R. v. Stairs

R. v. Stairs
Collection
Supreme Court Judgments
Date
2022-04-08
Neutral citation
2022 SCC 11
Report
[2022] 1 SCR 169
Case number
39416
Judges
Wagner, Richard; Moldaver, Michael J.; Karakatsanis, Andromache; Côté, Suzanne; Brown, Russell; Rowe, Malcolm; Martin, Sheilah; Kasirer, Nicholas; Jamal, Mahmud
On appeal from
Ontario
Subjects
Constitutional law
Notes
Case in Brief SCC Case Information
Decision Content
SUPREME COURT OF CANADA
Citation: R. v. Stairs, 2022 SCC 11, [2022] 1 S.C.R. 169
Appeal Heard: November 2, 2021 Judgment Rendered: April 8, 2022 Docket: 39416
Between:
Matthew Stairs Appellant
and
Her Majesty The Queen Respondent
- and -
Attorney General of Ontario and Canadian Civil Liberties Association Interveners
Coram: Wagner C.J. and Moldaver, Karakatsanis, Côté, Brown, Rowe, Martin, Kasirer and Jamal JJ.
Joint Reasons for Judgment: (paras. 1 to 103)
Moldaver and Jamal JJ. (Wagner C.J. and Rowe and Kasirer JJ. concurring)
Concurring Reasons: (paras. 159 to 177)
Côté J.
Dissenting Reasons: (paras. 104 to 158)
Karakatsanis J. (Brown and Martin JJ. concurring)
Matthew Stairs Appellant
v.
Her Majesty The Queen Respondent
and
Attorney General of Ontario and
Canadian Civil Liberties Association Interveners
Indexed as: R. v. Stairs
2022 SCC 11
File No.: 39416.
2021: November 2; 2022: April 8.
Present: Wagner C.J. and Moldaver, Karakatsanis, Côté, Brown, Rowe, Martin, Kasirer and Jamal JJ.
on appeal from the court of appeal for ontario
Constitutional law — Charter of Rights — Search and seizure — Search incident to arrest — Police arresting accused in basement of his home following report of domestic violence — Police conducting clearing search of basement living room after arrest and finding methamphetamine — Accused convicted of possession of controlled substance for purpose of trafficking — Whether common law standard for search incident to arrest should be modified when search conducted in home — Whether clearing search of basement living room was lawful search incident to arrest — Canadian Charter of Rights and Freedoms, s. 8.
A call was placed to 9‑1‑1 to report a man repeatedly hitting a woman in a car. Police officers located the car parked in the driveway of a house. They knocked on the front door and loudly announced their presence, but no one answered. Fearing for the woman’s safety, they entered the house. A woman with fresh injuries to her face came up a flight of stairs leading from the basement. The accused then ran past the bottom of the staircase and barricaded himself in the basement laundry room, where he was arrested a short time later. After the arrest, the police conducted a visual clearing search of the basement living room area, from which the accused and the woman had just emerged. During the search, the police saw a clear container and a plastic bag in plain view containing methamphetamine. The accused was charged with possession of a controlled substance for the purpose of trafficking, and with assault and breach of probation.
The accused brought a pre‑trial application alleging, among other things, violations of his right against unreasonable search and seizure protected by s. 8 of the Charter. The trial judge found no breach of s. 8 and no basis to exclude the methamphetamine. She held that it was reasonable for the officers to do a quick scan of the basement living room after the accused was arrested, that the search had a valid objective, and that the search and resulting seizure were lawful. The accused was convicted of all charges. He appealed his conviction for the drug offence on the basis that the drug evidence was improperly admitted. A majority of the Court of Appeal upheld the conviction, holding that the search and subsequent seizure of the methamphetamine did not breach the accused’s s. 8 Charter rights. The majority was of the view that the search was a search incident to a lawful arrest, that the common law standard for search incident to arrest applied, and that the search of the basement living room met this standard.
Held (Karakatsanis, Brown and Martin JJ. dissenting): The appeal should be dismissed.
Per Wagner C.J. and Moldaver, Rowe, Kasirer and Jamal JJ.: The basic common law standard for search incident to arrest continues to apply when the police search an area of the arrested person’s home that is within that person’s physical control. The common law standard permits the police to search a lawfully arrested person and to seize anything in their possession or the surrounding area of the arrest to guarantee the safety of the police and the arrested person, prevent the person’s escape, or provide evidence against them. Specifically, it permits a search of the person arrested and the surrounding area of the arrest when (1) the arrest is lawful; (2) the search is incidental to the arrest, such that there is some reasonable basis for the search connected to the arrest and the search is for a valid law enforcement purpose, including safety, evidence preservation, or evidence discovery; and (3) the nature and extent of the search are reasonable.
