R v Stairs: The Castle is Under Siege - Julian Brown
In Privacy in Peril: Hunter v Southam and the Drift from Reasonable Search Protections, Professors Richard Jochelson and David Ireland discuss the expansion of police search powers and the erosion of the principles that once served as a shining beacon of privacy laid out by Justice Dickson in Hunter v Southam. One notable drift is the police’s ability to conduct a search incident to an arrest, which stems from the police’s ancillary powers doctrine. This development has led to greater incursions into an individual’s privacy; whether it be the extraction of bodily substances, strip searches, body swabs, or cell phone searches; each new frontier pulls the Supreme Court of Canada (“the Court”) further from Justice Dickson’s original view that searches ought to receive prior authorization. Toward the end of the book, the authors seem hopeful that perhaps the law will shift back toward Justice Dickson’s ideas of privacy someday. Unfortunately, individual privacy continues to be raided by the ancillary powers doctrine, and, as the Court has made clear in R. v. Stairs 2022 SCC 11, the limits of the doctrine continue to expand.
Police received a phone call one night from a citizen who witnessed a man driving his car while simultaneously striking his female passenger. Three officers—Officers Brown, Martin, and Vandervele—were dispatched to investigate the reported assault. They quickly located the car parked outside of a residence. After peering into the car, the police moved toward the front door of the house and loudly announced their presence. There was no response from inside. A side door to the residence was open, and, believing that a woman might be in danger, one officer entered the house and opened the front entrance for his colleagues. Once inside, the officers shouted for everyone to “come upstairs” with their “hands up.” A woman with fresh wounds on her face came upstairs from the basement. From their position at the top of the stairs, the officers noticed a man (later identified as Mr. Stairs) run from one side of the basement to the other. Officer Brown remained upstairs with the female victim, while Officer Vandervelde drew a firearm and proceeded downstairs toward the suspect, followed by Officer Martin with his taser drawn. On the way downstairs, both officers briefly looked over their shoulder to clear the basement living room area. Mr. Stairs had run into the laundry room to the left of the staircase and was hiding. At one point, Mr. Stairs opened the laundry room door, shrieked, and immediately closed the door. Eventually, he came out and was arrested, handcuffed, and searched. After the arrest, and once Officer Vandervelde “felt it was safe,” he “proceeded through the basement, [to] make sure there’s no other obvious threats, and other people in that basement.” About 10 feet away from the arrest, Officer Vandervelde found a Tupperware container filled with meth behind a couch, as well as a Ziplock bag containing meth located near a coffee table. Mr. Stairs was charged with possession of a controlled substance for the purpose of trafficking. He challenged the admissibility of the drugs under s. 8 of the Charter, which states that: “[e]veryone has the right to be secure against unreasonable search or seizure.” He lost, and the evidence was admitted.
The Majority Decision
The majority in this case did not find a violation of Mr. Stairs’ s. 8 Charter rights and held that the drug evidence should be included. In arriving at this conclusion, the Court clarified the common law standard for search incident to arrest in a home by differentiating between two spatial circumstances at the time of arrest: (1) areas within the person’s physical control, and (2) areas outside a person’s physical control. The court kept the former standard and modified the latter. The general standard, following R. v. Caslake, was that the police only required “some reasonable basis” to do what they did. The Court in Stairs modified this standard for search incident to arrest in two ways that make it stricter where the police search areas of the home outside of the arrested person’s physical control:
(a) The police must 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
(b) The search must be conducted in a reasonable manner, tailored to the heightened privacy interests in a home.
This new standard falls short of the heavier modifications seen in R. v. Golden and R. v. Saeed. Furthermore, the standard is outright inapplicable in relation to search incident to arrest for the seizure of bodily substances as seen in R. v. Stillman. The Court writes that: “Although people undoubtedly have a heightened privacy interest in their homes, searches of the home are nonetheless less intrusive than strip searches and penile swabs, which inevitably impact a person’s dignity.” If these modified standards were plotted on a line, it might look something like this:
Figure 1. Modifications to Search Incident to Arrest Standards Does it really make sense to think about modifications in this way, though? Is it not odd that cheek swabs, strip searches, penile swabs, cellphone searches, and home searches are being compared to one another? In 1995, the Court wrote that “[t]here is no place on earth where persons can have a greater expectation of privacy than within their ‘dwelling house.’” Nearly 10 years later, we find out that the tip of a man’s penis is apparently such a place. The point should be “to reconcile the specific privacy interests at issue with the specific law enforcement interests that counterbalance them.” It shouldn’t matter whether a home search is more or less invasive than any other type of search; as Justice Karakatsanis notes in her dissent, all of this is tangential: “the key questions are when and how the undoubtedly strong privacy interests in a home ought to yield to varying policing objectives.” In the case at hand, it doesn’t feel like the Court was focused on this, and, as a result, the Court leaves the impression that it failed to meet the standard of the modified test that it just laid out.
