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Modifications to the Standard for Warrantless Searches Incident to Arrest - Anonymous

A decision coming from the Supreme Court of Canada decided just last week, R. v. Stairs, 2022 SCC 11, has had the effect of modifying the previous standard required of police officers when they conduct searches incident to arrest.[1]

The majority of the SCC reiterates that the common law standard for searches incident to arrest continues to apply in situations where the police are searching an area of the home that is within the arrested individual’s physical control.[2] The court distinguishes this type of search from searches of areas outside a person’s physical control but that are in an area “sufficiently proximate to the arrest.”[3] It is in this scenario where the SCC sought to modify the standard so that the standard remained justified under s. 8 of the Charter. The court states the purpose of this distinction between searches within and outside of an individual’s physical control is to “recognize that the more extensive the warrantless search in a home, the greater the potential for violating privacy.”[4]

How does the court determine whether an area is sufficiently proximate to the arrest? It depends on the context of the situation.[5] In determining whether or not the area is “sufficiently proximate to the arrest” one must consider if there is a “link between the location and the purpose of the search and the grounds for the arrest.”[6]

The previous common law standard for search incident to arrest was simply “some reasonable basis.”[7] The court’s decision in R. v. Stairs, 2022, has the effect of making the standard stricter in two ways.

First, the Crown must establish “objective facts that rise to the level of reasonable suspicion, such that the reasonable person, standing in the shoes of the police officer, would have held reasonable suspicion.”[8] When the police are searching an area of the home for safety reasons, the police must have a reason to suspect that there is a risk of safety to either the police, the public or the arrested individual.[9] Factors to consider include:

· the reason for the search

· the nature of the perceived risk

· the consequences that could arise had protective measures not been taken

· the availability of other options, and

· the likelihood that the perceived risk actually exists.[10]

Second, the police must limit their searches to ensure that the heightened privacy interests of the individual in their home are respected.[11] Police are only allowed to search the surrounding area where the arrest was made.[12] The search must be related to the circumstances of the arrest, the type of offence, and the purpose of the search. Notably, the court states that “the search should be no more intrusive than is necessary to resolve the police’s reasonable suspicion.”[13]


A phone call to police was made which reported a man was hitting a female passenger in a car. The police located the car and knocked on the front door of the house. The police were concerned with the safety of the woman, so when no one answered the door, they entered the house. The woman came up the stairs from the basement with visible injuries on her face, and the police saw the accused run past the stairs and lock himself in the basement laundry room. The accused was later arrested. After the accused was arrested, the police conducted a “visual clearing search” of the basement living room area, which was the area the pair came from prior to the police entering.[14] This is where the police came across a clear container and a plastic bag which contained methamphetamine.

The accused was charged with possession, assault, and breach of probation.[15] The accused alleged his s. 8 right against unreasonable search and seizure was violated under the Charter.

Decision of Majority:

The majority found that the police search of the living room basement met the standard for reasonable suspicion.[16] Further, the police had a valid purpose for conducting the search, as the officer stated it was to clear the room of safety risks, other occupants, and hazards.[17] The majority highlights that the circumstances had the possibility to change rapidly, as this was a domestic violence arrest.[18] “The living room search did not violate Mr. Stairs right against unreasonable search and seizure.”[19]

Decision of Dissent:

The dissent would have allowed the appeal and entered an acquittal, as they felt this warrantless search and seizure did not comply with s. 8 of the Charter.[20]

The dissent placed emphasis on the importance of privacy interests in the home and the careful balancing of privacy interests with the interests of the safety of the police and the public. The dissent would have had the modification of the test go a step further, requiring that the threat be imminent.[21] The dissent did not find the threat to the officer’s safety to be imminent, as the accused was already handcuffed and the victim was not in the basement.[22]

How do those in the legal profession feel about this decision?

Erin Dann, who represented the appellant stated, “I hope the decision sends a clear message to police to tread carefully; even when they enter a home for a valid reason, that does not give them carte blanche to indiscriminately search through it.”[23]

Anil Kapoor, one of the intervenors in the case who was acting for the Canadian Civil Liberties Association, said that the decision was “a good step forward” and highlighted that:

The good thing about this judgment is that it recognizes and affirms that people have a privacy interest in their home and that the police just cannot come in, and without reasonable suspicion, conduct a search of the entire home incident to arrest. They draw the line pretty narrowly. You can search the area where you get the accused, but that’s it. And if you don’t have objective grounds, you’re not going to be able to search beyond it.[24]

Both of these comments seem to align with the more conservative approach of favoring individuals’ right to privacy over the police’s right to search an area they suspect may be a safety concern. I have issue with the “reasonable suspicion” standard generally when it comes to policing, even though I understand it is in place to ensure police officers can assess the constant unknowns that come with their line of work. It would have been reasonable for the court to require those concerns regarding safety to be imminent. I resonated with the dicta in the dissent’s judgment that the reasonable suspicion standard is a low threshold to meet, but it still requires the police officers to provide a basis for why they suspected their safety was at risk. The part of the dissent’s judgment that provided me with reassurance as to the standard was when the dissent reinforced the idea that the task of the court is not to determine whether a reasonable suspicion could have justified the search, but that the court must focus on the reasons actually relied on by the officer.[25]

What implications will this decision have on future searches?

The modified standard for searches incident to arrest will likely impact the frequency and scope of warrantless police searches due to a stricter standard being in place. The benefit to this modified standard is that the standard remains justified under s. 8 of the Charter. The downside are the risks that police may be hesitant to search areas close to the area where the arrest occurred. This could have the effect of evidence being missed, tampered with, or destroyed by other individuals present in the home. Further, this stricter standard could put police at risk, as the dissent noted that police are never sure what kind of environment they are in and what threats are present in said environment, so they must err on the side of caution. However, ultimately, this is a reasonable price to pay to maintain the balance between privacy rights and the ability of police to gather evidence.

The dissent suggested the standard be stricter than that of the majority, by implementing an “imminent threat” requirement. I think the imminent threat requirement would be reasonable. I agree with the judges that said it is tough to be a police officer; notwithstanding that, I think the element of the threat being imminent should be included, because it is more important to protect privacy rights.

[1] R v Stairs, 2022 SCC 11 [Stairs]. [2] Ibid at para 8. [3] Ibid. [4] Ibid at para 59. [5] Ibid at para 60. [6] Ibid. [7] Ibid at para 67. [8] Ibid at para 66. [9] Ibid at para 65. [10] Ibid at para 69. [11] Ibid at para 78. [12] Ibid. [13] Ibid at para 80. [14] Ibid at para 3. [15] Ibid. [16] Ibid at para 84. [17] Ibid at para 85. [18] Ibid at para 87. [19] Ibid at para 103. [20] Ibid at para 152. [21] Ibid at para 126. [22] Ibid at para 108. [23] Aiden Macnab, “SCC modifies test for warrantless searches executed during arrest inside a suspect’s home” (8 April 2022), online: Canadian Lawyer <>. [24] Ibid. [25] Supra, note 1 at para 131.

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