Chair's Public Interest Investigation Report
Canada Day 2008 – Victoria, British Columbia
Chair's Report
Appendix B: Legal Opinion – Victoria Canada Day Liquor Searches
I. Overview
Canada Day fireworks celebrations in Victoria have developed a history of excessive liquor consumption leading to assaults, injuries, vandalism and damage. To combat this, the police have developed a strategy of early liquor interdiction based on searches of bags and backpacks that might contain liquor. Unfortunately, in the main these searches were not genuine consent searches, and were not authorized under the Liquor Control and Licensing Act, British Columbia Transit Act and regulations, or general common law police powers. If such searches are to contribute to the security necessary for this civic celebration to continue in the future, they must be given some legislative authority that is justifiable under the Canadian Charter of Rights and Freedoms.
II. Scope of this Opinion
The focus of this opinion is on the examination of bags carried by pedestrians and bus passengers, which is the subject of the complaint by the B.C. Civil Liberties Association. It does not consider other activities on Canada Day, such as roadblocks, or searches of passenger vehicles or motor vessels.
Further, the event was a civic celebration at which the concern was excessive consumption of alcohol. Other special occasions, such as demonstrations, with the spectre of violence by either the demonstrators or their opponents, and parades with dignitaries who may need protection, raise different considerations that would involve a separate analysis.
III. Examination of the Bags is a Charter Search
The Operations Plan established four layers of scrutiny-at transit stations, bus check points, and barricades on streets approaching the Inner Harbour, and by roving bicycle and foot patrols-in an effort to maximize liquor interdiction. At each stage individuals were to be checked, and their bags or backpacks examined visually, or manually, or both.
Section 8 of the Canadian Charter of Rights and Freedoms gives everyone "the right to be secure against unreasonable search or seizure." The law of search and seizure under the Charterhas developed in cases where the "search" revealed incriminating evidence. A "search" under s.8 is an intrusion by the police (or other state actor) into an individual's "reasonable expectation of privacy": Hunter v. Southam, [1984] 2 S.C.R. 145 @ 159.
Visual or manual examination of the contents of bags or backpacks constitutes a "search" under the Charter.Individuals have a reasonable expectation of privacy in the contents of bags they carry, which may contain any number of sensitive personal items. It matters not that the officer intends only to seize any contraband found, and not to lay charges. The examination is the intrusion and the "search", and the items are seized, even though what the search reveals does not alter the officer's intent and no charges are laid.
The Supreme Court of Canada has made it clear that a search will be "reasonable" if and only if (a) it is authorized by law, (b) the law is reasonable, and (c) it is carried out in a reasonable manner: R. v. Collins, [1987] 1 S.C.R. 265 @ 278. To be "authorized by law" a search must be authorized by a specific statute or common law rule, be carried out in accordance with the law's procedural and substantive requirements, and its scope must not exceed the authorized limits of the area or objects to be searched: R. v. Caslake, [1998] 1 S.C.R. 51 @ 60.
As a result, the police must have legal justification for searching bags for contraband items, such as weapons, drugs, unlawful liquor, or child pornography.
The possible legal justifications for the Canada Day searches in Victoria are: (a) consent, (b) the Liquor Control and Licensing Act, (c) B.C. Transit (for the bus searches), and (d) general police powers.
IV. Consent
A. The law pertaining to consent searches
The foundation for analysis of consent searches is the realization that the giving of consent to be searched is the waiver of one's right under s. 8 of the Charterto be secure against unreasonable search and seizure. The courts apply a stringent test to the yielding of a constitutional right.
One who is detained (or arrested) is entitled to be informed of his or her section 10 Charterright to retain and instruct counsel without delay. A detainee who has not been advised of the right to consult counsel cannot validly consent to be searched: R. v. Debot, [1989] 2 S.C.R. 1140 @ 1146-7.
The courts have consistently recognized that a police "request" carries at least an element of authority, and in some instances, conveys an element of compulsion. Acquiescence in, or compliance with, a police request to search, or failure to object to or resist it, does not amount to consent to be searched.
The question is whether the person gave the consent voluntarily, and with an awareness of the consequences. The most detailed summary of the requirements of a consent search is that of Mr. Justice Doherty of the Ontario Court of Appeal in R. v. Wills (1992), 70 C.C.C. (3d) 529 @ 546, namely that the Crown must establish on a balance of probabilities that:
- (i) there was a consent, express or implied;
- (ii) the giver of the consent had the authority to give it;
- (iii the consent was voluntary in the sense that the consentor was aware of what he was doing and aware of the significance of his act and the use which the police may be able to make of the consent, and the consent was not the product of police oppression, coercion or other external conduct which negated the freedom to choose whether or not to allow the police to pursue the course of conduct requested;
- (iv) the giver of the consent was aware of the nature of the police conduct to which he or she was being asked to consent;
- (v) the giver of the consent was aware of his or her right to refuse to permit the police to engage in the conduct requested, and
- (vi) the giver of the consent was aware of the potential consequences of giving the consent.
Consent to search must be informed, based on awareness of the right to refuse it. Although the police officer is not specifically required to advise the person of the right to refuse consent, failure to do so risks a finding of lack of consent. Mr. Justice Doherty said in R. v. Lewis (1998), 122 C.C.C. (3d) 481 (Ont. C.A.) at paragraph 12:
It is well established that a person cannot give an effective consent to a search unless the person is aware of their right to refuse to consent to that search... If the police do not tell a person of the right to refuse to give a consent to a search, the police run the very real risk that any apparent consent given will be found to be no consent at all for the purpose of s.8.
If the person whose consent is sought is intoxicated, or if his or her appreciation or judgement is impaired, then it is more, not less, difficult to establish the validity of an apparent consent: R. v. Young (1997), 116 C.C.C. (3d) 350 (Ont. C.A.).
B. Application to the Victoria searches
Everyone whose bag was searched was stopped for the purpose of determining whether his or her bag contained liquor. To stop a person for the purpose of searching his or her bag is to "detain" that person. The Supreme Court of Canada has held in R. v. Borden, [1994] 3 S.C.R. 145 that a detainee may only give a valid consent to be searched after the detainee has been advised of the right to counsel and, if the detainee wishes to do so, has exercised that right by speaking with counsel. It seems clear that no one whose bag was searched was advised of the right to counsel. On this ground alone the bag searches were not consent searches.
