



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Katerberg, 2019 ONCA 177

DATE: 20190307

DOCKET: C61812

Pardu, Nordheimer and Harvison Young JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

George Katerberg

Appellant

Mark Halfyard and Chris Rudnicki, for the
    appellant

Victoria Rivers, for the respondent

On appeal from the conviction entered on January 23, 2015
    by Justice John R. Belleghem of the Superior Court of Justice.

REASONS FOR DECISION

[1]

The appellant was convicted of possession of marijuana for the purpose
    of trafficking and production of marijuana, contrary to ss. 5(2) and 7(1) of
    the
Controlled Drugs and Substance Act
, S.C. 1996, c. 19, after the
    police discovered a large quantity of freshly harvested marijuana in his van
    following a R.I.D.E. stop. The appellant appeals his convictions on the basis
    that his s. 10(a) and (b) rights under the
Canadian Charter of Rights and
    Freedoms
were breached in the course of his roadside detention. He further
    argues that the evidence of the raw marijuana harvest found in his van should
    have been excluded pursuant to s. 24(2) of the
Charter
.

[2]

The appellant takes no issue with the fact that an investigation that
    begins, as here, as a lawful highway safety detention may lawfully evolve into
    a criminal investigation. The appellant argues, however, that in the
    circumstances of this case, his s. 10(a) and (b)
Charter
rights were
    breached by the arresting officers failure to advise the appellant of the
    real reason for his detention and of his right to retain and instruct counsel
    without delay as soon as she smelled the marijuana emanating from his van.

[3]

We find no breach of the appellants
Charter
rights in light of
    the factual findings made by the trial judge, which were well-grounded in the
    evidentiary record before him.

[4]

As the trial judge found, the appellants initial detention was fully
    justified as a R.I.D.E. stop. It was not a pretext for a drug related stop. The
    fact that the appellants behaviour when stopped raised other concerns for the
    officer did not vitiate the validity of the stop. He did not roll his window
    down fully and attempted to light a cigarette. The officer noticed a strong
    smell of freshly harvested marijuana emanating from his van. At that point, the
    officer had not 100 percent eliminated the possibility that the appellant had
    been drinking and that his behaviour had been designed to mask the smell of
    alcohol, although she readily acknowledged that it was becoming a drug
    investigation and that she had a drug issue to deal with.

[5]

Any delay by the officer in advising the appellant of her concern about
    the marijuana smell was justified by the common sense need for the appellant to
    move his van out of the traffic lane to the side of the road for reasons of
    both officer and public safety:
R. v. Suberu
, 2009 SCC 33, [2009] 2
    S.C.R. 460, at paras. 2, 42. After all, this was a main country thoroughfare.

[6]

The officers evidence, which was accepted by the trial judge, was that
    as she approached the van, after he pulled it over to the side of the road, the
    appellant reiterated that he had not been drinking before she asked him
    anything. The officer responded that she was more concerned about the smell of
    marijuana. The appellant then reached down and, entirely of his own volition,
    showed her half of a roach. At that point, the officer advised him that he
    was being arrested for possession of marijuana, placed the appellant in the
    back of her police cruiser and advised him of his right to counsel. The
    appellant indicated that he did not want to call a lawyer at that point. When
    his van was searched incident to arrest, the freshly harvested marijuana was
    found.

[7]

On these facts, the informational components of s. 10(a) and (b) of the
Charter
were met. It has been repeatedly stated that there are no technical
    requirements as to what a police officer needs to say to a detained person to
    discharge his or her s. 10(a) obligations. Rather, it is the substance of what
    the accused can reasonably be supposed to have understood which must govern:
    see
R. v. Roberts
, 2018 ONCA 41, 360 C.C.C. (3d) 444, at para. 78;
R.
    v. Evans
, [1991] 1 S.C.R. 869, at pp. 886-888. The officer told the appellant
    in plain language that she was concerned about the smell of marijuana coming
    from his van. The trial judge found that the appellant then produced the roach as
    a ruse in the hope that the officer would not pursue the matter further. Here,
    it is clear that the appellant knew by the time that the officer said she was
    concerned about the smell of marijuana (if not before) that this was at least a
    significant part of the reason for his ongoing detention.

[8]

As the respondent states, the appellant short-circuited the officers
    s. 10(b) information obligations by making the tactical decision to
    produce the roach, which in turn provided the grounds for arrest for possession
    of marijuana and grounds to search the vehicle incident to that arrest, before
    the officer could inform the appellant of his right to counsel: see
R. v.
    Sebben
, 2015 ONCA 270, 333 O.A.C. 196, leave to appeal dismissed [2015]
    S.C.C.A. No. 191. When the appellant produced the roach and provided the
    officer with grounds for his arrest, she took the appellant into custody and then
    promptly informed him of his right to counsel pursuant to s. 10(b) of the
Charter.

[9]

In this vein, we cannot accept the appellants suggestion that
Sebben
in fact assists his case because in
Sebben
the trial judge found
    a violation of s. 10(b) of the
Charter
. The s. 10(b) violation (which
    was not at issue on appeal) in
Sebben
arose from the accuseds
    continued detention following a roadside breath test which was not the case
    here. The issue on appeal was whether the arresting officer had violated s. 8
    of the
Charter
by not obtaining valid consent to search Sebbens
    vehicle. This court found there was no violation, as Sebben had
    short-circuited the consent process by producing a bag of marijuana:
Sebben
,
    at paras. 11, 15. This case is factually analogous, and we are satisfied that
    there was no s. 10(b)
Charter
breach.

[10]

Given our finding that there was no breach of the appellants s. 10(a)
    and (b)
Charter
rights, it is not necessary to address s. 24(2) of the
Charter
.

[11]

The appeal is therefore dismissed.

G. Pardu J.A.

I.V.B.
    Nordheimer J.A.

A. Harvison Young J.A.


