Chair's Public Interest Investigation Report
Canada Day 2008 – Victoria, British Columbia
RCMP Act Subsection 45.43(3)
Complainants: British Columbia Civil Liberties Association
Version vetted for posting
Table of Contents
In preparation for the Canada Day celebrations of 2008, the West Shore RCMP Detachment in British Columbia, working with the Victoria Police Department (VPD), other police agencies and B.C. Transit, developed an operational plan to respond to what had occurred on Canada Day in recent years. The objectives of the plan were to respond in a proactive way to what had become a civic event mired in excessive liquor consumption and vandalism on the part of some attendees. A woman, Ms. A, complained that she had been searched by West Shore RCMP members on July 1, 2008 without the requisite grounds to do so.
On July 8, 2008, the British Columbia Civil Liberties Association (BCCLA) lodged a complaint (Appendix A [PDF Format, 397 Kb]) with both the Commission and with the Office of the Police Complaint Commissioner of British Columbia (OPCC) stating, in part:
According to a witness report, municipal and RCMP initiated random and non-consensual searches of people to search for alcohol. These searches were carried out in numerous places throughout Victoria, but apparently public transit and transit exchanges were targeted. It appears that many or all of the buses travelling to downtown Victoria were stopped, and passengers were made to exit for mandatory searches. All alcohol, including closed bottles, was apparently seized.
The complaint went further to state that the BCCLA complains that (a) "police forces in Canada do not have the legal authority to initiate random or mandatory searches such as those that occurred in Victoria," and (b) "police forces in Canada cannot seize property without legal authority. While alcohol cannot be consumed in a public place, there is no law prohibiting people from carrying closed containers of alcohol."
Upon examining the complaint, I considered that due to the public policy issues involved it was advisable in the public interest to have the Commission conduct a "public interest investigation" into the matter pursuant to subsection 45.43(1) of the RCMP Act. This meant that the Commission would investigate the complaint in the first instance instead of having the RCMP conduct an investigation on its behalf.
For the reasons expressed below, I find that although the goal of the police in this case is laudable, unfortunately, it appears that in the main these searches, such as in the case of Ms. A, were not genuine consent searches and accordingly were not authorized under the B.C. Liquor Control and Licensing Act,1 the British Columbia Transit Act2 and the Transit Conduct and Safety Regulation,3 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 (Charter). I also find that the RCMP members did not keep detailed notes of their participation in the Canada Day events.
In light of my findings, I recommend that until such time as the required legislative bases are put in place, the RCMP's participation in preventative and early interdiction liquor strategies be limited to police presence, and searches only be conducted when the RCMP members have the requisite grounds under the applicable legal authority. Furthermore, I recommend that, consistent with policy, RCMP members take contemporaneous notes and document their actions thoroughly.
It is important to note that the Commission for Public Complaints Against the RCMP (Commission) is an agency of the federal government, distinct and independent from the RCMP. When investigating a complaint, the Commission does not act as an advocate for either the complainant or RCMP members. Rather, its role is to inquire into complaints independently and to reach conclusions after an objective examination of the information provided and available to it.
It should be noted that given the participation of the VPD and other municipal forces, the BCCLA's complaint was also lodged with the OPCC. My mandate obviously allows for me to comment on the conduct of the RCMP members and to make findings and recommendations in this respect to the Commissioner of the RCMP. Following exchanges with the OPCC and the Victoria Police Board (Board), it was decided that given the need for consistency in the reviews of the RCMP and the VPD and any recommendations resulting therefrom, a harmonized approach (i.e. between the Commission, the OPCC and the Board), rather than a disjointed one, would be most beneficial.
It was also agreed that the harmonized approach, which recognized the Commission as a "public body" pursuant to section 63.1 of the B.C. Police Act, would allow me to provide the summary of the facts and an opinion regarding the legality of the actions of the VPD to the Board for its consideration and any further action that it may deem appropriate. It goes without saying that any decision regarding the propriety of the VPD's policies and procedures will be solely pursuant to the applicable provisions of the B.C. Police Act.
