The Supreme Court has made it harder for police to search a home when they enter in urgent circumstances to make an arrest. But four of the nine judges would have expanded privacy rights even further and made it more difficult still.
The ruling was made in connection with a suspected domestic violence case, when officers arresting a man in a basement for assault looked behind a couch and found methamphetamine. The question for the court was whether the search, which led to a trafficking charge, was legal.
The case of Matthew Stairs of Oakville, Ont., required the country’s highest court to consider the balance of privacy in the home, particularly when police have not obtained a warrant to enter, against public safety.
All nine judges said the protection against search and seizure in the Charter of Rights and Freedoms demands a stricter standard than the existing one for searches connected to an arrest, under the common law (a body of precedents). That standard was whether the police acted reasonably in the circumstances. The new standard, endorsed by five judges, is whether police had a reasonable suspicion of a safety risk to anyone near where the arrest took place. Four judges said the risk of harm should have to be imminent.
Mr. Stairs was convicted of methamphetamine trafficking at trial, after a judge ruled the search to be legal. The Ontario Court of Appeal upheld the conviction 2-1. The dissenting judge, Justice Ian Nordheimer, said that while the entry to the house was legal because of urgent circumstances, and the arrest was legal, the search was not. He proposed a higher standard, that of “reasonable necessity,” such as a reason to believe the suspect possessed a gun.