However, where the area searched in the arrested person’s home is outside that person’s physical control at the time of the arrest — but the area is sufficiently proximate to the arrest — the common law standard for search incident to arrest must be modified to pass constitutional muster under s. 8 of the Charter. The purpose of the distinction between the areas within and outside of the arrested person’s physical control is to recognize that the more extensive the warrantless search in a home, the greater the potential for violating privacy. The key question in determining whether an area is sufficiently proximate to the arrest is whether there is a link between the location and purpose of the search and the grounds for the arrest. The inquiry is highly contextual; the determination must be made using a purposive approach to ensure that the police can adequately respond to the wide variety of factual situations that may arise. Depending on the circumstances, the surrounding area may be wider or narrower.
Specifically, where the area searched incident to arrest in a home is outside the arrested person’s physical control at the time of the arrest, the common law standard for search incident to arrest must be modified in two ways that make the standard stricter. First, the police must have reason to suspect that there is a safety risk to the police, the arrested person, or the public which would be addressed by a search. Reasonable suspicion is a higher standard than the common law standard for search incident to arrest. The police require a constellation of objectively discernible facts assessed against the totality of the circumstances giving rise to the suspicion of the risk. Relevant considerations include (a) the need for a search; (b) the nature of the apprehended risk; (c) the potential consequences of not taking protective measures; (d) the availability of alternative measures; and (e) the likelihood that the contemplated risk actually exists. Moreover, when assessing police conduct, the reviewing judge must be alive to the volatility and uncertainty that police officers face — the police must expect the unexpected.
Second, the police must carefully tailor their searches incident to arrest in a home to ensure that they respect the heightened privacy interests implicated. The search incident to arrest power only permits police to search the surrounding area of the arrest. The nature of the search must be tailored to its specific purpose, the circumstances of the arrest, and the nature of the offence. The search should be no more intrusive than is necessary to resolve the police’s reasonable suspicion.
In the present case, the basement living room search met the standard for reasonable suspicion, both in terms of its subjective and objective components. It was open to the trial judge to conclude that the police subjectively believed there was a safety risk that would be addressed by conducting a clearing search of the living room, which was a valid law enforcement purpose. It was equally open to the trial judge to find that it was objectively reasonable for the police to clear the area for hazards and other occupants. The dynamic before and during the arrest and the nature of the offence for which the accused was arrested were factors that figured prominently in the reason‑to‑suspect analysis. The situation was volatile and rapidly changing, and the arrest was for domestic assault. In domestic violence cases, the police are not only concerned with the privacy and autonomy of the person arrested; they must also be alert to the safety of all members of the household, including both known and potential victims. In addition, the search was conducted reasonably. It took place right after the arrest and the police merely conducted a visual scan of the living room area to ensure that no one else was present and that there were no weapons or hazards. The spatial scope of the search was appropriate: the living room was part of the surrounding area of the arrest, it appeared to be a common living room space, and the police engaged in the most cursory of searches, which was the least invasive possible.
The search of the living room incident to arrest did not violate the accused’s s. 8 Charter right, and the evidence from the living room search was therefore properly admitted at trial.
Per Karakatsanis, Brown and Martin JJ. (dissenting): The appeal should be allowed, the accused’s conviction for possession of a controlled substance for the purpose of trafficking set aside and an acquittal entered. The police’s warrantless search and seizures did not comply with s. 8 of the Charter. The evidence should be excluded under s. 24(2) of the Charter in that its admission would bring the administration of justice into disrepute.
The warrant requirement is a foundational check on police powers, and a cornerstone of Canada’s constitutional order. Any exceptions should be exceedingly rare. Still, some exceptions exist, including the common law power of search incident to arrest. In some cases, the Court has modified or tailored the common law framework to account for particularly compelling individual interests. The strong privacy interests in a home call for modifying the common law standard in a search incident to arrest. A home is the setting of individuals’ innermost lives: at once a shield from the outside world and a biographical record, its sanctity is indispensable. However, while privacy interests in a home are significant, so too are the interests in protecting police and public safety. Police must be able to address the hazards that may arise in unfamiliar, and potentially hostile, environments, not least when investigating volatile offences like domestic violence. Weighing the privacy and law enforcement interests under s. 8, the balance is best struck by authorizing police to conduct a search incident to arrest inside a home when they reasonably suspect there is an imminent threat to the safety of police or the public. Contrary to the standard set by the majority, the threat must be imminent. The safety risks that arise from an arrest in a home, for which a warrant cannot feasibly be procured, will generally be imminent. And imminence is a useful concept because it defines those circumstances where obtaining a warrant is not feasible. It signals that if police can get a warrant before searching a home, they should do so.
