Warrantless Searches in the Home: The Court Deals a Blow to Privacy in R v Stairs

In R v Stairs, 2022 SCC 11 [Stairs], the Supreme Court of Canada (“SCC”) attempted to balance privacy rights and law enforcement objectives. The court addressed the question of when, and under what circumstances, officers can search an arrested person’s home without a warrant. The unsettling answer is: more often than you would expect.

Background

On June 1, 2017, police received a call regarding the sighting of a man assaulting a woman in a car (Stairs, para 2). Upon locating the vehicle in an unknown driveway, the police ran the licence plate (Stairs, para 12). This revealed the alleged perpetrator to be the appellant, Mr. Stairs, who had cautions for violence and was labelled a high-risk offender (Stairs, para 12). The car belonged to his father, whom he lived with (Stairs, para 12). 

At the Stairs’ home, the police unsuccessfully attempted to make their presence known (Stairs, para 13). Concerned for the woman’s safety, the officers entered the home to find her ascending a flight of stairs with cuts, scratches, and swelling to her face (Stairs, para 13). At the bottom of the stairs which led to the basement, Mr. Stairs ran by and locked himself in the laundry room (Stairs, para 14). He was arrested soon after, at which point one of the officers, Officer Vandervelde, conducted a visual search of the basement to ensure there were no remaining safety risks (Stairs, paras 15–16). During the search, he noticed and seized a transparent container behind the couch in plain view, believing its contents to be methamphetamine (Stairs, paras 16 & 104). He also seized a plastic bag containing suspected methamphetamine from the coffee table (Stairs, para 16).

Mr. Stairs was charged with assault and breach of probation, contrary to ss. 266 and 733.1(1) of the Criminal Code, RSC 1985, c C-46, and possession for the purpose of trafficking, contrary to s. 5(2) of the Controlled Drugs and Substances Act, S.C. 1996, c. 19. On a pre-trial basis, he argued that the officers had violated his right to protection against unreasonable search and seizure under s. 8 of the Canadian Charter of Rights and Freedoms [Charter] (Stairs, para 20). The trial judge rejected Mr. Stairs’ argument, admitted the methamphetamine into evidence, and convicted him on all counts (Stairs, paras 3, 21, 23). The Ontario Court of Appeal dismissed Mr. Stairs’ appeal (Stairs, para 24).

SCC Decision

The facts of this case are uncomplicated, yet the legal issue at the core of Stairs is anything but simple, as is demonstrated by the SCC’s 6–3 split decision. The issue before the court was whether Officer Vandervelde’s search of the basement violated Mr. Stairs’ s. 8 Charter rights (Stairs, para 30). If it did, the corollary issue arose of whether or not the fruits of the search—the methamphetamine—should nonetheless be admitted into evidence under s. 24(2) of the Charter.

S. 8 of the Charter protects against unreasonable search and seizure, and there is a presumption that warrantless searches are unreasonable (Stairs, paras 112–113). However, to account for the competing interest of public safety, the courts have developed a common law doctrine of search incident to arrest (“SITA”), which allows officers to conduct warrantless searches where the three conditions are met (Stairs, paras 34–35). First, the police must lawfully arrest an individual (Stairs, para 35). Second, the  search must be in furtherance of a valid law enforcement objective connected to the arrest (Stairs, para 35). Third, the search must be conducted reasonably (Stairs, para 35). 

Both the majority and dissent recognized that privacy interests are critical and that warrantless searches amount to an “extraordinary” police power (Stairs, paras 34 & 117). As noted by Justice Karakatsanis, writing for the dissent, warrantless searches should be “exceedingly rare” (Stairs, para 114). For that reason, the court has, on occasion, modified the common law SITA standard to account for heightened privacy interests (Stairs, para 6). In Stairs, the entire court agreed that to account for heightened privacy interests in the home, the common law SITA power had to be modified yet again. What they disagreed on was the extent of this modification. 

Justices Moldaver and Jamal, writing for the majority, held that where a search inside a home occurs within the arrested individual’s physical control, the common law standard applies (Stairs, para 8). Where the area in question is outside the arrested individual’s physical control, but still within the surrounding area of the arrest (i.e. sufficiently proximate to the arrest), a new standard of reasonable suspicion is to be applied (Stairs, para 8–9). This new standard requires the police to reasonably suspect a safety risk to the accused, themselves, or the public, which would be addressed by the search (Stairs, para 8). As with the usual common law standard, said searches must be conducted reasonably (Stairs, para 8). 

The dissent went further. They argued that any search of a home incident to arrest must be within the “immediate surroundings” of the arrest and conducted “within a reasonable time” (Stairs, para 134). There must also be reasonable suspicion of an imminent threat to police or the public (Stairs, para 126). Notably, the dissent scraps the physical control and surrounding area distinctions introduced by the majority.

In applying their framework, the majority found that the requisite standard was met, meaning there was no breach of Mr. Stairs’ s. 8 rights (Stairs, para 84). The majority deferred to the trial judge’s factual findings and was satisfied that Officer Vandervelde had subjectively reasonable suspicion of safety concerns in the basement area (Stairs, para 85). It was found that the objective component of reasonable suspicion was also satisfied due to the dynamic and volatile nature of the arrest, as well as the violent nature of the offence precipitating the arrest (Stairs, para 86). 

The dissent disagreed and criticized the majority’s focus on generalized facts about the arrest (Stairs, paras 130 & 147). The dissent found that Officer Vandervelde lacked the subjective component of reasonable suspicion based on his admission that he “felt safe” after the arrest, and his statement that “[you] never really know exactly what you’re looking for when you’re entering a house in a situation like this” (Stairs, para 145). 

