"•^^^^^^^^^^^^'^^^^^^i^^^^^^^^^^ IN THE SUPREME COURT OF THE NORTHWEST TERRITORIES BETl-TEEN; HER MAJESTY THE QUEEN, - and -
NORMAN R. LEWIS, Respondent REASONS FOR JUDGMENT OF THE HONOURABLE MR. JUSTICE W. G. MORROW This is a Crown appeal from an acquittal by His Worship Magistrate J. H. Sunstrum on August 14, 1975. The respondent was • chairged that: "Norm LEWIS, on or about the 29th day of ~~— June, A.D. 1975, at or near Yellowknife in the Northwest Territories, DID UNLAW-FULLY have liquor in his possession, contrary to Section 62 of the Liquor Ordinance." There is no dispute as to the facts. By agreement the transcript of the evidence heard in the lower Court was used on this appeal. It is admitted that on June 29, 1975, the respondent Lewis was in possession of a bottle of beer at a place Icnown as Long Lake Beach within the municipal botmdaries of Yellowknife and that he did consume beer from it. This event took place in f the afternoon. R.C.M.P. Constable B. D. Huddle, on a routine
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^wp^^**^ wmmmmm M _ 2 patrol of the area observed the respondent sitting on the beach on a blanket with the open bottle of beer stuck in the sand to the respondent's right. The routine patrols have apparently been instigated because of complaints having been received regarding drinking on the beach and littering. Complaints also of children having their hamds and feet cut from broken glass have been re-ceived. The weekend which included June 29th was described as a nice wairm weekend. The beach area was very heavily populated. Children were there in large numbers. The respondent and a companion were in bathing attire. There are no shelters as such in this area. People swim in the lake close by the beach. They also fish and picnic there. The main highway passes within 200 -300 feet of the area. There are no residential houses in the area. The settled portion of Yellow)cnife would be one to one and a half miles distant. The photographic exhibits show that the beach is quite visible from the highway, and looking up towards the highway from the beach are oil and gas storage tanks which are adjacent to what can be called the airport area. In his testimony the respondent explained that at the time in question he amd others were trying to organize raft races to be conducted on the lake off from the beach. This was purely recreational. There are boating facilities there, as well as picnic tables. One of the photographic exhibits showed a sign setting forth "Beach Regulations", These generally purport to
95 - 3 prohibit dogs, campfires, motor vehicles. There is no mention of liquor. About two years ago the City expended money to convert what was rocks and bush into a very attractive beach airea. This entailed hauling in sand. Daily bus service is provided during the sximmer months. Thia was to provide an alternative to the former McNiven Beach located on Frame Lake, also within the City. Certain portions of the applicable legislation bear quoting in full: Liquor Ordinance, 1974 R.O.N.W.T. ch. L-7. " 62. No person shall have liquor in his possession otiier tham in a place where he is authorized to be in possession of liquor pursuamt to this Ordinance or the regulations. 1970, (2nd), c. 12, s. 60."
" 66. (1) Except as provided by this Ordinance, no person shall consume liquor in a public place.
(2) The possession by a person in a public place, other than licensed premises, of liquor in amy container other than
(a) a bottle that because of the condition of any seal or covering on the neck or cap appears not to have been opened,
(b) a beer bottle from which the cap has not been removed, or
(c) a beer can that has not been punctured or opened in any way is, in absence of evidence to the contrary, proof that such a person was consuming liquor in that public place. 1970 (2nd), c. 12, 8. 64." • "2. (1) In this Ordinance,
(20) "public place" includes -: ; ' s |i t ] iVt '•'• M \ i
li i M 1 i Ij i j I • i i
96 - 4 -(i) a place or building to which the public has access, (ii) a place of public resort, and (iii) any vehicle in a public place, but does not include a location off a highway that is reasonably remote from any settlement and that is used for picnicking, sport fishing or other outdoor recreational activity;" At the outset counsel for the Crown appellant placed considerable reliance on Section 100(3) which places the burden of proving the right to possess upon the person accused, namely the respondent. But counsel for the respondent accepts this position and by his argument attempts to show that his client had such right. See the discussion set forth in i?. v» Kyd 1958 27 C R , y 114. See also R. v, Strauea (1897) 1 C C C 103. Thers is no doubt but that the respondent had possession of liquor and as mentioned above he fully admits it. A strict reading of the Ordinance would indicate that a person can only possess or consume liquor lawfully if he is entitled to purchase it at a liquor store and possesses or consumes it on licensed premises or in a private residence: Section 22; and as he carries it away with him upon purchasing from a liquor store: Section 18. In an attempt to ascertain what other places, if any, a person such as the respondent may lawfully be in possession of V liquor it becomes necessary to examine the wording of both Section 66 and the definition of "public place" set forth in Section 2(1)(20) By Section 66(1) no person is to consume liquor in a public place.