While reasonable suspicion is a relatively low threshold, it still requires the officers to articulate some basis to suspect safety may be at risk. As in other searches incident to arrest, they must have both subjective and objectives grounds for the search. The court’s task is to examine the evidence of the actual reasons for the search — and not whether reasonable suspicion could have justified the search. Ultimately, the task for the courts is, in each case, to apply the standard in light of the specific evidence before them, focusing on the reasons actually relied on by the officer. The issue is whether the search was constitutional at the time it was carried out.
Alongside the reasonable suspicion standard, the permissible scope of a search serves as another limitation on the police’s ability to conduct a search incident to arrest inside a home. This constrains searches in two ways: by the nature of the concerns animating the arrest, and by the need for temporal and spatial proximity between the search and the arrest. Just as the authority for a search incident to arrest derives from the arrest itself, a search is only justifiable if the purpose of the search is related to the purpose of the arrest. An arrest that only gives rise to safety concerns cannot, without more, authorize a search for matters unrelated to safety. There must be a purposive link to the nature of the arrest. A search that falls within those parameters must also be spatially and temporally proximate to the arrest.
In the instant case, the search and seizures were not justified. The police only searched the basement once the accused had been handcuffed and the victim had gone upstairs. There were no particularized facts to justify a safety search, only generalized uncertainty about the presence of weapons or other people. The searching officer gave no basis to ground a reasonable suspicion that anybody’s safety was at risk following the accused’s arrest. The search and seizures were therefore unlawful and violated the accused’s s. 8 Charter rights.
The evidence ought to be excluded under s. 24(2) of the Charter. The state conduct in this case falls on the higher end of the spectrum and favours exclusion. It was well known that private homes attract a high privacy interest and generally cannot be searched without a warrant. The accused’s privacy interests inside the home were significant and the unlawful search and seizures were a major incursion on his Charter‑protected interests, which strongly favours exclusion. The drugs were, however, highly reliable evidence that was central to the Crown’s case, which strongly favours inclusion. Weighing all three inquiries, the admission of the evidence would bring the administration of justice into disrepute. The evidence is therefore inadmissible.
Per Côté J.: There is agreement with Karakatsanis J. on the reasonable suspicion standard for searches incident to arrest inside a home, with her application of the standard to the facts of the case and with her conclusion that the search and seizure of the evidence infringed S’s rights pursuant to s. 8 of the Charter. However, the unlawfully seized evidence should not be excluded as admitting the evidence would not bring the administration of justice into disrepute. The appeal should therefore be dismissed.
The seriousness of the Charter‑infringing police conduct favours admission of the evidence. The seriousness of the infringement is attenuated by the uncertainty of the law regarding residential searches incident to arrest. Given the uncertainty in the law and the otherwise reasonable manner in which the search was carried out, the seriousness of the police misconduct was at the lowest end of the spectrum. The Crown concedes that the police conduct had a serious impact on S’s Charter‑protected privacy interests which favours exclusion of the evidence. However, society’s interest in an adjudication of S’s drug charges on the merits favours admission of the evidence.
On balance, the evidence should not be excluded under s. 24(2) of the Charter. Going forward, it will be very difficult for police to justify admission in a similar scenario. However, the police were acting in good faith on their understanding of unsettled law and society has a strong interest in the adjudication of a charge involving a large quantity of a highly dangerous street drug.
Cases Cited
By Moldaver and Jamal JJ.
