R. v. Thame Date:, 2012 BCPC 356

Citation: R. v. Thame Date: 20121003 2012 BCPC 0356 File No: AH47106431 Registry: Victoria IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v . TREVOR STANLEY THAME REASONS FOR JUDGMENT OF THE JUDICIAL JUSTICE H. W. GORDON Appearing for Crown : Cst. Brandsma Place of Hearing: Victoria , B.C. Date of Hearing: August 14, 2012 Date of Judgment: October 3, 2012 Introduction [ 1 ] On March 12, 2012, the Disputant, Trevor Stanley THAME, was charged with being intoxicated in a public place under

section

41 of the Liquor Control and Licensing Act , RSBC 1996, c. 267. [ 2 ] The issue addressed in these Reasons is what constitutes intoxicated within the meaning of

section 41 . [ 3 ] The facts are essentially not in dispute. Legislation [ 4 ]

Section 41 of the Liquor Control and Licensing Act provides: Drunkenness in public place 41

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

(2) A peace officer may arrest, without a warrant, a person found intoxicated in a public place . Issue [ 5 ] Mr. Thame had previously consumed, and was still under the influence of, alcohol and was in a public place. But was he intoxicated. Facts [ 6 ] In

summary the facts are that Mr. Thame, a university student who lives in Victoria, had attended a Vancouver Whitecaps game on March 10, 2012 in Vancouver. Whether because the Whitecaps were defeating an arch-rival, Montreal Impact, or for other reasons, Mr. Thame had consumed alcohol at the game. He had attended the game with other enthusiasts from Victoria, going and returning on a privately hired bus. On the return, alcohol got the better of some of the passengers and Mr.

Thame decided to avoid any difficulties by getting off the bus at Mackenzie and Quadra and make his way home the remainder of the way by public transit. [ 7 ] One error Mr. Thame made while walking to the bus stop was to carry with him two opened bottles of liquor. He said as he crossed the street he passed in front of a Saanich police officer in a van and thought at the time this did not look good. He assumed the reason Cst. Brandsma pulled up at the bus stop shortly thereafter was because the other officer had radioed his observation in. [ 8 ] Mr.

Thame, realizing the situation he was in, immediately engaged in conversation with Cst. Brandsma but felt he was not obtaining a friendly reception. He had wanted to use his student bus pass to save money but realizing the situation and how it looked, asked the officer if they could move to the parking lot adjacent to the bus stop and call a taxi. She refused this request. [ 9 ] Cst. Brandsma noted several indicia that Mr. Thame had been drinking, in addition to having two open bottles of liquor with him.

She noted the strong odour of liquor on his breath, red eyes, flushed face and in their interaction, a repetitious and constant stream of talking. However, she did not feel he was a danger to himself or members of the public and other than the issuance of a ticket for being intoxicated in a public place and disposing of the two open bottles of liquor, she felt he was well able to proceed on his way by public transit. Another officer, Cst.

Hendren, who arrived while this was going on expressed essentially the same perception. [ 10 ] Of some significance in my view of how this played out is that as the conversation progressed, Mr. Thame was somewhat animated (Mr. Thame described it as argumentative and confrontational), as he judged he was being unfairly treated by being issued a ticket. He felt he had done the right thing by getting off the private bus and was making his way home without difficulty, and was just sitting quietly waiting for the public transit to arrive. Mr.

Thame also felt he and the officer were not communicating and that his efforts and the good choices he was making were not being acknowledged by Cst. Brandsma but rather were being challenged. It would seem that for her part, Cst. Brandsma maintained an even and professional demeanor throughout. This interaction between Mr. Thame and Cst. Brandsma is perhaps an illustration of the adag[e]: if you find yourself in a hole, the first thing to do is stop digging. [ 11 ] In my view, there was nothing in Mr. Thame’s observed behaviour prior to his interaction with Cst.

Brandsma which the hypothetical reasonable person (whether or not on the Clapham omnibus, Bondi tram or BC Transit) would find offensive or bothersome. Analysis [ 12 ] The Act does not define “intoxicated”. I could not find any BC case law on the meaning of intoxicated under

section 41 of the Act . [ 13 ] Therefore I must look to the ordinary meaning of intoxicated, and a meaning that is in context with the statute. In doing so, I also call in aid the meaning of intoxicated in other jurisdictions. [ 14 ] 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”. [ 15 ] 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.

[ 16 ] The word derives from the Latin: in + toxicum = poison [hence, toxic]. [ 17 ] My research discloses that in other jurisdictions around the world, public intoxication is the equivalent of drunk and disorderly [e.g. Australia and United Kingdom]. In the United States, the jurisdiction on this matter is reserved to the States under the Tenth Amendment to the Constitution.

As one might expect in 50 different jurisdictions, each state has different laws on the matter, but the law in California, in my view, reflects what I conclude is the meaning of the British Columbia legislation. [ 18 ] The California Penal Code defines public intoxication as someone who displays intoxication to liquor, drugs, controlled substances or toluene and demonstrates an inability to care for themselves or others, or interferes or obstructs the free use of streets, sidewalks or other public way. [ 19 ] Returning to Mr.

Thame’s condition, he neither demonstrated an inability to care for himself nor did he interfere or obstruct the free use of streets, sidewalks or other public ways. He had not lost control of his faculties nor of his behaviour. Decision [ 20 ] For those reasons, I find him not guilty of being intoxicated in a public place. _______________________________ H.W. Gordon Judicial Justice