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Drug Trafficking and Vehicle Searches: Evaluating the Decision of R. v. Ibrahim - Robert Johnstone

The ramifications of drug trafficking impact the lives of countless Canadians through addiction and associated crime. Often, individuals who commit these offenses remain successful due to the difficulty of collecting admittable evidence and acquiring search warrants. Vehicles provide dealers both with a cache to store their product and a way of moving it discreetly. Fortunately, warrantless search and seizures allow the police to make applicable judgements upon the gathering of objective evidence. However, as stated by D. Fletcher Dawson, all searches without a warrant are prima facie unreasonable, which means the Crown must be able to demonstrate appropriate grounds for a search prior to an incidental arrest.[1] R. v. Ibrahim, a recent case from the Manitoba Court of Appeal, assessed the warrantless search of a vehicle used by a drug trafficker that was not located immediately adjacent to the arrest. In my opinion, this case demonstrates important developments for allowing the police to search vehicles without a warrant. For law enforcement to have the means to stop the distribution of narcotics, the unwarranted search of vehicles must be combined with sufficient evidence to not limit the reasonable protection of privacy as afforded by section 8 of the Charter.

On January 8, 2019, the Winnipeg Police Service had been notified that Mr. Mulata Ibrahim (the accused) had been located at a hotel which was used as a base for drug distribution.[2] Police had previously been notified that the accused was a member of a street gang and was currently driving a black car later identified as a Chrysler 300 (the Chrysler).[3] On the night of the arrest, the police had noticed another vehicle, a BMW, that was registered under a family member of the accused, being driven away into a residential neighbourhood. The police sergeant stated that it was common for drug traffickers to keep their product in vehicles parked on residential streets to pervade police detection.[4] On cue, the BMW stopped, and the accused proceeded to the passenger side door of the Chrysler. After the accused proceeded further down the street in the BMW, another street gang member approached in a third vehicle, parked, and got into the BMW with the accused. It is important to note that the police suspected that an illegal transaction was occurring and attempted to intervene. The BMW fled the premises and both individuals were eventually caught and arrested upon deserting the vehicle. With the men detained, the police crew searched the BMW and found nothing resulting explicitly from the selling of illegal substances. However, the police determined that the Chrysler should be searched as well. This resulted in Mr. Ibrahim’s conviction for possession of cocaine for the use of trafficking under section 5(2) of the Controlled Drugs and Substances Act, along with a multitude of other charges relating to the attempt to flee.[5]

Reasonable Protection of Privacy

Mr. Ibrahim appealed on the basis that the police’s search of the parked Chrysler breached section 8 of the Charter for unreasonable search and seizure. The court stated that for the search of the vehicle to have qualified as reasonable (the objective standard), the police would have to demonstrate that the search was incidental to his arrest.[6] If it was deemed not to be incidental, the accused could argue that the search conflicted with his reasonable expectation of privacy. The “totality of the circumstances” test developed from R. v. Edwards attempts to create a spectrum on how to assess the reasonability of the search and determines an outcome based off seven factors:

1. Presence at the time of the search;

2. Possession or control of the property or place searched;

3. Ownership of the property or place;

4. Historical use of the property or item;

5. The ability to regulate access, including the right to admit or exclude others from the place;

6. The existence of a subjective expectation of privacy; and

7. The objective reasonableness of the expectation.[7]

In R. v. Edwards, the court determined that Edwards had no reasonable expectation of privacy because it was his partner’s apartment, of which he did not have an ownership stake in the property or could control the influx of arriving individuals.[8] In situations relating to drug trafficking, it is important for the police to have the ability to enact timely decisions in order to hold distributors accountable. This contrasts with R. v. Ibrahim, in which the trial judge determined that the accused had a reasonable expectation of privacy regarding the Chrysler. I agree with the court on this opinion, as the vehicle was his property and meets the criteria as set by the Edwards test. Nonetheless, a warrantless search can be validated through the police power to search the surrounding area for the “discovery of an object that may be a threat to the police… or act as evidence against the accused.”[9] The application of this newer test will likely yield results that align with the goals of law enforcement concerning drug trafficking and vehicles.