Moreover, the goal of the Operations Plan, early interdiction of liquor, seems irreconcilable with ensuring that the citizen is aware of the right not to be searched. The well-publicized need to control excessive liquor consumption and vandalism, and the use of search checkpoints, would cause the ordinary citizen to infer that the search was necessary-perhaps worthily necessary, but still necessary. The impression given is that everyone who is proceeding toward the venue is to be searched, and that is what the Operations Plan requires to achieve its goals. To dispel this sense, and afford the genuine option of not being searched, would require something along the lines of "Those who volunteer to be searched will be searched; those who do not, will not; and all will be allowed to proceed." This would completely undermine the efficacy of the checkpoints.
"Keeping normal people onside" (Operations Plan, p. 10) involves persuading them to acquiesce in the searches, which appears to have been successfully achieved in the vast majority of cases. In order for the Operations Plan to succeed, the officers had to persuade everyone to agree to be searched, and to search all except those who strenuously objected. (See Operations Plan, p. 12) This, however, is not a recipe for a consent search. It is doubtful if many of those whose bags were searched felt that they had a genuine alternative to agreeing to be searched. Certainly no consent to search was given by either individual witness, both of whom were searched at bus stops and one of whom was also searched by roving officers.
Indeed, there appears to be a complete conflict between genuine consent searches and the full screening process such that consent could not be relied upon as the basis of these searches.
V. Liquor Control and Licensing Act
A. The relevant sections of the Actand their interpretation
The Liquor Control and Licensing Act prohibits, among other things:
- consumption of liquor in a public place (s. 40)
- intoxication in a public place (s. 41)
- operating a motor vehicle containing liquor unless it is in a container that is unopened and has an unbroken seal (s. 44)
- possession of liquor by a minor orsupplyingittoaminor(s. 34)
"Liquor" includes beer.
The Actdoes not prohibit possession of liquor that is in a sealed container in a public place; indeed, it does not prohibit possession of liquor that is in an unsealed container in a public place which is not a motor vehicle. The offence is consuming liquor in a public place.
Section 74(3) of the Actplaces the burden of proving the right to possess liquor on the person accused of improperly possessing it. Although this section has not been the subject of a constitutional challenge, based on decisions on other "reverse onus" provisions one would expect this to be restricted to requiring the person accused to raise a reasonable doubt that the possession was for an improper purpose: R. v. Oakes, [1986] 1 S.C.R.103; R. v. Laba, [1994] 3 S.C.R.965.
The power to search without a warrant for unlawful liquor is contained in s. 67 of the Liquor Control and Licensing Act,which provides:
(1) A peace officer who, on reasonable and probable grounds believes that liquor is, anywhere or on anyone, unlawfully possessed or kept, or possessed or kept for unlawful purposes may, subject to subsection (2), enter or search, or both, for the liquor where the peace officer suspects it to be, and may seize and remove liquor found and the packages in which it is kept.
Subsection (2) permits a peace officer to search any person, and to enter and search anywhere except a residence, for this purpose without a warrant.
As applied to a search of the person, this section requires that the peace officer must believe, on reasonable and probable grounds, that liquor is being unlawfully possessed or kept, or possessed or kept for unlawful purposes, on the person. Accordingly, before searching, the officer must subjectively believe, and must have objectively reasonable and probable grounds to believe (a) that there is liquor on the person, and (b) that an adult's possession of it is for an unlawful purpose.
The grounds must be individualized to the subject of the search. It is not enough to believe that some, or many, or most people in a particular group are in possession of liquor for an unlawful purpose; the question is the sufficiency of the grounds to believe that the individual to be searched is. The decision of Madam Justice Daphne Smith of the B.C. Supreme Court in R. v. Campbell 2002 BCSC 553 is instructive. At Crescent Beach, a well known area for young people to hang out and consume alcohol and drugs, a group of young persons were standing around a parked vehicle late one summer evening. Patrol officers determined that one of them was underage and had been drinking from a mickey of vodka. A young adult who was standing 15-20 feet away refused to allow a search of his backpack. Madam Justice Smith held that the search of his backpack under s.67 was invalid because there was no objective basis for the belief that he was committing an offence under the Liquor Control and Licensing Act,either by possessing liquor (he being of age) or supplying it to a minor.
The British Columbia Court of Appeal considered s. 67 in R. v. Ellrodt (1998), 130 C.C.C. (3d) 97. That case involved the search of a truck that had been stopped for speeding. On the floor in the rear was a six-pack carton of beer in which one bottle was uncapped. In holding that this did not establish reasonable and probable grounds to believe there was open alcohol in the vehicle, and did not support a search of the vehicle for other open bottles, Madam Justice Ryan said:
[24]...The vehicle was stopped on the highway in the afternoon; there was no sign of bad driving or other symptoms of impaired behaviour; the one open bottle was, for all intents and purposes, empty; there was no smell of alcohol in the vehicle. In the circumstances in the case at bar the existence of one beer bottle with a quarter of an inch of beer in it sitting in the rear of a vehicle being driven by two young men was not a sufficient factual basis from which to draw the inference that there was open alcohol in the vehicle.
Under s. 67 the power to seize liquor, once found, is similarly limited to liquor that the peace officer believes on reasonable and probable grounds is unlawfully possessed, or possessed for unlawful purposes.
Whenever a peace officer seizes liquor, whether it is immediately destroyed or retained, s. 72 of the Liquor Control and Licensing Act requires an immediate report by the chief constable or officer in charge of the detachment to the general manager of the Liquor Control and Licensing Branch. Section 70 permits the owner of the liquor to claim it, and the general manager may order the liquor returned or order the seizing force to compensate the owner.
B. Application to the Victoria searches
Justification of the Canada Day searches under s. 67 of the Liquor Control and Licensing Act would require scrutiny of each and every search by these standards.
The first issue is determining what the objective grounds to believe that the person was in possession of liquor were. Merely because one is carrying a bag, or backpack, or purse capable of containing bottles or cans does not mean that he or she is likely doing so. Carrying a bag or backpack on a public bus or in the vicinity of an event at which alcohol is being consumed in copious quantities does not afford reasonable and probable grounds to believe that one is carrying alcohol in it. The addition of a third element, evident drinking already that evening, might be enough to satisfy a court that there were reasonable and probable grounds to believe the bag or backpack contained more liquor. It seems likely that there were no reasonable and probable grounds to believe the person was in possession of liquor in very many of the Victoria searches.
