Drug Offences

Court of Appeal Finds “Innocent Explanation” for Misstatement in Search Warrant Information

Written on behalf of Barrison Law
Police officer on a motorcycle watching a house, representing search warrants in Ontario

In trying to combat drug-related offences in Ontario, a critical tool for law enforcement agencies is the search warrant. If granted, a search warrant is a legal instrument that empowers authorities to enter and search premises at a specific address suspected of being involved in drug-related activities. Pursuing a search warrant is meticulous, requiring sufficient information and evidence to convince the issuing Justice that it is necessary.

This blog post explores the constitutional rights of individuals and the burden of proof on law enforcement to obtain a search warrant. It also reviews a recent decision from the Ontario Court of Appeal, in which a convicted offender appealed his conviction and sentence on the basis the information used to obtain a search warrant was insufficient.

Accused Convicted of Drug Trafficking and Firearms Offences Appeals Conviction and Sentence

In the matter of R v. Johnson, the appellant was convicted of criminal charges relating to drug trafficking and firearm possession on November 8, 2021, and was sentenced on March 2, 2022, after spending 145 days in pretrial custody.

The appellant appealed his conviction and accompanying sentence to the Ontario Court of Appeal in November 2023, requesting enhanced credit for his time in pretrial custody. In support of his appeal, he argued the information used to obtain a search warrant did not disclose sufficient grounds to authorize the search of his residence. The appellant specifically argued the affiant failed to articulate reasonable grounds for believing that drugs were kept at his residence.

The appellant also asserted the affiant misled the issuing Justice of the Peace by indicating the appellant was sheltering his address by providing a different address that was not his residence and that the reviewing Judge misapprehended this argument.

Obtaining a Search Warrant in Ontario

To obtain a search warrant in Ontario, a police officer must present credible grounds to the Justice issuing the warrant that the police believe an offence occurred at a particular address. Further, they must demonstrate that a search of the address will likely produce evidence of such wrongdoing. As such, before a search warrant is issued, the information that forms a basis for granting the warrant must be:

  • From a credible source and believable on its face, particularly if a confidential informant is involved;
  • Compelling and almost irrefutable; and
  • Corroborated and substantiated.

In this case, the appellant argued that the above-listed elements were missing from the information provided, upon which the search warrant was granted. Under the Canadian Charter of Rights and Freedoms, section 8 guarantees a right against unreasonable search and seizure.

Reviewing Judge Misapprehended “Some Respects” of Argument

Regarding the argument about sheltering his address, the Court of Appeal found the appellant “rightly argues that the reviewing judge misapprehended it in some respects.” The argument was not that the affiant erred by not indicating to the Justice of the Peace that the appellant was living at a particular residence. Instead, the argument before the reviewing judge was that the affiant was required to advise the Justice that the address provided was the appellant’s mother’s address and was not a “random or manufactured address.”

The Court of Appeal agreed that it was inaccurate to suggest the appellant tried to mislead anyone as the address provided was where the appellant was required to live while on bail. There was an innocent explanation as to why he provided the address he did. In other words, the inference that the appellant was sheltering his address was refutable.

However, the Court of Appeal determined that this misapprehension was immaterial and the
“sheltering ground was superfluous given police observations of the appellant and could not have undermined confidence in the credibility of the affiant.” The affiant confirmed police observations of the appellant leaving his residence and “conducting a hand-to-hand drug transaction” before returning, which allowed the Justice to conclude there were “reasonable grounds to believe drugs would be present at this residence.” Further, the Court noted the affiant was not required to expressly explain that a drug dealer might maintain a supply of drugs at different locations.

Additional Credit Applied to Sentence

The Court ultimately determined that the errors in the information used to obtain the search warrant could easily be explained. Therefore, the evidence obtained during the search remained admissible. As a result, the conviction was upheld.

Turning to the appellant’s request for enhanced credit for time served before sentencing, the Crown conceded he was entitled to 145 days credit pending trial of his charges and breach of bail conditions. As such, the Court applied credit at a 1.5x rate for the 145 days served, allowing a credit for 217 days served as part of his sentence.

Contact the Criminal Defence Lawyers at Barrison Law for Legal Advice on Drug Offences & Search Warrant Issues

The trusted criminal defence lawyers at Barrison Law provide clients with information about their legal options and help them develop strategies for defending against charges related to property offences, drugs and alcohol, or search warrant issues. Our office is located across the street from the Durham Consolidated Courthouse. Our criminal defence team represents clients throughout the Durham Region, including Pickering, Ajax and Whitby. Call 905-404-1947 or contact us online to schedule a confidential consultation with one of our criminal defence lawyers.