Monthly Archives: August 2021

Search of the vehicle incident to arrest for reasons unrelated to the arrest violated Section 8 of the Charter

Ali Ismail was charged with seven counts, all related to his alleged possession of a loaded handgun found in the backseat area of the pickup truck he was operating (R. v. Ismail 2021 ONSC 3883). Police were investigating Ismail in relation to outstanding bench warrants for failing to attend court on charges of occupying a motor vehicle knowing there was a prohibited weapon inside, resisting a peace officer, possession of a Schedule I substance, and operating a motor vehicle while impaired. On the latter charges, Ismail had already been arrested, released, and charged sometime prior and those matters were before the court, so the current arrest was for the arrest warrant for failing to appear in court in answer to those charges.

At the time of his arrest on the warrant, Ismail was driving and there was a female passenger in the vehicle. Ismail was arrested and his hands cuffed behind his back. The female passenger was also now away from the vehicle and no longer had immediate access to it. An officer testified that his 26 years of experience convinced him that the entire vehicle could be searched to secure evidence related to the crime for which the accused was being arrested. In this case, for evidence related to the original charges. The officer learned from another officer at the scene that a handgun had been found in the backseat area of the pickup truck before (the original charges). It was the experienced officer’s opinion that there was no need to obtain a warrant to search the vehicle now. During the search of the vehicle on the arrest of Ismail on the warrant, a loaded handgun was found underneath the backseat of the pickup truck, wrapped in brown paper towel. After finding the loaded handgun, the female passenger was also arrested.

Search of vehicles incident to arrest has been the subject of many ligated cases, many of which I have already posted about on this blog (e.g., R. v. Caslake, [1998] 1 S.C.R. 51; R. v. Belnavis (1996), 1996 CanLII 4007 (ON CA), 107 C.C.C. (3d) 195; R. v. Nolet, [2010] 1 S.C.R. 851; and others). The issue in the present case was whether the search by police was truly incidental to the arrest in the sense that it was necessary to discover or preserve evidence connected to the arrest, protect safety, or protect against escape.

Searches of vehicles by police will generally be lawful where the search is related to evidence of the offences for which the accused is arrested. These are typically active, ongoing investigations. It is important to remember that Ismail was arrested for his failure to attend court. He had been previously arrested and released on the weapons charges related to this vehicle. Here, by the time police conducted the search of the vehicle, Ismail had been arrested, cuffed and removed from the immediate location of the Avalanche pickup truck for transport. The female passenger was away from the vehicle. Ismail had been co-operative and had offered no resistance. In the language of para. 22 of Caslake, there was no “reasonable prospect of securing evidence of the offence for which the accused was being arrested.” The accused was being arrested for his failure to attend court. There were no officer safety issues at that point. There was no evidence related to the failure to attend court that could be gained from the vehicle. There was no chance Ismail would escape. The search of the vehicle amounted to a breach of s. 8 of the Charter. It was warrantless and not authorized by law. In this judge’s ruling, if police felt there were reasonable grounds to believe there was a gun in the vehicle, they had only to secure it and obtain a warrant. They clearly either felt it was unnecessary or were concerned about whether they had the grounds to obtain it.

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