CITATION: R. v. Wegner, 2017 ONSC 1791

COURT FILE NO.: SCA(P) 16 07/16

DATE: 2017 03 20

ONTARIO

SUPERIOR COURT OF JUSTICE

(SUMMARY CONVICTION APPEAL COURT)

B E T W E E N:

HER MAJESTY THE QUEEN

Jeffrey Fisher, for the Appellant

• and -

ADNREZEJ WEGNER

Victoria Rivers, for the Respondent

HEARD: March 13, 2017

REASONS FOR DECISION

(On appeal from the decision of Justice B. Duncan)

Fairburn J.

(I) Overview

1On June 25, 2015, Cst. Brown found the appellant standing in front of the toilet paper dispenser in a public washroom stall at the Quik Chik Restaurant in Brampton. There was a needle and other drug paraphernalia resting on top of the dispenser. Mr. Wegner was arrested and a search incident to his arrest turned up a packet of heroin.

2While Justice B. Duncan concluded that entry into the washroom stall had violated Mr. Wegner’s s. 8 Charter rights, he dismissed the application to exclude the evidence under s. 24(2). Mr. Wegner was convicted on two counts of being in possession of a controlled substance: heroin and cocaine. He appeals his convictions on the basis that the trial judge erred in his s. 24(2) analysis. For the reasons that follow, the appeal is dismissed.

(II) Deference to Section 24(2) Findings

3Trial judges engage in s. 24(2) findings every day. They are heavily fact-laden inquiries that necessitate the weighing of a variety of factors that often pull in different directions. It is for this reason that strong appellate deference should be paid to a trial judge's admissibility decisions. Unless there is an error of principle, a palpable and overriding factual error, or an "unreasonable determination", an appellate court should not interfere: R. v. McGuffie, 2016 ONCA 365, at para. 64; R. v. Grant, 2009 SCC 32, at para. 86; R. v. Cole, 2012 SCC 53, at para. 82; R. v. Côté, 2011 SCC 46, at para. 44.

(III) General Factual Backdrop

4Cst. Brown received a radio call that there was a suspicious looking person pacing back and forth in front of six stores in a strip mall. He was described as a white male, wearing a white shirt and a baseball cap.

5The officer arrived at the plaza at 4:13 p.m. He testified that it is an area known for drug activity. He was unable to find the person matching the description given and so he logged off of the call at 4:19 p.m. He then used the washroom in the Quik Chik restaurant within the plaza.

6After returning to his vehicle, and as he was leaving the plaza, Cst. Brown again checked the description of the suspicious male party that had caused him to attend the plaza in the first place. The officer realized that he had seen a man who matched the description standing in the hallway close by the washroom he had used at the Quik Chik.

7Not seeing the man through the window of the restaurant, Cst. Brown returned to the washroom to see if he could locate the man. The washroom contains one stall with a door that does not lock. It has a sink, but no urinal. Cst. Brown heard a person in the stall and looked underneath. He noticed that the person’s feet were not facing toward or away from the toilet. Instead, the feet were facing toward the side of the stall where the toilet paper dispenser sits. The person’s pants were not around his ankles.

8Cst. Brown suspected that the person was using drugs. The officer testified that he was concerned for the stall occupant's safety and the fact that he may overdose or could be using a bad batch of heroin. Having recently used the toilet in the stall, the officer knew that there was no lock on the door. He waited about ten seconds and then called out: "Hey, it's police, open the door." The person did not reply. After about another ten seconds, the officer opened the stall door.

9He saw Mr. Wegner, who was wearing a white shirt and baseball cap, standing up facing the toilet paper dispenser. A hypodermic needle lay on top of the dispenser, along with a black lighter. The officer testified that Mr. Wegner appeared to be "attempting to pull down his pants". A search incident to arrest led to the discovery of a packet of heroin, and the needle later tested positive for cocaine.

(IV) The Trial Judge's Reasons

10In brief, while Duncan J. found that entry into the washroom stall constituted a s. 8 breach, the factors set out in Grant favoured admission of the evidence. He concluded that the existence of a reasonable expectation of privacy in a public "bathroom stall is obvious" and that there are few places that would attract a stronger subjective expectation of privacy than a toilet cubicle. He made reference to the jurisprudence supporting this s. 8 conclusion, including: R. v. LeBeau (1988), 1988 3271 (ON CA), 41 C.C.C. (3d) 163 (Ont. C.A.), R. v. Pietrangelo, [1999] O.J. No. 2988 (Ont. Ct. J.); R. v. Lofthouse (1986), 1986 4647 (ON SC), 27 C.C.C. (3d) 553 (Ont. Dist. Ct.); and R. v. Silva (1995), 1995 7242 (ON SC), 26 O.R. (3d) 554 (Ct. J. (Gen. Div.). While the trial judge did not conduct an exhaustive analysis into whether Mr. Wegner enjoyed a reasonable expectation of privacy sufficient to raise a s. 8 claim in this case, he adverted to R. v. Edwards, 1996 255 (SCC), [1996] 1 S.C.R. 128, at para. 45, and concluded that the appellant's use of the public washroom cubicle engaged a subjective privacy interest that was objectively reasonable in the circumstances.

