Court of Appeal split over constitutionality of warrantless search that produced methamphetamine

Ontario’s highest court has dismissed the appeal of a man who argued his Charter rights were violated when a warrantless police search of his basement, during his arrest for assault, turned up methamphetamine.

But as the Court was split 2-1 on the issue, the unsuccessful appellant will have an automatic right to appeal to the Supreme Court of Canada.

The decision in R. v. Stairs, 2020 ONCA was released Tuesday. In 2018, Matthew Stairs was convicted of assault, breach of probation and possession for the purpose of trafficking. He appealed only the latter charge. Stairs argued that the warrantless police search, which was conducted during his arrest and revealed he was in possession of methamphetamine, amounted to a breach of his s. 8 Charter protection against unreasonable search or seizure. Justices Michael Fairburn and Alison Harvison Young rejected Stairs’ argument, but Justice Ian Nordheimer found the police conduct unconstitutional.

“This case can be looked at from a number of angles,” says Chris Sewrattan, a lawyer at Sewrattan Criminal Lawyers in Toronto who was not involved in the case. “And one angle is the majority advocating… to give the police the tools to make policing practical. And Justice Nordheimer is advocating for certain restrictions on police conduct to prevent potential abuse.”

The incident began when another motorist saw Stairs repeatedly striking his female passenger. The witness called police, who located Stairs’ vehicle at a residential address close to where the 911 call was made. The police knocked, announced their presence, but were not answered and entered the home.

There they found a woman with fresh facial injuries. Stairs was in the basement and the police went downstairs to arrest him. At trial, the police said that while one officer attended to Stairs, the other conducted a “sweep” of the basement, checking for people, firearms or other hazards. On the floor behind a couch he found a Tupperware container filled with methamphetamine, as well as a Ziplock bag containing the same.

The trial judge accepted that safety was the reason for the search. The majority found the trial judge correctly combined “two warrantless search doctrines.” The “search incident to arrest doctrine” justified the officer entering an adjoining room after the arrest to check for hazards. The “plain view doctrine” justified the officer seizing the methamphetamine, which was “sitting out in the open,” said the decision.

The majority did not accept Stairs’ argument that for the police to check the room where they found the methamphetamine, they would need reasonable grounds to believe their safety was at risk. If that were the test, police “would often be at grave risk,” they said.

In Nordheimer’s dissent he said that to use safety as justification for a warrantless search, police must show “objectively verifiable necessity,” as per R. v. MacDonald, 2014 SCC 3. The majority rejected Stairs’ contention that MacDonald’s safety search doctrine should apply.  MacDonald was “a completely separate context that is far afield from the circumstances of this case,” the majority said.

Nordheimer disagreed with the majority’s distinguishing of MacDonald from the case because MacDonald did not involve a search “incident to arrest.” At issue in MacDonald was a home entry that occurred when police arrived about a noise complaint and suspected the man who answered the door was holding a gun. But nothing in MacDonald suggests the decision is restricted to pre-arrest searches, said Nordheimer. Stairs was not armed, and police had no basis to believe or suspect there were guns in the home.

Police “have a high hurdle to overcome” when justifying safety searches, said Nordheimer. Citing MacDonald, he said the power must only be exercised when a reasonable and objective view of the circumstances show the search is necessary to address an imminent public safety threat or the officer believes their own safety is at risk. The power is not justified “based on a vague concern for safety.” Nordheimer noted that, while addressing the circumstances that would justify a safety search in MacDonald, Justice Louis LeBel used the word “imminent” four times in five paragraphs.

Because Nordheimer found a s. 8 breach had occurred, he had to do a s. 24(2) analysis as to whether the drugs found as a result of the breach should be excluded from evidence. He rejected the trial judge’s finding that the police acted in good faith. The officer who found the drugs had chosen to venture throughout the basement “for no legally permissible reason” which was “serious misconduct by the officer,” said Nordheimer. That same officer testified that he did not remember whether he had opened the Tupperware container while inside the basement or later, which both officers were “extremely reluctant” to admit at trial, he said. The same officer also forgot where exactly he had found the Tupperware.

The breach being significant and the conduct of the officers lacking good faith, Nordheimer had crossed off two of the three factors of the s. 24(2) analysis under R. v. Grant, 2009 SCC. He found the evidence should be excluded and Stairs acquitted on the drug charge.

Nordheimer illustrated the issues that could arise if the majority’s decision were applied in a different fact context, says Sewrattan.

“You have an allegation of someone hitting someone in a vehicle. Now, they were correct in this case. But imagine they were incorrect. That allegation allowed the police to go into this person's house without a warrant, to arrest the person alleged to have committed the crime, and then to search their home,” he says.

“So in a future case where you have a similar allegation, but it's inaccurate, you might have a situation where the police can just storm into someone's house, slap cuffs on them and start searching around their property, legally. And that's something that I would think most Canadians would not want.”

On the other hand, in a situation such as the one at bar, the police would either have to leave directly after the arrest and get a warrant to secure the area of possible hazards, or make their arrest and leave, without checking, says Sewrattan

“That would be somewhat impractical,” he says.