Court of Appeal for Ontario

Date: 2019-03-07 Docket: C61812

Judges: Pardu, Nordheimer and Harvison Young JJ.A.

Between

Her Majesty the Queen Respondent

and

George Katerberg Appellant

Counsel

Mark Halfyard and Chris Rudnicki, for the appellant

Victoria Rivers, for the respondent

Appeal Information

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 officer's 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 appellant's 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 appellant's 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 appellant's 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 officer's 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 officer's 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 appellant's 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 accused's 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 Sebben's 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 appellant's 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.