11While the Crown attempted to justify entry into the washroom stall in order to verify the safety of its occupant, engaging the principles in R. v. Godoy, 1999 709 (SCC), [1999] 1 S.C.R. 311, the trial judge concluded that entering the washroom stall was not a justifiable use of this police power. The officer was not operating in an emergency situation and only pursuing a vague complaint of criminality. There was nothing that justified opening the stall door and a s. 8 breach resulted.

12While the s. 24(2) reasoning will be discussed in more detail below, the trial judge applied the three-prong analysis set out in Grant. Duncan J. correctly placed the onus on the accused to establish why the admission of the evidence would bring the administration of justice into disrepute. Having regard to all of the circumstances, and the three factors set out in Grant, Duncan J. rejected the submission that the Charter-infringing conduct and the impact of the conduct on the accused were serious. He relied upon some articles outlining the dangers associated to drug use in public washrooms, including hazards confronting the public when used needles are left behind. The appellant does not raise any issue respecting the use of this information and acknowledges that it was simply the context within which the trial judge considered his s. 24(2) analysis. In the end, he dismissed the application for exclusion.

(V) Analysis

(a) Overview

13The appellant makes four arguments about how the trial judge erred in his s. 24(2) analysis, two under the first prong of Grant and two under the second. I will deal with the appellant’s arguments in relation to each issue as they arise.

(b) Arguments Under the First Prong of Grant

14The appellant takes issue with the trial judge's finding that the Charter-infringing conduct was not serious because Cst. Brown acted in good faith and this was only a "low-level investigation". The appellant contends that a finding of good faith was unavailable in this case because the officer was not acting in an emergency situation, he had "less than minimal" grounds to search, there was no complaint of illegality, and the law was neither ambiguous nor unclear. Against this factual backdrop, he says that a finding of good faith would "severely degrade" the protections afforded by s. 8 of the Charter.

15Respectfully, I do not agree with the legal proposition put by the appellant. If this position is correct, then it would leave little discretion in the hands of a trial judge faced with a clear s. 8 breach in non-emergency circumstances. This is not the law.

16Like the entire s. 24(2) analysis, determining how to characterize the Charter-infringing conduct calls on the trial judge to consider all of the circumstances. It is important to recall that the main concern of s. 24(2) of the Charter is to preserve the public's confidence in the rule of law. The gravity of the "offending conduct by state authorities" is critical to this assessment: Grant, at para. 73. The more severe or deliberate the conduct, the more the court will have to dissociate itself from the conduct by the exclusion of evidence.

17All Charter breaches do not look the same. While good faith cannot be claimed where a Charter violation is based on ignorance of the law or an unreasonable error, a legal principle discussed in multiple cases including R. v. Mann, 2004 SCC 52, at para. 55, not every Charter breach should be characterized as ignorance of the law. Police can know the law, but simply miscalculate its application in a particular situation.

18Like the others, the first prong of Grant calls on a contextual analysis. That is precisely what the trial judge engaged in here. He concluded that the police conduct was not "particularly serious" and gave the following reasons for coming to this conclusion:

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.

19These comments reveal no error in principle. Nor are they unreasonable. They reflect nothing more than the trial judge's consideration of all of the circumstances. While the officer may have miscalculated when and in what circumstances he could push the unlocked door open, it was still open to the trial judge to conclude he was acting in good faith. These findings are owed deference.

20The appellant also takes issue with the trial judge's reliance on the fact that this was a "low-level investigation" to diminish the seriousness of the Charter-infringing conduct. The appellant maintains that it is an error of law to suggest that breaches are less serious when they occur in low-level investigations.

21I do not read the trial judge's reasons as having suggested what the appellant implies. His comment regarding the "low-level investigation" is nothing more than an observation that contextualizes the police conduct involved. In fact, it was a low-level investigation. It did not arise in the context of a long, sophisticated investigation where there was plenty of time to reflect and ponder how to proceed. As in many situations, it was a uniformed police officer responding on his own to a call of uncertain edges, confronted real-time with a situation requiring a decision. He made a decision to proceed without the luxury of time and without the benefit of input from others. It is in this context that his actions were assessed by the trial judge. The reference to the low-level investigation encapsulates this fact. He did not error in using this expression.

