• Lewis Waring

Pushing the Envelope of Section 8 - Matisse Emanuele

R v Ibrahim (“Ibrahim”) is a case about rights of an accused criminal guaranteed under the Canadian Charter of Rights and Freedoms (“the Charter”) versus valid police objectives. Put more broadly, this is an example of how the common law powers of police search and seizure are slowly but surely poking into the protective bubble of Canadians’ section 8 Charter right to privacy. Why should you care about this? Because even though these cases are often about criminals versus police, and the side most of us reflexively falls onto is the police, that does not mean that these competing interests are not equal. Our democracy is made up of checks and balances. The courts are one of the checks on police power and it is important that their legitimate objectives are weighed fairly against our legitimate rights.


R v Ibrahim -- Just the Facts


Ibrahim was an appeal for the conviction for possession of cocaine for the purpose of trafficking on the ground that the police’s search of the appellant’s vehicle violated his section 8 Charter right to be free from unreasonable search and seizure.


Before the appellant was arrested, the police had been surveilling the hotel he was staying in for a little more than a day and had evidence that he was involved in selling drugs and that he was driving a Chrysler. On the night of the arrest, the police observed a BMW entering the parking lot which was also registered to a person with the same last name and address as the appellant. The BMW left the parking lot and police followed the car, determining that the appellant was the driver. The BMW parked behind the Chrystler on a residential street, and the appellant went to the passenger side of the Chrysler for about a minute. The police did not see what the appellant was doing but they had suspicion that the appellant was committing a drug transaction. Before the appellant could be arrested, he got back into his BMW and drove around the block and stopped. At this point, the BMW and the appellant were a block away from the Chrysler.


It was here that another man (another person known to the police to possibly be involved in the drug dealing) came to the scene and entered the BMW with the appellant. The police, believing that the drug transaction was continuing, ordered that the accused be arrested. The police then activated their lights and sirens and the appellant fled in the BMW with an ensuing chase. Once the appellant and the other man who was in the car with him were arrested and secured in a police cruiser, the police returned to the Chrysler which was still parked on the residential street and searched it, believing that there was evidence in the Chrysler regarding the offence of possession for the purpose of trafficking. This search resulted in the discovery of approximately one kilogram of cocaine.


At trial, the trial judge held that the search of the Chrysler was incidental to the arrest of the accused because the police observed that

  • the appellant was driving the Chrysler the night before his arrest;

  • he was seen on the passenger side of the car shortly before his arrest; and

  • the BMW was right behind the Chrysler when the police activated their lights and sirens.

The trial judge made a mistake of fact of the cars’ locations when the arrest took place because in actuality the Chrystler was a block away from the accused. The Manitoba Court of Appeal (“MBCA”) dismissed the accused’s appeal, finding that, while there was an error in one of the facts, this did not constitute such a grievous error as to affect the trial judge’s section 8 Charter determination.


What is a Search Incident to Arrest?


A search incident to arrest is a common law exception to the general rule laid out in Hunter v Southam that a warrantless search is prima facie unreasonable. This exception is based on the need for public safety and avoiding the loss of evidence. As laid out in R v Collins, the police have to prove that the search was reasonable by meeting the following requirements:

  • the search was authorized by law;

  • the law itself is reasonable; and

  • the manner in which the search is carried out must be reasonable.


Additionally, Cloutier v Langlois (“Cloutier”) laid out three limits to the search incident to arrest:

  • the police have no duty to search if they do not believe it is necessary;

  • the search must be for a valid criminal justice objective; and

  • the search must not be conducted in an abusive fashion. In other words, the search should be proportionate to the objective and the circumstances of the case.

In Cameron J’s reasoning in Ibrahim, she cited R v Fearon and quoted Cromwell J when he said that the underlying purpose of the search incident to arrest is “the need for the police to be able to promptly pursue their investigation upon making a lawful arrest is an important consideration underlying the power to search incident to arrest”. Here we also see that there is no categorical limit on these types of searches but rather we have to look at several different factors including the nature of the items seized, the place of the search, and the time of the search related to the time of arrest.


The Breadth of Valid Police Purposes


What I find most interesting in Ibrahim is the absolute breadth of valid police purposes and scenarios where the police can justifiably breach an accused’s section 8 Charter rights. The standard line is that courts must weigh all competing interests. Yet, my understanding of this is that as long as there was a valid police purpose, like the gathering of evidence, the police will most likely be allowed to infringe on an accused’s section 8 Charter rights. What worries me is that a valid police purpose may become a wide and low bar to cross. In Ibrahim, the police purpose was gathering evidence. In this case I would have asked whether the police needed this evidence and whether it was believed to be absolutely material. Was there another viable alternative? The appellant brought up that the police could have impounded his car, but the MBCA rejected this because it “conflates the ability of the police to apply for a warrant with the requirement for a warrant.” This is true, but if we keep enlarging the circumstances as to where a warrant is not required, even when the police have the ability to do so, is that a justifiable infringement of our privacy rights? I think that the ability of the police to obtain a warrant when they have other viable options to meet their objective while still maintaining a person's section 8 Charter rights should weigh in the favour of an individual's rights. Instead, what we seem to have is a deferral to police procedural efficiency and to the broadening of the scope and tests of justifiable warrantless searches.


The Vastness of a Crime Scene


The other issue that is fascinating about Ibrahim is the temporal and spatial requirements for the search. Was the Chrystler being a block away and not being the car the appellant was in when he was arrested an excuse for it being excluded in a search incident to arrest? In R v Caslake, the Court found that “delay and distance do not automatically preclude a search from being incidental to arrest, but they may cause the court to draw a negative inference. However, that inference may be rebutted by a proper explanation”. Nevertheless, in Ibrahim, the MBCA also concluded by saying that the spatial and temporal requirements for search incident to arrest are informed by legitimate police objectives of such a search.


As just discussed, I think that the legitimate police objectives and the weight given to them are very broad and if one informs the other then it is no surprise that the spatial and temporal limits to this type of search are broad too. In the MBCA’s view, the spatial and temporal issue with the Chrysler was a non-issue because the criminal act was ongoing and included when the appellant was at the car in question just minutes before his arrest. The MBCA concluded that the case in front of them fit into the precedent in R v Frieburg (TL) (“Frieburg”). In that case, there was over a three-hour difference between the driving of the vehicle in question and the arrest. Likewise, the MBCA in Frieburg concluded that spatially the car was still within the immediate vicinity of the crime because the car was visited by the appellant only moments before his arrest and it was only a block away. This, they wrote, “cannot be parsed out from the continuous nature of the offence that involved the Chrysler”. I agree that this seems reasonable. However, I still hesitate on the broad nature of the language used. In the next sentence, Cameron JA wrote that “the entire crime scene encompassed the location of both the BMW and the Chrysler and was therefore within the immediate surroundings of the accused”.


I suspect that the layperson would not consider two people buying and selling drugs in a car to have an immediate vicinity of an entire block.Yet the MBCA seemed completely fine with simply broadening our mental understanding of immediate vicinity to fit the spatial necessities of efficient police procedure.




Check out the Robson Crim MLJ
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