Supreme Court

CR  02167


IN THE SUPREME COURT OF THE NORTHWEST TERRITORIES


BETWEEN:

HER MAJESTY THE QUEEN

- and -

MARIO MARK RACINE


REASONS FOR JUDGMENT

1  The defendant, Mario Mark Racine, applied for a declaration that s.81(1) of the Liquor Act, R.S.N.W.T. 1988, c. L-9, is contrary to the Canadian Charter of Rights and Freedoms and therefore is of no force and effect.  Specifically, the complaint is that s.81(1), which generally provides for the arrest and temporary detention of intoxicated persons, violates s.9 of the Charter in that it amounts to arbitrary detention.  Crown counsel and counsel for the Government of the Northwest Territories joined in opposition to this application.

2  The defendant is charged with two offences, one of which being a charge of assaulting a police officer with intent to resist his lawful arrest, contrary to s.270(1)(b) of the Criminal Code.  It is not necessary for the purpose of this application to outline the facts alleged against the defendant - since this is a pure question of law - but suffice to say that this particular charge emanates from a sequence of events that began with the purported arrest of the defendant's companion pursuant to s.81(1) of the Liquor Act.  As a result of my decision on this application, it is also unnecessary to discuss the other issues that arose because of the particular fact situation in this case.

3  Due to the pending trial in this matter, I advised all counsel of my decision to uphold the validity of the legislation in question but that I would deliver written reasons in due course.  These are those reasons.

4  The relevant portions of the Liquor Act, so as to place s.81(1) in context, read:

80.(1)  No person shall be in an intoxicated condition in a public place.

(2)  No charge in respect of an offence under subsection (1) shall be laid except with the approval of the Minister responsible for the administration of justice in the Territories.

81.(1)  Where a peace officer finds a person who, in the opinion of the peace officer, is in an intoxicated condition in a public place and is likely to cause injury to himself or herself or to be a danger, nuisance or disturbance to others, the peace officer shall apprehend the person and deal with him or her in accordance with this section.

(2)  A peace officer shall not seek the approval of the Minister under subsection 80(2) to lay a charge against a person who contravenes subsection (1) unless exceptional circumstances exist that would warrant the prosecution of the offence.

(3)  A person apprehended under subsection (1) shall not be held in custody for more than 24 hours after being apprehended.

(4)  A person apprehended under subsection (1) shall be released from custody, at any time, if in the opinion of the person responsible for his or her custody,

(a)  the person in custody has recovered sufficient capacity and is unlikely to cause injury to himself or herself or be a danger, nuisance or disturbance to others; or
(b)  a person capable of taking care of the person in custody undertakes to do so.

82.  No action lies against a peace officer or other person for anything done in good faith with respect to the apprehension, custody or release of a person under section 81.

Legislation similar in effect can be found in most Canadian jurisdictions.

5  The accused's argument is that s.81(1) fails to specify a requirement for reasonable and probable grounds to detain a suspected intoxicated person and, because the only requirement is for a peace officer to have an "opinion", then the section authorizes arbitrary detention.  This is an issue that has been addressed previously in other jurisdictions.

6  The Manitoba Court of Appeal, in Reference re Intoxicated Persons Detention Act (1980), 55 C.C.C. (2d) 130, considered the validity of that province's legislation which provided in part:

"2.(1)  Where a peace officer finds in a place to which the public has access a person who is intoxicated, he may take that person into custody."


7  While concluding that the statute is intra vires the provincial legislature, Hall J.A. made the following comments:

In my view, this statute is in need of revision to define the state of intoxication necessary to be found by a peace officer as a condition precedent to the exercise of the power conferred on him.  A state of intoxication is a matter of degree and it is only when it is manifest to a police officer that a person has reached a state where he or she is dangerous to him or herself or others or is a public nuisance that the statute should be invoked.  Moreover, the peace officer must have reasonable grounds for believing that such a state of affairs exists, otherwise the protection afforded him by s.5 [rep. & sub. idem, s.5] of the statute should not be available.  In other words, the condition precedent to the exercise of the power should not be a subjective one but should be an objective condition.

8  In George v. The Commissioner of the Yukon Territory (1985), 6 C.R.D. 150 (S.C.Y.T.), Maddison J. considered the applicable provision in the Yukon Liquor Ordinance which read in part:

"85.(1)  When a peace officer finds a person who, in his opinion, is in an intoxicated condition in a public place, the police officer may, instead of charging the person under this Ordinance, take the person into custody to be dealt with in accordance with this section."

9  Maddison J. held that the Liquor Ordinance violated the Constitution in that the lack of a requirement for reasonable and probable grounds and the absence of criteria for the degree of intoxication required do not accord with the principles of fundamental justice due to arbitrariness and vagueness.  As pointed out by counsel for the defendant, the Yukon legislation has since been amended to provide specifically for reasonable and probable grounds.

10  These cases seem to suggest that the use of the word "opinion" does not amount to the same thing as "reasonable and probable grounds".  There are, however, decisions in other jurisdictions which differ in the analysis of similar legislation.
11  In R. v. Tisdale (1970), 13 C.R.N.S. 120 (Alta.Mag.Ct.), Mackenzie P.M. had occasion to consider the Alberta statute which was in almost exactly the same words as the Yukon legislation.  There it was held that the use of the word "opinion" meant that it should be justified by appropriate reasons.  MacKenzie P.M. said (at page 123):

I think, then, that before a police officer can be said to have arrived at an opinion as contemplated by this section, it must be shown that he acted judicially.  That is to say, the opinion should be one arrived at upon proper principles, based upon sufficient materials or observations.  It must be an objective, careful and considered opinion, one which can be justified by appropriate reasons.  It cannot be an opinion arbitrarily arrived at by a constable.