Concerning the issue of admissibility, the dissent found that in applying the test laid out in R v Grant, 2009 SCC 32, the evidence should be excluded under s. 24(2) of the Charter (Stairs, para 158). The dissent found that the gravity of the breach and the serious impact on Mr. Stairs’ privacy interests overwhelmed society’s interests in adjudicating the drug offence on its merits (Stairs, paras 155–158). In her concurring dissent, Justice Côté agreed with Justice Karakatsanis regarding the s. 8 violation, but would have instead admitted the evidence (Stairs, para 172). She instead found that the gravity of the breach was minimal, given the uncertainty of the law at the time and the officer’s good faith in conducting the search (Stairs, paras 164–165).

Analysis

Plain View? Not at Issue

Justice Karakatsanis opened her dissent with the following statement:

Responding to a domestic violence call, police arrested Matthew Stairs in his home, searched his basement, and, in a discovery unrelated either to the nature of the arrest or the aim of the search, seized methamphetamine that was found behind a couch and next to a coffee table [emphasis added]. (Stairs, para 104)

She stated something similar later on in her dissent (Stairs, para 139). While at first blush, this is unassuming, upon careful inspection it reveals something intriguing. Why does Justice Karakatsanis choose to mention the methamphetamine’s unrelatedness to the arrest? The simplest explanation appears to be that this is a subtle dig at the well-established plain view doctrine, which allows all fruits of a search to be seized irrespective of their relevance to the search’s purpose. There were no arguments made before the court regarding the plain view doctrine, and thus, the issue was not open to consideration (Stairs, para 151). 

Justice Karakatsanis’ disagreement with the majority’s opinion may be less rooted in its modification to the SITA framework, and more in the problematic consequences of the plain view doctrine. It seems instinctively wrong for an illegal substance to be seized as a result of a domestic violence arrest, where it otherwise would never have come to the attention of the police. There is something inherently more invasive and overreaching about an item’s seizure when its presence is entirely unrelated to the arrest and it gives rise to an unrelated charge. It may be that the privacy and law enforcement objectives at odds in this case would be more aptly balanced by modifying the plain view doctrine rather than refining the scope of the SITA power. The court could, for example, limit police power by allowing officers to seize only those items in plain view and related to the purpose of a SITA. While Justice Karakatsanis’ hands were tied with respect to the plain view doctrine, she made sure that its shortcomings did not go unnoticed. 

From Exceedingly Rare to Standard Practice

Citing R v Simmons, [1988] 2 SCR 495, the dissent notes that warrantless searches ought to be “exceedingly rare” (Stairs, para 114). This is consistent with the understanding that warrants are “foundational check[s] on police powers” and a “cornerstone of our constitutional order” (Stairs, para 114). The majority’s decision slices through this well-established principle and may render warrantless searches unsettlingly common.

Justices Moldaver and Jamal highlighted two facts that, in their view, grounded objective reasonable suspicion in this case (Stairs, para 86). The first is the volatile dynamic before and during the arrest (Stairs, paras 86–89). Mr. Stairs’ behaviour was erratic and the police knew him to have a history of violence (Stairs, paras 86–89). Mr. Stairs’ behaviour is undisputed, but the issue remains that the situation was volatile before and during the arrest. The search occurred after. It is difficult to understand how—after Mr. Stairs was incapacitated—the situation was volatile enough to justify a search of the basement.

The second fact relied upon by the majority was the nature of the domestic violence offence (Stairs, para 86). The court noted the prevalence of domestic violence and its private nature (Stairs, paras 90–92). They stated that “the police often respond to domestic violence calls with limited information […] they may not know if other family members, including children, are involved” (Stairs, para 94). The majority’s concerns are valid, but they must be understood within the relevant legal framework. As the dissent reminded us, reasonable suspicion cannot be generalized (Stairs, para 130). This is to prevent officers from acting on stereotypes or hunches. It is difficult to imagine a more generalized form of suspicion than one based purely upon a type of offence, especially when that offence is exceedingly common.

The effect of relying on these two factors is to set a troubling precedent. The majority suggests that the threshold for objective reasonable suspicion will be met in cases where (1) an arrest situation is volatile and (2) the offence is domestic violence. Such situations are by no means rare, meaning that the SITA power can be exercised in a great deal of cases. The majority eroded the standard for reasonable suspicion by finding that generalized facts are sufficient to establish it.

The majority did not point to a single particularized fact that alluded to safety risks in the Stairs’ home. On the contrary, there were several factual indications that there were no safety risks at play:

• Mr. Stairs was not known to have a history of weapon ownership or use, nor were any weapons found on his person (Stairs, para 148). 
• The officers visually scanned the basement and felt safe enough to turn their backs on the area and draw Mr. Stairs from the laundry room (Stairs, para 148).
• There were “no observations from the scene that anyone was in danger” (Stairs, para 148).
• The search was conducted after Mr. Stairs was arrested and Officer Vandervelde claimed to have “felt safe” (Stairs, para 148). 
• There was no sign of any other people in the home, nor did any of the officers ask Mr. Stairs or the victim if that were the case (Stairs, para 148). 

In light of these facts, it is difficult to accept the majority’s position that the nature of the offence and the dynamic before and during the arrest were sufficient to ground reasonable suspicion. The facts of the case do not suggest any particularized basis upon which to believe that there was a real possibility of weapons, other victims, or further threats in the home. 

The majority’s proposed amendment to the SITA power is not inherently troubling. On its face, it appears to reasonably balance privacy concerns with law enforcement objectives. It is the majority’s application of their framework to the Stairs facts that reveals potential overreach at the expense of privacy interests. One must consider whether this generalized approach to reasonable suspicion will render warrantless searches no longer “exceedingly rare,” but instead, a common practice.