As it is an offence for a minor to be in possession of liquor, s. 67 authorizes a search of a minor's bag or backpack if and only if there are objectively reasonable and probable grounds to believe he or she is in possession of liquor.
In those situations in which there were reasonable and probable grounds to believe an adult was in possession of liquor, were there also reasonable and probable grounds to believe the possession was for an unlawful purpose? Simple possession of liquor in a public place is not an offence. The "unlawful purpose" must be the individual's intention to consume in a public place the liquor, which there are sufficient grounds to believe is being carried. The context is that the event, which is notorious for excessive alcohol consumption by some participants, is occurring in a public place on a public holiday when the liquor stores are closed, although beer and wine shops, and public bars, are open.
Before the bag is opened, there is no reason to believe that any can or bottle inside it is open as opposed to sealed. At that stage, in assessing the grounds for believing the contents will be consumed in a public place, the officer must operate on the assumption that the can or bottle is sealed.
Once the adult's bag has been searched, and liquor found inside it, the right to seize the liquor under s.67 similarly requires that the peace officer believe on reasonable and probable grounds that it is possessed for the unlawful purpose of consumption in a public place. Logically, if these grounds existed before the bag was opened, they will be equally strong once the liquor has been located, and if anything stronger if the liquor container is found to be open. However, if the grounds did not exist before the bag was opened, the search is not authorized under s.67 and the finding of the liquor does not alter that.
Nothing in the Operations Plan or investigation report indicates that the officers were to make or made a record of the liquor seized, as called for by s. 72 of the Liquor Control and Licensing Act.Without such a record, the force is in no position to defend any compensation claims, including those that might be advanced if the seizures are subsequently determined to be unlawful.
The probability that the purpose of carrying liquor in the Canada Day circumstances would seem to increase as one nears the event venue, and also if it is evident that the person has already been drinking. A distinct minority of the Victoria searches were likely authorized under the Liquor Control and Licensing Act, but s. 67 provides no support for the screening searches that successful implementation of the Operations Plan requires.
VI. B.C. Transit
A. The British Columbia Transit Act and regulations
The buses in Victoria provide a public transportation service under the authority of the British Columbia Transit Act, R.S.B.C. 1996, c. 38.
The Transit Conduct and Safety Regulation, B.C. Reg. 377/85, provides:
6(1) Where British Columbia Transit makes rules, or posts signs on transit vehicles or other transit property, for the safety, good order or convenience of persons while they are on, entering or leaving a transit vehicle or other transit property, a transit employee may require, as a condition of allowing any person to enter or remain on the transit vehicle or transit property, that the person obey the signs or comply with the rules.
Failure to obey or comply may result in refusal of permission to enter, or an order to leave, the transit vehicle (s. 6(2)), non-compliance with which is an offence under s.9.
This regulation permits a transit employee to deny the use of the vehicle to anyone who disobeys a posted sign or does not comply with rules that British Columbia Transit has made.
B. Application to the Victoria searches
The transit employee's power to deny the use of a transit vehicle is contingent upon the person's disobedience to a sign or failure to comply with rules. The disobedience or failure must be established before the employee may take such action.
The regulation does not authorize the transit employee to search the passenger or would-be passenger in order to determine whether the person is disobeying or not complying. It is not the source of a power to search passengers' bags.
Moreover, the signs that were posted pursuant to this regulation reminded customers that "consumption of liquor or open liquor on buses is not tolerated." It is noteworthy that what is thereby prohibited is consuming liquor on board buses, or carrying open liquor on board buses, but not carrying closed or sealed liquor on board buses. Therefore, one carrying liquor that is not open, and not consuming it, is not disobeying this sign. Even if this regulation authorized a search, it would not authorize a search for all liquor, but only open liquor.
The Operations Plan is ambiguously unclear as to whether unopened liquor is to be seized at the bus stops or not. At page 14 the Plan says both that "3. Adults [...] that have unopened liquor in their possession [...] will be allowed to proceed without having their liquor seized" and also "5. In general, no persons will remain on the bus with liquor in possession, but discretion may be used in the case of the elderly, etc."
The British Columbia Transit Act and Transit Conduct and Safety Regulation do not authorize the searches of passengers' bags conducted at the bus stops, either at the outset or at the established checkpoints where transit drivers stopped because they felt they needed assistance.
VII. General Police Powers
A. The Waterfield test
The seminal statement of the duties and powers of the police at common law is set out in the English Court of Criminal Appeal judgment in R. v. Waterfield, [1964] Q.B. 164, namely, that if the police officer's conduct is prima facie an unlawful interference with a person's liberty or property
[...] it is then relevant to consider whether (a) such conduct falls within the general scope of any duty imposed by statute or recognized at common law and (b) whether such conduct, albeit within the general scope of such a duty, involved an unjustifiable use of powers associated with the duty.
The Waterfield test, as it has come to be known, has been applied on numerous occasions by the Supreme Court of Canada and other Canadian courts. Madam Justice Abella in R. v. Clayton, [2007] 2 S.C.R. 725 at para. 22 approved the following succinct statement of the inquiry to be made when common law police power is relied upon to justify police conduct that interferes with individual liberties:
First, the prosecution must demonstrate that the police were acting in the exercise of a lawful duty when they engaged in the conduct in issue. Second, and in addition to showing that the police were acting in the course of their duty, the prosecution must demonstrate that the impugned conduct amounted to a justifiable use of police powers associated with that duty.
B. Statutory and common law police duties
Thebasisofpolicepowersispoliceduties. Theanalysismustbeginwith examination of the duties of the police imposed by statute or recognized at common law. The major duties are extremely general.
At common law the principal duties of police officers are "the preservation of the peace, the prevention of crime, and the protection of life and property": Dedman v. The Queen, [1985] 2 S.C.R. 2 @ 11 and 32; R. v. Mann, [2004] 3 S.C.R. 59 @ para. 26; Clayton @ para.69; R. v. Kang-Brown, [2008] 1 S.C.R. 456 @ para. 151.
