The BCCLA has received a complaint from a person who was arrested in 1988 under section 43 of the Liquor Control and Licensing Act, which makes it an offence to be intoxicated in a public place. The complainant claims that although he had a few drinks, he was not drunk. He wants the BCCLA to challenge section 43, and claims that it is abused by police to arrest those who are not drunk, but whom police want to arrest for other reasons (e.g., they are belligerent, or giving police a hard time).

Background

There are two provincial statutes that police can use to detail drunks: section 43 and section 81(1) of the Offence Act allow police to detain anyone found intoxicated in a public place. If the person is judged by police to need treatment because of excessive alcohol use, they must be examined by a physician, and if the physician agrees, they can be committed under section 81(2) to the psychiatric unit or observational unit of a local hospital and detained for up to 72 hours. Otherwise, they can be held no more than 24 hours and must be released whenever (a) they are able to take care of themselves, and won’t be a nuisance or danger to others, or (b) an adult capable of taking charge of them applies for their release into his or her custody.

Section 81 is in force across the province for women, but is in force for men only in Vancouver, Prince George, Prince Rupert and Kamloops. Apparently in the early 1970s, all municipalities were involved in determining whether s. 81 should apply in the municipality. All but the four cited above said they did not have the facilities to comply with section 81 for men, who comprise almost all the persons affected by it.

When section 81(1) is used, no arrest is made. In almost all circumstances, the person is held until they are sober (usually about four hours) and then released. The situation when section 43 is used is almost identical. Although technically an arrest has been made, the person is simply held until sober, with charges laid only in very rare circumstances. In practice, in neither case is the person informed of his or her Charter right to retain counsel or allowed to make a telephone call, nor is any attempt made to determine whether they are in fact intoxicated. Though in larger municipalities a nurse is often available, it is not known whether all those detained are looked at by a nurse, and it is likely that in smaller municipalities no nurse is available in at the police lock-up.

Community workers in Vancouver’s downtown east side were unanimous in their praise for police use of section 81(1). If a person is unconscious, an ambulance is called. If they are drunk but neither belligerent nor potentially violent, they are asked if they want to go to Vancouver Detox, and taken there if they say yes. Though most are grateful for a bed to sleep it off, they can walk out whenever they choose. When detox is full (which is all too often), or if they are belligerent or potentially violent, they are taken to the police lock-up and held until sober. Reports of police abuse of section 81(1) are are. It is not known whether police use of section 81(1) or section 43 in other municipalities is similar, though the BCCLA has not received reports of widespread abuse.

Should section 43 be retained?

In and of itself, section 43 ought not to be on the books: it ought not be an offence (punishable by a fine of up to $2000 or a prison term of up to 6 months) simply to be drunk in a public place, any more than it ought to be an offence to be angry or giddy in a public place. If section 43 is retained, there must be some concomitant features of being drunk in a public place to justify the law’s retention.

Two potential justifications have been identified: (a) Drunks are often a nuisance, often create disturbances, and are often a danger to others, and (b) drunks are often a danger to themselves—either by wandering into traffic, by being unable to defend themselves against being mugged or assaulted or by being subject ot the elements.

In those municipalities where section 81(1) is in force, neither (a) nor (b) provides an excuse for keeping section 43 on the books, since section 81(1) can be used to get drunks off the streets in both situations.

In those municipalities where section 81(1) is not in force, it might still be argued that there is no justification for section 43, since the police can use section 71 of the Criminal Code (Creating a disturbance), or municipal by-laws prohibiting such nuisance behaviour as impeding the flow of pedestrian or vehicle traffic. If the individuals in question are unconscious an ambulance can be called, and if they agree to go to detox, they can be taken there. And if non of the above actions are available, the police have no business picking them up.

There are two reasons for questioning this argument. First, using section 175 of the Criminal Code and municipal by-laws to pick up drunks would result in a much heavier handed instrument being used than is necessary, would clog the courts and waste valuable police time testifying, and would unnecessarily saddle intoxicated persons with criminal records. Second, it would most likely result in fewer drunks being picked up, and so a reduction from whatever benefits accrue from picking up drunks. And, given the brutal reality of life in the streets, these benefits are substantial.

On the other hand, retaining section 43 for use in municipalities where section 81(1) is not in effect has its own problems. A law that makes it an offence to be drunk in a public place, where it clearly ought not to be an offence, is used to detain persons. Yet the normal due process protections against false arrest and detention are absent, since the police rarely proceed with charges, and so the detainee never gets the chance to test the legitimacy of the detention in court. This is a repugnant situation.

Despite the problems with section 43, the BCCLA believes that where it is the only instrument the police have at their disposal to pick up drunks off the street, its use is, on balance, the best course. The police simply must have an instrument that enables them to maintain order and to protect drunks who are incapable of protecting themselves.

Expanding use of section 81

Section 81(1) is also repugnant, for although it does not make it a crime to be drunk in a public place, the practical effect is the same. Persons can be detained for up to 25 hours simply for being in a certain condition that is, in itself, none of the state’s business. However section 81(1) has a number of advantages over section 43.

1. It, quite correctly, does not make being intoxicated in a public place an offence.
2. Drunks cannot acquire a criminal record as a result of its use, nor can the police use prosecution under it as a threat, or as a way of way of punishing those who are giving them a hard time.
3. It sets a maximum period of detention.
4. It sets out clear provisions for the release of those detained under it, provisions that are connected in a meaningful way to the reason for the detention.