It was agreed that a senior former (non-RCMP) police officer would conduct an investigation on behalf of the Commission, the OPCC and the Board. Consequently, the Board, pursuant to section 63.1 of the B.C. Police Act appointed the Commission to conduct an investigation into the complaint and report back to the Board pursuant to the provisions of the Police Act. The letter directed the Commission, in part, to conduct a detailed review of the policies and procedures employed by the VPD in relation to the Canada Day events; with the assistance of a member of the VPD, gather the applicable VPD policy, operational plan and other documents relevant to Canada Day activities; and if deemed advisable and necessary, conduct interviews with members of the VPD.4
The investigation conducted by the Commission's investigator consisted of a review of all relevant documents including policing policies and the relevant planning documents for the Canada Day events, interviews with witnesses, interviews with members of the RCMP and the VPD, as well as a review of the execution of the policies and operation plans relating to the search and seizures. Furthermore, in light of the legal implications regarding the searches conducted by the police during the Canada Day celebrations, a thorough legal opinion (Appendix B) was obtained regarding the examination of bags carried by pedestrians and bus passengers-the subject of the complaint by the BCCLA.
My findings and recommendations regarding the RCMP's participation in the Canada Day events in Victoria, B.C. are based on a thorough review of the following: the complaint of the BCCLA in relation to the events of July 1, 2008; a statement provided from a witness to this event; the RCMP Operational Plan and related documents (Appendix C [PDF Format, 115 Kb]); the VPD Operations Plan anticipating RCMP participation; relevant sections of the B.C. Liquor Control and Licensing Act; correspondence from the B.C. Transit regarding coordination with West Shore RCMP and transit bus logs; the investigation report prepared by the Commission's investigator; the legal opinion, as well as all other relevant documentation. I would like to thank the RCMP for their full cooperation in the conduct of this public interest investigation.
It is well known that the Canada Day fireworks celebrations in Victoria have developed a history of excessive liquor consumption leading to assaults, injuries, vandalism and damage. To address this, the VPD with the assistance of the RCMP and other municipal police forces have developed a strategy of early liquor interdiction based, among other things, on searches of bags and backpacks that might contain liquor.
The West Shore RCMP Detachment was to support the VPD in preventing liquor and inebriated persons from boarding buses bound for the downtown area, both to limit liquor-related problems in Victoria as well as to prevent destruction of buses, annoyance of other passengers, and for safety reasons.
The VPD Operations Plan for this event called for the involvement of a number of police officers from Victoria and the surrounding communities, including 14 from the West Shore RCMP Detachment. The VPD Operations Plan envisioned a multi-pronged, preventative program that included three zones of enforcement. The first was at the outskirts of the City of Victoria and would involve the outlying police agencies checking individuals at public transit facilities in order to prevent liquor consumption and intoxicated persons from taking transit to downtown Victoria. This was the task agreed to by the West Shore RCMP Detachment and the Operational Plan was developed to support this objective. The task of policing the bus interdiction points (the second zone of enforcement) and the City of Victoria (the third zone of enforcement) was the responsibility of the VPD working with a joint RCMP-municipal police traffic unit, other non-RCMP police agencies and B.C. Transit.
The West Shore RCMP Detachment was responsible for the bus terminals in Langford. These terminals were situated at the Juan de Fuca Recreational Centre and the West Shore Town Centre. The detachment was also responsible for its own parks and venues for Canada Day celebrations. The West Shore RCMP Detachment polices four communities; Colwood, Highlands, Langford, Metchosin and two Aboriginal communities, the Songhees and Esquimalt First Nations. RCMP members were to check individuals boarding buses for liquor and prevent inebriated people from boarding the buses.
Ms. A was a witness to the events of July 1, 2008, both at the West Shore Mall bus exchange and later in the City of Victoria. During her interview with the Commission's investigator, she stated that she was going to attend an outdoor concert in the downtown Victoria area. This was Ms. A's first attendance of a Canada Day celebration in Victoria. Ms. A's first encounter with the police was at the West Shore Mall bus exchange where she had gone to board bus no. 8034 on Route 11.
At approximately 6:00 p.m. that day she was about to board her bus when she was stopped by two male RCMP members who asked to look into the bag she was carrying. Ms. A acquiesced to the request and following a search of her bag she boarded the bus. During this period of time she saw RCMP members search the bags and packsacks of approximately 20 other people waiting to board buses. Ms. A saw some beer on benches that she believes was seized and provided the Commission's investigator with a picture in which we can see what appear to be people being searched prior to boarding the bus and beers on a city bench. Ms. A indicated that she did not hear any conversation between the RCMP and the individuals being searched, nor did she see anything that appeared to be confrontational.
