Matthew Stairs, was charged with assault, breach of probation, and possession of methamphetamine for the purpose of trafficking.At trial, Mr. Stairs brought a ss. 8 and 9 Charter application to exclude evidence under section 24(2) of the Charter. He argued that he was the subject of cascading Charter breaches, starting with an unlawful entry into his home and ending with an unlawful search. The application was dismissed, and the appellant was found guilty of all three charges.Mr. Stairs appealed only his conviction of possession for the purpose of trafficking. The appeal rested on a challenge to the Charter ruling. A majority of the Court of Appeal for Ontario dismissed the appeal. It held that the trial judge did not err in concluding that the police had sufficient grounds to arrest him and in concluding that a Feeney warrant was not required to make the arrest inside of the home. The majority also held that the trial judge did not err in concluding that the discovery and seizure of the methamphetamine was not a s. 8 Charter breach. The fact that the methamphetamine was sitting out in plain view meant that it could be seized.Justice Nordheimer dissented, stating he would have allowed the appeal. He agreed with the majority’s analysis and conclusion concerning the police entry into the residence, that the police had valid grounds to arrest the appellant, and that the police did not require a Feeney warrant. He strongly disagreed with the majority’s s. 8 Charter breach analysis and conclusion. In his view, the officers did not have sufficient objectively reasonable grounds to conduct a safety search of the basement living area, where the methamphetamine was found.Justice Nordheimer indicated that in order to be justified, the safety search must be reasonably necessary in light of the prevailing circumstances. A search is reasonably necessary when police officers have reasonable grounds to believe that there is an imminent threat to their safety. The officers did not have any basis for a reasonable ground to believe that there was an imminent threat to them. In fact, the officers did not even have a basis for a reasonable ground to suspect that there was an imminent threat to them. The warrantless search breached the s. 8 rights of the appellant and he would have excluded the evidence under s. 24(2) of the Charter. As there was no other evidence on the drug charge, he would have set aside the conviction and entered an acquittal for the count in issue.Justice Nordheimer expressed concern that the majority’s decision had potential to provide the police with a broad licence to undertake warrantless searches, inconsistent with the protections intended to be subsumed with s. 8 of the Charter.Justice Nordheimer’s dissent created an appeal as of right, to the Supreme Court of Canada.The issue before the Supreme Court of Canada the grounds that must exist to allow the police to search within a residence under their common law power of search incident to arrest.

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“What did the council decide on item 42?” — answered with the speaker and the moment.

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