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POWERS OF SEARCH AND SEIZURE - Warrantless searches - Search incidental to arrest

Friday, September 24, 2021 @ 9:54 AM  


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Appeal by Bakal from his convictions for multiple drug and firearm counts. The complainant called 911 to report she had just been assaulted by the appellant, who was her boyfriend at the time. She reported the appellant left the apartment with a firearm. The police tracked the appellant through his cell phone and stopped his vehicle. The appellant’s vehicle was searched incident to his arrest for assault and a package of what was believed to be cocaine was located in a hidden compartment in the trunk. Police stopped the search and obtained a telewarrant for further inspection, after which they found two loaded firearms hidden in a locked compartment in the centre console of the vehicle. Charges against the appellant’s brother, who was in the vehicle with him, were dismissed after the brother successfully applied to exclude the evidence based on Canadian Charter of Rights and Freedoms (Charter) breaches. The appellant’s Charter challenges were unsuccessful at trial.

HELD: Appeal dismissed. The trial judge did not err in concluding exigent circumstances justified the warrantless tracking of the appellant’s cell phone to locate him. The trial judge reasonably concluded that against the factual backdrop, concerns over public safety were well-founded. The trial judge did not err in concluding the search incident to arrest was lawful. The firearm was fundamentally linked to the assault and the police were entitled to search for it incident to the appellant’s arrest. The appellant’s s. 8 Charter rights were not violated during the search incident to his arrest. It was open to the trial judge to accept expert evidence of an experienced police officer on drug pricing and jargon. Concurring reasons were provided.

R. v. Bakal, [2021] O.J. No. 4492, Ontario Court of Appeal, J.M. Fairburn A.C.J.O., R.G. Juriansz and D. Paciocco JJ.A., August 30, 2021. Digest No. TLD-September202021009