At that time Ms. A was not overly concerned about the searches that had been conducted by the RCMP members. Ms. A explained that she became upset when she was searched a further two times while on the bus and in downtown Victoria by members of the VPD. Ms. A expressed her frustrations and concerns with the fact that she was searched a total of three times, when she was alone, had not been drinking liquor, and was acting in every way as a law-abiding citizen.5
The Commission's investigator also interviewed the Acting Manager, Operations, B.C. Transit, who was responsible for the B.C. Transit operations on July 1, 2008. There were eight transit supervisors on duty on this day and they were situated at various bus check points. The Acting Manager explained that the bus drivers with problematic passengers could call ahead to their supervisors and police would meet the bus to deal with them. According to B.C. Transit logs, this occurred once with the West Shore RCMP where a group of drunken males were removed from a bus. Fifteen to twenty buses were taken out of service for damage or to clean up vomit during this event. When asked how the bus drivers felt about this day he stated they were very nervous, as this had become a party weekend and accordingly people were unpredictable. The contrast with B.C. Day (August 4, 2008) was very noticeable, as apparently B.C. Transit had virtually no problems with rowdyism on that holiday.
The Acting Manager provided a copy of the signs posted on buses for Canada Day. The signs warned passengers: "To ensure everyone's safety on July 1, customers are reminded that consumption of liquor or open liquor on board buses is not tolerated. At BC Transit's request, police will monitor all buses entering downtown to enforce this safety regulation." (Appendix D [PDF Format, 1.79 Mb])
The Acting Manager also provided a copy of the letter, written by the Vice-President, Customer Service & Corporate Secretary for B.C. Transit, sent to each police agency involved in policing Canada day. This letter outlines the position of B.C. Transit in relation to people drinking liquor on buses and acting inappropriately thereon and requests police assistance in boarding its buses when asked to do so in order to enforce these regulations.
The RCMP Operational Plan and associated documents indicate that the purpose of the RCMP participation was to interdict liquor being taken to the downtown area of Victoria and to prevent intoxicated and rowdy people from damaging public transit and interacting with other passengers.
This is mirrored in the VPD Operations Plan, of which members of the RCMP West Shore Detachment were a component, in that they were the first "ring" of interdiction of liquor into the Canada Day festivities. The VPD plan was the result of a collaborative meeting, and experience in previous Canada Day events, and envisioned three rings of policing around the downtown area. The first ring would be bus terminals in the suburbs, where police would be assigned to check people with bags/packsacks boarding buses and stop inebriated people from boarding. The second ring would consist of designated bus roadblocks where drivers of buses with problem passengers could stop for assistance. The third ring was a series of roving patrols and bicycle officers who would patrol the fireworks barricaded venue and the downtown core of Victoria.
The RCMP Operational Plan encouraged preventative policing and assistance to the neighbouring jurisdictions. It also provided for policing of venues in the detachment area where celebrations were taking place. The RCMP Operational Plan stated:
Last year West Shore Detachment worked hard to prevent liquor laden youth and rowdies from boarding BC Transit buses. In the past there have been numerous issues with youth and alcohol, especially when they arrived at the downtown core of Victoria. The effort put forth last year brought praise from both BC Transit and Victoria PD. It is the goal of West Shore Detachment to continue this high standard of preventative policing and assist our neighboring jurisdictions. Along with this preventative effort, West Shore members will be tasked with patrolling the beaches [...] to ensure this night remains "family" friendly.
On September 23, 2008 during a telephone conversation with the Commission's investigator, an RCMP Staff Sergeant advised that e-mails to RCMP members had not solicited any voluntary response in relation to the disposing of liquor or dealings with the public. Anecdotal evidence was that most liquor was seized from juveniles and was disposed of at the scene. The RCMP had no reports of citizens complaining about liquor being taken from them in relation to this event.
In a further written exchange between the Commission's investigator and the Staff Sergeant, the latter advised that there is an expectation that RCMP members should be able to articulate the grounds under which they conduct their searches.
The RCMP Staff Sergeant also informed the Commission's investigator that any liquor seized would have likely been destroyed at the scene and it would be unlikely that any notes were made concerning the destruction of this liquor. The Staff Sergeant indicated that he had been informed that almost every liquor seizure involved a minor that was found in possession contrary to the B.C. Liquor Control and Licensing Act. Furthermore, he informed the Commission's investigator that to date the RCMP detachment had not received any requests for the return of liquor seized on Canada Day.6
Further to these written questions, a report submitted by three RCMP members on their activities at Canada Day revealed minimal contact with the bus depots but much seizure of liquor and marijuana at other open-air venues. The report includes the following: youths drinking at a skateboard park, rum and beer dumped out; 20 beers found in the Langford parkway and dumped out; 26 oz. bottle of rum seized from an 18-year-old female and dumped out; female writing graffiti on the bridge at Langford Lake; backpack containing half a pound of marijuana found at Langford Lake; 12 beers dumped out from juveniles drinking on the beach; youth caught smoking marijuana, paraphernalia disposed of; check of bus stop, rowdy passengers but no trouble.
