Court Information

Ontario Court of Justice Central West Region Brampton, Ontario

Parties

Between:

HER MAJESTY THE QUEEN

-and-

ANDREZEJ WEGNER

Reasons for Judgment

Judge: Duncan J.

Counsel:

• A Coke for the Crown
• A Abbasi for the defendant

Date: April 22, 2016

1. Introduction

The defendant is charged with possession of cocaine and possession of heroin. The drugs were found when a police officer, suspicious that the defendant was shooting up, entered a bathroom stall of a public washroom and found him with a lighter and needle that later tested positive for cocaine. On arrest he was found in possession of a packet of heroin.

Facts

[2] On the afternoon of June 25, 2015, a police officer responded to a call of a suspicious person hanging around a small shopping plaza. A limited description was given – including that the person was wearing a white shirt and a baseball cap. The suspicious activity was said to be his pacing back and forth in front of some stores. On arrival the officer did not see anyone matching the description. He patrolled the area briefly but again saw nothing. Before closing out the call and turning to other duties, he used the washroom at the QuickChick restaurant in the plaza. In doing so he had the opportunity to observe that the men's washroom had no urinal and only a single stall with a door that closed but did not lock.

[3] The officer then drove away from the plaza. He then re-checked the description of the suspicious person and realized that he had seen a person matching that description standing near the washroom when he was leaving. He returned to the restaurant. Importantly, he was unable to say how much time had passed since he had been there.

[4] The officer entered the washroom. He saw a pair of feet in the stall facing perpendicular to the door and the toilet, that is, facing the wall where the toilet paper dispenser was located. The stall occupant's pants were up – or at least not down by his ankles. These observations together with the officer's knowledge of the area being one where drug offences were commonplace, made him suspicious that the person in the stall might be shooting up. He announced his presence "Hey, it's the police. Open the door." There was no response and about 10 seconds later the officer pushed open the door to the stall. There was no resistance. He found the defendant in a standing position hurriedly taking down his pants. There was a syringe and other paraphernalia beside him on the top of the toilet paper dispenser. He was arrested.

[5] A search incident to arrest uncovered a packet of powder that later tested as heroin. At the time of his arrest the defendant had needle tracks on his arms. He looked unhealthy and said he did not feel well.

Issues

[6] While counsel for the defendant raised a number of Charter based arguments, she rightly concentrated on the only one that had any merit – that the officer's entry into the bathroom stall was a breach of the defendant's right under section 8 to be secure against unreasonable search and seizure.

Reasonable Expectation of Privacy

[7] Section 8 provides security against state intrusion only in situations where there is a reasonable expectation of privacy. The first impression of most is that the existence of such an expectation in a bathroom stall is obvious. There can be few places where, at least subjectively, expectation of privacy is higher – and intrusion by the state more offensive – than in a toilet cubicle.

[8] This impression is supported by the case law that has almost uniformly recognized the existence of REP with respect to stalls or cubicles within a public washroom. In R v Lebeau (1988), 41 CCC 3d 163 (Ont CA), the Court rejected a contention that the open area of a public washroom was an area of protected privacy, distinguishing it from the cubicles, and thereby implying that the latter enjoyed such protection (see pp. 185-186). Later decisions of lower courts in Ontario confirmed that implication: R v Pietrangelo, [1999] OJ No 2988 (OCJ); R v Lofthouse, [1986] OJ No 3067 (D.C.); R v Silva (1995), 26 O.R. (3d) 554 (Gen Div). For what it's worth, American jurisprudence has reached the same conclusion and has recognized a reasonable expectation of privacy in temporarily private places such as washroom cubicles, fitting rooms and phone booths: See Lafave: Search and Seizure 5th Ed Vol 1 pp. 542–547.

[9] However all of these decisions are rather dated and must be re-evaluated in light of subsequent decisions. Particularly relevant is R v Edwards, [1996] 1 SCR 128 in which the Court gave guidance with respect to the general question of reasonable expectation of privacy (para. 45):

A reasonable expectation of privacy is to be determined on the basis of the totality of the circumstances.

The factors to be considered in assessing the totality of the circumstances may include, but are not restricted to, the following:

(1) presence at the time of the search;

(2) possession or control of the property or place searched;

(3) ownership of the property or place;

(4) historical use of the property or item;

(5) the ability to regulate access, including the right to admit or exclude others from the place;

(6) the existence of a subjective expectation of privacy; and

(7) the objective reasonableness of the expectation.

