Drunk in public: can police arrest me?

It’s the early hours of Saturday morning in downtown Vancouver. Even the stragglers are starting to head home after a night of drinking. They pour out of bars and nightclubs in a tapering trickle, like the last drops in a good bottle of scotch. Some hail taxis, hop on a bus or head down the steps into a SkyTrain station. Others walk home. Here’s where the issue begins. Many of those heading home will be in varying states of inebriation. Perhaps enough so to be considered drunk in public, or intoxicated in a public place, as it’s called by the law. It’s an offence that comes with an arrest and a $115 fine.

Common sense would suggest this law would only ever apply if you were downright plastered. Causing a scene, maybe getting aggressive towards others, or perhaps emptying the contents of your stomach onto the sidewalk. So surely, just walking home or sitting at a transit stop waiting for the next bus would not be considered a crime?

I’m just heading home, officer

It was 2012 when a man from Victoria was on his way home after watching a Whitecaps game in Vancouver. He was riding on a private bus on the way back, but decided to hop off to finish the remainder of his route by public transit. While waiting at the bus stop, an officer pulled up. The man tried to explain he wanted to save money by using his student bus pass.

The officer made him pour out two open bottles of liquor and gave him a ticket for being drunk in public. When the case came to court, it was discovered the officer gave him the ticket after seeing the man’s red eyes, flushed face and his “repetitious and constant stream” of talking. His breath also smelled like alcohol, but otherwise he was just trying to explain why he was at the bus stop. The ticket was dismissed in court.

That same year, again on Vancouver Island, a man had apparently drifted off while a passenger in a taxi cab. The cab driver, unable to get the man out of the taxi, flagged down a pair of officers for assistance. The officers found the man in “a nearly comatose state with balance issues and glossy, bloodshot eyes,” smelling like alcohol, and arrested him. However, the court found the officers were justified in arresting the man, as the cab driver wanted him to leave the taxi. The man was arrested for being drunk in public, but ultimately faced more serious charges when officers searched the contents of his pockets.

Or maybe you were just walking on the sidewalk, on the way home and a little off-balance by the effects of the drinks you had earlier. It was 2010 when a man was “swaying, staggering and stumbling along the sidewalk” in Prince Rupert, in the early hours of the morning. At one point, the man almost stepped onto the street. The man was walking home. An officer who spotted this pulled up. The cop was considering to arrest the man for being drunk in public, when he spotted the content’s of the man’s pockets hanging out. The man was then arrested for marijuana possession.

How drunk in public can I be before I can be arrested?

Here’s what BC’s Liquor Control and Licensing Act’s S. 74 says:

(1) A person who is intoxicated must not remain in a public place.

(2) A peace officer may arrest, without a warrant, a person who is intoxicated in a public place.

Unfortunately, the wording of the law allows police officers a lot of discretion to decide whether someone has drank so much that they can be considered “intoxicated.” Lawmakers have also decided they didn’t need to include a definition of intoxicated in the books, so judges generally use the dictionary to decide.

Here’s a summary of a few BC judges’ dictionary dives:

“Webster’s defines intoxicated as ‘affected by or as if by alcohol’. It defines intoxicate as ‘to excite or stupefy by alcohol or a drug esp. to the point where physical and mental control is markedly diminished.’

Oxford defines it as: 1 [with object] (usually as adjective intoxicated) (of alcoholic drink or a drug) cause (someone) to lose control of their faculties or behaviour.”

“Finally, the Concise Oxford Dictionary, 8^th Ed. (Oxford: Clarendon Press, 1991) defines ‘intoxicate’ as ‘make drunk; excite, or elate, beyond self-control’.”

“I have also considered the definition of the word ‘intoxicate’ in the Shorter Oxford English Dictionary, where the word is defined, inter alia, as follows: ‘to stupify or render unconscious or delirious, madden with a drug or alcoholic liquor; to inebriate, make drunk.’”

The conclusion on the definition of intoxication is cited the most in a 1979 case, Besse v. Thom. In that case, the judge said being intoxicated means “the condition of being stupefied or drunk from the consumption of alcohol or a drug to such a marked degree that the person is a danger to himself or others or is causing a disturbance.”

More blatant examples of drunk in public arrests seen by BC courts have included arrests after an officer witnessed public urination, displays of aggression or physically interrupting an officer while being spoken to, running in the middle of the road, or even being ejected out from a private property for being drunk. Generally speaking, the key is whether you are being a danger to yourself, or others. In some cases, merely causing a scene or drawing a crowd is not enough to justify an arrest for public intoxication.

The issue with drunk in public arrests

Intoxication in public is a provincial Liquor Control and Licensing Act violation and not an offence of the Criminal Code of Canada. As a result, a conviction does not result in a criminal record. However, in many cases, including two examples above where the accused were either in public transportation or walking home, officers discovered cause for further charges after stopping someone for the suspicion of being drunk in public.

While the intention of the offence of intoxication in a public place is to protect both the impaired person and others in public, police can and have often used the offence as an excuse to investigate for further crimes. If you believe you were searched and charged with further offences after an officer stopped you for being drunk in public, it is a good idea to contact a lawyer who may determine if your rights were breached.