(c) Arguments Under the Second Prong of Grant

22First, the appellant says that the trial judge engaged in erroneous ex post facto reasoning when he relied upon the illegal use being made of the washroom to minimize the impact of the Charter-infringing conduct on the accused. In support of this argument, the appellant highlights a passage in the trial judge's reasons, found in the s. 8 analysis:

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... 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.

23The appellant says that this passage foreshadows the error relating to ex post facto reasoning to minimize the seriousness of a breach on the Charter-protected interest. The appellant points to the following impugned passage in the trial judge’s reasons:

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… 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.

24I agree with the appellant that the trial judge's comments in the s. 8 analysis foreshadowed his conclusion as it relates to the second prong under Grant - the impact of the Charter-infringing conduct on the accused. I disagree that the trial judge was in error to take into consideration the appellant's use of the washroom stall when considering the impact of the s. 8 breach on his privacy interest.

25It is important to keep this issue in context. First, the trial judge was aware of the fact that in determining the s. 8 right, he could not take the discovered use of the washroom stall into account. This would be to engage in ex post facto reasoning and, as the trial judge said: “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.” In other words, a search cannot be justified as reasonable based on the fact that a police suspicion about criminality is proven true: R. v. Wong, 1990 56 (SCC), [1990] 3 S.C.R. 36, at para. 19. As noted by La Forest J. in Wong:

If reliance were to be placed on such ex post facto reasoning, and the courts to conclude that persons who were the subject of an electronic search could not have had a reasonable expectation of privacy because the search revealed that they were in fact performing a criminal act, the result would inevitably be to adopt a system of subsequent validation for searches.

26The appellant maintains that this rule of law should apply with equal force to s. 24(2) when it comes to assessing the seriousness of the impact of a breach on an individual’s privacy interest. In this sense, he says that the trial judge erred by considering his deemed use of the washroom to diminish the seriousness of the breach on his privacy interests. I disagree.

27Trial judges are duty-bound to evaluate the extent to which a breach actually undermines the Charter-protected interests of the accused. Privacy exists on a continuum. While the accused had a reasonable expectation of privacy in the washroom stall, this expectation is rooted in the fact that public washroom stalls are typically used for highly private activities involving normal and necessary bodily functions. These activities are private for a host of reasons, including that they require an individual to expose parts of his or her body that are not exposed in public.

28By referencing the fact that the appellant was not engaged in this activity, but instead using the washroom as a place to inject drugs, the trial judge was merely observing that his actual privacy interest and personal dignity were not adversely impacted in the same way as a person who may have been sitting on the toilet when the police officer entered the stall. This was of clear relevance to the trial judge's necessary considerations under the second prong of Grant.

29Suggesting that it is wrong to take into account the actual use of the washroom stall when considering the seriousness of the breach conflates the s. 8 analysis with the s. 24(2) analysis. The trial judge correctly kept these legal concepts distinct. There is no error in principle or unreasonable determination.

30The appellant also argues that the trial judge erred by not addressing the issue of discoverability. He maintains that the evidence in this case was not discoverable prior to opening the stall door. He argues that the strong causal connection between breaching his rights and the subsequent attainment of the incriminating evidence supports the "profound impact" of the breach on his Charter interests.

31The discoverability doctrine is said to retain a "useful role" after Grant, in helping to assess the impact of the breach on the protected interests of the accused: Grant, at para. 122. It allows the strength of the causal connection between the breach and the impugned evidence to be assessed. Where the connection is weak, in the sense that the evidence would have been obtained without the breach, the impact of the breach on the accused's underlying Charter interests is lessened: Grant, at para. 122. Where the connection is strong, the "converse, of course, is also true".

32There can be no dispute that the evidence in this case was not discoverable. Nonetheless, I do not agree that the trial judge erred by failing to overtly consider the discoverability doctrine. A trial judge does not have to utter magic words to show that he or she considered the fact that the evidence would not have been located without the breach.

33Reading the trial judge's reasons as a whole, I am satisfied that he was well aware of this fact. It is obvious on its face. There is no legal principle to support the suggestion that the impact of a breach must be characterized as serious simply because the evidence was not otherwise discoverable. Having regard to all of the circumstances in this case, and taking the trial judge’s reasons as a whole into account, despite the direct link between the breach and impugned evidence, it was open to him to conclude that the impact of the breach on the appellant’s Charter-protected interests was minimal.

(VI) Conclusion

34The trial judge engaged in a proper Grant analysis. He did not err in principle or make an unreasonable determination. His s. 24(2) decision is owed deference.

35The appeal is dismissed.

Fairburn J.