



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

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 informants
    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 informants
    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] 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.