These duties have been accepted as the basis of police powers at common law to:
- prohibit public access to an area near a hotel where a visiting dignitary from another country (who had recently been assaulted in another Canadian city) was making an appearance (Knowlton v. R., [1974] S.C.R. 443);
- preserve evidence (Waterfield);
- set up a roadblock to screen all vehicles leaving a parking lot at which an emergency 911 call reported that people were openly displaying handguns (Clayton);
- stop motor vehicles at random (Dedman);
- forcibly enter a dwelling in response to an emergency 911 call (R. v. Godoy, [1999] 1 S.C.R. 311);
- search an individual who is arrested (Cloutier v. Langlois, [1990] 1 S.C.R. 158);
- search an individual detained for investigative purposes (Mann; Clayton); and
- search an individual against whom there is individualized reasonable suspicion by means, such as drug-detecting sniffer dogs, which are minimally intrusive and reveal only the presence or absence of contraband (Kang-Brown).
The common law duties to preserve the peace and prevent crime are preserved in both provincial and federal legislation. The Royal Canadian Mounted Police Act,R.S.C. 1985, c. R-10, s. 18(a) declares that the duties of RCMP members who are peace officers include the duty
to perform all duties that are assigned to peace officers in relation to the preservation of the peace, the prevention of crime and of offences against the laws of Canada and the laws in force in any province in which they may be employed, and the apprehension of criminals and offenders and others who may be lawfully taken into custody.
Similarly, in British Columbia the Police Act, R.S.B.C. 1996, c. 367, by s. 7(2) requires that
[t]he provincial police force, under the commissioner's direction, must perform the duties and functions respecting the preservation of peace, the prevention of crime and offences against the law and the administration of justice assigned to it or generally to peace officers by the commissioner, under the regulations or under any Act.
Section 34(2) imposes the same obligation on each municipal police department under the direction of the chief constable.
Section 10(1) provides:
Subject to the restrictions specified in the appointment and the regulations, a provincial constable, an auxiliary constable, a designated constable or a special provincial constable has, while carrying out the duties of his or her appointment, jurisdiction throughout British Columbia to exercise and carry out the powers, duties, privileges and responsibilities that a police constable or peace officer is entitled or required to exercise or carry out at law or under an enactment.
As noted, the police duty to enforce statutes provides a further basis for their action. Thus, legislation specifically authorizing roadblocks and random stopping of motor vehicles to check safety and sobriety compliance with the law creates a duty to enforce it: R. v. Ladouceur, [1990] 1 S.C.R. 1257; R. v. Orbanski, [2005] 2 S.C.R. 3.
The Waterfield principle can support only lawful police conduct. Mr. Justice Dickson, as he then was, explained the lawfulness requirement in his dissent in Re Wiretap Reference, [1984] 2 S.C.R. 697 @ 718:
Furthermore, the Waterfield test provides no assistance when the police have trespassed to install a listening device. I cannot accept that conduct of itself unlawful and initiated with full knowledge of its potential illegality could ever fall within the general scope of a policeman's duty. As Lord Edmund-Davies recognised in Morris v. Beardmore, supra, [[1980]2 All E.R. 753] at p. 759:
My Lords, I have respectfully to say that I regard it as unthinkable that a policeman may properly be regarded as acting in the execution of his duty when he is acting unlawfully, and this regardless of whether his contravention is of the criminal law or simply of the civil law.
(See also Dedman @ 15 per Dickson C.J., dissenting in the result; and Clayton @ para. 22)
C. Evaluation of whether the use of the powers is justified
(i) The second branch of the Waterfield test
Assuming that the police conduct falls within the general scope of a duty, the next question is whether it involves an unjustifiable use of powers associated with that duty. The duties that society imposes upon police officers exceed the powers it gives them to perform those duties; the police have wide duties but limited powers: Clayton @ para. 68; Dedman @ 12. One must examine both whether the police have the power to do what they did, and also whether their conduct exceeded the proper limits of that power.
The standard for the second branch of the Waterfield test is the "reasonably necessary" test set out by Mr. Justice Le Dain in Dedman at p. 35:
The interference with liberty must be necessary for the carrying out of the particular police duty and it must be reasonable, having regard to the nature of the liberty interfered with and the importance of the public purpose served by the interference.
The considerations informing the evaluation include, as Mr. Justice Iacobucci said in Mann at para. 39:
[...] the duty being performed, the extent to which some interference with individual liberty is necessary in the performance of that duty, the importance of the performance of the duty to the public good, the nature of the liberty being interfered with, and the nature and extent of the interference.
The relevant considerations were described somewhat differently by Madam Justice Abella for the majority in Clayton at para. 31, discussing the power to detain and search without arrest:
The determination will focus on the nature of the situation, including the seriousness of the offence, as well as on the information known to the police about the suspect or the crime, and the extent to which the detention was reasonably responsive or tailored to the circumstances, including its geographic and temporal scope. This means balancing the seriousness of the risk to public or individual safety with the liberty interests of members of the public to determine whether, given the extent of the risk, the nature of the stop is no more intrusive of liberty interests than is reasonably necessary to address the risk.
All of these expressions of the Waterfield test, balancing the reasons for interfering with liberty and the extent of the interference, emphasize the need to minimize that interference.
(ii) The importance of legislation
Some members of the Supreme Court are uncomfortable with the adequacy of the Waterfield "reasonably necessary" test as a restraint on police powers in the Charter era. In Orbanski Justices LeBel and Fish expressed their concern thus at para. 81:
The adoption of a rule limiting Charter rights on the basis of what amounts to a utilitarian argument in favour of meeting the needs of police investigations through the development of common law police powers would tend to give a potentially uncontrollable scope to the doctrine developed in the Waterfield-Dedman line of cases [...].
The courts' discomfort with developing common law police powers in the Charterera was emphasized in Kang-Brown, which involved the police use of drug-detecting sniffer dogs. Four members of the Supreme Court of Canada, Justices LeBel, Fish, Abella and Charron, held in that context that any extension of common law police powers should be effected by Parliament and constitutionally justified before the courts. Mr. Justice Rice of the New Brunswick Court of Appeal expressed the prevailing view in R. v. Boudreau (2001), 151 C.C.C. (3d) 530 at para 23:
Interference with lawful activities of citizens in our democracy is to be achieved through the enactment of proper legislation authorizing police authorities as in R. v. Ladouceur, [1990] 1 S.C.R. 1257, 25 C.C.C. (3d) 22. Only in exceptional circumstances, upon clear and persuasive facts, are common law powers to be invoked.