97 - 5 -By subsection (2) of this Section possession in a public place "other than licensed premises" is to be taken as proof that such person is consuming liquor in "that public place" in the absence of evidence to the contrary. In the normal course the area where the present alleged offence took place would be a "public place". But does the exception contained in Section 2(1)(20) alter this situation? For cases discussing "public place" in other legislation see: R. v. Panipateek (1971) 4 C.C.C. (2d) 1; R. V, Seilke 1930 1 W.W.R. 653; 1930 3 D.L.R. 630; 38 Man. R. 549; 53 C.C.C. 237; R. v. Bell (1895) 25 O.R. 272. As expressed in Jowitt "The Dictionary of English Law" at page 1439, "This expression occurs in many Acts of Parliament, which declare such and such a thing to be an offence if done in a 'public place'. In each case the meaning depends upon the context and upon the object of a statute. A place may be a public place at one time and not at other times." Is the Long Lake Beach area a location off the highway that is reasonably remote from any settlement that is used for pic-nicking, sport fishing or other outdoor activity? It is clear from such authorities as have been referred to above that the dictionary meaning of words used is to be looked at as well. The Compact Edition of the Oxford English Dictionairy defines "remote" as: •*out-of-the way, retired, secluded, at a distance, t far off, or distant." Coming to "settlement" the same dictionary defines it as:
•".*••
98 - 6 -"a community of the subjects of a state settled in a new country; a small village or collection of houses;" While there is no definition of what is meant by "settle-ment" in the Liquor Ordinance or any other Territorial Ordinance that I can find, it is of interest that the Municipal Ordinance, 1974 R.O.N.W.T. c. M-15 in section 3(1) uses the phrase in respect to applications for the establishment of municipalities — whether as hamlet, village, town or city. The phrase is: "Where there is a settlement that is not incorporated as a municipality ... ", It seems to me that the legislature is using settlement in the Ordinamce as meaming a general area of habitation rather them in any municipal sense. Now looking at the Ordinance as a whole the general intent amd object seems to me to clearly include the regulation and restriction of places where liquor is to be permitted to be consumed. The references to "public place" as well as the prohibition with respect to persons imder nineteen years of age in my opinion is a clear expression by the Territorial Coimcil that public morals are a matter of concern and are to be weighed in the interpretation of the statute. The Long Lake Beach is a place of public resort, located within the corporate limits of the City of Yellowknife, Public funds have been expended to make the site attractive to citizens of all ages, classes, and racial backgrounds. Public funds are used to maintain the area as well as to provide transportation to amd from the centre of the City to the beach. It is
99 - 7 -# an area to which families, parents with children, and children
unaccompanied by parents or guardians, are not only welcome but are encouraged to use. While there may be fishing attempted it would be stretching things to describe Long Lake as a sports-fishing lake. It is my considered opinion after reading the whole of the Ordinance that when the legislators made the exclusion which forms part of Section 2(1)(20) they had in contemplation not a public beach within sight of the main highway within a municipality and where the use by children in particular was encouraged but rather what was intended to be excluded were areas not within sight of the highway but more out of the way areas where people could hike to or go to by plane or boat in relative seclusion. In reaching this conclusion I am mindful of the remarks contained at page 183 of Maxwell on Interpretation of Statutes 11th Ed. where it is stated: "In determining either the general object of the legislature, or the meaning of its language in any particular passage, it is obvious that the intention which appears to be most in accord with convenience, reason, justice and legal principles, should, in all cases of doubtful significance, be presumed to be the true one." Accordingly I find that Long Lake Beach was and is a public place, that the exception set forth in Section 2(1)(20) ^ does not apply, and consequently it was an offence for the respondent to be in possession of the beer as charged. The appeal is therefore allowed and a conviction substituted for the acquittal.
i4B»->«97^ 100 - 8 -Because this was in the nature of a test case I feel a smaller than usual fine is in order. Accordingly the respondent is fined $5.00 or one day in jail. There are no costs.
Counsel: T. Boyd, Esq., Crown, Appellant
B. Purdy, Esq., Respondent,
I '
W. G, Morrow Yellowknife, N.W.T. 14 October 1975.