Supreme Court of Canada Raises Standard for Police to Search a Home Incident to Arrest for Safety, Upholds Warrantless Search of Basement

In R. v. Stairs, 2022 SCC 11, the Supreme Court of Canada recently modified the common law on searches incident to arrest for safety purposes where the search occurs inside the arrested person’s home, imposing a higher standard to search parts of a home that are outside the physical control of the arrested person.

Facts and Procedural History

A civilian made a 911 call reporting a man striking a woman in a car. Three police officers found the car parked and empty in the driveway of a house. They knocked on the door and announced themselves, but nobody answered. They entered the house and went to the basement staircase, sensing activity downstairs. They saw a woman with fresh face injuries come up the staircase; she had emerged from the basement living room area to the right. A man – the accused – also emerged from the right but, instead of climbing the staircase, ran to the left and barricaded himself in the basement laundry room.

The officers arrested the accused in the laundry room. They also conducted a visual “scan” of the other room: the basement living room area, for safety purposes. The officers spotted, in plain view, a clear container and a plastic bag containing methamphetamine, which they seized.

In addition to assault and breach of probation, the accused was charged with possession for the purpose of trafficking. He was convicted of all charges at trial. He appealed. Only the conviction for the drug offence was at issue and a majority of the Ontario Court of Appeal upheld the conviction.

The accused appealed his conviction to the Supreme Court of Canada arguing that the police had seized the methamphetamine evidence in breach of his right to be free from unreasonable search and seizure under s. 8 of the Charter, and that the evidence should have been excluded by the trial judge.

The Supreme Court of Canada gave three separate reasons in a  split judgment. The five-judge majority concluded that the search of the basement was lawful and upheld the accused’s conviction.

Supreme Court Raises the Standard, but Disagrees on How High

Searches incident to arrest are an exceptional power to search without a warrant. The regular common law standard to justify a search incident to an arrest is well-established:

(1) the person searched must have been lawfully arrested,

(2) the search must be truly incidental to the arrest in the sense that it is for a valid law enforcement purpose connected to the arrest, and

(3) the search must be conducted reasonably.

Notably, the police do not require “reasonable and probable grounds” for the search; they only require “some reasonable basis” that the search is for a valid law enforcement purpose, which may include safety, evidence preservation, or evidence discovery. This lower standard was easily met by the police in this case.

However, the Supreme Court of Canada has confirmed that people have heightened privacy interests in their homes. The accused argued that the standard for searches incident to arrest should be raised when in the arrested person’s home due to this heightened privacy interest. The Court has occasionally modified the regular common law standard for searches incident to arrest to better balance privacy interests on one hand, and valid law enforcement objectives on the other. For example, strip searches and cell phone searches require a higher standard, and the seizure of bodily samples is not permitted in a search incident to arrest.

The New Test

The majority set out the new test. The first question is whether the area searched is within or outside the “physical control” of the arrested person. If the area searched is within the arrested person’s physical control, then the regular common law standard applies. If the area searched is outside of their physical control, then:

1. the search must still be “sufficiently proximate” to the arrest (i.e., there must be a link between the location and purpose of the search and the grounds for the arrest);
2. the police must have a “reasonable suspicion” that there is a safety risk to the police, the accused, or the public that would be addressed by the search; and
3. the search must be conducted reasonably, tailored to the heightened privacy interests in a home – the police cannot search “every nook and cranny” of the house. The majority noted that “it would be good practice for the police to take detailed notes after searching a home incident to arrest”.

In rejecting a requirement for suspicion of an “imminent” threat, the majority noted that while there is a significant privacy interest in one’s home, there are also greater risks at play when police search a home, such as potential victims needing help or additional aggressors posing a safety risk. The majority stated that when assessing police conduct, judges “must be alive to the volatility and uncertainty that police officers face – the police must expect the unexpected”, and that the courts must “avoid using twenty-twenty hindsight as the yardstick against which to measure instantaneous decisions made by the police.”

Despite the disagreement in the Court, all nine judges agreed that the test to search a home incident to arrest for safety purposes must be stricter because of the heightened privacy interests in a home. The Court has confirmed that it will step in and modify legal standards for searches in order to balance law enforcement objectives with different types of privacy interests.

Unanswered Questions

The Court only addressed searches for safety purposes – it did not address the standard for searches for other purposes, such as evidence collection or preservation, for which the standard may be higher. Relatedly, the evidence at issue in this case (methamphetamine) was unrelated to the reason the accused was arrested (assault). The seizure was justified on the “plain view” doctrine.

There is also a lingering question as to whether and how the plain view doctrine applies inside a person’s home. This issue has been raised in several prior cases, but the Court has declined to address it each time. Because none of the parties argued this issue in this case, the Court has once again left this for another day.