The Supreme Court recently considered the proper balance under section 8 of the Canadian Charter of Rights and Freedoms between an accused’s privacy interest in their home and valid law enforcement objectives when police search an accused’s home incident to a lawful arrest. In considering this balance, the Supreme Court held that the common law standard governing searches incident to arrest should be modified.


In R. v. Stairs, the police responded to a 911 caller who reported seeing a man repeatedly hitting a woman in a car. After locating the suspect’s parked car in the driveway of an unknown house, the police knocked on the front door and loudly announced themselves. Fearing for the woman’s safety, the police entered the house and saw a woman with fresh injuries to her face come up a flight of stairs leading from the basement. The appellant, Stairs, ran past the bottom of the staircase and barricaded himself in the basement laundry room where he was later arrested.

Following the arrest, the police conducted a visual clearing search of the basement to ensure that nobody else was present and that there were no hazards or weapons out in the open. During the search, the police saw methamphetamine in plain view. Stairs was thus charged with possession for the purpose of trafficking (contrary to s. 5(2) of the Controlled Drugs and Substances Act) and assault and breach of probation (contrary to ss. 266 and 733.1(1) of the Criminal Code). He was convicted of all charges at trial. 

Stairs appealed his drug offence conviction on the basis that the drug evidence was improperly admitted. The Ontario Court of Appeal, however, upheld the conviction. Stairs again appealed the conviction to the Supreme Court of Canada arguing that the common law standard for search incident to arrest must be modified for searches conducted in a home given the very high privacy interests that apply to a person’s home. Stairs submitted that where the police search for safety purposes, as alleged in his case, they can only do so if they have reasonable grounds to believe, or at least suspect, that there is an imminent threat to public or police safety. Mr. Stairs claimed that this standard was not met and that the search of the basement living room by the police was therefore unconstitutional. Given the unconstitutionality of the search, the methamphetamine seized should have been excluded from the evidence, thereby resulting in an acquittal of the drug trafficking charge.

Current common law standard for search incident to arrest

The common law standard for search incident to arrest permits the police to search a lawfully arrested person and to seize anything in their possession or the surrounding area of the arrest to guarantee the safety of the police and the arrested person, prevent the person’s escape, or provide evidence against them. This search power is “extraordinary” because, unlike other police powers, it requires neither a warrant nor reasonable and probable grounds.

The current common law standard for search incident to arrest requires the following:

  • The individual searched was lawfully arrested;
  • 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
  • The search was conducted reasonably.

The police’s law enforcement purpose must be subjectively connected to the arrest, and the officer’s belief that the purpose will be served by the search must be objectively reasonable. To meet this standard, the police do not need reasonable and probable grounds for the search. Instead, they only require “some reasonable basis” to do what they did. This is a much lower standard than reasonable and probable grounds.

In considering the current common law standard, the court noted that the standard for search incident to arrest has been modified in certain situations where an individual has a heightened privacy interest in the subject matter of the search (such as strip searches, penile swabs, and cell phone searches).

A modified standard for search incident to arrest

In balancing the demands of effective law enforcement and a person’s right to privacy in their home, the court concluded that 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 the arrested person’s 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: 

  • 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.

In applying this modified standard to the case, the court concluded that the police had reason to suspect that there was a safety risk in the basement living room and their concerns would be addressed by a quick scan of the room. A quick scan of the room was the least intrusive manner of search possible in the circumstances. Stair’s section 8 Charter rights, therefore, were not breached and the drug evidence against him was properly admitted. The Supreme Court thus dismissed the appeal.

Contact Hicks Adams in Toronto to defend against unreasonable search and seizure

You have a constitutional right to be free from illegal search and seizure. At Hicks Adams, our experienced team of criminal defence lawyers will ensure that your charter and constitutional rights are protected and that police get a valid search warrant where one is required by law.

Should you have questions related to your charter and constitutional rights, or any other criminal law related matter, call us toll-free at 1-877-975-1700 or contact us online to schedule a confidential consultation.