(iii) Charter scrutiny
In Clayton Mr. Justice Binnie joined Justices LeBel and Fish and, writing for the three, said (at paras. 58 and 78) that the "reasonably necessary" test is not the same as the Chartertest, but sets a lower standard that is not an adequate substitute for Charterscrutiny. Phrased this way, Charterreview of common law powers cannot be gainsaid. The Supreme Court has made it clear that the common law, as well as statutes, must conform to the Charter,and has refined the common law in such areas as strip searches incidental to arrest (R. v. Golden, [2001] 3 S.C.R. 679) and searches of law offices (Lavallee, Rackel & Heintz et al v. Canada (A.G.), [2002] 3 S.C.R. 209) to make it comply with the Charter.
Mr. Justice Binnie proposed (in Clayton at paras. 59-60) that the Charteranalysis of police common law powers comprise four questions:
[...] firstly, does the alleged police power exist at common law;
secondly, if so, does the claimed police power authorize interference with Charter rights including an individual's reasonable expectation of privacy (s.8) or result in arbitrary detention (s.9);and thirdly, if so, is the law authorizing the infringement (in this case a common law) justified as a reasonable limit under s.1 of the Charter?
[...]
If the existence of the police power is found to be constitutional, a fourth question may arise in a particular case: was the power thus established exercised reasonably in "the totality of the circumstances"?
With respect to the third question, Charterscrutiny requires that any interference with a Charterright must, in the words of s. 1, be within "such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society." The test for justification of a law that authorizes interference with a Charterright is set out in R. v. Oakes, [1986] 1 S.C.R. 103 @ 138-140, as modified by Dagenais v. C.B.C., [1994] 3 S.C.R. 835 @ 887-889 and Thomson Newspapers v. Canada (A.G.), [1998] 1 S.C.R. 877 @ 967-970. It may be summarized as:
- (1) Is the objective of the law sufficiently important to warrant overriding a constitutionally protected right or freedom? Are the concerns pressing and substantial in a free and democratic society?
- (2) Are the means rationally connected to the objective? Are they carefully designed to achieve the objective? Are they arbitrary, unfair or based on irrational considerations?
- Do the means impair the right or freedom as little as possible, while fulfilling their purpose?
- Do the salutary effects of the limitation of the right or freedom exceed the deleterious effects?
A law that infringes a Charterright can be justified only if its objective is of pressing and substantial concern, its means are rationally connected to that objective, its impairment of the Charterright is minimal, and its overall benefits are greater than its negative effects. In considering search and seizure this analysis is normally made, not under s. 1, but in determining whether the search or seizure is "unreasonable".
D. Application of the Waterfield test to date
Itis useful to compare those situations in which Canadian courts, and particularly the Supreme Court of Canada, have held the use of police powers justified under the Waterfield principle, with those in which they have held them not justified.
(i) Use of powers justified
The first requirement of justification is lawfulness. The common law requires that the police act lawfully in executing their duties: Re Wiretap Reference @ 718; Dedman @ 15; Clayton @ para. 22.
Forcible entry into a dwelling in response to an emergency 911 call in order to ascertain the health and safety of the subject of the distress call is justified at common law: Godoy @ paras. 15-22.
A carefully tailored roadblock or blockade to check all vehicles leaving a parking lot immediately following receipt of an emergency 911 call that handguns were being openly displayed there is justified at common law: Clayton.The court emphasized that the police reasonably believed there were prohibited weapons in a public place, creating a genuine risk of serious bodily harm to the public, and the roadblock was temporally, geographically and logistically responsive.
An arrested person and his or her immediate surroundings may be searched for weapons or for evidence of the offence for which the arrest is being made: Cloutier.
A police officer who is detaining an individual for investigative purposes and who has reasonable grounds to believe that his or her safety or the safety of others is at risk may conduct a protective "frisk" or pat-down search of the detainee for weapons at common law: Mann @ paras. 37-45.
Restricting public access to some public streets in the immediate vicinity of a hotel where a visiting dignitary (who has recently been assaulted in another Canadian city) is about to appear, is justified to prevent further indignities: Knowlton.
Random stopping of motor vehicles to inquire into the drivers' sobriety was held justifiable at common law before the Charter: Dedman, and statutorily authorized routine traffic checks have been upheld under the Charter: Ladouceur. In each case the Supreme Court divided almost evenly, and the majority emphasized the importance of deterring and detecting impaired driving, the necessity of random stops to effective detection, the regulations and controls on driving in the interests of safety, the publicity surrounding the roadblock programs, and the brief and minor intrusion experienced by innocent motorists.
In Kang-Brown the Supreme Court examined the police use of drug-detecting sniffer dogs as an aspect of the power to investigate and prevent crime. Five judges held that the common law permits dog sniffs where the police have individualized reasonable suspicion, because of the minimal intrusion, contraband-specific nature and pinpoint accuracy of a sniff by a trained and well handled dog. The other four members of the Court felt that there is no such power at common law, and only Parliament might authorize it; moreover, the minimum threshold for any common law search powers is reasonable grounds.
(ii) Use of powers not justified
Unlawful acts are no proper part of the execution of police duties, and are not justified at common law: Re Wiretap Reference @ 718; Dedman @ 15; Clayton @ para. 22.
The use of powers is justifiable only if the conduct is within the proper limits of the power. Thus, the power to enter premises in response to an emergency 911 call is limited to the protection of life and safety, and does not permit further search of the premises (Godoy @ para. 22); the search incidental to arrest must be for security and evidentiary purposes related to the arrest, and not for any other purpose (R. v. Caslake, [1998] 1 S.C.R. 51) or of any broader scope (R. v. Belnavis (1996), 107 C.C.C. (3d) 195 (Ont. C.A.) @ 212-214); and the protective pat-down search of a detainee must be based on reasonable grounds to believe there is a risk to safety, and must be confined in scope to an intrusion reasonably designed to locate weapons (Mann @ paras. 40-41).
The four minority judges in Kang-Brown considered that the minimum threshold for any police search power is reasonable grounds.
The dissenting judges in Dedman and Ladouceur considered that there was no power at common law to stop and detain a motorist.
