a suspicious package in plain
    view is not a search carried out in an unreasonable fashion.

[9]

The issue at trial was the
    appellants knowledge and control over the drugs found under the hood. As the
    trial judge noted: 
The issue
    before me is whether the circumstantial evidence in this matter is conclusive
    enough to negative any other inference other than that the accused knew he was
    transporting the cocaine.

[10]

The trial judge referred to
    the suspicious circumstances including that the appellant was the driver and
    sole occupant of the vehicle for which he had care and control, and that he was
    driving a lengthy distance in the middle of the night to avoid police attention
    because he was an unlicensed driver. The trial judge noted: It is also
    possible his explanation was only half true. On its own this possibility is not
    particularly probative of consciousness of guilt on the possession issue."

[11]

The trial judge then cited three facts as more probative. The first was
    a series of text messages from which the trial judge concluded that there was evidence
    the accused was engaged in black market dealing in an unspecified contraband to
    a uncertain degree. On the appeal duty counsel takes no issue with the trial
    judge's use of the cell phone evidence.

[12]

Second, the trial judge referred to the appellant's failure to
    accurately name the registered owner of the vehicle he was operating. From
    this the trial judge inferred that the appellant either did not know the owners
    name, or he gave a false name to deflect attention from the owner. Third, the
    street value of the drug was high, in the range between $11,000 and $18,000.
    The trial judge rejected the idea that the owner of the car holding drugs of
    such value would let Mr. Stonefish take it without him knowing of them. He
    concluded I do not believe that such a possibility supports a reasonable doubt
    about the guilt of the accused.

The Argument on Appeal

[13]

Duty counsel renews the
Charter
challenge and argues that the
    arresting officer made a critical pivot at the moment she detected the smell of
    marijuana, which changed the situation from a routine traffic stop under the
Highway
    Traffic Act
into an active criminal investigation. She argues that the
    officer should have immediately advised Mr. Stonefish of his
Charter
rights and refrained from asking questions of him. She submits that the
    question asked of Mr. Stonefish: 
Why
    does your vehicle smell like burnt marijuana?
was impermissible. When she knew that he was not licensed,
    the arresting officer also knew that he would not be driving the car again that
    night, so that any questions concerning his sobriety were no longer relevant.

[14]

In our view the appellant takes too granulated an approach to the
    situation. It was evolving and it was not unreasonable for the officer, upon
    smelling the burnt marijuana, to arrest the appellant for possession of a
    controlled substance. Her question was quite natural in the circumstances and
    did not constitute a
Charter
violation. Indeed, she need not have
    asked the question since the answer was obvious.

[15]

Duty counsel relies particularly on this court's decision in
R. v.

Gonzales
, 2017 ONCA 543, 136 O.R. (3d) 225, at para. 99. The court
    said:

Where the justification for a
    search incident to arrest is to find evidence, there must be some reasonable
    prospect of securing evidence of the offence for which the rest has been made:
Caslake
,
    [
R. v. Caslake
, [1998] 1 S.C.R. 51], at para 22. A
    search incident to arrest may include a search of an automobile of which the
    arrested person is in possession, but the scope of that search will depend on
    several factors.

[16]

We accept the principle but not the application proposed by counsel. Once
    she arrested the appellant, the officer was free to search him and the vehicle
    incident to the arrest. The fact that there was a small amount of marijuana in
    the cup holder led quite naturally to a search for more marijuana elsewhere in
    the car. That search turned up the cocaine stored in open view that was
    revealed when the hood was opened. This is not a case in which the officers
    were using the
Highway Traffic Act
as a pretext for searching the car,
    as in some of the cases.
In this
    case, the search was not particularly intrusive, nor did it cross any
Charter
lines.

[17]

The appeal is dismissed.

P. Lauwers J.A.

K. van Rensburg J.A.

C.W. Hourigan J.A.