Applied: R. v. Golub (1997), 34 O.R. (3d) 743; distinguished: R. v. MacDonald, 2014 SCC 3, [2014] 1 S.C.R. 37; considered: R. v. Fearon, 2014 SCC 77, [2014] 3 S.C.R. 621; R. v. Stillman, [1997] 1 S.C.R. 607; R. v. Golden, 2001 SCC 83, [2001] 3 S.C.R. 679; R. v. Saeed, 2016 SCC 24, [2016] 1 S.C.R. 518; R. v. Caslake, [1998] 1 S.C.R. 51; referred to: Cloutier v. Langlois, [1990] 1 S.C.R. 158; Eccles v. Bourque, [1975] 2 S.C.R. 739; Semayne’s Case (1604), 5 Co. Rep. 91a, 77 E.R. 194; R. v. Tessling, 2004 SCC 67, [2004] 3 S.C.R. 432; R. v. Silveira, [1995] 2 S.C.R. 297; R. v. Feeney, [1997] 2 S.C.R. 13; R. v. Pohoretsky, [1987] 1 S.C.R. 945; R. v. Nolet, 2010 SCC 24, [2010] 1 S.C.R. 851; Chimel v. California, 395 U.S. 752 (1969); Maryland v. Buie, 494 U.S. 325 (1990); R. v. Chehil, 2013 SCC 49, [2013] 3 S.C.R. 220; R. v. Godoy, [1999] 1 S.C.R. 311; Dedman v. The Queen, [1985] 2 S.C.R. 2; R. v. Mann, 2004 SCC 52, [2004] 3 S.C.R. 59; R. v. Beare, [1988] 2 S.C.R. 387; Jensen v. Stemmer, 2007 MBCA 42, 214 Man. R. (2d) 64; R. v. Dodd (1999), 180 Nfld. & P.E.I.R. 145; R. v. Lowes, 2016 ONCA 519.
By Karakatsanis J. (dissenting)
R. v. Silveira, [1995] 2 S.C.R. 297; R. v. Caslake, [1998] 1 S.C.R. 51; R. v. MacDonald, 2014 SCC 3, [2014] 1 S.C.R. 37; R. v. Collins, [1987] 1 S.C.R. 265; Hunter v. Southam Inc., [1984] 2 S.C.R. 145; R. v. Simmons, [1988] 2 S.C.R. 495; R. v. Grant, [1993] 3 S.C.R. 223; R. v. Feeney, [1997] 2 S.C.R. 13; R. v. Saeed, 2016 SCC 24, [2016] 1 S.C.R. 518; Cloutier v. Langlois, [1990] 1 S.C.R. 158; R. v. Fearon, 2014 SCC 77, [2014] 3 S.C.R. 621; R. v. Stillman, [1997] 1 S.C.R. 607; R. v. Golden, 2001 SCC 83, [2001] 3 S.C.R. 679; Eccles v. Bourque, [1975] 2 S.C.R. 739; R. v. Godoy, [1999] 1 S.C.R. 311; R. v. Tessling, 2004 SCC 67, [2004] 3 S.C.R. 432; R. v. Paterson, 2017 SCC 15, [2017] 1 S.C.R. 202; R. v. Reeves, 2018 SCC 56, [2018] 3 S.C.R. 531; R. v. Plant, [1993] 3 S.C.R. 281; R. v. Golub (1997), 34 O.R. (3d) 743; Baron v. Canada, [1993] 1 S.C.R. 416; R. v. Chehil, 2013 SCC 49, [2013] 3 S.C.R. 220; R. v. Kang-Brown, 2008 SCC 18, [2008] 1 S.C.R. 456; R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353; R. v. Le, 2019 SCC 34, [2019] 2 S.C.R. 692.
By Côté J.
Referred to: R. v. Fearon, 2014 SCC 77, [2014] 3 S.C.R. 621; R. v. Pileggi, 2021 ONCA 4, 153 O.R. (3d) 561; R. v. Kelsy, 2011 ONCA 605, 280 C.C.C. (3d) 456; R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353; R. v. Saeed, 2016 SCC 24, [2016] 1 S.C.R. 518; R. v. Cole, 2012 SCC 53, [2012] 3 S.C.R. 34; R. v. Vu, 2013 SCC 60, [2013] 3 S.C.R. 657; R. v. Spencer, 2014 SCC 43, [2014] 2 S.C.R. 212.
Statutes and Regulations Cited
Canadian Charter of Rights and Freedoms, ss. 8, 9, 24(2).
Controlled Drugs and Substances Act, S.C. 1996, c. 19, s. 5(2).
Criminal Code, R.S.C. 1985, c. C‑46, ss. 266, 487.11, 529 to 529.5, 733.1(1).
Police Services Act, R.S.O. 1990, c. P.15, s. 42.