With the exception of this report, the only other "report" is an RCMP briefing note, provided to the Commission on July 23, 2008, which described the West Shore Detachment's actions on July 1, 2008. The briefing note stated that the two bus terminals were targeted in the early evening hours as people travelled towards Victoria, and later as they returned. Liquor use was prevalent in the later runs. The briefing note further mentioned that some people were checked for liquor as they boarded buses and some searches of backpacks, qualified as consensual, were conducted. According to the RCMP briefing note, no buses were emptied and searched and no systematic search of commuters was conducted. A small amount of open liquor was poured out at the scene. The day was described as uneventful from a policing standpoint. It should be noted that a note in the B.C. Transit log said that at 9:14 p.m. at the Langford exchange seven people were removed from the bus by the RCMP and liquor seized.
RCMP documents were requested to determine if any liquor had been seized and placed in the property office, or B.C. Liquor Control and Licensing Act offences forwarded for prosecution. There were apparently no reports on file in regards to either issue.
At the outset it should be noted that no other complainants or witnesses came forward to the Commission regarding the actions of the RCMP members on Canada Day. This, coupled with the absence of notes by the members, posed some challenges in assessing how the searches were actually conducted and on what basis the RCMP members relied to conduct their searches and seize liquor.
That being said, the broader and more important issues to be considered are in regard to the authorities that the RCMP members relied upon to conduct their searches.
Lack of note taking
Before addressing the aforementioned issues, I would like to comment on the lack of note taking by RCMP members during this joint operation with the VPD. The "E" Division (British Columbia) RCMP Operational Manual, section 100.5, subsection 7.1.2 directs a member who tells a citizen to destroy liquor with consent (i.e. to pour out a bottle of beer), to note this fact along with the name of the citizen and the brand of liquor in their notebook. An e-mail was sent out to all members of the West Shore Detachment soliciting any information on seizures. Three members submitted one report but requests from all other members on duty elicited no response, indicating no one had a notation in their notebook. This obviously is inconsistent with the RCMP policy and with good police practice.
Finding: The lack of note taking by members of the West Shore RCMP Detachment is inconsistent with RCMP policy.
Recommendation: I recommend that in the future RCMP members properly document each case when liquor is seized and destroyed.
Legal authority to conduct searches and seizures of liquor
In its complaint the BCCLA indicated that "police forces in Canada do not have the legal authority to initiate random or mandatory searches such as those that occurred in Victoria," and (b) "police forces in Canada cannot seize property without legal authority. While alcohol cannot be consumed in a public place, there is no law prohibiting people from carrying closed containers of alcohol."
As previously stated, the RCMP was a component of the VPD Operations Plan. The VPD Operations Plan established a multi-pronged approach-at transit stations, bus checkpoints, 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.
In order to assist the Commission with the legal issues surrounding the searches conducted, the services of a very experienced attorney were secured for the purpose of preparing a legal opinion focusing on the examination of bags carried by pedestrians and bus passengers, which is the subject of the complaint by the BCCLA. The analysis found below will be based on this legal opinion. I would nevertheless invite the reader to refer to the full legal opinion.
Section 8 of the Canadian Charter of Rights and Freedoms (Charter) gives everyone "the right to be secure against unreasonable search or seizure." 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.
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.7 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.8
Accordingly, 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.
(i) Consent and the Canada Day 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 section 8 of the Charter to be secure against unreasonable search and seizure. One who is detained (or arrested) is entitled to be informed of his or her section 10 Charter right 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.9
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. Consent to search must be informed, based on awareness of the right to refuse it. Although the police officers are not specifically required to advise the person of the right to refuse consent, failure to do so risks a finding of lack of consent.
Anyone whose bag was searched, such as Ms. A, 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. 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.10 Ms. A was not advised of her right to counsel. On this ground alone the bag searches were not consent searches.