The first part of the modified test requires a reasonable suspicion of a safety risk. One should be able to articulate that risk. After all, “[a] search is only justifiable if the purpose of the search is related to the purpose of the arrest.” As Justice Karakatsanis points out, the police were not justified in searching the basement living room because there were “no particularized facts to justify a safety search, only generalized uncertainty about the presence of weapons or other people.” Officer Vandervelde himself said that he “felt safe” following the arrest of Mr. Stairs. Where was the safety risk that justified a continued search of the basement living room in that moment? The police felt safe. The accused had been arrested, cuffed, and patted down; so he seemed pretty safe. The event took place in a private basement, so the public seemed safe. I fail to see a reasonable suspicion that anyone’s safety was at risk in this scenario. The police’s law enforcement purpose therefore does not seem to be subjectively connected to the arrest.
Further, Officer Vandervelde stated that “you never really know what kind of hazards could be down there.” You could copy and paste this statement into pretty much any context and it would be true. Consider a father and son staring down into a cave before spelunking. Now, cue “you never really know what kind of hazards could be down there, son!” The point is that Officer Vandervelde’s statement cannot be deemed a precise, reasonable suspicion of a safety risk. Police are always going to be operating in an environment filled with general uncertainty. Those realities shouldn’t give officers an immediate reasonable suspicion trump card. There should be some hard evidence that threats are present in the house; evidence to which a person can objectively point to and say, “this is what makes me reasonably suspicious.” Thus, the police’s law enforcement purpose was not subjectively connected to the arrest, and the officer’s belief that the purpose would have been served by the search does not appear to be objectively reasonable.
If the police really did feel like a search of the basement or home was necessary, they should have received prior authorization from a judge. It seems like that would have been reasonable in this situation. This is important because as Justice Dickson notes in Hunter v Southam: “Such a requirement [of prior authorization] puts the onus on the state to demonstrate the superiority of its interest to that of the individual.” This is especially important in the context of the home, “where our most intimate and private activities are most likely to take place.” Justification after the fact occurs much too late when a person’s rights have unfortunately already been placed in jeopardy.
One important detail that was not adequately addressed by the majority is that the female assault victim was also arrested for possession of drugs. The majority did note, however, that when the police showed up and started asking questions, she tried to deny that any wrongdoing had occurred despite her obvious facial wounds. The victim insisted that her wounds were a result of her and Mr. Stairs playing around. The point is that, for a myriad of complex reasons, it is hard for women to report cases of spousal violence; in fact, seventy percent of people who experience spousal violence have not spoken to authorities. In Stairs, because of the expanding police search powers, the victim ended up getting arrested too. It feels like the expansion of police powers into the home is a recipe for disaster for those most vulnerable in society. Addiction and substance abuse has a strong link with domestic violence. It is not difficult to imagine victims being arrested in the future for circumstances unrelated to spousal abuse. I can even imagine a situation where a mother, with a drug-addicted adult child, is reluctant to report domestic abuse because she fears that the police would find something incriminating in the home and take her son away. Something just feels wrong about the possibility of a call for help based on spousal abuse turning into a dual arrest for drugs.
Further, there are troubling spatial implications. What if an individual lives in the common room? If you have seen the Netflix show Maid, which follows the life of a woman in an abusive relationship, you may notice that she spends many nights sleeping on the couch to avoid her abusive partner. Bedrooms are supposed to have a higher privacy interest than common rooms, but that general rule and the modified rule don’t seem to account for the many complex living arrangements that people of different cultures, classes, and circumstances may find themselves in. It is easy for a Supreme Court Justice to say that a bedroom ought to have a higher privacy interest than a common room when the two are certainly distinct in their mind. That is not always the case on the ground for many families.
As Jochelson and Ireland demonstrate in their book, Privacy in Peril, individual privacy protections have waned since the landmark case of Hunter v. Southam. R. v. Stairs offers the latest indication that this trend is not stopping, and that the police’s ancillary powers doctrine continues to promote a foray into the privacy rights of Canadian citizens. A fundamental and longstanding principle of a free society is that a person’s home is their castle. If that’s the case, the castle is under siege.
 Richard Jochelson & David Ireland, Privacy in Peril: Hunter v Southam and the Drift from Reasonable Search Protections (Vancouver: UBC Press, 2019) at 149.  R v Stairs, 2022 SCC 11 at para 13 [Stairs].  Ibid at para 145.  R v Caslake,  1 SCR 51 at para 20.  Stairs, supra note 2 at para 56.  Ibid at para 51.  R v Silveira,  2 SCR 297 at para 140.  Stairs, supra note 2 at para 120.  Ibid.  R v Caslake,  1 SCR 51 at para 17.  Stairs, supra note 2 at para 149.  Ibid at para 37.  Ibid at para 146.  Hunter v Southam,  2 SCR 145 at para 28.  R v Tessling, 2004 SCC 67 para 22.  Marta Burczycka & Shana Conroy, “Family violence in Canada: A statistical profile, 2016” (last modified 7 December 2021), online (pdf) at 41: Statistics Canada <www150.statcan.gc.ca/n1/en/pub/85-002-x/2018001/article/54893-eng.pdf?st=LFhS3BAr> [perma.cc/XMQ5-E938].  “Addiction and Domestic Violence” (last modified 1 February 2022), online: AddictionCenter <www.addictioncenter.com/addiction/domestic-violence/> [perma.cc/J4K8-ECPR].  Eccles v Bourque,  2 SCR 739, at 742‑43,