DATE: 20060421

DOCKET: C42133

COURT OF APPEAL FOR ONTARIO

RE:

HER MAJESTY THE QUEEN (Respondent) v. TYLER MURPHY (Appellant)

BEFORE:

MCMURTRY C.J.O., DOHERTY and MOLDAVER JJ.A.

COUNSEL:

Michael A. Moon

for the appellant

Michal Fairburn

for the respondent

HEARD:

RELEASED ORALLY:

April 18, 2006

April 18, 2006

On appeal from the conviction entered by Justice Nancy M. Mossip of the Superior Court of Justice dated March 12, 2004.

E N D O R S E M E N T

[1] As argued and analyzed at trial, the constitutionality of the seizure of the gun and the cocaine turned on whether the police had reasonable and probable grounds to arrest the appellant. The arresting officers acted on information supplied by a confidential informant and on their observations of the appellant immediately before his arrest. The informant had provided the police with a description of a person, his intended destination and a timeframe within which he would be at the specific location. The informant had also told the police that this person was armed and was carrying cocaine. The police took up surveillance at the location described by the informant.

[2] When the police observed the appellant, he matched the generic description provided by the informant and was headed towards the named destination within the specified timeframe. More importantly, as the appellant ran across the street, he reached into his shirt and appeared to be holding something tucked inside his pants. To the experienced officers who observed the appellant, it appeared that the appellant was holding a gun tucked into his loose pants as he ran across the street. The officers arrested the appellant and in the course of the search pursuant to the arrest, discovered a handgun tucked into his pants and cocaine.

[3] The trial judge identified the relevant legal issues and the applicable principles. She referred to the relevant evidence. Her conclusion that the information provided by the informant combined with the observations of the police, provided reasonable and probable grounds to arrest is, in our view, unassailable both in fact and in law. In our view, the arrest was lawful and the search pursuant to the arrest was, therefore, constitutional. No issue is taken with the manner in which the search was conducted.

[4] At trial, the appellant sought further information concerning the confidential informant. The Crown claimed confidential informant privilege and the trial judge declined to compel the officers to answer questions that might reveal directly or indirectly the identification of the confidential informant.

[5] The assertion of informant privilege will shield production of information capable of identifying the informant save where an accused can demonstrate that the identification is necessary to demonstrate his innocence. The appellant does not make that claim in this case. Nor in our view did non-disclosure prejudice the appellant in his challenge of the constitutionality of the arrest and subsequent search. The information provided by the confidential informant was properly treated as the equivalent of information from an anonymous, unproven source. That information, when taken with the officers’ observations confirming the information, was enough to justify arrest.

[6] The appellant’s reliance on R. v. Zammit (1993), 81 C.C.C. (3d) 112 at 121 ignores the crucial distinction between the two cases. In Zammit, the police surveillance revealed nothing that tended to confirm the material parts of the informant’s tip. Here, as indicated above, the observations of the appellant as he ran across the street provided significant confirmation of the informant’s statement that the appellant was armed.

[7] The appellant did not advance the ground of appeal relating to the entrapment claim in oral argument. In our view, there is no merit to the appellant’s entrapment defence.

[8] The appeal is dismissed.

“R.R. McMurtry C.J.O.”

“Doherty J.A.”

“M.J. Moldaver J.A.”