COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Zettler, 2015 ONCA 613

DATE: 20150914

DOCKET: C58469

Feldman, MacPherson and Miller JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Kyle Zettler

Appellant

Counsel:

James H. Silver, for the appellant

Jeanette Gevikoglu, for the respondent

Heard: September 10, 2015

On appeal from the conviction entered on December 9, 2013 by Justice Patricia C. Hennessy of the Superior Court of Justice, sitting without a jury.

ENDORSEMENT

[1] The appellant, Kyle Zettler, appeals his conviction for possession of cocaine and oxycodone for the purpose of trafficking contrary to s. 5(2) of the Controlled Drugs and Substances Act.

[2] The appellant was arrested just outside Sudbury on the basis of information provided by a confidential informant. On arrest, his vehicle was searched. Police located 360 grams of cocaine and one thousand 80 milligram oxycodone pills.

[3] At trial, the appellant brought a Charter s. 8 application seeking to exclude evidence relating to the seized drugs on the basis that his arrest was grounded entirely on information provided by an informant that was not credible, compelling or corroborated.

[4] The trial judge dismissed the application. She found that the arrest was reasonable in the circumstances and, therefore, the search incident to arrest was reasonable.

[5] The appellant appeals this ruling. His principal argument is that the trial judge did not take sufficient account of the fact that the informant’s tip that triggered the search was in fact his fifth tip relating to the appellant and potential drug activity in Sudbury. Since the first four tips did not pan out, says the appellant, the fifth tip should have provoked heightened scrutiny by the police and enhanced efforts to corroborate at least some of the facts contained in the tip.

[6] We do not accept this submission. The police conducted CPIC, RMS and M.T.O. checks in relation to the previous tips and received a good deal of information about the appellant, vehicles and locations. The fact that this information did not lead to contact with the appellant on previous occasions is, in our view, neutral. It does not establish that the appellant did or did not engage in drug activities on those occasions.

[7] Importantly, the trial judge was entitled to find that the informant’s past reliability weighed in favour of his credibility relating to the triggering tip in this case. Tips from proven reliable informants require less corroboration than tips from anonymous sources or an untried informant: see R. v. Whyte, 2011 ONCA 24, at para. 30.

[8] The simple reality in this case is that the confidential informant appears to have been top notch. He had worked with the Sudbury police officer for several years and had provided information on several occasions leading to several arrests. He was motivated to tell the truth (he was paid only if his information was accurate and led to criminal proceedings). In this case, he provided quite specific information – name of drug courier, car, drugs involved, date, time and location. The police were able to corroborate much of this information before the arrest.

[9] In conclusion, the trial judge applied the correct test from R. v. Debot, 1989 CanLII 13 (SCC), [1989] 2 S.C.R. 1140, considered the relevant factors, and was justified in determining that the arrest was both subjectively and objectively reasonable.

[10] The appellant does not challenge the validity of the search as incident to arrest.

[11] The appeal is dismissed.

“K. Feldman J.A.”

“J.C. MacPherson J.A.”

“B.W. Miller J.A.”