[10] Assessment of the issue under this framework confirms the correctness of the earlier decisions. On consideration of these factors and all of the circumstances, I conclude that individuals – including the defendant – have a reasonable expectation of privacy when they use a public washroom cubicle. The defendant therefore had the protection of section 8 to be secure from unreasonable search and seizure.

[11] It must be said however that there is something rather artificial and unsatisfactory about this conclusion in that it is reached with a view only to the generic, innocent person who uses the cubicle for its intended purposes. The actual unlawful use by the defendant is not to be considered because the purpose of section 8 is to protect against unreasonable searches before they happen and not to assess them after the search has occurred. However when it comes to the question of exclusion under section 24(2), as discussed below, there is a difference between places where there is an expectation of privacy per se such as a home or office, and public places of temporary occupancy that are given protection only because of the usual expected activity for which they are intended. Where the defendant himself is not engaged in that activity, the impact on his Charter rights is negligible. Had the defendant gone to shoot up in any other enclosed space in the QuickChick, – for example, a storage closet – there could be no credible argument advanced that he had a REP and no constitutional issue would arise by the police officer's opening the closet door. The only difference between that situation and the present one is that he went into a space that other people use for private personal functions – the sole reason the space is provided and exists at all and the sole reason that it enjoys constitutional protection. The defendant would no doubt be considered a trespasser and denied the use of the facility by the owner if his intentions could be screened and ascertained in advance. While the law permits him to claim constitutional protection on the coat-tails of the privacy interests of others, it need not be so generous when it comes to the question of exclusion.

Search

[12] It is not suggested that what occurred here was not a "search". Certainly the officer was looking inside the cubicle to see who was there and what he was doing – the most basic meaning of a search.

Unreasonable?

[13] A warrantless search is prima facie unreasonable. The Crown must show on a balance of probabilities that the search was otherwise authorized by law. The Crown does not cite any statutory provision or common law rule that would specifically authorize the search. Instead it emphasizes the evidence that the officer had a concern that the occupant of the stall might overdose and submits, therefore, that he had the authority to take reasonable steps to prevent such harm. The Supreme Court has recognized such authority in its adoption and interpretation of the ancillary powers doctrine and has applied it to validate warrantless police entry into a dwelling to verify the safety of one of the occupants following a disconnected 911 call: R v Godoy (1999), 131 CCC 3d 129 (SCC). However the Court also cautioned that each situation must be assessed according to its unique circumstances.

[14] There is no issue that the officer was acting within the scope of his general duties. The real question is whether the actions he took in carrying out those duties were a justifiable use of police power. As quoted by the SCC in Godoy at para. 18:

…the justifiability of an officer's conduct depends on a number of factors including the duty being performed, the extent to which some interference with individual liberty is necessitated in order to perform that duty, the importance of that duty to the public good, the liberty interfered with and the nature and extent of the interference.

[15] Here both the importance of the duty being performed AND the extent of the interference on liberty might be considered low end. The officer was not responding to or operating in an emergency situation. To the contrary he was pursuing a vague complaint that did not even involve any alleged criminality or illegality. Further, given the time that had passed, the connection between the suspicious person and the man in the stall had become tenuous at best. But then the observations made – positioning of the feet and the upright state of the pants – augmented his bland quest with at least the possibility of criminal activity and possible risk to health and safety. Under these circumstances, was it justifiable for him to open the stall door? I am not satisfied that it was. While such interference with liberty was minimal, the grounds for doing so were even less. He had no information that the specific place was a known injection site and no information that the occupant of the stall was or might be a user. The observations of the feet and pants, even in the context of it being a troubled neighbourhood, could not reasonably support a belief in drug use, a necessary first step to justifying intervention to prevent overdose. I conclude that the search was not authorized by law and was therefore unreasonable and an infringement of section 8.

Exclusion of Evidence: Section 24(2)

[16] The evidence is prima facie admissible. The defendant bears the burden of establishing that it ought to be excluded under section 24(2) because, having regard to all of the circumstances, to admit it would bring the administration of justice into disrepute. The issue should be determined by considering all of the circumstances under the three Grant headings.

