R. v. E.S. Date:, 2016 BCPC 270

Citation: R. v. E.S. Date: 20160831 2016 BCPC 270 File No: AH90167802-1 Registry: Victoria IN THE PROVINCIAL COURT OF BRITISH COLUMBIA TRAFFIC REGINA v. E.S. REASONS FOR JUDGMENT OF THE JUDICIAL JUSTICE H.W. GORDON Appearing for the Crown: Cst A. Hildred Appearing in person: E. S. Place of Hearing: Victoria , B.C. Date of Hearing: June 14, 2016 Date of Judgment: August 31, 2016

Introduction [ 1 ] The incident that this decision addresses is a search by a peace officer of a backpack worn by a minor, a student at the University of Victoria, outside of a UVic residence which resulted in discovering several unopened cans of beer. [ 2 ] As a result of this discovery, the officer charged the minor under section 34(3) the Liquor Control and Licensing Act with being a minor who, without lawful reason or excuse, had liquor in his or her possession. [ 3 ] Section 34(3) of that Act provides: Prohibitions with respect to minors 34

(3) A minor who, without lawful reason or excuse, has liquor in his or her possession commits an offence. [ 4 ] These Reasons are as much to give guidance to students and the enforcement officers on the issues raised as for explaining the reasons for my decision. Background [ 5 ] Some background is useful. I am aware of some of this background from the number of previous disputed tickets I have heard over the past number of years in very similar circumstances at this location. [ 6 ] UVic has a number of residences on campus for its students. At two times of the academic year, a problem at those residences arises.

Those two times are in September and in April, the former for most students being the beginning of the academic year and when the problem at UVic is most acute and the latter being the end of the academic year coinciding with the end of examinations. [ 7 ] What occurs in September is that students in the residences, and some non-residence students, “party”. That partying usually involves the consumption of liquor.

Some consume too much liquor and acts of mischief and vandalism result, most often pulling the fire alarm or damaging property in a residence. [ 8 ] The UVic officials, in attempting to stem or reduce these occurrences, engage peace officers to patrol the grounds around the residences to enforce the appropriate provisions of the Liquor Control and Licensing Act in September and April. [ 9 ] The University advises the students residing in the residences of this enforcement action. [ 10 ] As officers of its own security force are not peace officers, UVic hires local off-duty police officers to do this task.

Most, if not all, of these officers are officers of the Saanich Police Department, the municipality in which half of the University is located. [ 11 ] There are two charges that I regularly hear year after year as a result of this enforcement measure: possession of open liquor under section 41(1) of the Liquor Control and Licensing Act or, in the case of minors, possession of liquor under section 34(3) of that Act. The Evidence [ 12 ] This then takes us to the facts of this particular case. [ 13 ] The Disputant, E.S., is a student at UVic. On September 7, 2015, he was exiting a residence at 10:00 p.m.

He was observed by two off-duty Saanich police officers who were engaged by UVic to patrol and enforce the Act . They observed E.S. walking on the grounds outside a residence. On his back was a backpack. [ 14 ] The officer who gave evidence testified that this backpack had a “boxy” outline which he concluded was consistent with the shape that would be made by a beer case. He also concluded that E.S. appeared to be under the age of 19. [ 15 ] The officer stopped E.S. and asked him for identification.

E.S. produced a driver’s licence in his name showing him to be 18 years of age. [ 16 ] He then advised E.S. that he was going to search his backpack for liquor. The officer testified he did this under the authority of section 67(1) of the Liquor Control and Licensing Act. [ 17 ]

Section 67 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.

(2) For the purposes of this section, a peace officer may without a warrant (

a) search any person, and (

b) enter or search, or both, anywhere except a residence.

(3) A person commits an offence if the person (

a) obstructs or attempts to obstruct an entry or search by a peace officer under this section, or (

b) refuses or fails to admit immediately a peace officer demanding entry anywhere under this section. [ 18 ] At the request of the officer, E.S. then opened his backpack. In it, there was no case of beer or any box of any kind. All the officer could see was a rolled up piece of clothing.

The officer then removed the piece of clothing and under it were three 355 ml cans of unopened Bud Light Apple and four 355 ml cans of unopened Lucky Lager. [ 19 ] He thereupon issued and served on E.S. a violation ticket charging E.S. with being a minor in possession of liquor under section 34(3) of the Liquor Licensing and Control Act. [ 20 ] On cross examination, the officer said he asked E.S. to search his backpack based on the totality of the facts that he observed and knew: the time of day, E.S.’s appearance (his age), the purpose of the officer being there, the shape of the backpack and the officer’s experience that youth will conceal liquor. [ 21 ] Also on cross examination E.S. put to the officer that there was a group of approximately 10 students in close proximity to E.S., of whom four were wearing a backpack.

