Court File and Parties

Court File No.: CR-23-10000457-0000 Date: 2025-08-08

Superior Court of Justice - Ontario

Re: R. v. Sherwayne Allison

Before: Justice M. Sharma

Counsel:

• Arian Khader, Counsel, for the Crown/Respondent
• Steven M. Hinkson, Counsel, for the Defendant/Applicant

Heard: June 12 and 13, 2025

Pre-Trial Ruling

Application to Quash Judicial Authorization and to Exclude Evidence Pursuant to ss. 8 and 24(2) of the Canadian Charter of Rights and Freedoms

Overview

[1] The Applicant, Sherwayne Allison, is charged with three counts:

i. possession of a loaded and prohibited firearm, contrary to s. 95(1) of the Criminal Code;

ii. possession of a prohibited firearm, contrary to s. 92(1) of the Criminal Code; and

iii. possession of a controlled substance for the purpose of trafficking, contrary to s. 5(2) of the Controlled Drugs and Substances Act ("CDSA").

[2] He brings this Garofoli application seeking an order quashing the search warrant issued under the CDSA on June 13, 2022; a finding that there was a breach of his s. 8 right under the Charter of Rights and Freedoms ("Charter"); and an order excluding all evidence from the search under s. 24(2) of the Charter.

[3] I dismissed the defendant's Application on June 13, 2025, with reasons to follow. I was satisfied the Information to Obtain ("ITO") contained sufficient information upon which the issuing justice could have authorized the search and therefore, I find a s. 8 Charter breach did not occur. Because I found no breach of a Charter right, I do not consider remedies under s. 24(2) of the Charter.

Factual Background

[4] On June 13, 2022, Detective Constable Alexander Popov of the Toronto Police Service submitted an ITO for search warrants pursuant to s. 11 of the CDSA. The ITO sets out his grounds for belief that a controlled substance, offence-related property, or evidence of a CDSA offence would be found in the locations identified.

[5] The ITO contained information provided to the police by a confidential informant ("CI"), which led to an investigation of Mr. Allison between June 11 and 13, 2022. Information gathered from this investigation was also included in the ITO.

[6] On June 13, 2022, Justice of the Peace Scarfe issued search warrants authorizing a search of a residence at 307-2999 Jane Street, Toronto ("Jane St. Property"), a commercial building at 1619 Weston Road, Toronto ("Commercial Property"), and two motor vehicles: a 2015 Mercedes sedan, plated CTTB321 ("2015 Mercedes") that belonged to Shantea Murray, and a 2010 Mercedes sedan, plated CKAY276 ("2010 Mercedes"), that was registered to Mr. Allison.

[7] Items identified in the search warrants to be seized were cocaine, scales and packaging, and evidence revealing possession and/or control of a contraband.

[8] On June 13, 2022, after the warrants were issued, a search of the 2010 Mercedes was executed by the police. They found a loaded Taurus 9mm semi-automatic firearm, 26.06 grams of powder cocaine and 31.16 grams of crack cocaine, all hidden behind the dash of the car. In addition, $3,200 was found in the centre console of the vehicle.

[9] Also on June 13, 2022, and following the search of the 2010 Mercedes, the police executed a search of the Jane St. Property. This residence is the home of Mr. Allison's mother. She advised the police that Mr. Allison drops by now and then and that he keeps two suitcases in a bedroom closet. In one of the suitcases, the police discovered a safe containing $20,210.

[10] As a result of these searches, Mr. Allison is charged with the above three counts.

Procedural History

[11] For this Application, the Crown filed a redacted ITO, excluding information that would identify the CI. The Crown conceded that, based on the redacted ITO alone, the judicial authorization for the searches could not be supported.

[12] Therefore, the Crown made an application pursuant to Step 6 of R. v. Garofoli, [1990] 2 S.C.R. 1421 at para. 79, to have the Court review as much of the redacted material as is necessary to support the authorization. The Crown prepared a draft judicial summary which was shared with Mr. Allison prior to the hearing. The Crown also filed sealed material that included the unredacted ITO. I reviewed the draft judicial summary, the redacted ITO, and the unredacted ITO before the commencement of the hearing.

[13] Given the amount of information excised from the ITO, and after considering the draft judicial summary prepared by the Crown, I determined that a judicial summary of the nature of the redactions was necessary to ensure Mr. Allison was sufficiently aware of the nature of the excised material, which could enable him to challenge it in argument or by evidence, if he chose.

[14] In assessing the sufficiency of the judicial summary, I was mindful that Mr. Allison had disclosure, and that he could lead evidence and make argument at the hearing: R. v. Crevier, 2015 ONCA 619, 330 C.C.C. (3d) 305, para. 43. I was also mindful that Mr. Allison's right to make full answer and defence was in the context of a pre-trial evidentiary hearing, not a trial on the merits, and that interests of law enforcement and CI privilege also required balancing: Crevier, at para. 55.