Despite its advantages over section 43, there are still these problems with the use of section 81(1). These have to do with the lack of due process protection for those detained under it. As it stands, anyone can be detained so long as a police officer says they were intoxicated in a public place, and the person is provided with no way of contesting the detention. Nor, once they are taken to the lock-up, is any provision made for them to contact a friend or family member to arrange for release into his or her custody.

Discussions with justice officials have convinced the BCCLA that answering the first concern by providing a breathalyzer test either on request or automatically is impractical. The machines are expensive, a separate room is needed for their use, they easily damaged and they require considerable time to use. Furthermore, the precision that can be obtained through the use of breathalyzer machines is unnecessary.

However, there are instruments in use in Ontario and England, Such as the ALERT device, which are cheap, easy to use, and give a yes/no reading. If such instruments become available in B.C., the BCCLA recommends their use be mandatory for all those detained under section 81(1). In this way, the legitimacy of the detention could be easily established. Their use would have the additional advantage of alerting police or lock-up staff to instances where the person is suffering from a medical condition that makes him or her appear to be intoxicated.

How drunk does a person have to be to be intoxicated under section 81? There are a number of difficulties of measuring intoxication, so that devices can be set to an appropriate level. Individual differences in the ability to hold one’s liquor, body weight and gender are among the factors. It seems likely, therefore, that there is no hope of absolute precision in determining who is intoxicated and who is not. In that case, the level should be set low enough so that most people who are incapable of taking care of themselves are included, yet high enough that those who simply have had a few drinks and are giving the police a hard time are excluded.

The BCCLA is aware that section 97 of the Alberta Liquor Control Act (which is virtually identical to section 43) has recently been struck down, as was section 85 of the Yukon Territory’s Liquor Ordinance (a section similar to section 81). The former judgment is under appeal. In the first case the court ruled that the law offended section 7 of the Charter—specifically, the right to liberty. The court ruled that there exists such a wide variety of states that could be called intoxicated—from being a bit tipsy to being stupefied by alcohol—that the grounds for detention or arrest were not set out clearly enough for the statutes, and so detention was not in accordance with the principles of natural justice. For similar reasons, the court ruled in the latter case that the section violated section 9 of the Charter, the right not to be detained arbitrarily. THe BCCLA believes that the use of instruments such as those mentioned above—with an intoxication level specified in the statute or Regulation—would satisfy concerned expressed by the courts in Alberta and the Yukon.

The BCCLA has also discussed the question of the use of a telephone to call a friend with justice officials. Among the concerns cited by justice officials were that some were too drunk to use a telephone and that too much police time would be taken up ferrying drunks to and from a telephone.

Despite these objections,the BCCLA believes that accommodations for detainees to make a phone call is important, and should be made. The provision in section 81(1)(b) for their release into the custody of an adult makes little sense unless friends or family know they have been picked up. The BCCLA recommends that a phone be available in the booking area, that detainees be advised that they can call a friend or family member to come down and pick them up, and that once in the cell, the detainee not be let out to make a phone call. The ability to make a phone call is important because it rationalizes subsection 1(b) of section 81, and it is necessary to conform with section 7 of the Offence Act.

The BCCLA does not insist that in detaining a person under section 81(1), they be read their Charter rights. It would be a fatuous application of the Charter to insist that Charter rights be read, since no offence is being alleged, there are no bail provisions, and really nothing for a lawyer to do that a friend or family member couldn’t do, namely, request that the detainee be released into their custody. So long as an intoxication test is mandatory (to establish the validity of the detention) and the detainee has the right to a phone call, the BCCLA does not insist that the detainee be “Chartered”.

The BCCLA therefore recommends that section 81 of the Offence Act, with amendments that reflect the above considerations, be proclaimed throughout the province for both men and women. The BCCLA is not convinced that it would be impossible, or even difficult, for municipalities even in remove areas to comply with an amended section 81. If the lockup or institutional services are not available, then it is high time that they were made available.

Involuntary treatment

There is an additional civil liberties concern with section 81, namely, the ability of the state under section 81(2)(a) to detain a person against their will for up to 72 hours in a hospital, on the certification of a physician that he or she is in need of treatment because of alcohol abuse. This concern is made even more serious by the authority granted under 81(2)(b) to apply for a confirming order. Under section 82, if a confirming order is granted by a justice of the peace or a judge of the provincial court, the person may be detained against his or her will at an institution for the treatment and rehabilitation of chronic alcoholics for a period of up to 12 months. It appears that there is no statutory review of the detention under a confirming order, as there is for a committal under the Mental Health Act. The release of a person detained under a confirming order is solely at the discretion of the Chief Probation Officer.

These sections are clearly offensive to section 7 of the Charter (the right to liberty) and to well-established principles governing the medical treatment of patients, such as the need for informed consent. Furthermore, to our knowledge, neither section 81(2) nor section 82 has been used during the last two years. The BCCLA does not believe the government is seriously interested in retaining these sections,and so offers no further argument for their repeal.

Recommendations

1. That section 81 of the Offence Actbe amended by(a)deleting reference to a person’s being in need of remedial treatment by reason of the use of alcohol, and reference to a physician in 81(1)

   (b) deleting 81(2), 81(3) and 81(4)

   (c) including in section 81 the requirement for a mandatory intoxication test and the requirement that a person detained be informed of their right to, and provision made for, a telephone call as soon as possible after detention.

2. That section 81 be proclaimed throughout the province for both men and women.
3. That section 82 of the Offence Act be repealed.
4. That section 43 of the Liquor Control and Licensing Act be repealed.