R. v. Stairs 2022 SCC 11 - Case Summary
The Supreme Court of Canada clarifies the scope, and requirements, for search of a person’s home incidental to their arrest.
Who
Police respond to a 9-1-1 domestic violence call. The caller indicates a man was seen repeatedly hitting a woman in a vehicle.
Police locate the vehicle in the driveway of an unknown house, knock on the front door, and loudly announce their presence. No one responds.
Police enter the home fearing for the woman’s safety. Inside, they find a woman with fresh injuries to her face and, shortly after, Mr. Stairs, who proceeds to barricade himself in a basement room.
Police arrest Stairs for a domestic violence related offence.
What
After Stairs is arrested, police conduct a “visual clearing” search of the basement of the residence. They locate a clear container and plastic bag in “plain view”, which contains methamphetamine. Stairs is subsequently charged with CDSA 5(2) possession for the purposes of trafficking.
Where
The trial is heard in the Ontario Superior Court of Justice (ONSC). Stairs is convicted of all charges.
Stairs appeals his drug offence to the Ontario Court of Appeal (ONCA), on the basis that the search was unlawful. The Court upholds the conviction in a split decision.
Stairs further appeals to the Supreme Court of Canada (SCC). The Court upholds the conviction, also in a split decision.
Why
The common law standard for search incident to arrest, requires the following (para 35-36):
1) That the individual has been lawfully arrested
2) That the search is truly incidental to arrest, for a valid law enforcement purpose connected to the arrest. This includes police and public safety, preventing the destruction of evidence, and discovery of evidence.
3) That the search is conducted reasonably
The SCC’s decision modifies the common law standard, in the specific context of a search of a home incident to arrest, but only where the area searched is outside the physical control of the arrested person.
The new standard requires the following:
1) The area searched must be sufficiently proximate to the arrest
2) The police must have reason to suspect that there is a safety risk to them, or the accused, or the public
3) The search must be conducted in a reasonable manner, tailored to the heightened privacy interests of a home
The Gist
“When the police search incident to arrest in a home for safety purposes, they must have reason to suspect that a search of areas outside the physical control of the arrested person will further the objective of police and public safety, including the safety of the accused.” (para 65)
To determine if the search area is within or outside the physical control of the arrested person, ask:
What is the link between the location and purpose of the search and the grounds for arrest?
“Reason to suspect” requires reasonable suspicion. This is higher than the standard of “some reasonable basis” which is the common law standard for general searches incident to arrest (para 66-67).
The SCC recognize the “heightened privacy’” of the home, placing it on a spectrum below seizure of bodily samples, but above general places that will be searched incident to arrest. That said….
They also state judges must be alive to the volatility and uncertainty police officers face at a scene. They must not ignore the realities of the job in assessing police conduct (para 74).
The Court, unfortunately, specifically avoids discussing searches in the home for another investigative purpose - i.e. not for police safety, but for evidence discovery, evidence preservation, etc.