There is nothing better than cracking a cold beer on the beach in the summer. Or having a glass of wine in the park near a marina and pretending that you own one of the yachts. Unfortunately, liquor laws kibosh drinking in public or having booze in an open container, and police powers to search and seize under these laws are unbelievably expansive. Apparently the members of the legislature don’t share our appreciation of drinking a cold beer while we work on our melanoma tan.
Nevertheless, the beach is usually full of people with travel mugs of swill. We’re on to you; nobody’s drinking coffee when it’s 28 degrees out. Nonetheless, it would seem that as long as you’re not visibly drunk and obnoxious (or a teenager with a slurpee cup) the police have better things to do than troll around sniffing drink containers.
Unless it’s a Celebration of Lights night when we seem to enter an alternate universe where Vancouver has turned into a prohibition-style, totalitarian state.
On fireworks nights the police are patrolling and searching people left, right, and centre. Backpacks are rifled through, people are frisked, and any liquor—opened or otherwise—is poured out.
We get why there’s a crackdown on nights when hundreds of thousands of people are congregating in a few downtown blocks. The fewer drunks, the fewer problems, and most people with a mickey of Fireball in their back pocket are probably going to be getting up to some sort of ill-fated debauchery.
But how can these searches be legal? We have a charter that is supposed to protect us from the oppressive arm of the state, right? Well, before you go spouting off about violations of your charter rights against unreasonable search and seizure, let me give you a heads-up on the law.
It’s provincial liquor legislation, not the Criminal Code, that prohibits drinking outside of licensed establishments and having open liquor in public, and these provincial laws give police mind-blowing search and seizure powers.
If on “reasonable and probable grounds” an officer believes that someone has unlawfully possessed liquor (like a minor with a backpack of PBRs), or liquor that is being kept for an unlawful purpose (like sharing those PBRs with all of his or her minor friends), the officer can search that person without a warrant. Police can also search “anywhere except a residence”, which can include a car parked on a public street.
If the police find booze during one of these searches, they can seize and destroy it, even if it’s unopened. And then they can fine you.
You just need to look at the crime stats following each night of the Celebration of Lights to see how much the police are relying on the provincial Liquor Control and Licensing Act to crack down on drinking in public. One media report said that after Wednesday’s fireworks, officers engaged in 605 liquor pour-outs. That’s a lot of lukewarm PBRs and mickeys of Fireball going down the drain.
But it’s the potential for abuse of these search and seizure provisions that has people concerned.
“I’ve seen instances where the police have relied on this legislation to search through the small zippered pockets on the inside of a backpack or other locations where, arguably, one would not reasonably expect to find concealed liquor,” says Arvin Asadi, a criminal lawyer with Cobb St. Pierre Lewis.
So what can someone do when they think that the police are relying on these liquor laws as a thinly veiled means to search for drugs or prohibited weapons?
Asadi says your recourse is through the courts if a charge is laid, but practically speaking, you don’t want that.
"A criminal charge, even if it doesn't lead to a conviction, could have a serious impact on your life, particularly if you like to travel to the United States," Asadi advises.
The police know that any charges flowing from finding a joint secreted in a little pocket during what is supposed to be a search for alcohol are not going to stick, so often they will just seize or destroy the drugs at the scene. If that happens to you, you’ll probably want to take that lump and carry on. You’re not going to want to come forward and complain that cops took your drugs. That can’t end well.
Before you get brave and sass one of the officers, or try to prevent a search, don’t think they won’t up the ante. Not only can they fine you under the provincial regulations or city bylaws, they can arrest people under the Criminal Code for obstruction, causing a disturbance, or common nuisance. “Common nuisance” is when someone does something illegal that endangers the “comfort of the public” or otherwise “obstructs the public in the exercise or enjoyment of any right that is common to all the subjects of Her Majesty in Canada”. That’s a pretty big catchall. I like to think that it’s the closest law we have to making it illegal to be loud and lippy.
Your takeaway from all of this? If you’re going to roll the dice and venture out with a backpack full of booze on fireworks nights, leave the top-shelf liquor at home and think twice about what you put in your little zipper pockets.