Authors Cited
Canada. Statistics Canada. Canadian Centre for Justice and Community Safety Statistics. Family violence in Canada: A statistical profile, 2019, by Shana Conroy. Ottawa: Statistics Canada, March 2021.
Coughlan, Steve. Criminal Procedure, 4th ed. Toronto: Irwin Law, 2020.
McWilliams’ Canadian Criminal Evidence, 5th ed. by S. Casey Hill, David M. Tanovich and Louis P. Strezos, eds. Toronto: Thomson Reuters, 2022 (loose‑leaf updated February 2022, release 1).
Ruff, Lanette. “Does Training Matter? Exploring Police Officer Response to Domestic Dispute Calls Before and After Training on Intimate Partner Violence” (2012), 85 Police J. 285.
APPEAL from a judgment of the Ontario Court of Appeal (Fairburn A.C.J.O. and Nordheimer and Harvison Young JJ.A.), 2020 ONCA 678, 153 O.R. (3d) 32, 396 C.C.C. (3d) 369, 67 C.R. (7th) 10, 467 C.R.R. (2d) 354, [2020] O.J. No. 4590 (QL), 2020 CarswellOnt 15663 (WL), affirming the conviction for possession for the purpose of trafficking entered by Coats J., 2018 ONSC 3783, [2018] O.J. No. 3264 (QL), 2018 CarswellOnt 9791 (WL). Appeal dismissed, Karakatsanis, Brown and Martin JJ. dissenting.
Erin Dann and Lisa Freeman, for the appellant.
Mark J. Covan and Diana Lumba, for the respondent.
Mabel Lai and Nicole Rivers, for the intervener the Attorney General of Ontario.
Anil K. Kapoor and Victoria M. Cichalewska, for the intervener the Canadian Civil Liberties Association.
The judgment of Wagner C.J. and Moldaver, Rowe, Kasirer and Jamal JJ. was delivered by
Moldaver and Jamal JJ. —
I. Overview
[1] This appeal concerns the permissible scope of a search incident to arrest in a person’s home. In particular, the Court has been asked to delineate the proper balance under s. 8 of the Canadian Charter of Rights and Freedoms between an accused’s privacy interests in their home and valid law enforcement objectives, when the police search an accused’s home incident to their lawful arrest. As we will explain, a proper balancing of those factors requires modifying the common law standard governing searches incident to arrest.
[2] This case arises in the aftermath of a volatile arrest in the home of the appellant, Matthew Stairs, for domestic violence. The police responded to a 9‑1‑1 caller who reported seeing a man repeatedly hitting a woman in a car. Police officers promptly located the suspect car parked in the driveway of an unknown house. After a quick scan of the car’s interior, they knocked on the front door of the house and loudly announced their presence, but no one answered. Fearing for the woman’s safety, the police entered the house. Upon announcing their presence, a woman with fresh injuries to her face came up a flight of stairs leading from the basement. Mr. Stairs did not follow. Instead, he ran past the bottom of the staircase and barricaded himself in the basement laundry room, where he was arrested a short time later.
[3] After the arrest, the police conducted a visual clearing search of the basement living room area, from which Mr. Stairs and the woman had just emerged. The purpose of the search was to ensure that nobody else was present and that there were no hazards or weapons sitting out in the open. During the search, the police saw a clear container and a plastic bag in plain view containing methamphetamine. This resulted in Mr. Stairs being charged with possession for the purpose of trafficking (contrary to s. 5(2) of the Controlled Drugs and Substances Act, S.C. 1996, c. 19), in addition to charges of assault and breach of probation (contrary to ss. 266 and 733.1(1) of the Criminal Code, R.S.C. 1985, c. C‑46). He was convicted of all charges at trial.
[4] Mr. Stairs appealed his conviction for the drug offence on the basis that the drug evidence was improperly admitted. In a split decision, a majority of the Court of Appeal for Ontario upheld the conviction. The dissenting judge would have set aside the conviction and entered an acquittal.
[5] Mr. Stairs now appeals as of right to this Court regarding his conviction for the drug offence. He argues that the common law standard for search incident to arrest must be modified for searches conducted in a home given the very high privacy interests that apply to a person’s home. He asserts that where the police search for safety purposes, as alleged in his case, they can only do so if they have reasonable grounds to believe, or at least suspect, that there is an imminent threat to public or police safety. Mr. Stairs claims that this standard was not met and that the search of the basement living room by the police was therefore unconstitutional. Further, he says, the methamphetamine seized by the police should have been excluded from the evidence and an acquittal must be entered with respect to the charge of possession of a controlled substance for the purpose of trafficking.
