In R. v. Stairs, 2022 SCC 11, April 8, 2022, the police received a 9-1-1 complaint concerning an alleged intimate partner assault in a residence. They went to the residence and entered after knocking and receiving no answer. The accused was arrested inside the residence and they noted injuries to the complainant.  While inside the residence, the police conducted a limited visual search. They saw a clear container and a plastic bag in plain view containing methamphetamine, seized it and charged the accused with a drug possession offence.

At trial, the drugs were ruled to be admissible and the accused was convicted.  An appeal to the Ontario Court of Appeal was dismissed.  A majority holding that the police conducted a lawful search incidental to the arrest.  The accused appealed to the Supreme Court of Canada.

The appeal was dismissed. 

The Supreme Court of Canada indicated that 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 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” (at paragraphs 6 and 8):

• 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.

Defining the Surrounding Area of the Arrest:

The Supreme Court pointed out that “whether an area is sufficiently proximate to the arrest is a contextual and case‑specific inquiry. The key question is whether there is a ‘link between the location and purpose of the search and the grounds for the arrest’” (at paragraphs 60).  In the context of a search inside a residence, “the police must meet a higher standard: they must have reason to suspect that the search will address a valid safety purpose” (at paragraph 61).

The Nature of Reasonable Suspicion:

The Supreme Court held that “[w]hen 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. This modified standard, which is stricter than the basic common law standard, respects the privacy interests in the home while allowing the police to effectively fulfil their law‑enforcement responsibilities” (at paragraph 65). 

The Court indicated that “[r]easonable suspicion is a higher standard than the common law standard for search incident to arrest…to establish reasonable suspicion, the police require a constellation of objectively discernible facts assessed against the totality of the circumstances giving rise to the suspicion of the risk. This assessment must be ‘fact‑based, flexible, and grounded in common sense and practical, everyday experience’…In addition, the police must have reason to suspect that the search will address the risk” (at paragraphs 67 and 68).

Finally, the Court held that “[w]hether the circumstances of a particular case give rise to reasonable suspicion must be assessed based on the totality of the circumstances…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” (at paragraph 69).

Nature and Extent of the Search:

The Supreme Court held that the “search incident to arrest power only permits police to search the surrounding area of the arrest… As a general rule, the police cannot use the search incident to arrest power to justify searching every nook and cranny of the house. A search incident to arrest remains an exception to the general rule that a warrant is required to justify intrusion into the home. The search should be no more intrusive than is necessary to resolve the police’s reasonable suspicion” (at paragraphs 79 and 80).

A Summary:

The Court summarized the principles that apply when the police seek to conduct a search incidental to an arrest inside a residence, in the following manner (at paragraph 82):

In summary, a search of a home incident to arrest for safety purposes will comply with s. 8 of the Charter when the following requirements are met:

(1) The arrest was lawful.

(2) The search was incident to the arrest. The search will be incident to arrest when the following considerations are met:

(a) Where the area searched is within the arrested person’s physical control at the time of the arrest, the common law standard must be satisfied.

(b) Where the area searched is outside the arrested person’s physical control at the time of the arrest — but the area is sufficiently proximate to the arrest — the police must have reason to suspect that the search will further the objective of police and public safety, including the safety of the accused.

(3) Where the area searched is outside the arrested person’s physical control at the time of the arrest — but the area is sufficiently proximate to the arrest — the nature and the extent of the search must be tailored to the purpose of the search and the heightened privacy interests in a home.

Conclusion:

The Supreme Court concluded that the police “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” (at paragraph 10).