R. v. Stairs and our Imperiled Privacy - Matt Reimer

It has been a bumpy road for individual privacy rights in recent years. Ever since Hunter v. Southam [“Hunter”], intrusive law-enforcement actions have been justified by the Supreme Court of Canada (SCC) in many unforeseen circumstances. Dr. Richard Jochelson and Professor David Ireland’s book, Privacy in Peril, covers those relevant cases. Within the desired framework of preventing law enforcement’s unnecessary intrusion on people’s personal lives, the authors plead for courts to defer to legislatures in the creation of new police powers. Instead, the court’s ideal role is said to simply assess whether a certain police incursion is justified under individual Charter rights.[1]

Unfortunately, all too often, the Court relies on its own discretion by outlining police powers to get around or even push back on Charter rights and freedoms. Searches incident to arrest are no exception to this. Some privacy rights, such as cellular information, have been chipped down to an arguably extreme extent. From such precedent, it is not surprising that a lot of anticipation existed for the most recent case of R. v. Stairs, which involves one of the greatest privacy interests of all: the home. All in all, the final decision represents a continuity of many SCC norms, while at the same time taking a less aggressive, more Charter friendly tone than previous precedent. Simply put, while not a devastating blow to individual privacy rights, the Stairs decision may leave staunch Charter defenders wanting more.

Beginning in the vein of protecting officers and allowing them to gather evidence that may otherwise become lost, unwarranted searches incident to arrest were seen to be justified in limited circumstances. Cases such as Cloutier v. Langlois or R. v. Caslake affirm such principles as existing long before English common law.[2] The standard created ultimately amounted to legal permission for unwarranted searches of an arrested person where law enforcement had reasonable grounds to believe a suspect had evidence on their person related to the offense, or objects that may enable their escape or physically harm individuals.[3] An important caveat was that such searches were required to relate to the purpose of an arrest and were to be balanced with individual Charter rights, including the section 8 right to be secure against unreasonable search or seizure.[4] This was a sentiment that harkened back to the privacy protecting case of Hunter v. Southam.[5] It should be noted that Hunter only permitted law enforcement to act (such as arresting a suspect) when they had either obtained an arrest warrant or both subjectively and objectively fulfilled the reasonable and probable grounds standard.[6] The difference between this and the standard for searching an arrested person has to do with the risk of that person holding items on their person that may relate to their case or may be used to physically harm someone.

Although the role of the courts was to simply weigh individual and law enforcement interests against one another, they would eventually begin justifying certain Charter infringements and more substantial arrest powers by creating common law legal guidelines for police on how to achieve their law-enforcement objectives. A wide variety of search scenarios were addressed, from vehicular to strip searches. Scholars such as Ireland and Jochelson would argue that over time, the SCC took a legislative role in its decisions. One of the more questionable examples of this occurred within R. v. Fearon [“Fearon”]. Within that case, immediate police searches of cellphones were justified despite the fact that cellular data is generally accessible from somewhere, and thus could be obtained through a warrant.[7]

Decisions that expand police powers like Fearon are the reason that Stairs is such a significant decision, for it addresses pressing issues such as officer safety and the privacy of one’s home. The case revolved around a police-search following the arrest of a domestic violence suspect within their home’s basement shortly after a 911 call. After the arrest, a cursory search was done of the basement, allegedly for the sake of officer and public safety, by ensuring that no one else was present. As this occurred, the police found a bag of meth in the adjacent room.[8] The issue before the court was whether the search of the basement (an area outside of the accused’s physical control) leading to the discovery was reasonable.[9]

As stated earlier, under the common law framework developed over the years, it may have been possible for police to simply have “some reasonable basis” to search the basement if the area was determined to be on an accused’s “person.” This was much less of a standard than the reasonable probable grounds standard required of non-search and seizure related cases.[10] The court explained this difference through a weapons possession example. Under the reasonable and probable grounds standard, police would have to demonstrate a “reasonable belief” that an arrested suspect possessed a weapon. The standard of “some reasonable basis,” however, would simply require the police to conclude that “it seemed reasonable to check whether the person might be armed.”[11]

