Appeal case illustrates three C’s test for warrants

Law360 Canada (December 8, 2023, 10:51 AM EST) --

John Hill

On Nov. 8, 2021, Trevor Johnson was convicted of offences related to firearm possession and drug trafficking. He was sentenced on March 2, 2022, having spent 145 days in pretrial custody.

He appealed the conviction and sentence. The decision on his appeal was handed down on Dec. 4, 2023, (R. v. Johnson 2023 ONCA 809). He argued the information to obtain the search warrant (ITO) failed to disclose sufficient grounds to authorize the search of his residence. He also sought enhanced credit for his time in jail before trial.

To obtain a search warrant in Ontario, a police officer must provide the justice who issues the warrant credible grounds to believe an offence took place and the place to be searched is likely to contain evidence of wrongdoing. In short, the information to justify the granting of a search warrant must contain material under the sworn facts must be:


It was argued on appeal that these factors were missing when the search warrant was sought.

The justice of the peace may have been misled because it was alleged that Johnson listed a residential address with the Ministry of Transportation to be used on his driver’s licence, which was not the address at which he was living. The police officer seeking the warrant accused Johnson of “sheltering” his residential address. Further, a confidential informant had disclosed that Johnson was dealing drugs from his family restaurant. No mention was made of the residence eventually searched.

The Court of Appeal disposed of the sheltering argument in its brief judgment, which consisted of only eight paragraphs. The court agreed it was misinformation to suggest that Johnson was trying to mislead anyone by providing the Ministry with a fake address. The address was his mother’s home, where he was required to live while on bail, the home of an approved surety. The JP may have wrongly concluded that Johnson was being deceptive when, in fact, there was an innocent explanation of why Johnson used his mother’s residence as his home address. The inference he was “sheltering” was refutable.

Nonetheless, the Appeal Court found that this error was immaterial. Instead of finding that the information provided to the JP breached the three C’s set out above, the court considered the sheltering ground superfluous. Police had conducted surveillance of Johnson leaving his mother’s house and conducting hand-to-hand drug transactions. This information alone was sufficient for the JP to conclude that drugs would be present at his residence. Even though the confidential information stated that drugs were sold from a family restaurant, it does not preclude that Johnson was capable of dealing drugs from more than one location.

With the three-judge panel of the Court of Appeal deciding the errors in the ITO could be explained, the evidence located during the search remained admissible. The conviction was upheld.

With respect to pretrial custody, the court agreed that there should be a 1.5 to one credit for the time spent awaiting trial. Therefore, it accepted that 217 days of credit should be credited against his sentence.

No doubt justice was done in dismissing Johnson’s appeal. Unfortunately, the judgment is too brief.

Canadian criminal law is the product not only of the legislation making acts criminal but of the interpretation of those acts as interpreted by case law. Security of one’s dwelling house is considered almost sacrosanct. The Supreme Court of Canada said as much when a deeply divided court ordered the exclusion of evidence as a violation of s. 8 of the Charter, guaranteeing the right not to be subject to unreasonable search and seizure (R. v. Cornell 2010 SCC 31).

There has been criticism that the Supreme Court of Canada’s judgments are way too long. But there is value in a court taking care to set out fully the facts it relies upon. Without a thorough recitation of the facts involved in Johnson’s case, this brief judgment may be used as precedent to explain away the necessity of strict compliance with the three “C’s” and thus chipping away at the privacy we expect in our own homes.

John L. Hill practised and taught prison law until his retirement. He holds a J.D. from Queen’s and LL.M. in constitutional law from Osgoode Hall. He is also the author of Pine Box Parole: Terry Fitzsimmons and the Quest to End Solitary Confinement (Durvile & UpRoute Books). Contact him at johnlornehill@hotmail.com.

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