Supreme Court Modifies Test for Warrantless Search

Cory Wilson is a criminal defence lawyer serving Calgary, Okotoks, Airdrie, Strathmore, Cochrane, Canmore, Didsbury, Medicine Hat, Lethbridge, Grand Prairie and  Turner Valley.

The Supreme Court of Canada has modified the common-law test for the warrantless search permitted when the police are executing a lawful arrest inside a person’s home.

In a new decision released on April 8, 2022, the Court examined a conviction for methamphetamine possession, which had resulted from a search executed while a man was being arrested in the basement of his home for assaulting a woman. While the Court’s majority dismissed the man’s appeal, it ruled a stricter standard was necessary for police to perform a search incident to arrest in a person’s home, to keep the practice in line with the Charter’s protection against unreasonable search and seizure.

“The Supreme Court has recognized once again the sanctity of the home and the unique privacy interests Canadians enjoy in their homes,” says Erin Dann, who acted for the appellant and practises at Embry Dann LLP in Toronto. “Importantly, all judges on the Court agreed that the common law search incident to arrest power does not sufficiently protect those interests and must be modified to pass constitutional muster.”

“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.”

The common-law standard for a search incident to arrest allows police officers to search a lawfully arrested person and the area in which the arrest takes place. The search is intended to uncover evidence, ensure the safety of the officers and the arrested person, as well as to prevent the arrested person from escaping and the destruction of evidence.

To be aligned with s. 8 of the Charter, Justices Richard Wagner, Michael Moldaver, Malcolm Rowe, Nicholas Kasirer and Mahmud Jamal agreed that the standard for a search incident to arrest must be made stricter in two ways. The police must have reasonable suspicion the search will address a safety risk to the police, the arrested person, or the public. The police must also restrict the search to respect the heightened privacy interests by ensuring it is no more intrusive than necessary to alleviate their reasonable suspicion.

The modified test requires the reasonable suspicion be supported by “objective facts,” which would be recognized by a “reasonable person, standing in the shoes of the police officer,” said the decision. This raises the bar from the existing standard, which only required the officer has “some reasonable basis” for executing the search, and “permits searches based on generalized concerns arising from the arrest.”

In the case at issue, the judges found the search met the heightened standard of reasonable suspicion and did not infringe the appellant’s protection under s. 8.

Justices Andromache Karakatsanis, Russell Brown and Sheilah Martin, on the other hand, would have set aside the conviction and entered an acquittal, finding the evidence should have been excluded because the search did violate s. 8. The dissenting Justices also thought that the majority’s standard was not strict enough, and suggested the police must have reasonable suspicion of, not just a safety threat, but an imminent safety threat.

Justice Suzanne Côté agreed with the dissenters on the standard for a search incident to arrest and that the search and seizure was a breach of s. 8. But she departed with them on whether the evidence should be excluded, finding that its admittance would not bring the administration of justice into disrepute.

The requirement there be reasonable suspicion and the emphasis that there be objective criteria as grounds for conducting a search beyond the accused’s immediate vicinity is “a good step forward,” says Anil Kapoor, who acted for the Canadian Civil Liberties Association, an intervenor in the case.

“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 can’t come in, and without reasonable suspicion, conduct a search of the entire home incident to arrest,” says Kapoor. “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.”

For the police, the “most prudent course” is to arrest the suspect and leave, he says.

“In the past, the Supreme Court has modified the search incident to arrest framework when it is exercised in specific contexts,” says Mark Covan, a lawyer from the Public Prosecution Service of Canada, who acted for the Crown in the case. “R. v. Golden and R. v. Fearon are two examples where the Court tailored the power to search incident to arrest to specific circumstances.”

The appellant, Matthew Stairs, was convicted in the Ontario Superior Court of assault, breach of probation and possession for the purpose of trafficking. His arrested stemmed from a 9-11 call made after Stairs was seen in a car assaulting his female passenger. The police located what they believed was his vehicle parked outside a house. They knocked, but receiving no answer, entered the home. The police then located the woman, who had visible injuries on her face. They also found methamphetamine.

Stairs argued at trial the police’s entry into the house, and the search producing the meth, were unlawful. He brought ss. 8, 9 and 24(2) Charter applications, which were dismissed. At the Court of Appeal, Stairs challenged the trafficking conviction. While he accepted the police had entered lawfully, he argued they had lacked sufficient grounds to make the arrest, that a Feeney warrant had been required to arrest him in his home and that the discovery and seizure of the meth had constituted a s. 8 Charter breach.

Cory Wilson is a criminal defence lawyer based in Calgary. If you have been charged with a criminal offence or are a suspect in a criminal investigation, call today for a free, no obligation consultation.