[17] Before embarking on a consideration of the Grant factors, I think it is useful to put some public interest perspective on this case as it is too easy to fall prey to an immediate visceral reaction that police have no business at all intruding on this most private of areas and conducting warrantless searches in the toilet stalls of the nation. It is not that simple.

[18] Use of cubicles in public washrooms for injection of drugs creates a significant public health hazard. The danger created by drug users leaving their needles behind is well known and can be verified by a quick Google search: see recently for example The New York Times, March 5, 2016:

After shooting up in public places, people often leave behind dirty needles, posing a health hazard. In response, some groups have called for supervised injection facilities, like those in Canada and Europe, where people can inject themselves under medical supervision. The goal is to keep them from overdosing and to curb infectious diseases.

[19] Still more recently and closer to home see, from British Columbia on April 5 of this year: "Locked Washrooms Irk Disabled Ferry Passengers":

Under the current policy, the terminal's {wheelchair} accessible washrooms are locked 24 hours per day. Individuals who need to use them must find a BC Ferries employee to open it.

Deborah Marshall, executive director of public affairs for BC Ferries, said the policy was put in place to address a recurring problem of people entering the private, accessible washrooms to consume drugs, then leaving paraphernalia such as needles behind.

[20] Relating this hazard to this case, it is not difficult to envision a family eating at the QuickChick whose youngster goes to the washroom by himself; he enters the single stall and comes into contact with the discarded needle, contracting a potentially life-altering disease. Consider the liability of the restaurant owner; consider the minimum wage employees being required to clean this hazardous waste from the washroom.

[21] In short, there is a real public interest in not allowing public washrooms to become habitually used as injection sites. Regrettably, some policing is necessary to further that interest. These concerns should be kept in mind when considering whether admission of the evidence would bring the administration of justice into disrepute.

[22] I do not regard the police conduct in this case as particularly serious. This was not some jack booted knock down of the privy door. It was a single police officer following a low level investigation who came across a situation that raised his suspicion and concern. He acted unjustifiably – but did so in good faith and in a benign manner. While I have found that there was a shortfall in justification for opening the door, it was an action that was minimally intrusive. The officer had announced his presence and had good grounds to believe that the occupant was not using the toilet or undressed at the time, which was in fact the case. The door was not locked and no force was used or required.

[23] The impact on the Charter protected right of the accused was minimal. An officer opened the door on a space where the defendant had no right to be, given his purpose and activity. As discussed above in paragraph 11, his claim to an expectation of privacy is a parasitic appropriation from lawful users of the facility. On the facts his personal dignity was not compromised by the police action. Finally, it is worth mentioning that while the chances of the defendant suffering an overdose cannot be known, it is at least possible that the police intervention saved his life.

[24] As for the third factor, as always, only admission of the evidence will permit a trial on the merits. I would say however that if I had found that the police conduct was more serious or the impact on the defendant substantial I would not let this factor tilt the balance in favour of admission. Unlike many offences, prosecution – trial on the merits – is not the only satisfactory way to deal with offences of this nature. Other options include diversion through drug treatment courts or similar programs.

[25] The balance of the Grant factors favours admission of the evidence.

Substantive Issue

[26] It is argued that the needle and its trace of cocaine could have been left in the stall by another user who had been there between the officer's first being in the washroom and the defendant's occupation of the stall. In other words, there should be a reasonable doubt that the defendant was in possession of the needle and its cocaine.

[27] Having regard to all of the circumstances including the relatively short window available for another user to have come, fixed and gone; the defendant's position standing in the stall facing the toilet dispenser on top of which the needle and lighter were found; the fact that the defendant is a user as shown by the track marks on his arms and his possession of another injectable drug; the fact that he was not apparently using the toilet or doing anything else in the stall – I am satisfied that the possibility of a third party is entirely speculative and not capable of raising a reasonable doubt.

Conclusion

[28] The evidence is admitted and both charges are proven. The defendant is found guilty as charged.

April 22, 2016

B Duncan J.

Footnote

[1] The only decision to the contrary that I was able to find was R v O'Flaherty (1987), 35 CCC 3d 33 (Nfld CA) – a drug case where the police officer had looked over the wall of the stall. While factually similar to the present case it is contrary to the Ontario decisions.