In R. v. Lindsay (1999), 141 C.C.C. (3d) 526 security searches for weapons or dangerous objects were conducted of everyone (except court personnel, sheriffs, police officers, counsel, and others with prior security clearance) entering a courthouse, using a metal-detecting scanner, visual inspection of pocket contents, and manual or fluoroscopic examination of briefcases and other personal belongings. If the scanner was activated and there was need to verify the cause visually, a secondary search in private by a person of the same gender would be performed with the permission of the person, who could instead choose to leave unless it had already been detected that he or she was carrying a weapon. Notwithstanding the "notorious fact that security in the buildings that house the courts is a matter of real, and sometimes pressing, concern," the Manitoba Court of Appeal held (at para. 39) that without a legislated foundation this perimeter security program
[...] cannot be saved as conduct falling within the general scope of any duty of a sheriff or peace officer recognized at common law. The implementation by Sheriff Services, Manitoba Justice, of a program subjecting every member of the public required to enter the Law Courts (as, for example, a party or witness in a civil or criminal proceeding, or a person having other business with the courts), or desiring to do so (for whatever reason), to an arbitrary and intrusive search goes far beyond the common law powers of a peace officer to preserve the peace, prevent crime, and protect life and property. It fails the first branch of the Waterfield test.
E. Application to the Victoria searches
(i) The Waterfield test
The duty to preserve the peace and to protect life and property does not give the police all the powers they would wish to have in order to carry it out effectively. Specifically, the common law power to search individuals, their belongings and premises is circumscribed. The extent of common law search powers is limited by the minimal intrusion required by the "reasonably necessary" test. This involves assessing and balancing the importance of the reason for the intrusion and the need for it, with the nature and extent of the intrusion.
Most of the common law powers to detain and search that have been held to be justified involve emergency situations, or apprehended violence, or both, and are restricted to a measured response to the threat. Justification for the random motor vehicle stops is the highway and street carnage caused by impaired drivers and unsafe vehicles.
Without minimizing the violence that has occurred at previous Canada Day celebrations in Victoria, the drunken fighting, injuries, vandalism and damage do not compare to the dangers posed by guns and other weapons in Clayton and Mann.Even those dangers at a court house where security concerns were notorious did not support a common law power to conduct airport-type screening searches in Lindsay. The problems that have been experienced at Victoria's Canada Day celebrations rank comparatively low on the scale of importance of reasons supporting a common law power to detain and search randomly or without specific individualized grounds.
One's bag or backpack is likely to contain personal items, including highly sensitive ones. Accordingly, examination that reveals the contents intrudes severely into the bearer's privacy. Although a lesser interference than a search of the person, a search of bags is quite intrusive, and a search of bags that reveals the personal contents is highly intrusive.
The scope of the Canada Day screening searches in Victoria exceeded what would have been permitted if the subject had been detained for investigation (Mann). Indeed, the roadblock in Clayton did not involve any search of the vehicle or its occupants unless and until specific grounds to do so emerged. The bag and backpack searches constitute a relatively serious intrusion into the privacy of the bearers.
Balancing the reasons for the searches with their scope, the Victoria Canada Day searches are not justified under the common law police powers. They involve less reason and more intrusion than the court house searches in Lindsay or the protective pat-down search of a detainee (Mann).
As there is no statutory basis supporting these searches, they are not justified under the Waterfield principle.
(ii) The Charter
As Mr. Justice Binnie pointed out in Clayton, the Waterfield "reasonably necessary" test is a lower standard than the Chartertest. Therefore, some searches that are justified under Waterfield are not justified under the Charter.However, any search that is not justified under Waterfield cannot be justified under the Charter. Accordingly, based on the foregoing analysis, the Victoria Canada Day searches violate the Charter.
Assuming that a safe civic celebration, in this case of the country's founding, is a "pressing and substantial" concern in a free and democratic society, what role do searches play in achieving that objective, and what impact do they have on constitutional rights?
None of the searches was based on reasonable grounds or individualized suspicion, unless they happened also to be present. The inspection of all bags at the bus stops and venue entrance is designed to achieve the objective, but particularly at the bus stops captures others who are riding on the public transportation system but have nothing to do with the event. The searches by the roving officers were arbitrary, in the sense that those to be searched appear to have been chosen at random.
The searches all consisted of visual or manual inspection, or both, of the contents of the bags and backpacks, without (in most cases) any consideration of the likelihood of contraband being found.
Based on the Operations Plan, the Victoria Canada Day searches, while designed to achieve the objective of a safe civic celebration, seem considerably broader than Charterconsiderations permit, and did not minimally impair the constitutional right to be secure against unreasonable search or seizure.
Further, it appears that a considerable quantity of unopened liquor was seized. Unopened liquor is contraband if and only if the person intends to consume it in a public place. However, the Operations Plan is ambiguously unclear about the seizure of unopened liquor at the bus stops, and calls for the seizure of any liquor found in the exclusionary zone except from a sober adult who is transiting the area. This means that many of the seizures were not authorized, and violated the Charter.
Many of the Canada Day searches and seizures in Victoria contravened the Charter.
VIII. A Legislated Solution?
A. The need for a legislative basis
The comments of the Supreme Court of Canada in Orbanski and Kang-Brown make clear that the courts' recognition of common law police powers is limited. Mr. Justice Rice in Boudreau captured their position, stating that the common law powers are to be invoked "only in exceptional circumstances, upon clear and persuasive facts."
Waterfield was decided in England in the 1960s, long before the Canadian Charter.It accepted that the police duty might either be "imposed by statute" or "recognized at common law." The disinclination of the Supreme Court to develop common law police powers in the Charter era means that police common law powers will likely be recognized only in established or emergency situations, and the primary source of police powers will be specific legislation. Thus, the courthouse security problem in Lindsay appears to have been subsequently resolved by a court order.
In the case of the Victoria liquor searches there are three possible sources of legislative authority to prohibit possession of alcohol and permit searches for it in specific limited situations. First, the provincial legislature might add a "special events" section to the Liquor Control and Licensing Act.Second, the City of Victoria might pass a by-law. Third, B.C. Transit might amend its regulations and notices. Such legislation would make it an offence to possess liquor in specified limited situations, and define the power to search in such situations.
