Court of Appeal for Ontario
Judges: Lauwers, van Rensburg and Hourigan JJ.A.
Between
Her Majesty the Queen Respondent
and
Shannon Stonefish Appellant
Counsel
Shannon Stonefish, in person
Megan Savard, duty counsel
Vanita Goela, for the respondent
Heard: November 6, 2019
Appeal Information
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] Conviction and Sentence
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] Scope of Appeal
Although the appellant appealed both conviction and sentence, he pursued only the conviction appeal.
The Factual Context
[3] Initial Traffic Stop
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] Initial Observations
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] Officer's Observations and Initial Search
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 car's owner.
[6] Discovery of Cocaine
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] Charter Challenge
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] Trial Judge's Reasoning
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 driver's 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, it's 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 individual's 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."
The Issue at Trial
[9] Knowledge and Control
The issue at trial was the appellant's 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] Suspicious Circumstances
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] Cell Phone Evidence
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] Vehicle Ownership and Street Value
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 owner's 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's Charter Challenge
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] Court's Response to Granulated Approach
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] Application of R. v. Gonzales
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] Scope of Search Incident to Arrest
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] Disposition
The appeal is dismissed.
P. Lauwers J.A.
K. van Rensburg J.A.
C.W. Hourigan J.A.
