Time and space are on the side of the police - Natasha Ellis

Section 8 of the Canadian Charter of Rights and Freedoms (“the Charter”) reads “everyone has the right to be secure against unreasonable search or seizure.” This right given by the Charter is meant to protect individuals and corporations against unjustified intrusions on their privacy interests.

What is privacy, anyway? The Oxford dictionary defines privacy as “the state or condition of being free from being observed or disturbed by other people.” You would not expect to have as much privacy when you are walking down the street as you would when you are inside your own home. When you are out in public people can see you and interact with you, but you would not want to have people come up to your house and look in your windows or to enter your home without invitation. However, if you are going for a walk, it would be unreasonable for someone to place their hands all over you or reach into your pockets (or take your phone and start scrolling through your text messages). When discussing police search powers, this concept is referred to as reasonable expectation of privacy.

In Canada, although we do not have an absolute right to privacy from the police, we can reasonably expect privacy and protection against search and seizure… in most contexts … in some locations … most of the time. *shrug*

In the 1987 case of R v Collins (“Collins”), a search or seizure will be considered reasonable if:

• the search or seizure is authorized by law;

• the law itself is reasonable; and

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

When a search is conducted without a warrant, the presumption is that the search is unreasonable, and the onus then rests on the Crown to establish that the three criteria for reasonableness have been met.

Search incident to arrest

“Authorized by law” means that a search has received prior authorization from a neutral and impartial party (a judge), based on reasonable and probable grounds. If the police have properly obtained a search warrant and execute it in a reasonable manner, then it is likely to be deemed to be a reasonable and justified infringement on the individual’s privacy. What about situations when the police have not obtained a search warrant?

The common law grants police ancillary powers, including the power to conduct a search incident to lawful arrest, in situations where the police have “reasonable grounds to believe that the search is necessary for a valid objective related to the reasons for the arrest”. These reasons include:

• the safety of the arrestee or officer;

• the preservation of evidence from destruction; and

• the discovery of evidence that can be used in the prosecution of the arrestee.

A search must not be conducted in an abusive manner; otherwise, it will not meet the criteria of reasonableness.

In R v Caslake (“Caslake”), the Supreme Court of Canada (“the Court”) highlighted the difference in standard when applying for a search warrant versus when police decide to search incident to arrest:

To be clear, this is not a standard on reasonable and probable grounds, the normal threshold that must be surpassed before a search can be conducted. Here, the only requirement is that there be some reasonable basis for doing what the officer did … [T]he police have considerable leeway in the circumstances of an arrest which they do not have in other situations [emphasis added].

Police also have the power to conduct a search without a warrant “… if exigent circumstances make it impracticable to obtain a warrant”, such as when there is an urgent safety issue or a need to preserve evidence which would be lost or damaged if they waited to get a warrant. The first two reasons for allowing police to search an individual incident to lawful arrest can overlap with the concept of exigent circumstances. However, the third reason related to the discovery of evidence does not fit under the category of exigent circumstances.

A balancing act

While the power to search incident to arrest comes from the common law, the police also have statutory power under the Controlled Drugs and Substances Act, which “authorizes police who are in the process of executing a search warrant to search a person found at the locale for illicit drugs if certain conditions are satisfied”.

We can easily appreciate the safety reasons behind the police conducting a search of the person upon arrest, as the presence of a weapon or other dangerous item could pose a threat to the safety of the suspect, the police, and the public. It makes sense, and most would agree with this infringement on a person’s privacy.

When the purpose behind a warrantless search is to discover evidence to prosecute an individual who has been arrested, we should maybe start to consider just how far and how wide the courts should allow the search power of the police to expand. The courts must attempt to balance our individual right to privacy and liberty with the “discretionary power” of police to efficiently investigate crimes and provide security and social order. In its 2014 decision in R v Fearon (“Fearon”), the Court articulated that “…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”.

If the police conduct a search and seizure incident to arrest, the analysis turns to whether, on the facts, it was reasonable. This power to “…search a lawfully arrested person and to seize anything in his or her possession or immediate surroundings” raises several questions about where the boundary will be drawn. The spatial and temporal limits of what constitutes “immediate surroundings'' under the police power of search incident to arrest were explored in a recent decision by the Manitoba Court of Appeal (“the MBCA”), R v Ibrahim (“Ibrahim”).

A search incident to arrest upheld

In February 2021, the MBCA delivered the written decision of Justice Cameron in the case of Ibrahim, dismissing the accused’s appeal. The accused in Ibrahim, Mulata Ibrahim, had appealed his conviction on the charge of possession of cocaine for the purpose of trafficking. The accused asserted that the police’s search of the vehicle incidental to arrest violated his rights under section 8 of the Charter, as his vehicle had been parked further down the street and not in the officers’ “immediate surroundings”, and that the trial judge had erred in the statement of facts about the exact location of the parked vehicle.

In Ibrahim, an informant had provided information to the Winnipeg Police Service (“the WPS”) about the accused distributing drugs using a hotel room and a black car. The police knew that the accused was a member of a gang and began surveillance. The police followed a vehicle (“the BMW”), which was registered to an owner who lived at the same address as Mr. Ibrahim, as it left the hotel parking lot, determining that the accused was driving.

The BMW stopped on a residential street behind a parked car, and the accused got out and walked to the passenger side of the other parked vehicle for about a minute. The parked car was the same black car the accused had been seen driving the previous day. The police had noted that some drug dealers had started keeping drugs in vehicles parked on residential streets to avoid being detected. The decision was made to arrest the accused on the belief that a drug transaction had taken place, but Mr. Ibrahim drove away in the BMW and parked at the other end of the street from the black car. Another vehicle parked behind the BMW and police saw another known gang member get into the BMW. At this point the police activated their lights and sirens, and the accused drove away. After a car chase, Mr. Ibrahim fled on foot and shortly thereafter he was caught and arrested. The police searched the accused and the BMW, finding a large sum of cash and keys to the black car but not any drugs.

