• 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.