[15] I briefly discussed two minor additions to the draft judicial summary with Mr. Khader for the Crown, in camera without Mr. Allison or his counsel present. This discussion occurred at the Crown's request and on consent of Mr. Allison. For brief oral reasons given, I was satisfied that the draft judicial summary with two minor additions provided as much information as possible to Mr. Allison about the nature of the excised information while protecting CI privilege. I was satisfied that the judicial summary addressed the three Debot factors, namely: (i) whether the information was compelling, (ii) corroborated, and (iii) whether the CI was credible: R. v. Debot, [1989] 2 S.C.R. 1140. Furthermore, the areas addressed in the judicial summary included the non-exhaustive list of 16 items set out in Crevier, at para. 84.

[16] Copies of the judicial summary with these additions were provided to Mr. Allison's counsel. I adopted the judicial summary, and it was marked as a lettered exhibit. Mr. Allison's counsel was provided with an opportunity to discuss it with his client prior to making arguments challenging the validity of the search warrants.

[17] Mr. Allison did not call any evidence or seek to cross-examine the affiant.

Issue

Did the ITO contain sufficient information upon which the search warrants could have issued?

Legal Principles

[18] A search warrant is presumptively valid. The decision of the issuing judge must be upheld unless the party challenging it demonstrates its invalidity: R. v. Campbell, 2010 ONCA 588, 270 O.A.C. 349, at para. 45.

[19] A reviewing judge has a "narrow jurisdictional compass": R. v. Ebanks, 2009 ONCA 851, 97 O.R. (3d) 721, at para. 20, leave to appeal refused, [2010] S.C.C.A. No. 84. A reviewing judge must not substitute his or her view for that of the authorizing justice: Garofoli, at para. 56. That said, a reviewing judge must consider that the issuing justice was required to look at the material submitted in the ITO carefully and grant the authorization only as far as need is demonstrated by the material submitted, and not merely rubber stamp the authorization: R. v. Araujo, 2000 SCC 65, [2000] 2 S.C.R. 992, at para. 29.

[20] A reviewing judge should not set aside the decision of the issuing judge unless he or she is satisfied on the whole of the material presented that there was no basis for the authorization: Garofoli, at para. 62. Put differently, a reviewing judge is to determine whether there was any basis upon which the warrant could have issued: Crevier, at para. 64; Araujo, at para. 19.

[21] Under s. 11(1) CDSA, the issuing justice must be satisfied by the contents of the ITO that there are reasonable grounds to believe that:

a. a controlled substance or precursor in respect of which the CDSA has been contravened;

b. anything in which a controlled substance is contained or concealed;

c. offence-related property; or

d. anything that will afford evidence in respect of a CDSA offence, or a proceeds of crime offence under the Criminal Code

is in a place described in the warrant: R. v. Sadikov, 2014 ONCA 72, 305 C.C.C. (3d) 421, at para. 80.

[22] The standard – "reasonable grounds to believe" – exceeds suspicion but is less than proof on a balance of probabilities: Hunter v. Southam Inc., [1984] 2 S.C.R. 145 at p. 167; Sadikov at para. 81. "Reasonable grounds to believe" has been described as one of "reasonable probability" or "reasonable belief": Campbell, at para. 51.

[23] As stated by Watt J.A. in Sadikov at para. 84:

The standard is whether there is sufficient credible and reliable evidence to permit a justice to find reasonable and probable grounds to believe that an offence has been committed and that evidence of that offence would be found at the specified time and place of search: Morelli, at para. 40. Said in another way, the test is whether there was reliable evidence that might reasonably be believed on the basis of which the warrant could – not would – have issued: Morelli, at para. 40; Araujo, at para. 54; and Garofoli, at p. 1452.

[24] Direct evidence is not required to draw a link between evidence of an offence and the premises/location to be searched. The issuing justice is entitled to draw reasonable inferences from the evidence in the ITO: R. v. Kalonji, 2022 ONCA 415, 162 O.R. (3d) 283, at para. 25; R. v. Vu, 2013 SCC 60, [2013] 3 S.C.R. 657, at para. 16. That said, permissible inferences must be more than mere speculation: R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253, at paras. 81–82; R. v. Coluccio, 2019 ONSC 4559, 440 CRR (2d) 114, at para. 29.

[25] Where an ITO relies upon information from a CI, the court must consider its reliability. As stated in Garofoli at para. 68:

(i) Hearsay statements of an informant can provide reasonable and probable grounds to justify a search. However, evidence of a tip from an informer, by itself, is insufficient to establish reasonable and probable grounds.