Moreover, the stated goal of the VPD Operations Plan and of the RCMP Operational Plan, i.e. early interdiction of liquor, is potentially 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 subject to a search, and that is what the VPD Operations Plan and the RCMP Operational Plan rely upon to achieve their stated 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," as described at page 10 of the VPD Operations Plan, involves persuading them to acquiesce to the searches, which appears to have been successfully achieved in the vast majority of cases. In order for the VPD Operations Plan to succeed, the officers had to persuade everyone to agree to be searched, and to search all except those who "strenuously objected," as indicated at page 12 of the Operations Plan. 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 Ms. A who was searched at bus stops. 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.
Finding: Ms. A did not consent to having her bag searched by RCMP members.
Finding: There is a strong possibility that those whose bags were searched by RCMP members did not give genuine consent to having their bags searched.
(ii) The B.C. Liquor Control and Licensing Act and the Canada Day Searches
The Liquor Control and Licensing Act (Act) prohibits, among other things: consumption of liquor in a public place (section 40); intoxication in a public place (section 41); operating a motor vehicle containing liquor unless it is in a container that is unopened and has an unbroken seal (section 44); and possession of liquor by a minor, or supplying it to a minor (section 34).
The Act does 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 that is not a motor vehicle.
The RCMP Staff Sergeant who spoke with the Commission's investigator indicated that the RCMP relied on the Actfor their justification for checking for alcohol. The power to search without a warrant for unlawful liquor is contained in section 67 of the 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 the search of a person, this provision 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 objectively have 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.
Under section 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, section 72 of the 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.
Justification of the Canada Day searches under section 67 of the Actwould require scrutiny of each and every search by these standards.
The first question to ask is: What were the objective grounds to believe that the person was in possession of liquor. Merely because one is carrying a bag, 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, section 67 authorizes a search of a minor's bag or backpack if and only if there objectively are 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? Simply possessing liquor in a public place is not an offence. The "unlawful purpose" must be the individual's intention to consume the liquor in a public place and, in this case, the RCMP member must have sufficient grounds to believe this is being carried out. 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 section 67 of the Act similarly requires that the peace officer believe on reasonable and probable grounds that it is possessed for an unlawful purpose. 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 section 67 of the Act and the subsequent finding of the liquor does not alter that.
Nothing in the VPD Operations Plan or in the RCMP Operational Plan indicates that the officers were to make or did in fact make a record of the liquor seized, as called for by section 72 of the Act. When asked to produce their records or notes, the RCMP members, with the exception of three members, were unable to do so. Without such a record, the RCMP is not in a position to defend any compensation claims, including those that might be advanced if the seizures are subsequently determined to be unlawful. I have already commented on the lack of note taking by the RCMP members and will not be repeating my comments.
The probability that the purpose of carrying liquor in the Canada Day circumstances for an unlawful purpose would seem to increase as one nears the event venue, and also if it is evident that the person has already been drinking. Some of the Victoria searches were likely authorized under the Act, but section 67 provides no support for the screening searches that successful implementation of the VPD Operations Plan and the RCMP Operational Plan calls for.
In the case of Ms. A, it is important to note that when she was asked to open the bag she was carrying by members of the RCMP prior to boarding the bus, she had not been drinking, was alone and was acting in a normal fashion. As such, I find that the RCMP members did not have grounds, under the Liquor Control and Licensing Act, to search Ms. A's bag.
Finding: The RCMP members did not have grounds, under the Liquor Control and Licensing Act, to search Ms. A's bag.
(iii) The British Columbia Transit Act (and regulations) and the Canada Day searches
The buses in Victoria, B.C. provide a public transportation service under the authority of the British Columbia Transit Act.11
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 (section 6(2)), non-compliance with which is an offence under section 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 B.C. Transit has made.
The transit employee's power to deny the use of a transit vehicle is contingent upon the person's disobedience of 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, therefore, 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. Again, even if this regulation authorized a search, it would not authorize a search for all liquor, but only open liquor.
The VPD Operations Plan was not clear as to whether unopened liquor was to be seized at the bus stops or not. At page 14 of the VPD Operations Plan it is stated 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.
Finding: The British Columbia Transit Act and Transit Conduct and Safety Regulation do not authorize the searches of passengers' bags conducted at the bus stops, such as the search of Ms. A, either at the outset or at the established checkpoints where transit drivers stopped because they felt they needed assistance.
(iv) General Police Powers and the Canada Day Searches
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.12
As police powers flow from the duties of the police, the analysis must begin with an examination of the duties of the police imposed by statute or otherwise recognized at common law. The more significant 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."13
The common law duties to preserve the peace and prevent crime are preserved in federal legislation. Section 18(a) of the RCMP Act 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.