The police decided they had reasonable grounds to believe there was evidence to be found in the black car related to the drug transaction and searched the vehicle without a warrant - “incident to arrest”. They found one kilogram of cocaine in the glovebox of the black car.

Issues on appeal

There were three issues raised by the accused his appeal to the MBCA, including two different grounds related to the trial judge’s dismissal of the accused’s Charter application:

• the trial judge had made an error in stating the accused “…was in the BMW right behind the [black car] when the police…activated [their] lights and sirens…” The accused argued that this error led the judge to conclude that the black car was in his “immediate surroundings”, which made the law of search incident to arrest applicable;

• the trial judge had wrongly used the fact that the accused had been seen driving the black car the day before the arrest, as a basis to determine there was an objectively reasonable prospect that searching the car would lead to evidence of drug trafficking; and

• the trial judge had stated that the preservation of evidence was part of the police objective in searching the black car; the accused argued that the police should have applied for a search warrant and simply guarded the car until they obtained the warrant.

The MBCA was not convinced that the trial judge had made a palpable or overriding error in the finding of facts. The appeal was dismissed.

Spatial and temporal requirements

The spatial and temporal boundaries of the police power to search incident to arrest are quite different in Canada compared to the US. Which of the following requirements seem to favour the individual’s rights over the discretionary power of the police to investigate?

• In the US: “the arrestee’s person and the area within his immediate control…defined as being the area within which the arrested person might, at the time of the search, reach and gain access to a weapon or destroy evidence”; or

• In Canada: “the spatial and temporal requirements for search incident to arrest, including the concept of immediate surroundings, are informed by the legitimate police objectives of such a search,” and there is “…no categorical limit on searches incident to arrest”.

Many cases that were decided by the Court underpin the decision of the MBCA in Ibrahim, and Justice Cameron reviewed and distinguished many of these cases in her written decision. Referring to Caslake, where “[d]elay and distance do not automatically preclude a search from being incidental to arrest” as a proper explanation by police can broaden the meaning of immediate surroundings. In R v Saeed, a general framework for a valid search incident to arrest had been outlined: “(1) the individual searched has been lawfully arrested; (2) the search is truly incidental to the arrest in the sense that it is for a valid law enforcement purpose related to the reasons for the arrest; and (3) the search is conducted reasonably”.

In describing the justification for the police search of the black car, the MBCA in Ibrahim characterized the period of time between the police observing Ibrahim standing near the black car until they turned on their sirens and lights to try and arrest him as an ongoing offence. The MBCA further clarified its decision by describing how the black car was within the “immediate surroundings of the accused” as the crime scene encompassed a large area from one end of the street to the other. The black car

“…was spatially and temporally connected to the offence and to the accused, who it could reasonably be believed was in the course of committing a drug-related offence when the police, by activating their lights and sirens, attempted to arrest him. The purpose of the search was to discover evidence of that offence”.

In my opinion, it does not seem reasonable to apply such a broad definition of “immediate surroundings” to the discretionary power of the police in the absence of exigent circumstances. This recent MBCA decision is clearly in line with jurisprudence from the Court (which are binding on all other courts across Canada), but maybe we should consider evaluating ancillary police powers from a different perspective.

Expanded police powers

The first time that the Court “comprehensively considered the question of the existence and scope of the police’s power to search a person [incident to arrest]” was in Cloutier v Langlois (“Cloutier”) in 1990. The MBCA in Ibrahim acknowledged that, since Cloutier, the Court has “examined, explained and expanded upon the police power to search incident to arrest”.

In Fearon, Cromwell J had explained that the power to search incident to arrest “not only permits searches without a warrant, but does so in circumstances in which the grounds to obtain a warrant do not exist”. If in Ibrahim the police had obtained an arrest warrant for the accused, they would not have had the power to search his car parked down the street. If they had obtained a search warrant for the hotel where Mr. Ibrahim had been staying, they would not have had the power to search his car in the parking lot.

The argument put forward by Mr. Ibrahim that the police could have simply guarded or towed the car while they applied for and obtained a search warrant was dismissed by the Court:

“[the argument] conflates the ability of the police to apply for a warrant with the requirement for a warrant. Police do not require a warrant to conduct a search incidental to a lawful arrest … regardless of whether they have the ability to apply for a warrant or preserve evidence pending the outcome of their application”.

It was also noted in the MBCA’s decision in Ibrahim that the trial judge had included comments about the situation being fluid in the lead up to the arrest, and that it occurred “…at night…in very cold temperatures.” There are situations where discretionary police search powers could be influenced by weather, especially regarding the preservation of evidence that could be lost to rain or wind, but the argument that illicit drugs would be impacted by cold temperatures is a new one. If this were true, Mr. Ibrahim probably would have known better than to keep the drugs in a car on such a cold night.

A statutory solution may be required

In The Disappearance of Criminal Law, Dr. Richard Jochelson surmised that “…most citizens would be surprised at the ambiguity of the criminal and the administrative natures of judicial decision making when it comes to the…supposition…that freedom from government interference is paramount. This technique of constitutional guardianship amounts to the Court’s policing of policing”. Jochelson describes the “deployment of police powers by the Supreme Court as the ‘central manifestation of police power’.”

If cases continue to be adjudicated at the Court in a manner that expands police powers to the detriment of individual privacy and freedom from government interference, and especially if it collides with shifting societal views and new technologies, there may be a need for statutory intervention.