[6] The baseline common law standard for search incident to arrest requires that the individual searched has been lawfully arrested, 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 that the search is conducted reasonably (R. v. Fearon, 2014 SCC 77, [2014] 3 S.C.R. 621, at paras. 21 and 27). In the past, this Court has tailored this standard in several contexts to comply with s. 8 of the Charter. The search incident to arrest power has been eliminated for the seizure of bodily samples (R. v. Stillman, [1997] 1 S.C.R. 607), and the standard has been modified in other situations presenting a heightened privacy interest in the subject matter of the search, such as strip searches, penile swabs, and cell phone searches (R. v. Golden, 2001 SCC 83, [2001] 3 S.C.R. 679; R. v. Saeed, 2016 SCC 24, [2016] 1 S.C.R. 518; Fearon).
[7] While we agree with Mr. Stairs that the common law standard should be modified — and made stricter — to reflect an accused’s heightened privacy interest in their home, we do not accept the test he proposes. Given the facts of this case, his submissions were directed solely to safety searches and did not extend to investigative purposes, such as evidence preservation and evidence discovery.
[8] Balancing the demands of effective law enforcement and a person’s right to privacy in their home, we conclude that the common law standard for a search of a home incident to arrest must be modified, depending on whether the area searched is within or outside the physical control of the arrested person. Where the area searched is within the arrested person’s physical control, the common law standard continues to apply. However, where the area is outside their physical control, but it is still sufficiently proximate to the arrest, a search of a home incident to arrest for safety purposes will be valid only if:
• the 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
• the search is conducted in a reasonable manner, tailored to the heightened privacy interests in a home.
[9] Given the factual matrix of this case, it is not necessary to decide whether reasonable suspicion also applies to investigation-related purposes, such as evidence preservation and evidence discovery. We leave this issue for another day.
[10] Applying the stricter standard to this case, the police, in our view, had reason to suspect that there was a safety risk in the basement living room and that their concerns would be addressed by a quick scan of the room, which was the least intrusive manner of search possible in the circumstances. It follows that Mr. Stairs’ s. 8 Charter rights were not breached, and the drug evidence was properly admitted. Accordingly, we would dismiss the appeal.
II. Facts
[11] A civilian called 9‑1‑1 to report that he had witnessed a male driver striking his female passenger. The caller said the man was swerving on the road while hitting the woman in a “flurry of strikes”. At one point, the man had the woman in a headlock and she looked like she was “turtling” (huddling to protect herself).
[12] Three officers — Officers Brown, Martin, and Vandervelde — were dispatched to investigate the reported assault. They quickly located a car closely matching the caller’s description parked in the driveway of an unknown home. The officers ran the plate number and were informed that the car was registered to Mr. Stairs’ father, who also lived at the home. The police also learned that Mr. Stairs was a known driver of the car and that he had cautions for escape risk, family violence, and violence. He was also listed as a high‑risk offender.
[13] After briefly looking inside the car, the police knocked on the front door of the house several times and loudly announced their presence, but no one answered. Believing the woman might be in danger, two of the officers entered the house through an unlocked side door and then opened the front door for their colleague. The officers continued to announce their presence and shouted at everyone in the house to “come upstairs” with their “hands up” (2018 ONSC 3747, 412 C.R.R. (2d) 95 (“pre‑trial application reasons”), at para. 86). A woman, seen to be coming from the right side of the basement, made her way up to the first floor. She had fresh injuries, including markings and swelling around her forehead and eyes, cuts on her cheek, and scratches. Officer Brown spoke with her briefly. He testified that while she was not combative, she was not cooperative either. Officer Martin, then a constable‑in‑training, remained upstairs with her, while the other two officers turned their attention to her assailant.
[14] From the top of the stairs, Officer Vandervelde saw a man, who turned out to be Mr. Stairs, run past the bottom of the staircase from the right side of the basement to the left side. Officer Vandervelde briefly made eye contact with him. Mr. Stairs ignored the police commands to come upstairs with his hands up. Instead, he locked himself in the basement laundry room adjacent to the living room from where he and the woman had just emerged.
