ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 345 / 12
DATE: 2013-10-28
BETWEEN:
HER MAJESTY THE QUEEN
– and –
Kyle Zettler
Applicant
Denys R. Bradley, for the Crown
Micheal J. Venturi, for the Applicant
HEARD: March 18, 2013
decision on charter motion
HENNESSY J.:
[1] The defence brings this motion to exclude drug evidence seized by police. The defence alleges that the officers conducted a warrantless search. The police searched the car driven by the accused following the arrest and thus the focus of this hearing was whether the police had reasonable and probable grounds to arrest Kyle Zettler.
[2] The hearing of this matter began on January 7, 2013. It was adjourned after a fourth confidential tip was identified by an officer while giving evidence. Up to that point, the Crown had disclosed only three confidential tips upon which they had relied and about which they testified at the preliminary hearing. Following the adjournment, a further officer’s note was disclosed. Ultimately during the evidence on this application, the police relied on notes of five different tips from a confidential informant.
[3] The defence argued that the way in which the late disclosure came to light and the fact that full disclosure on the search warrant was not received until after the motion had adjourned, are grounds for the court to reject the fourth and fifth police notes. In the absence of these notes, the defence argues that the Crown has not discharged its onus to prove that there were reasonable and probable grounds for arrest and therefore that the search incident to arrest was reasonable.
[4] The Crown acknowledges that the disclosure in this case was late and was made in a piece meal fashion, but that any prejudice to Kyle Zettler was completely cured by the adjournment granted at the request of the defence.
[5] The onus is on the Crown to prove that a warrantless search is reasonable. In this case, the search was performed incident to arrest. The question on this motion is whether the police had reasonable and proper grounds to arrest Mr. Zettler. If the arrest was made in violation of the Charter rights of the accused, the search will be considered invalid. The defence did not raise any independent issue with respect to the search as incidental to arrest.
[6] I will deal first with the disclosure issue and the request from the defence that I disregard the evidence that is supported by police notes that were disclosed after the preliminary hearing.
[7] The disclosure was made to the defence at three different times; before the preliminary hearing (three notes), on the day that the Charter motion began (one note) and following the adjournment of the motion (one note).
[8] The defence did not allege bad faith or call evidence with respect to systemic issues behind the late disclosure. The defence submits that the late disclosure, coming after the preliminary hearing and after the delivery of the defence factum on this motion impacts negatively on the credibility of the officer who received the tips from the confidential informant.
[9] While the disclosure in this case was far from ideal, the defence specifically did not argue that there was anything nefarious behind it.
[10] I am of the view that all of the evidence from the officers involved in this case should be considered. The notes are not the evidence. The purpose of the notes is twofold. Firstly the notes provide disclosure. Secondly, the notes assist the witness in giving evidence. There was no suggestion or argument that the defence was prejudiced by the late disclosure. The adjournment cured any possible prejudice that may have arisen. The defence did not argue that the witness should not be permitted to rely on the notes. Consequently, both police witnesses did refer to their notes during their testimony.
[11] Separate and apart of the issue of disclosure, the defence raised other issues relating to the substance of the notes of the officers. These issues go to the assessment of the case on the merits.
Lawfulness of the Arrest
[12] The test for reasonable arrest was repeated in R. v. Debot, 1989 13 (SCC), [1989] 2 S.C.R. 1140 at 1166. The arresting officer must have subjective and objective reasonable and probable grounds on which to base an arrest. When the police action is grounded on a tip from a confidential informant, the court must consider the totality of the circumstances including whether the information was compelling, whether the information came from a credible source and whether the information was corroborated.
[13] The final tip in this case came on December 5, 2011, the day of the arrest. This tip came to Staff Sergeant Asunmaa from a confidential informant. Staff Sergeant Asunmaa passed the tip on to Detective Constable Miller of the Ontario Provincial Police. Staff Sergeant Asunmaa made five calls in total to Detective Constable Miller passing along information received.
[14] Both officers have long experience in their respective drug units and had worked together in the past. Staff Sergeant Asunmaa had experience with this confidential informant. He testified that this confidential informant had provided information for two search warrants in the past, resulting in convictions and information leading to four street arrests, each resulting in convictions. In addition that confidential informant had provided information regarding pricing and packaging of drugs. Staff Sergeant Asunmaa testified that he had never received information from this confidential informant which was later found to be false or misleading. The confidential informant was a drug user with a criminal record and was paid for his tips. In this case, the confidential informant informed Staff Sergeant Asunmaa that he received his information from a participant in the trafficking. Staff Sergeant Asunmaa had advised Detective Constable Miller that the information he was passing on was from a confidential informant from whom he had received, proven and reliable information in the past.
[15] I agree with the Crown that the evidence shows that the confidential source was reliable, on the basis of Staff Sergeant Asunmaa’s past dealings with him and the officer’s knowledge of him. I am also satisfied that Staff Sergeant Asunmaa’s evidence is credible. But for the disclosure issue, there was no challenge to his credibility.