The “Surrounding Area” Test

What constitutes “the surrounding area” has been set by a multitude of precedents throughout Canadian caselaw. In R. v. Ibrahim, the Chrysler was a block away from the BMW upon the initial confrontation with the police.[10] The defence cited R. v. Frieburg, another Manitoban case where Beard JA stated that a vehicle parked outside of the house did not constitute immediate surroundings that could be searched, and that the drugs found in the vehicle were not admittable into evidence.[11] Regardless, the court in R. v. Ibrahim held that the distance between the vehicles would not disqualify it from search protocol. It is evident that context must be considered with this fact pattern, as the accused had been at that car minutes prior to his arrest. Importantly, when the police do not have a warrant and have witnessed behavior that would objectively support their conclusion of illegal activity proceeding, two factors are principal to deciding if the property/object to be searched is in the “surrounding area” as defined by case law: (1) the object/place displays temporal continuity with the arrest and (2) the object/place displays spatial relevance with the arrest.

Although the Chrysler was not located at the locus of the illegal transaction it was spatially connected through the accused’s action of walking back and forth just prior to the interaction. Further, it would be ill-suited for the court to infer a strict time limit when securing evidence from vehicles, but I agree that the search must be conducted in a reasonable amount of time, as a substantial delay might imply that the search is not implicitly connected to arrest.[12] This precedent will assist police officers in admitting evidence that would otherwise not be available to the courts. By allowing for a more expansive definition of the “surrounding area,” it will bolster the convictions of more individuals connected to the trafficking of illegal drugs and substances.

Searches and the Incidental Nature to the Arrest

In R. v. Caslake, the police arrested the accused based on evidence that he was distributing large quantities of marijuana as discovered by one of the officers.[13] The accused was arrested in his car, contrary to Mr. Ibrahim, and the marijuana was found in that same car. The constable admitted that he was searching through the vehicle to collect inventory from impounded cars as per RCMP policy. If the constable would have searched the vehicle with the purpose of finding evidence for trial, the court would have granted that it was incidental to the arrest. The court stated that the officer had sufficient evidence to objectively search though the property of the accused.[14] L’Heureux-Dube J. states “the restriction that the search must be truly incidental to the arrest means that the police must be attempting to achieve some valid purpose connected to the arrest.”[15] Although the decision differentiated from R. v. Ibrahim, this case sets precedent for the important relationship between the necessity for appropriate objectivity and police procedure when determining the applied purpose of a search. Objectivity is met when the police have a valid purpose to conduct the search in response to collecting admittable evidence. Procedural authenticity is resonated through the proper execution of the search in a reasonable manner. In R. v. Ibrahim, the search was incidental to the arrest through the objective belief of the officers and supporting evidence collected from informants and prior observation.

Cases such as R. v. Ibrahim are of vital importance when discussing precedence in Canadian case law influencing the determination of reasonable search and seizure. The court ultimately got this one right. Drug traffickers impact the lives of thousands of Canadians, and many remain productive due to their ability to evade enforcement and keep their product out of admittable evidence. It is evident that the surrounding area” test is well-suited for assessing these individuals who are accustomed to moving their products frequently and discreetly. In most cases, vehicles are the preferred mode of transportation for local dealers, and the ability for police to partake in warrantless searches is often necessary to fulfilling justice. However, this optimism must be balanced with caution. The protection of privacy that is provided through section 8 of the Charter should not be abandoned by the courts when deciding cases of criminal nature. The ability for the state to efficiently protect its citizens is crucial, but this should not completely disregard the right to reasonable privacy. As such, the Canadian courts will likely continue to struggle on the balance between police powers and the guarantees of the Charter.

[1] Richard Jochelson & David Ireland, Privacy in Peril: Hunter v Southam and the Drift from Reasonable Search Protections, (Vancouver: UBC Press, 2019) at 18. [2] R v Ibrahim, [2021] MBCA 12 at para 5 [Ibrahim]. [3] Ibid at para 6. [4] Ibid at para 14. [5] Ibid at para 1. [6] Ibid at para 23. [7] R v Edwards, [1996] 1 SCR 128 at para 45 [Edwards]. [8] Supra note 1 at 29. [9] Ibrahim, supra note 2 at para 35. [10] Ibid at para 55. [11] Ibid at para 58. [12] R v Caslake, [1998] 1 SCR 51 at para 24 [Caslake]. [13] Ibid at para 26. [14] Ibid. [15] Ibid at para 19.


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