(ii) The reliability of the tip is to be assessed by recourse to "the totality of the circumstances". There is no formulaic test as to what this entails. Rather, the court must look to a variety of factors including:

(a) the degree of detail of the "tip";

(b) the informer's source of knowledge;

(c) indicia of the informer's reliability such as past performance or confirmation from other investigative sources.

(iii) The results of the search cannot, ex post facto, provide evidence of reliability of the information.

[26] The Court should consider the three Debot inquiries when assessing the reliability of information from a CI in an ITO: (a) whether the confidential source is credible; (b) whether the information is compelling; and (c) whether the information is corroborated by police investigation: R. v. Debot, [1989] 2 S.C.R. 1140 at para. 53. It is the totality of circumstances that must support a reasonable belief that crosses the threshold of reasonable grounds. Weaknesses in one area may be compensated by strengths in the other two: Debot, at para. 53.

Information Within the ITO

[27] The following information from the redacted ITO and the judicial summary was disclosed by DC Popov and put before the issuing justice:

The Confidential Informant

a. The CI was a registered informant who provided information to the police on 19 occasions in the past, which led to arrests and seizure of evidence. The recency of past information was disclosed.

b. The CI advised that Mr. Allison was dealing in cocaine and saw him in possession of cocaine. Specifics of this allegation were included, including dates and/or a timeline of the CI's observations or information about Mr. Allison's drug trafficking activity. The CI also provided information about both vehicles used by Mr. Allison – the 2010 and 2015 Mercedes – including their description and licence plates.

c. The nature and length of the CI's relationship with Mr. Allison, including temporal details.

d. Whether or not the CI had a criminal record or was facing any charges and any associated details with those charges.

e. The CI's motivation for providing information.

f. The CI was advised no consideration would be given if the information provided was false, and of the repercussions for providing false information to the police.

Police Investigation

g. Police database queries of Mr. Allison revealed he had no outstanding criminal charges or criminal record, but in 2018, he was arrested and charged with trafficking in cocaine. At that time, he provided his home address as the Jane St. Property.

h. A Ministry of Transportation search revealed his registered address at The Collegeway, Mississauga, and that he had one active plated vehicle, the 2010 Mercedes.

Police Surveillance

i. On June 11, 2022, police conducted a search of the 2015 Mercedes and learned it was registered to Ms. Murray at 2-540 The West Mall. They attended this area to begin their surveillance. They searched the parking lot adjacent to 540 The West Mall and located Mr. Allison's 2010 Mercedes.

j. Also on June 11, 2022, police conducted surveillance of the Jane St. Property. They found the 2015 Mercedes unoccupied. They later observed Mr. Allison leave this property and get into the 2015 Mercedes.

k. They followed him to a home in Richmond Hill. A man exited the home and handed Mr. Allison, who was in the car, a package. This package was wrapped in a white plastic bag.

l. After this, the police followed Mr. Allison to the Commercial property where Mr. Allison parked in the parking lot. They observed him unwrap the package in the white plastic bag. An unknown man approached Mr. Allison in the car, then walked away.

m. Mr. Allison then entered the Commercial Property where he stayed for an hour. The police observed Mr. Allison and a female exit the Commercial Property, get into the 2015 Mercedes, then drive away. The police stated they believed the female was Shantea Murray, the registered owner of the 2015 Mercedes.

n. Police followed Mr. Allison and the female to the area of Dixon Road and Highway 27.

Police Opinion

o. Based on DC Popov's training and experience in Gun and Gang Task Force investigations, he believed that the items to be searched and seized, listed in Appendix A, would be found at the Jane St. Property, the Commercial Property, and the two Mercedes vehicles.

Analysis

[28] In oral argument, counsel for Mr. Allison states that he is not challenging the credibility of the CI in this Application or the issuance of the search warrant for the Commercial Property. Rather, he challenges the sufficiency of the ITO in terms of the extent the information from the CI was corroborated by a police investigation, and whether the information provided was sufficiently compelling to issue the warrant.

[29] I am satisfied there was sufficient information before the issuing justice on which he could have concluded there were reasonable grounds for police to believe cocaine, scales, and packaging would be found in the Jane St. Property, the Commercial Property and the two Mercedes vehicles.

[30] The ITO contained police observations of Mr. Allison driving the 2015 Mercedes from the Jane St. Property to the Richmond Hill property where he collected a package on June 11, 2022. From there, police observed him drive to the Commercial Property where they saw Mr. Allison open the package and examine its contents before entering the Commercial Property. Police noted Mr. Allison left the Commercial Property an hour later.

[31] This police surveillance of Mr. Allison, on its own, may not have been sufficient to support issuance of the search warrant. However, the ITO disclosed other information as part of the police's investigation which drew a nexus between Mr. Allison, the Jane St. Property, the 2015 Mercedes, and Mr. Allison's drug trafficking. Notably, it contained highly compelling and credible information from the CI.