[16] The December 5, 2011 tip as conveyed to Detective Constable Miller at approximately 10:30 am, was that Kyle Zettler, a 25 year old who lived outside of Toronto, was driving to Sudbury in a few hours with a large quantity of “oxys” and cocaine to distribute to dealers, in either a black Mazda or a grey Cadillac, bearing plate numbers as indicated, by way of Highway 69 and that he would likely be alone in the vehicle. The tip further conveyed that he had the same connections as his father who had been caught earlier that year and who was known to both officers.
[17] In addition to the tips, Detective Constable Miller received via Staff Sergeant Asunmaa; Detective Constable Miller had done independent research to corroborate the ownership of cars registered to Kyle Zettler as well as his address in Woodbridge. Detective Constable Miller confirmed through his searches that Kyle Zettler owned two cars as described and was 25 years of age. Detective Constable Miller obtained the license plate numbers of the vehicles. Detective Constable Miller set up observation on Highway 69 north just south of Sudbury following the December 5, 2011 tip. Kyle Zettler was first observed driving alone, northbound in a grey Cadillac at 1:54 pm and stopped at approximately 2:00 pm on the highway at the southern entrance to the city. Police searched the vehicle and found 360 grams of cocaine packaged in three separate bags and 1000 80 mg oxycodone tablets in a clear plastic ziploc bag. Other packaging material was found on Mr. Zettler’s person.
[18] To assess the level and quality of the tip, the court looks at the totality of the information. In this case, the information came to the police over a period of one month through five different tips. They all form part of the information that the police had and could assess from the informant. There were many consistencies between the tip and what the police knew by the time of the arrest:
• The home base of the accused, which was not from Sudbury.
• The travel pattern of the accused.
• The age of the accused.
• The cars he drove and owned.
• The fact that he would be driving to Sudbury via Highway 69 on December 5, 2011 in the early afternoon.
[19] The defence argues that the source should not be considered reliable because he had twice told police that Kyle Zettler would be coming to Sudbury in the weeks preceding the arrest and that he had not been apprehended. The evidence does not support the argument that the source was incorrect. It only supports the proposition that the police surveillance missed seeing Kyle Zettler. In neither of these tips had the source been specific as to time of day and it is entirely possible that the tip was correct.
[20] The defence made much about the fact that the notes of the two officers did not contain all of the same facts. The notes of Detective Constable Miller, who received the information, had more detail than the notes of Staff Sergeant Asunmaa. As I noted earlier, the notes are not evidence. The notes are there to refresh the memory of the witness. For example, both officers testified as to the source of the information they received. The notes do not reveal this, but neither officer was challenged on his memory.
[21] I am not persuaded that the differences in the notes of the officers amount to any problem with their evidence on the motion. All that one can conclude is that one officer puts more detail into his notes than the other. Staff Sergeant Asunmaa was receiving and passing on information in very short turnaround time. There was no evidence that he did anything further with the information. Detective Constable Miller noted and worked with the information he received to brief his supervisor, do further research, organize surveillance and instruct other officers. There is nothing patently problematic about the differences in the notes.
[22] I am persuaded that the police had objective reasonable grounds to believe that Kyle Zettler was about to commit an indictable offence, having regard to the totality of the circumstances from the perspective and knowledge of Detective Constable Miller. The source had provided a number of details regarding the transport of the drugs by Kyle Zettler; on a specific date, at a specific time, and on a specific route into Sudbury. Detective Constable Miller had independently corroborated details with respect to vehicle ownership, address and age of Kyle Kettler as he had received the information from Staff Sergeant Asunmaa. Detective Constable Miller testified that he also took into consideration the past proven reliability of the source, as conveyed to him directly from an experienced drug officer who was the handler of this confidential informant and with whom Detective Constable Miller had worked in the past. As a result, I am satisfied that it was objectively reasonable to rely on the confidential informant’s tip that Kyle Zettler would have cocaine and oxycodone in that car.
[23] Detective Constable Miller testified that he had reasonable subjective belief in the tip that Kyle Zettler would be transporting a large quantity of cocaine and oxycodone to Sudbury, by way of Highway 69, in the early afternoon of December 5, 2011, in one of the two cars that he owned based on the totality of his knowledge and experience.
[24] I find that the arrest was reasonable in the circumstances and therefore that the search incident to arrest was reasonable.
Exclusion of Evidence
[25] Given my finding above, I do not intend to engage in the analysis under s. 24(2) of the Charter. The police operated in good faith. There was no suggestion to the contrary. The messy way in which disclosure occurred, although something that should be avoided in the future, does not amount to Charter infringing state action and does not diminish the strength of the evidence in support of the reasonableness of the arrest.
[26] I am satisfied that the Crown has proven that the arrest was reasonable in the totality of the circumstances, that the search was a valid search incidental to the arrest and that the evidence seized in the search should not be excluded.
[27] The defence motion fails.
Madam Justice Patricia C. Hennessy
Released: October 28, 2013
COURT FILE NO.: 345 / 12
DATE: 2013-10-28
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
Kyle Kettler
DECISION ON CHARTER MOTION
Hennessy J.
Released: October 28, 2013