[15] Officer Vandervelde and Officer Brown moved downstairs to arrest Mr. Stairs. On the way down, they took a quick look over their shoulders at the basement living room; their focus, however, was on Mr. Stairs, who by now was in the laundry room located to the left of the staircase. Officer Vandervelde had his firearm drawn, and Officer Brown had his taser drawn. At one point, Mr. Stairs opened the laundry room door, shrieked, and immediately closed the door. Eventually, he came out and complied with the officers’ commands. Officer Brown handcuffed and searched him, locating only a sum of money. Officer Brown also looked around the laundry room to confirm that no one else was there. Four minutes had passed from when the police knocked on the front door to the arrest. Officer Brown described the situation as fast‑moving and dynamic.
[16] After the arrest, Officer Vandervelde conducted a visual clearing search of the adjoining living room, which contained a coffee table, a couch, a television, and cabinets. From where he was standing, he could not see what was behind the couch or the television stand, so he walked behind the couch. There, he saw a transparent plastic Tupperware container in plain view on the floor. It contained glass‑like shards, which he believed to be methamphetamine. He said that the container was about a foot from the couch and that he did not have to move any items to see it. He also saw a ziplock bag next to the coffee table that looked like it contained methamphetamine. He did not open any doors or cupboards in the living room.
[17] At a pre-trial application to exclude evidence, Officer Vandervelde maintained that the purpose of the clearing search was to confirm that “no one else was there” and that there were “no other hazards” (pre‑trial application reasons, at para. 282). When asked whether he was looking for weapons connected to the assault, he said: “Not, not necessarily connected to the assault, no. You don’t want to be in a basement where weapons or firearms are sitting out in [the] open though” (A.R., vol. I, at p. 225).
[18] Officer Vandervelde was shown a photo of the area behind the couch and asked in chief to put an “X” where he had found the Tupperware container. He could not say exactly where, only that it was behind the couch in an open area on the ground. He also could not remember whether he removed the lid before or after he left the home.
[19] After Officer Brown looked around the laundry room to confirm that no one else was there, he went upstairs to speak to the woman again. At the pre-trial application, he testified that she provided little information. She denied that Mr. Stairs had assaulted her and insisted that they were just “playing around” (pre‑trial application reasons, at para. 28).
III. Decisions Below
[20] Mr. Stairs brought a pre‑trial application alleging several violations of his rights under s. 8 of the Charter (the right against unreasonable search and seizure) and s. 9 of the Charter (the right against arbitrary detention). The only issue that remains before this Court is whether the clearing search of the basement living room was a lawful search incident to arrest. Our summaries of the decisions under review focus on this issue.
A. Ontario Superior Court of Justice, 2018 ONSC 3747, 412 C.R.R. (2d) 95 (Coats J.)
[21] The trial judge found no breach of s. 8 of the Charter. It was reasonable for the officers to do a quick scan of the basement living room after Mr. Stairs was arrested. Much as the officers had taken a passing over‑the‑shoulder look at the room on their way down to the basement, their focus at the time was on Mr. Stairs, who was, by then, in the laundry room.
[22] The search had a valid objective. Officer Vandervelde testified that he went to the living room to make sure that no one else was there and that there were no other hazards. This objective was reasonable because both the woman and Mr. Stairs had come from this area, the officers could not see fully into the living room as they came down the stairs, and their initial momentary glance did not completely address safety concerns.
[23] The search and resulting seizure were lawful. The Tupperware container and bag in which the methamphetamine was found were both in plain view and transparent. While Officer Vandervelde could not mark the exact location of the Tupperware container on a photo of the living room, this did not weaken his testimony about its general location. In addition, the trial judge accepted Officer Vandervelde’s testimony that he believed there was methamphetamine in the container and the plastic bag before picking them up. As a result, the trial judge found no basis to exclude the methamphetamine.
B. Court of Appeal for Ontario, 2020 ONCA 678, 153 O.R. (3d) 32 (Fairburn A.C.J.O. and Harvison Young J.A., Nordheimer J.A. Dissenting)
(1) Majority — Fairburn A.C.J.O. and Harvison Young J.A.
[24] Writing for the majority, Fairburn A.C.J.O. dismissed the appeal. In her view, the trial judge correctly concluded that the search and subsequent seizure of the methamphetamine did not breach Mr. Stairs’ s. 8 Charter rights.
[25] The central disagreement between the majority and the dissent concerned the applicability of this Court’s decision in R. v. MacDonald, 2014 SCC 3, [2014] 1 S.C.R. 37. There, the Court held that the police needed reasonable grounds to believe that there was an imminent threat to public or police safety in order to enter and search a home.