[32] With respect to the nexus to the Jane St. Property, the ITO disclosed that when Mr. Allison was charged in 2018, he provided his home address as the Jane St. Property to the police. Together with the June 11, 2022 police observation of Mr. Allison leaving this address, later attending another address in what appeared to be a suspected drug transaction, and the CI information of Mr. Allison trafficking in cocaine, the issuing justice had information beyond mere suspicion to permit a reasonable inference that Mr. Allison resided at the Jane St. Property and that items related to trafficking cocaine would be found there.

[33] With respect to the two vehicles, the police observed Mr. Allison driving the 2015 Mercedes, which the CI confirmed Mr. Allison was driving at the time. The CI also informed the police that Mr. Allison stored drugs in the Mercedes vehicles. Through their surveillance, the police observed a woman who they believed to be Ms. Murray leave the Commercial Property with Mr. Allison in the 2015 Mercedes. They also discovered the 2010 Mercedes in a parking lot adjacent to Ms. Murray's address at 540 The West Mall. This information permitted a reasonable inference that Mr. Allison and Ms. Murray had a relationship, and that Mr. Allison regularly drove Ms. Murray's 2015 Mercedes. The police observation of Mr. Allison driving the 2015 Mercedes corroborated the CI's information to police.

[34] With respect to engaging in drug trafficking, the CI's information was compelling and highly credible. It included the CI seeing Mr. Allison in possession of cocaine and specific, detailed, firsthand information about Mr. Allison's drug trafficking activity.

[35] The police surveillance of Mr. Allison collecting a white plastic bag from a home then travelling to the Commercial property parking lot where he inspected its contents, was activity consistent with drug trafficking. It was also consistent with the CI's information that Mr. Allison was trafficking cocaine. It supported a reasonable inference that Mr. Allison was trafficking drugs.

[36] As stated, the police surveillance of Mr. Allison picking up and inspecting a white plastic bag, on its own, would likely not be sufficient reliable evidence to permit a justice to find reasonable and probable grounds to believe that Mr. Allison was trafficking drugs and that evidence of such would be found in the locations identified in the search warrant.

[37] However, the information from the CI was compelling. The CI provided detailed, specific, firsthand information that was not commonplace, suggesting direct knowledge of the criminal activity. For example, the CI provided information that Mr. Allison drove the two Mercedes, had seen him with cocaine, was trafficking in cocaine, and that he kept cocaine in the vehicles. The CI provided information to the police about Mr. Allison on more than one occasion. The currency of this information was also before the issuing justice.

[38] The CI's information to the police had strong indicia of credibility. The CI is a "carded" source who provided information to the police 19 times in the past, leading to arrests and seizures of evidence. The ITO disclosed whether the CI had a criminal record and that the CI was advised they would not receive consideration until the results of the investigation were substantiated. The CI was also informed of the consequences of giving false information. Additionally, and of note, counsel for Mr. Allison did not challenge the credibility of the information provided by the CI.

[39] The CI's information was corroborated by the police investigation. The police surveillance of Mr. Allison confirmed him driving the 2015 Mercedes and picking up a white plastic bag from a home, which activity was consistent with the drug trafficking reported by the CI. It was not necessary for the police to confirm that Mr. Allison was in fact trafficking cocaine in the June 11, 2022 transaction. Police were required to only confirm there was some evidence that might reasonably be believed to support the issuance of the warrant: R. v. Rocha, 2012 ONCA 707, 296 O.A.C. 357, at paras. 22–23. Furthermore, as stated, the Police discovered Mr. Allison had previously been arrested and charged with trafficking cocaine, the same drug which the CI claimed Mr. Allison was currently trafficking. To the extent that this corroboration is weak, it is compensated by the compelling and credible nature of the information provided by the CI.

[40] Relying on DC Popov's experience as a police officer, the information provided by the CI, and the police surveillance, DC Popov believed that Mr. Allison was engaging in drug trafficking and that evidence of drug trafficking would be found in the places identified in the ITO. There was both a subjective and objective basis for this belief, which the issuing justice was entitled to rely upon: R. v. Farrugia, [2012] ONCJ 830, 2012 CarswellOnt 17143, at para. 36.

[41] Considering the totality of the circumstances as disclosed in the ITO, I am satisfied there was sufficient credible and reliable evidence upon which a justice could have found reasonable and probable grounds to believe that Mr. Allison was engaged in drug trafficking and that evidence of such would be found at the places identified in the search warrant.

[42] For these reasons, I decline to quash the search warrant. As such, I find there was no breach of Mr. Allison's s. 8 Charter right, and I need not consider remedies under s. 24(2) of the Charter.

[43] The application is dismissed.

Justice M. Sharma

Date: August 8, 2025