Keeping Up Is Hard to Do:
A Trial Judge’s Reading Blog


In R. v. Bakal, 2021 ONCA 584, August 30, 2021, the accused was convicted of multiple drug and firearm offences.  A portion of the evidence presented against him was obtained as a result of the police tracking his cellular telephone and searching his vehicle upon arrest.  In neither instance did the police have a search warrant to do so.  The circumstances involved were summarized by the Ontario Court of Appeal in the following manner (at paragraphs 1 to 3):

…a woman called 911 to report that she had just been assaulted by the appellant, Mustafe Bakal, who was her boyfriend at the time. She told the 911 operator that the appellant had just left the apartment with a firearm in the waistband of his pants. That 911 call precipitated a quick police response.

With the assistance of the appellant’s cell phone service provider, Detective Constable (“D.C.”) Meredith of the Toronto Police Service (“T.P.S.”) was able to successfully track the appellant’s phone moving in an eastbound direction from Toronto toward Ottawa. The tracking information was conveyed to the Ontario Provincial Police (“O.P.P.”), who were then able to locate the appellant and his brother travelling in a vehicle on Highway 401 just east of Kingston, Ontario. The police stopped the vehicle and arrested the appellant for assault.

When the vehicle was searched incident to the arrest for assault, a vacuum-sealed package of what was believed to be cocaine was located in a hidden compartment in the trunk. The police then stopped the search and obtained a telewarrant for further inspection, after which they discovered two loaded firearms hidden in a locked compartment in the centre console of the vehicle.

The accused appealed from conviction.  The Court of Appeal indicated that the accused argued that “the trial judge erred by concluding that: (1) the exigent circumstances doctrine justified the warrantless tracking of his cellular phone; and (2) the search incident to arrest doctrine justified the initial warrantless search of the motor vehicle” (at paragraph 5).

The appeal was dismissed.  The Court of Appeal held that the trial judge did not err in relation to either issue.

The Warrantless Tracking:

The Court of Appeal indicated that “[i]n the normal course, the police need prior judicial authorization to track a cell phone, which in turn provides information about an individual’s whereabouts: Criminal Code, R.S.C. 1985, c. C-46, s. 492.1(2). The question for determination on appeal is whether the warrantless approach taken was justified on the basis that the police were operating in exigent circumstances” (at paragraph 18)

The Court of Appeal noted that “the police can act without prior judicial authorization where there exists an imminent threat to police safety or public safety or in circumstances where there exists a risk of imminent loss or destruction of evidence” and that “[w]hile the exigent circumstances doctrine should be invoked only where it is ‘necessary’, the factual matrix within which the decision to track the appellant’s cell phone was made met that requirement” (at paragraphs 19 and 24).

The Court of Appeal concluded that “even if a telewarrant had been available for purposes of obtaining prior judicial authorization to track the appellant’s phone, the police would have been hard pressed to obtain one in the less than three hours that transpired between when it became clear that the appellant had to be located and when he actually was located a few hundred kilometres away” (at paragraph 32).

Search Incident to Arrest:

The Court of Appeal indicated that the accused argued that “where a search incident to arrest is directed at discovering evidence, it will only be justified where there is a real prospect of securing actual evidence of the offence that can be admitted at trial. On this basis, the appellant contends that there was nothing the police would be justified in looking for within the vehicle incident to arrest” (at paragraph 57).

The Court of Appeal rejected this proportion, adopting a broader approach (at paragraph 58):

…the common law animating the principles around the doctrine of search incident to arrest is clear. There is nothing in that body of jurisprudence that limits the police to searching only for evidence that is admissible at trial as going to prove an element of the offence. To the contrary, the police can search for those things that relate directly to the arrest. While those things may, from time to time, be admissible at trial as proof of the offence, when the police are searching for those things, they are not concerning themselves with questions of admissibility. Rather, as the common law directs, they are concerning themselves with whether there is a direct link between the arrest and what is being looked for.