The offence of simple possession at the event would eliminate the issue of whether unopened cans and bottles are intended to be consumed in a public place; in the context of the fireworks event they may well be, but this is not necessarily the case. An offence of possession with an exception for possession with a defined lawful excuse should be easier to enforce than possession with the intention of consuming in a public place.
Legislation authorizing a search on less than individualized reasonable grounds must be justified in order to be found reasonable. It must be rationally connected to a pressing and substantial objective; it must minimally impair the right to be secure against unreasonable search and seizure; and its overall benefits must outweigh its negative effects.
The need for a search power based on less than reasonable grounds arises from the desirability of preventing assaults, fights, vandalism, damage and drunkenness from occurring, rather than attempting to identify and arrest participants afterwards. Almost never will there be reasonable and probable grounds to believe that a particular bag or backpack contains liquor; accordingly, preventing attendees from bringing liquor to the event that they will then drink to excess requires an ability to search the bag or backpack at the event on lesser grounds.
The full justification analysis would involve a comparison of the feasibility, efficacy and intrusiveness of groundless screening searches of bags and backpacks with other possible alternatives. That is beyond the scope of this opinion, which is limited to consideration of the bag and backpack searches.
B. Examples from other jurisdictions
My search for legislation in other jurisdictions addressing the issues raised by events such as the Canada Day celebrations, and in particular, containing specific search powers, has produced only two such statutory schemes. Anyone considering drafting such legislation would be well advised to research this topic further.
The two statutory schemes are the British Criminal Law (Consolidation) (Scotland) Act 1995 (c. 39) and the Queensland Police Powers and Responsibilities Act 2000 (extracts attached). Both authorize a public declaration of the special event, create the offence of possessing a prohibited item at or attempting to enter the event site, and authorize searches of those in or entering the event site about whose conduct there are reasonable grounds for concern.
Under the Criminal Law (Consolidation) (Scotland) Act 1995 the Secretary of State may designate a sports ground or sporting event, or class of either (s. 18). It is an offence to possess alcohol in or attempting to enter a designated ground on the occasion of a designated sporting event (s. 20(2)) or on a public vehicle that is being principally operated to convey passengers to or from a designated sporting event (s. 19(1)(a)). It is also an offence to possess a "controlled container" (as defined) in or attempting to enter a designated ground on the occasion of a designated sporting event (s. 20(1)), or to possess a "controlled article or substance" (as defined) there without lawful authority (s. 20(3),(4),(6)). A constable has the power without warrant to search a person who he has reasonable grounds to suspect is committing or has committed an offence (s. 21(b)) and to stop and search a vehicle on reasonable grounds to suspect that an offence under s. 19 has been or is being committed (s. 21(c)).
This Act creates the offence of possessing alcohol at the designated event or in a public vehicle dedicated to transporting passengers to and from it. The power to search a person requires individualized reasonable grounds to suspect that that person is committing an offence.
The Queensland Police Powers and Responsibilities Act 2000 allows the Minister to declare an event to be a special event upon being satisfied, based on specified criteria, that the declaration is "necessary for preserving public order and the safety of individuals involved in the event and other individuals" (s. 559). The purpose of the legislation is to state special provisions necessary to do this (s. 557). The declaration regulation must state, among other things, prohibited items, access restrictions, and entry conditions (s. 558). These restrictions are to be publicized (ss. 560, 562). It is an offence to take a prohibited item onto, or to possess a prohibited item on, a special event site, without a reasonable excuse (s. 574). Section 561 sets out the statutory conditions of entry to a special event site; the entrant
- must, if asked, permit a search to be made of his or her personal property; and
- must, if asked, permit a frisk search to be made of his or her person; and
- must not take into or possess on the site a prohibited item.
A police officer may ask an entrant to the site to be examined, or to have his or her belongings examined, by an electronic screening device (s. 567) and to permit a frisk search of the entrant's person (s. 569). A police officer may request the entrant to allow inspection of belongings or articles from the entrant's clothing, to remove outer garments, and to open an article and allow inspection of it, if the officer "considers it necessary" and tells the entrant the reason (s. 568).
This Act creates the offence of possession of a prohibited item on, or taking a prohibited item into, a special event site, without reasonable excuse. Searches more intrusive than electronic screening devices and frisk searches, including inspection of articles in the possession of the entrant, may only be done if the officer reasonably considers it necessary and tells the entrant the reason. This also requires an individualized concern that that person is committing an offence.
C. The United States
Professor Wayne R. LaFave, the leading American academic commentator on constitutional search and seizure issues, discusses in his landmark text Search and Seizure: A Treatise on the Fourth Amendment (4th ed.) at sec. 10.7(a) whether screening procedures utilized in the course of admitting patrons to the place where an athletic contest, rock concert, dance or similar public event is to be held violate the Fourth Amendment guarantee of "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures [...]." Although no such case has reached the Supreme Court of the United States, the majority of decisions he cites hold that the screening procedures employed are unconstitutional. What is interesting for us is the three factors the American courts consider in evaluating these screening procedures, which parallel the Canadian process of justification under the Charter.
The first consideration is the public necessity of the screening, which has two aspects, the seriousness of the public danger and the imminence of the public danger. Although it is indisputable that guns and bombs are vastly more serious than alcohol and drugs, the likelihood of danger in the public event situation will often be established by a history of injuries, disturbances, violence or damage. A well-documented historical record is the best way to demonstrate the threat to public safety that necessitates the screening process.
The second consideration is the likely effectiveness of the screening, the extent to which it advances the public interest. Ineffective screening will not be upheld, nor will screening, which must be excessively intrusive in order to be effective.
The third consideration, the nature of the intrusion, has several aspects. First, everyone attending should be screened, with no discretion left to the inspectors in selecting whom to search or the extent of the search. Universality eliminates both any suggestion of discrimination among the entrants, and the stigma that might otherwise be felt by those chosen to be searched. Second, advance publicity, clear notices and precise warnings give everyone the opportunity to prepare for the search and allow those who are reluctant to be searched to avoid it. Third, the ability of a reluctant individual to elect to leave unsearched (even though he or she may later attempt entry elsewhere) shows that the true purpose of the screening is public safety, and not criminal investigation.