According to the SCC, the latter would lead to a lot of conjecture and thus overreach by police in home-searches in that they could potentially search areas outside of the suspect’s immediate vicinity without a pressing reason to do so. Since a home is seen as one of the most private spheres of a person’s livelihood, such searches were considered by the SCC to be too extreme.[12]

This was why the Supreme Court created a new criterion. Within it, the SCC emphasized that law-enforcement must have reason to suspect that the surrounding search addresses a valid safety purpose. This reasonable suspicion standard had some similarities to the previous common law standard, as police searches must have a subjective connection to the arrest and be objectively reasonable.[13] However, added to this was the safety purpose requirement and a burden on police to track objective facts to prove a reasonable person would hold their suspicion. Law enforcement was also required to tailor the search to its original purpose and inherent privacy interests of the home.[14]

Although the SCC continued its undemocratic tradition of instructing law enforcement on how to do their jobs, this decision was much more akin to the tradition of Hunter or Caslake and not that of Fearon. The decision acknowledged law enforcement’s legitimate interest in personal safety and related it to their searching of the area surrounding an accused.[15] At the same time, the decision instructed that officers actively account for the privacy interests of an individual’s home in their discretion and only use their unwarranted non-vicinity search power for safety-related reasons.[16] Unlike Fearon, this framework appears to be more of a limitation on search powers, not an expansion.

Likely as result of this, even the dissent, led by Judge Andromache Karakatsanis as a staunch dissenter in Fearon, agreed with many provisions within this test. Reflecting on the test, the dissent put particular emphasis on the idea that objective evidence should exist to justify an officer’s decision, and that search parameters be taken into account.[17] However, one qualm that they had was that the majority did not require that a threat to safety must be imminent for officers to conduct a warrantless search of the surrounding premises.[18] Such a sentiment would definitely ring true for anyone displeased with the SCC’s historic diversion away from Hunter and Caslake, for without an imminent threat, it is possible for an officer to seek a warrant based on their own suspicions similar to their actions in Fearon.

Applying their respective analysis to the case, the majority and dissent decided differently due to their disagreement regarding imminent threat. The dissent concluded, based on officer testimonies, that they felt safe after the arrest.[19] As a result, reasonable suspicion was not fulfilled, police actions were not lawful, and the accused’s Charter rights were violated.[20] The majority, on the other hand, concluded that law enforcement performed a reasonable and tailored search that took potential safety risks into account.[21]

When evaluated against a committed privacy rights defender’s expectations, the created standards for such searches and the searches that result are insufficient. Without an imminent threat requirement, law enforcement have much less difficulty justifying their search. One consequence could be an officer having an easier time relying on preconceived biases or prejudices within their decision-making. With that said, the decision did put some provisions in place to protect the integrity of individual homes. To search without a warrant of areas surrounding an accused’s person, officers were restricted to it being within the scope of their and the public’s safety. Under this lens, such a restriction fits more neatly under a Cloutier v. Langlois or R. v. Caslake situation than a Fearon one.

As expected, at the end of the day, the Supreme Court of Canada’s decision effects on privacy rights are mixed. On one end, it continues the tradition of establishing its own rules justifying officer actions. It also gives an officer leeway in how they would define “safety.” With that said, it does address a hole that the common law framework had left and did include some sentiments that harken back to Hunter v. Southam, so something positive can be said for that.

[1] Richard Jochelson and David Ireland, Privacy in Peril: Hunter v Southam and the Drift from Reasonable Search Protections, (Vancouver: UBC Press., 2019) at 79. [2] Ibid at 104-105. [3] Ibid at 106. [4] Ibid at 107-108. [5] Ibid at 106. [6] Ibid at 107. [7] Ibid at 120. [8] R v Stairs, 2022 SCC 11 at paras 12-16 [Stairs]. [9] Ibid at para 20. [10] Ibid at para 36. [11] Ibid at para 38. [12] Ibid at para 49. [13] Ibid at para 57. [14] Ibid at para 56. [15] Ibid at para 71. [16] Ibid at paras 65, 82. [17] Ibid at paras 127, 134. [18] Ibid at para 120. [19] Ibid at para 145. [20] Ibid at paras 150, 152. [21] Ibid at para 103.