[26] The majority rejected the applicability of this test because the factual matrix in MacDonald differed materially from this case. In the majority’s view, unlike MacDonald, the search here was a search incident to a lawful arrest and the common law standard for search incident to arrest applied — i.e., a search in the surrounding area of the arrest will be valid if the purpose of the search was a valid law enforcement objective connected to the arrest and the purpose was objectively reasonable in the circumstances.
[27] The search of the basement living room met this standard. The police searched the living room to ensure that no one else was there and that there were no other hazards. These safety concerns made sense in the circumstances: the police were in an unknown basement; they did not know how many people were in the house; they could not see behind the couch when coming down the stairs; and the living room was right next to the stairs, which the police needed to ascend to get Mr. Stairs out of the home safely. It was objectively reasonable for the police to take a quick visual scan of the basement living room. Since the methamphetamine was in plain view, the police were entitled to seize it under the plain view doctrine. Accordingly, the majority dismissed Mr. Stairs’ appeal from his conviction on the drug offence.
(2) Dissent — Nordheimer J.A.
[28] In dissent, Nordheimer J.A. would have allowed Mr. Stairs’ appeal, set aside his conviction on the drug offence, and entered an acquittal. In his view, this case was indistinguishable from MacDonald. When the police engage in a safety search in a home without a warrant — even a search incident to a lawful arrest — they must have reasonable grounds to believe that there is an imminent threat to public or police safety.
[29] Here, the police had no reasonable grounds to believe, or even suspect, that there would be weapons, hazards, or other people in the living room that would pose a threat. Any concerns the police might have had about the possibility of guns amounted to no more than the type of vague safety concern that MacDonald cautioned against. As a result, the dissenting judge found a s. 8 Charter breach. He would have excluded the evidence under s. 24(2).
IV. Issues
[30] This appeal raises two issues: (1) whether the search of the basement living room incident to arrest was unreasonable, contrary to s. 8 of the Charter; and (2) if so, whether the methamphetamine seized by the police should be excluded under s. 24(2) of the Charter.
[31] For the reasons that follow, we would dismiss the appeal. We are not persuaded that Mr. Stairs’ s. 8 Charter rights were violated. Accordingly, we need not address s. 24(2) of the Charter.
V. Analysis
[32] This Court has enunciated a two‑part analytical approach for determining whether the common law standard for search incident to arrest should be modified to comply with s. 8 of the Charter (see Stillman, Golden, Fearon, and Saeed):
(1) Stage One: Determine whether the search satisfies the common law standard for search incident to arrest.
(2) Stage Two: If so, determine whether the standard must be modified to comply with s. 8 of the Charter, given the particular privacy interests and law enforcement objectives at stake.
[33] Applying this approach, we conclude that the common law standard for search incident to arrest in a home must be modified.
A. Stage One: The Common Law Standard for Search Incident to Arrest
[34] The common law standard for search incident to arrest permits the police to search a lawfully arrested person and to seize anything in their possession or the surrounding area of the arrest to guarantee the safety of the police and the arrested person, prevent the person’s escape, or provide evidence against them (Cloutier v. Langlois, [1990] 1 S.C.R. 158, at pp. 180‑81). This search power is “extraordinary” because, unlike other police powers, it requires neither a warrant nor reasonable and probable grounds (Fearon, at paras. 16 and 45).
[35] The common law standard for search incident to arrest is well established. As explained in Fearon, at paras. 21 and 27, it requires that (1) the individual searched has been lawfully arrested; (2) 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) the search is conducted reasonably.
[36] Under the second step, valid law enforcement purposes for search incident to arrest include (a) police and public safety; (b) preventing the destruction of evidence; and (c) discovering evidence that may be used at trial (Fearon, at para. 75).
[37] The police’s law enforcement purpose must be subjectively connected to the arrest, and the officer’s belief that the purpose will be served by the search must be objectively reasonable (R. v. Caslake, [1998] 1 S.C.R. 51, at para. 19). To meet this standard, the police do not need reasonable and probable grounds for the search. Instead, they only require “some reasonable basis” to do what they did (Caslake, at para. 20). This is a much lower standard than reasonable and probable grounds.
[38] This Court explained the distinction between the “some reasonable basis” standard and the higher “reasonable and probable grounds” standard in Caslake, at para. 20:
To give an example, a reasonable and probable grounds standard would require a police officer to demonstrate a reasonable belief that an arrested person was armed with a particular weapon before searching the person. By contrast, under the standard that applies here