Jensen v. Pontiac, 113 Mich. App. 341, 317 N.W.2d 619 (1982) is one of the few cases Professor LaFave cites in which a groundless screening search was upheld. After previous incidents in which spectators were jeopardized by thrown objects, patrons seeking entry to a professional football stadium who were carrying bags large enough to contain cans or bottles were required to permit visual inspection of them. Notices were posted advising patrons this would be done, and their alternatives. Everyone entering the stadium was searched. At the entrance, uniformed security guards requested permission to inspect the bags visually, and explained the patrons' options. The guards did not order the patron to submit to the search. The guards did not touch the patrons or their property at any time; some patrons were asked to move objects within the bag to facilitate the visual inspection. The patron could dispose of any container by depositing it in a waste bin or by storing it outside the stadium, before proceeding into the stadium. If a patron refused to be searched or refused to dispose of the container, entrance was denied and the ticket price was refunded. The Court of Appeals of Michigan was satisfied that the primary purpose was public safety, not enforcement of liquor and drug laws, and that the regime was reasonable and did not violate the Fourth Amendment.
D.The perimeter of the event site
The most crucial point for inspection of the celebrants is the entrance to the event site. Often special events are held in an enclosed stadium or arena, where only those attending the event are entering, and entrants must file through a gate. The site of the Canada Day fireworks in Victoria is physically more complicated. It is the waterfront area around the Inner Harbour, which by land is reached from a number of streets, and which contains hotels within it. The fact that access is by streets means that the "gates" must be barricades, which are erected at selected intersections designed to intercept most if not all of those attending the fireworks.
The Victoria site is also more complicated operationally, because the presence of hotels means that some people who are staying in the area must pass through the barricades; their intended consumption of unopened liquor may be in their "temporary home", not a public place, and it would be undesirable from the point of view of the tourist industry to prevent or discourage them from drinking in their hotel rooms during the fireworks if they wish to do so.
Searching all entrants avoids allegations of arbitrariness and discrimination that can arise from officers randomly choosing which of many people are to be searched.
The perimeter of the exclusionary zone, and inside it, are the locations where searches on less than reasonable grounds are more likely to be upheld, because there the great majority of those present are attending the event, and the smallest proportion of non-attendees will be subject to being searched.
E. Bus stops
Legislation generally authorizing the manual and visual searching of the contents of bags and backpacks at outlying locations, without grounds, is unlikely to be justified under the Charter. The intrusion into the bearer's privacy is severe, and as the distance from the event site increases more and more people who are not going to it would be subject to being searched. Moreover, the existence of open wine and beer stores in downtown Victoria means that one going to the event can replace liquor seized in the outskirts before reaching the event site, thereby circumventing the purpose of the seizure. It will be difficult to justify the multi-level "layered" search scheme to prevent liquor reaching the event site.
The focus of transit searches should be on the protection of transit property. B.C. Transit might make rules and post signs prohibiting the possession of liquor on buses on specified routes at the time of a special event, based on the history of vandalism, vomiting and damage to its buses during previous events. These rules and signs might further authorize searches of passengers and their belongings there and then, specifying the basis on which they could be conducted. A history of disproportionate damage to the vehicles at such events, when the overwhelming majority of passengers were attending the event, particularly if supplemented by the bus drivers' observation or apprehension of drinking liquor or "trouble" on the bus, might provide a sufficient basis for relaxation of the "reasonable grounds" standard.
The approach taken since 2005 effectively makes submission to a bag search a condition of travelling on certain bus routes. If B.C. Transit wishes to continue this method as a supplement to its drivers refusing admission to passengers they identify as intoxicated, it could make a rule authorizing and post signs advising of searches of passengers and their belongings, particularly those who appear to have been drinking. Those who do not appear to have been drinking would be less likely to cause damage to the vehicle.
F. Roving patrols
Legislation prohibiting possession of liquor without lawful excuse within the defined event site, and empowering a search for it there, on less than reasonable grounds, might be justified under the Charter,as discussed above under "The perimeter of the event site," although inside the site the same person may be searched by different officers successively, whereas the entrance search is conducted once only.
However, legislation authorizing bag searches by roving patrols outside the event site on less than reasonable grounds are less likely to be held justifiable under the Charter. The farther from the site the person is, the more likely that he or she is not going to or coming from it at all. Even near the site, the existence of open wine and beer stores means that a person whose liquor has been seized can replace it en route to the event. The seizure adds a cost, which may or may not discourage the person, but does not prevent that person attempting to enter the fireworks area carrying liquor.
IX.Conclusion
Civic events, such as Canada Day fireworks, are significant community celebrations that should be encouraged. Regrettably, a minority of participants have made these events occasions for drunkenness, which has led to rowdiness, fights, and vandalism. As a result, in British Columbia in recent years a number of such events have been cancelled, and are no longer celebrated. The survival of others, including Canada Day in Victoria, is dependent upon the development of means to minimize the drunkenness and its consequences in order to protect the safety and enjoyment of the majority.
The Canada Day fireworks in Victoria attract a crowd of some 45,000, including families. That the great majority of them appreciate it is reflected in the attendance numbers, and that they appreciate the steps being taken to make it safe and enjoyable is shown by their acquiescence in the searches. Indeed, the complaint of one of the witnesses was not that her bag was searched, but that it was searched three times.
The police have power under the Liquor Control and Licensing Act to arrest those who are intoxicated in a public place (s. 41(2)), and to search those who are consuming liquor in a public place (s. 67, 40(1)), and to search a minor who is reasonably believed to be in possession of liquor (s. 67, 34(3)). The strategy that has been developed in Victoria supplements these provisions-which, on their own, proved inadequate in earlier years-with searches of bags large enough to contain cans or bottles of liquor at public transit stations, bus checkpoints, and barricades near the Inner Harbour, as well as by roving bicycle and foot patrols.
In 2008, the early interdiction of liquor was successful operationally. These bag searches intercepted a very large quantity of liquor that would otherwise have been consumed during the fireworks festivities that day, thereby reducing the amount of drunkenness and attendant violent behaviour. Many of the searches were conducted as a random screening process, without specific grounds related to the individual. Unfortunately, at present these bag searches are legally justified only if the searching officer has reasonable and probable grounds to believe an offence is being committed, and that the bag contains evidence of it.
In order to enable the police to continue with this successful approach to the disruption of the civic celebration caused by the excessive liquor consumption of a relative few, it is necessary for the provincial government, the City of Victoria, and B.C. Transit, or one or more of them, to provide a Charter-compliant legislated basis for the police action.