Court of Appeal for Ontario
Date: 2023-12-04 Docket: COA-22-CR-0167
Before: Feldman, Miller and Coroza JJ.A.
Between: His Majesty the King, Respondent and Trevor Johnson, Appellant
Counsel: Andrew Stastny, for the appellant Victoria Rivers, for the respondent
Heard and released orally: November 30, 2023
On appeal from the conviction entered on November 18, 2021, and from the sentence imposed on March 2, 2022, by Justice Eric (Rick) N. Libman of the Ontario Court of Justice.
Reasons for Decision
[1] The appellant was convicted of offences related to firearm possession and drug trafficking.
[2] He argued that the information to obtain a search warrant did not disclose sufficient grounds to authorize the search of his residence.
[3] The appellant advanced two arguments:
- The affiant on the ITO misled the issuing JP by submitting that the appellant was sheltering his address by having provided the MTO with a different address than his residence. He argues the reviewing judge misapprehended this argument.
- The affiant failed to articulate reasonable grounds for believing that the appellant was keeping drugs at his residence.
[4] We are not persuaded that the reviewing judge made a reversible error.
[5] With respect to the sheltering argument, the appellant rightly argues that the reviewing judge misapprehended it in some respects. The argument was not that the affiant erred by not advising the JP that the appellant was living at a residence approved by his surety. The argument was that the affiant was required to advise that the address the appellant gave to the MTO was his mother’s residence – not some random or manufactured address – to allow the JP to draw the conclusion that there could have been an innocent explanation for the misstatement to the MTO other than sheltering.
[6] This misapprehension, however, is immaterial. Even if there was merit to the actual argument advanced, which we need not consider, 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 attested to police observations of the appellant leaving his residence, conducting a hand-to-hand drug transaction, and returning to his residence. This was sufficient for the JP to conclude there were reasonable grounds to believe that drugs would be present at his residence. The fact that the confidential informant said that the appellant was dealing drugs out of his family’s restaurant does not foreclose the conclusion that he was also dealing from his residence. The affiant was not required to expressly state that it is within the realm of possibility for a drug dealer to keep his supply of drugs in more than one location.
[7] With respect to the sentence appeal, the Crown concedes that the appellant is entitled to 145 days credit to the sentence for the time served pending trial of his charges for breach of his bail conditions. The appellant has sought enhanced credit based on his inability to earn remission during this time. We accept that submission in the circumstances of this case and apply credit at 1.5:1 for the 145 days served.
Disposition
[8] The appeal against conviction is dismissed. Leave is granted to admit fresh evidence. The sentence appeal is allowed and the appellant is awarded credit for 217 days served as part of his sentence.
“K. Feldman J.A.” “B.W. Miller J.A.” “S. Coroza J.A.”