By Yasmina Aldohan | September 20, 2023
The Supreme Court of Canada’s 2022 split decision in R. v. Stairs may well have the unfortunate consequence of allowing police responding to a call from a private residence too much latitude in making themselves at home when they get there.
Five members of the court ruled that a search at a private residence incident to arrest did not offend the prohibition against unreasonable search and seizure in s. 8 of the Charter and was therefore not unconstitutional. Three members dissented from the result, concluding that the search was unreasonable, while Justice Suzanne Côté authored a separate opinion, reasoning that the search was unreasonable but that the impugned evidence was nonetheless admissible.
The case arose when officers Brown, Vandervelde, and Martin responded to a 911 call for suspected domestic assault. When they entered the home, they witnessed a woman with facial injuries emerge from the basement. Vandervelde and Brown descended to the basement to arrest Mathew Stairs for domestic assault. After the officers had Stairs in custody, Vandervelde conducted a visual search of the basement living room, noticing a container and a Ziplock bag filled with methamphetamine. The officers charged Stairs with possessing a controlled substance for the purpose of trafficking, and arrested the woman – the victim of the alleged domestic abuse – for drug possession.
The questions that divided the court were whether the search of Stairs’ basement living room was unconstitutional because it infringed s.8 of the Charter; and if it was unconstitutional, whether the methamphetamine seized by the police was properly admitted at trial. The majority and dissenting justices agreed that modification of the common law standard for searches incident to arrest was required where a search engaged individuals’ strong privacy interests in a home. The baseline common law standard required lawful arrest; a search that was truly incidental to the arrest in the sense that it was for a valid law enforcement purpose connected to the arrest; and reasonable execution of the search.
The divide between the majority and minority focused on the “incidental” test and the application of the facts to it.
The dissenting justices found a violation of Stairs’ s. 8 Charter rights and excluded evidence relating to the drugs discovered. They reasoned that officers must have a reasonable suspicion of an imminent threat to police or public safety before searching a home for safety purposes: a “generalized” suspicion, in their view, did not suffice.
As the dissenting justices saw it, Vandervelde did not have reasonable grounds for his search of the basement. The officer testified that he “felt safe” following the arrest and pat down; and his testimony did not suggest that he had a reasonable suspicion that anyone’s safety was at risk.
While Vandervelde did say that “you never really know what kind of hazards could be down there,” this statement, in the minority’s view, did not showcase a connection between the arrest and the law enforcement purpose; rather, it showcased the intent of the officer to conduct an unjustified exploratory search.
The dissenting justices stressed the important role that warrants play in preventing s. 8 violations. They noted that warrants are prerequisites for valid searches, a requirement that places the onus on the state to prove the paramountcy of the state’s interests over those of the individual, thereby also placing a foundational check on police powers.
In this case, what started off as a response to a domestic violence call ended with the laying of criminal charges – a course of events from which it could be inferred that the officers deviated from their initial objective.
The majority’s view was that an imminent threat, which did not exist here, was not a prerequisite to a lawful search. The majority noted that two spatial circumstances existed during the arrest: areas within the arrested person’s physical control, and areas outside their control. As the majority saw it, the common law standard only required modification if the search area was outside the arrested person’s physical control but still sufficiently proximate to the arrest.
As Vandervelde’s objective was to ensure that no one else was present and no hazards existed, it was reasonable for him to conduct a quick scan of the basement living room. The search was further justified as the woman and Stairs had come from the searched area, and the officers were unable to see the entirety of the living room as they went down the stairs.
Here, the dissenting justices countered that there was no evidence that anyone was unsafe: despite not being able to see the entire living room, the officers were able to turn their backs and focus on drawing Stairs out from the laundry room.
And while the majority observed that Stairs had a history of cautions for family violence, violence, and being an escape risk, and was also considered a high-risk offender, the dissenting justices noted that there was no mention of weapons in the police dispatch, or anything to suggest that Stairs possessed any.
The strength of the dissent’s reasoning is its overview of the consequences that could follow from allowing warrantless searches on the majority’s standard. Doing so, the minority pointed out, could bring the administration of justice into question, especially when vulnerable or marginalized individuals were suspects or victims of a crime. In this case, the consequence of conducting a warrantless search was a shift in law enforcement’s objective from responding to a domestic abuse call to uncovering a large drug stash. Such a shift increased the risk that the domestic abuse victim would not get the help she needed.
The upshot is that the dissent’s position better addresses the importance of the relevant privacy concerns, as well as the unintended consequences for victims of domestic abuse: the majority simply does not address these issues adequately. And in failing to do so, the SCC has derogated from the sanctum that homes are intended to be.
Yasmina Aldohan is a J.D. candidate in the 2025 graduating class at the University of Windsor’s Faculty of Law. She also holds a BA in Law & Society, and MA in Socio-Legal Studies from York University.