Lisa Freeman

The appellant, Nicholas Jenkins, appealed his conviction for drug trafficking and possession for the purpose of trafficking.

The appeal centered on the trial judge's error in admitting lay opinion evidence from five police surveillance officers, who opined that the appellant's observed conduct was consistent with drug trafficking.

The Court of Appeal found this evidence inadmissible as neither expert nor proper lay opinion.

The court declined to apply the curative proviso, emphasizing the heightened risk of prejudice in a jury trial, the prominence of the inadmissible evidence, and the lack of an overwhelming case against the appellant.

A new trial was ordered.

Police responding to a domestic violence call arrested the accused in the basement of his home and, incident to that arrest, conducted a visual clearing search of an adjoining basement living room, discovering methamphetamine in plain view.

The majority held that the common law standard for search incident to arrest must be modified where the area searched is outside the arrested person's physical control at the time of arrest: the police must have reasonable suspicion of a safety risk, and the search must be conducted in a manner tailored to the heightened privacy interests in a home.

Applying that standard, the majority found no breach of s. 8 of the Charter and dismissed the appeal.

The dissent (Karakatsanis, Brown and Martin JJ.) would have required reasonable suspicion of an imminent threat and found the standard unmet, favouring exclusion of the evidence under s. 24(2).

Côté J. agreed with the dissent on the standard and the s. 8 breach but would not exclude the evidence under s. 24(2).

The appellants were convicted of offences arising from a residential break-in involving assault and property damage.

They appealed on four grounds: conflict of interest of trial counsel for one appellant, erroneous evidentiary rulings regarding prior inconsistent statements, reliance on inadmissible identification and hearsay evidence, and trial proceedings conducted in the absence of one appellant.

The Crown conceded all grounds of appeal and acknowledged that a miscarriage of justice occurred due to cumulative legal errors and the conflict of interest.

The appellate court allowed the appeals, set aside the convictions, and ordered a new trial, expressing trust that the Crown would exercise discretion to enter a stay of proceedings.