R. v. Stonefish, 2019 ONCA 914

SEARCH INCIDENT TO ARREST - SECTION 8

The appellant was pulled over by an officer because the licence plate number was not visible contrary to the Highway Traffic Act. The appellant was unable to produce identification, and openly admitted he did not have a driver’s license. The officer smelled burnt marijuana and asked the appellant “Why does your vehicle smell like burnt marijuana?” The appellant conceded that he had smoked marijuana, pointing to a grinder in the vehicle. The officer then arrested the appellant, searched him and seized his cellphone. While waiting for a second officer, the officer began to question the appellant. The second officer searched the car and discovered significant quantities of cocaine.

The trial judge dismissed the appellant’s two Charter applications alleging that this s. 10 right to counsel was violated, and that his s. 8 protection against unreasonable search and seizure was violated by the search of his truck. On appeal, duty counsel renews the Charter challenge, submitting that the moment the arresting officer smelled marijuana the HTA traffic stop shifted to a criminal investigation. The officer was, therefore, required to read the appellant his right to counsel prior to asking further probing questions about the marijuana. The ONCA dismisses this argument and holds that it was not unreasonable for the officer, upon smelling burnt marijuana, to arrest the appellant for possession given the natural and evolving nature of the stop. This is not a situation where officers are using HTA as a pretext for an unreasonable search of an individual’s car. Rather, the fact that the appellant pointed to a small amount of marijuana in the vehicle led naturally to a search for more marijuana in the car.