The Waterfield test can support only lawful police conduct. 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.
The majority 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.
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 a bag is quite intrusive, and a search of a bag that reveals the personal contents is also highly intrusive.
Balancing the reasons for the searches with their scope, it would seem that the Victoria Canada Day searches are not justified under the common law police powers. As there is no statutory basis supporting these searches, they are not justified under the Waterfield test.
The Charter and the Canada Day searches
As Mr. Justice Binnie pointed out in R. v. Clayton, the Waterfield "reasonably necessary" test is a lower standard than the Charter test. 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 discussed herein would have been in violation of 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, I must ask: What role do searches play in achieving that objective, and what impact do they have on constitutional rights?
The inspection of all bags at the bus stops and venue entrance was aimed at achieving the stated objective. However, particularly those searches performed at the bus stops would have captured people who are riding on the public transportation system but had nothing to do with the event, nor were acting unlawfully.
Based on the VPD Operations Plan and the RCMP Operational Plan, the Victoria Canada Day searches, while designed to achieve the objective of a safe civic celebration, appear to have been considerably broader in scope than Charter or common law considerations permit, and did not minimally impair the constitutional right to be secure against unreasonable search or seizure.
Finding: The RCMP Operational Plan and the VPD Operations Plan, while designed to achieve the objective of a safe civic celebration, appear to have been considerably broader in scope than Charter or common law considerations permit, and did not minimally impair the constitutional right to be secure against unreasonable search or seizure.
Conclusion
Civic events, such as those for Canada Day in Victoria, 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 a proper means to minimize public drunkenness and its consequences in order to protect the safety and enjoyment of the majority.
The Canada Day fireworks in Victoria typically attract a crowd of some 45,000 people, including a number of families. That the great majority of them appreciate the event is reflected in the attendance numbers. The fact that they appreciate the steps being taken to make it safe and enjoyable is similarly shown by their acquiescence in the searches. Indeed, the complaint of Ms. A 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 (section 41(2)), and to search those who are consuming liquor in a public place (sections 67, 40(1)), and to search a minor who is reasonably believed to be in possession of liquor (sections 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 searches led to the interception of 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. Ultimately, 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.
A plausible option to consider in order to permit the RCMP to continue with this successful approach to the prevention of the disruption of a civic celebration caused by the excessive liquor consumption of a relative few, is the necessity 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.
I recommend that until such time that the required legislative bases are put in place, the RCMP's participation in preventative and early interdiction liquor strategies be limited to police presence and that searches only be conducted when the RCMP members have grounds under the applicable legal authority. Furthermore, I reiterate my recommendation that RCMP members take notes and document their actions.
Recommendation: I recommend that until such time that the required legislative bases are put in place, the RCMP's participation in preventative and early interdiction liquor strategies in B.C. be limited to police presence and that searches only be conducted when the RCMP members have the requisite grounds under the applicable legal authority. Furthermore, I reiterate my recommendation that RCMP members take thorough and contemporaneous notes to document their actions.
Pursuant to subsection 45.43(3) of the RCMP Act, I respectfully submit my Public Interest Investigation Report.
______________________
Paul E. Kennedy
Chair
1 R.S.B.C.1996, ch. 267.
2 R.S.B.C.1996, ch. 38.
3 B.C. Reg. 377/85.
4 The Commission has provided a separate report directly to the Board.
5 A detailed account of Ms. A's interaction with the VPD, as well as that of another witness who did not want to be identified, which is contained in the Commission's investigative report, will be provided to the Board and the OPCC, but are not required for our purposes regarding the complaint made against RCMP members.
6 Section 70 of the Liquor Control and Licensing Act permits filing a request for the return of liquor.
7 R. v. Collins, [1987] 1 S.C.R. 265 at 278.
8 R. v. Caslake, [1998] 1 S.C.R. 51 at 60.
9 R. v. Debot, [1989] 2 S.C.R. 1140 at pp. 1146 and 1147.
10 R. v. Borden, [1994] 3 S.C.R. 145.
11 R.S.B.C.1996, c. 38.
12 e.g. R. v. Clayton, [2007] 2 S.C.R. 725.
13 Dedman v. The Queen, [1985] 2 S.C.R. 2 at paragraphs 11 and 32; R. v. Mann, [2004] 3 S.C.R. 59 at paragraph 26; R. v. Clayton, [2007] 2 S.C.R. 725 at paragraph 69; R. v. Kang-Brown, [2008] 1 S.C.R. 456 at paragraph 151.