Charter Rights

Supreme Court Creates Stricter Test for Warrantless Searches During Arrest at Home

Written on behalf of Barrison Law

Section 8 of the Canadian Charter of Rights and Freedoms provides everyone with the right to be secure against unreasonable search or seizure. This right was recently examined by the Supreme Court of Canada in the context of warrantless searches conducted during an accused’s home during arrest. 

Police discover methamphetamine during arrest for assault

In R. v. Stairs, the police responded to a 911 caller who reported seeing a man repeatedly hit a woman in a car. Officers found the car parked in the driveway of an unknown house, and after scanning the car’s interior, they knocked on the front door of the house. After there was no response, they entered the house and saw a woman with facial injuries coming up the stairs from the basement. The accused barricaded himself in the basement laundry room and was arrested a short time later. 

The police conducted a search of the basement living room area to make sure there were no hazards and no one else present. During this search, they found a clear container and plastic bag containing methamphetamine in plain view.

Suspect convicted of assault and possession for the purpose of trafficking

The suspect was charged with possession for the purpose of trafficking, assault and breach of probation. He was convicted of all charges at trial.

On appeal, the accused argued that the drug conviction should be quashed on the basis that the drug evidence was improperly obtained by the police during an unconstitutional search of the basement living room. He submitted that given the high privacy interests that apply to a person’s residence, there must be reasonable grounds to believe that there is an imminent threat to public or police safety before police can conduct a warrantless search of a home.

SCC: Stricter standard required for warrantless searches incident to arrest 

The majority of the Supreme Court justices upheld the drug conviction. However, the Court agreed that the common law standard for warrantless searches should be tightened to reflect an accused’s heightened privacy interests in their home.

Baseline standard requires lawful arrest and reasonable incidental search

In its decision, the Court explained that the established common law standard for a search incident to (during) arrest requires the following:

  1. That the individual searched has been lawfully arrested;
  2. That the search is truly incidental to the arrest, in the sense that it is for a valid law enforcement purpose connected to the arrest; and
  3. That the search is conducted reasonably.

However, the Court agreed with the accused that the common law standard for search incident to arrest must be modified to pass constitutional muster under section 8 of the Canadian Charter of Rights and Freedoms

Enhanced standard considers whether area searched is within accused’s physical control

The Supreme Court decided to create a stricter common law standard for the search of a home incident to arrest. This enhanced standard aims to more effectively balance the demands of law enforcement and a person’s right to privacy in their home. 

The Court held that the baseline common law standard continues to apply where the area searched is within the arrested person’s physical control. However, where the area is outside their physical control but is still sufficiently proximate to the arrest, a search of a home incident to arrest for safety purposes will be valid only if:

  1. Police have reason to suspect that there is a safety risk to the police, the accused, or the public, which would be addressed by a search; and
  2. The search is conducted in a reasonable manner, tailored to the heightened privacy interests in a home.

Drug conviction upheld, reason to suspect safety risk in basement living room

Given the circumstances present in Stairs, the Court upheld the accused’s drug conviction. The Court determined that police had reason to suspect that there was a safety risk in the basement living room. Further, it was reasonable for the police to alleviate that risk by conducting a quick scan of the room, which was the least intrusive manner of search possible in the circumstances. As a result, the accused’s section 8 rights were not breached, and the drug evidence was properly admitted.

Dissent: police must reasonably suspect imminent threat to safety to conduct search imminent to arrest

Writing for the three dissenting judges, Justice Karakatsanis agreed that the test for searches incident to arrest in an accused’s home should be modified to better balance an accused’s privacy interests with law enforcement objectives. However, she stated that this balance is best struck by authorizing police to conduct a search incident to arrest only when they reasonably suspect there is an imminent threat to the safety of police or the public.

Dissent disagrees with possession for purpose of trafficking conviction

The dissenting judges disagreed entirely with the outcome reached when applying this heightened standard to the facts present in Stairs.

Justice Karakatsanis took the position that the search and seizure of the basement living room were not justified. The police only searched the basement once the accused had been handcuffed and the victim had gone upstairs. As such, the dissent found no basis for a reasonable suspicion that anyone’s safety was at risk following the arrest. Justice Karakatsanis submitted that the accused’s conviction for possession for the purpose of trafficking should have been set aside, and an acquittal entered instead. 

Contact Barrison Law in Oshawa for Dedicated & Experienced Criminal Defence Services

At Barrison Law, our knowledgeable criminal defence lawyers advocate for clients’ Charter rights in a wide range of offences, including drug charges, assault, and breaches of probation. We help clients at all stages of the criminal justice process, from arrest to bail hearings to trial.

Barrison Law is conveniently located just steps from the Durham Consolidated Courthouse. We proudly serve all of Durham Region, including Oshawa, Whitby, Ajax, and Pickering, as well as the surrounding communities, including Cobourg, Peterborough, and Lindsay. Our team accepts cases on private retainer and Legal Aid and offers 24-hour phone service. To schedule a confidential consultation on your criminal law matter, call us at 905-404-1947 or reach out online.