I interpret this passage as meaning that the use of the word "opinion" has the same effect as saying "reasonable and probable grounds".

12  More recently, the Saskatchewan Court of Appeal, again considering legislation which stated "where a peace officer finds a person who in the opinion of the peace officer is intoxicated", came to the same conclusion.  Writing for the court in Lang v. Burch and Carlson, [1983] 1 W.W.R. 55, Cameron J.A. said (at page 65):

Although a policeman's power under s.5 extends beyond apprehension - he is also empowered to detain for a period not exceeding 24 hours, with a discretion for earlier or conditional release - I think it is unnecessary to elevate his decision to apprehend to that of a judicial act, but I agree with Noble J. that, in the context of this enactment, a s.5 opinion must be based upon reasonable grounds before it can be relied upon as empowering the peace officer to act.  If the grounds upon which the opinion is based afford reasonable cause of the policeman's action, he will be empowered to act under the section, and even though, as it turns out, the person apprehended was not intoxicated, the apprehension and detention will, nevertheless, have been lawful.  But an opinion not so formed, one, for example, which is utterly baseless, will not found a lawful apprehension or detention, and a police officer purporting to act on such an opinion will be acting unlawfully.

13  With respect, I prefer the reasoning in these two cases.  I am bolstered in this opinion by an analysis of the specific section under attack in this case.

14  Section 81(1) of the Liquor Act sets out criteria that must form the peace officer's opinion.  The peace officer must have the opinion that the person in question is:

 (1) in an intoxicated condition; and,
(2) in a public place; and
(3) likely to cause injury to himself or herself;
 - or -
 be a danger, nuisance or disturbance to others.

15  These are the "reasonable and probable grounds" that the officer must have before detaining the person.  If the officer's opinion is challenged, he or she must justify their opinion on the basis of these criteria.  There must be articulable cause that accords with the specified criteria.

16  The Charter of Rights, in section 9, provides that "everyone has the right not to be arbitrarily detained or imprisoned".  In R v. Hufsky, [1988] 1 S.C.R. 621, Le Dain J. held (at page 633) that detention is arbitrary if it is governed by unstructured discretion:  "discretion is arbitrary if there are no criteria, express or implied, which govern its exercise."

17  In my opinion, the Liquor Act provides express criteria to guide a peace officer in the exercise of the public duty conferred on peace officers by that statute to detain intoxicated persons.  Hence I conclude that the statute does not infringe the constitutional protection against arbitrary detention.

18  The statute provides further confirmation that there is a legislative intent mandating reasonable and probable grounds for detention.

19  The Supreme Court of Canada, when considering the elements necessary for reasonable and probable grounds to justify an arrest without warrant under the Criminal Code, pointed out that there is a subjective and objective element:  R v. Storrey (1990), 53 C.C.C. (3d) 316.  An arresting officer must subjectively have reasonable and probable grounds - must personally believe that he or she has grounds - and those grounds must be justifiable from an objective point of view.

20  The Liquor Act, in s.82, provides protection for peace officers acting in "good faith" in the detention of anyone under s.81.  This question of "good faith" is really nothing more than the subjective element making up the officer's reasonable and probable grounds.  Did the officer have a bona fide belief in facts which, if true, would make his or her conduct lawful?  This goes to the officer's state of mind:  see Lang v. Burch and Carlson at page 70.  The objective element is whether the facts which were apparent to the officer at the time were such as to justify his or her opinion that the specified statutory criteria were satisfied.

21  The inherent requirement for reasonable and probable grounds also accords with the historical protection, both in statutes and at common law, against arbitrary arrest.  The vital importance of reasonable and probable grounds for making an arrest was expressed in Dumbell v. Roberts, [1944] 1 All E.R. 326 (C.A.) (as quoted in R v. Storrey at page 323):

The power possessed by constables to arrest without warrant, whether at common law for suspicion of felony, or under statutes for suspicion of various misdemeanours, provided always they have reasonable grounds for their suspicion, is a valuable protection to the community; but the power may easily be abused and become a danger to the community instead of a protection.  The protection of the public is safeguarded by the requirement, alike of the common law and, so far as I know, of all statutes, that the constable shall before arresting satisfy himself that there do in fact exist reasonable grounds for suspicion of guilt.  That requirement is very limited.  The police are not called on before acting to have anything like a prima facie case for conviction; but the duty of making such injury as the circumstances of the case ought to indicate to a sensible man is, without difficulty, presently practicable, does rest on them; for to shut your eyes to the obvious is not to act reasonably.

22  I also do not think that use of the term "in an intoxicated condition" in s.81(1) is so vague as to be arbitrary.  To some extent, the term is amplified by the additional criteria stipulated in the subsection.  More importantly, the term is one that is the subject of common experience, one that has a general public understanding, and one that has been the subject of many judicial pronouncements.  In that regard I respectfully adopt the conclusion of the Alberta Court of Appeal in R v. Blackplume (1993), 7 Alta.L.R. (3d) 285, as well as the specific words of McClung J.A. in that case where he says (at page 286) that "the discretion given by the legislature to peace officers to detain drunks is ... a necessary and wholly defenceable aspect of the day to day operation of law enforcement."

23  For the foregoing reasons, I conclude that s.81(1) of the Liquor Act is constitutionally valid.  The application is dismissed.







     John Z. Vertes
          J.S.C.


Counsel for the Defendant
 (Applicant):   Sydney A. Sabine

Counsel for the Crown:  Alan R. Regel

Counsel for the Government of the
 Northwest Territories: Elizabeth J. Stewart