The officer could not recall but said there could have been. The officer did say that it was primarily the box-like shape of the backpack, in the context of the other factors, which gave him the reasonable grounds to suspect it contained a case of beer. Analysis of Issues [ 22 ] At the end of the hearing, I stated that I was satisfied on the evidence that the officer had reasonable grounds to believe that E.S. had liquor on him. [ 23 ] I questioned though whether the words of section 34(3) of that Act prohibited a minor from carrying unopened cans of beer in a bag.

It struck me that the wording of section 34(3) was a very oblique way to say more plainly, ‘except as permitted in this section, a minor must not be in possession of liquor’. [ 24 ] I reserved my judgment to consider and research the issue. [ 25 ] In doing my research and refreshing my understanding of the law, I concluded I was wrong to decide the officer had reasonable grounds to believe E.S. was in possession of liquor. [ 26 ] Although the B.C cases I found on minors and liquor do not say directly that minors are prohibited from possessing liquor, except in the circumstances set out in the Liquor Control and Licensing Act and its Regulations (those circumstances usually being work related), the assumption of the judges appears to be that such is the case. [ 27 ] So on that issue, I conclude that E.S., being a minor, was prohibited from possessing liquor. [ 28 ] On the other issue of the search under section 67(1), I now conclude the officer did not have reasonable and probable grounds to believe E.S. had liquor in his possession and the search was unlawful. [ 29 ] In my view, E.S. had a reasonable expectation of privacy in his backpack and that it would not be subject to an arbitrary search. [ 30 ] E.S. was on the grounds of a university where, from my own experience, and from living only a few blocks from the University of Victoria, it is a very common occurrence for students to be wearing or carrying a backpack. [ 31 ] Most of the caselaw I found on section 67(1) of the Act are cases in which a search initially conducted under the ostensible authority of that

section resulted in a finding of drugs and that finding is what brought the accused before the Court. [ 32 ] In these judgments, the Court usually analyzes the legality of the search in the first place on route to deciding the legality of the finding of the drugs. [ 33 ] As an example, in R. v. Philip Campbell 2002 BCSC 553 , Justice Smith says at paragraph 33: [33] Although the search was warrantless Crown submits there were reasonable and probable grounds to suspect that Mr. Campbell had committed an offence under the LCLA . It lists the following factors in support of its position: (

a) Crescent Beach was a well known area for underage and young persons to hang out and consume alcohol and/or drugs; (

b) the peace officer’s experience in patrolling the area confirmed that understanding; (

c) the time of year, the day of the week, and the hour of the day, also supported the peace officer’s suspicions; (

d) the backpack was a common manner of transporting alcohol and/or drugs by young persons; (

e) Mr. Campbell failed to produce any identification upon request; and, (

f) Constable Jacobs became suspicious when he observed Mr. Campbell walk away from the group as the peace officers were approaching. [ 34 ] Justice Smith accepted the defence contention that the officers had only mere suspicions and suspicions alone are not sufficient

to establish the objective grounds necessary for a warrantless search. [35] I note the similarity in the factors listed above and the factors listed by the officer in this case. [36] Having reviewed the caselaw, I too conclude the officer in this case did not have objective grounds to conduct a warrantlesssearch under the authority of section 67(1). In my view, this search was more in the realm of a fishing expedition based on meresuspicion. [37] In saying this, I do not suggest the officer was being officious.

The officer was there to ensure the safety of students at or in theresidences and the good order of the residences and the University. But in doing so, the officer was required to maintain the properbalance between that duty and respecting the rights of those on the campus to walk freely without interference. [38] As it is succinct, I quote the following passage from Justice Iacobucci in R. v.

Mann, 2004 SCC 52 , [2004] 3 SCR 59at paragraph 15 which states the principle that guides me here: As stated earlier, the issues in this case require the Court to balance individual liberty rights and privacy interests with a societal interestin effective policing. Absent a law to the contrary, individuals are free to do as they please. By contrast, the police (and more broadly,the state) may act only to the extent that they are empowered to do so by law.

The vibrancy of a democracy is apparent by how wisely itnavigates through those critical junctures where state action intersects with, and threatens to impinge upon, individual liberties. [39] In this case, there is legal authority to conduct a warrantless search: section 67(1) of the Liquor Control and Licensing Act. That authority is circumscribed: belief based on reasonable and probable grounds and the principles of the common law and the Charter. [40] R. v. Mann was a case involving investigative detention and a subsequent warrantless search.

The principles enunciated there inmy view apply equally to the investigative detention and

section 67 search in this case. [41] Under both the common law and

section 67, there must be reasonable grounds (sometimes referred to as articulable cause) toconduct a warrantless search. [42] Reasonable grounds are not sustained merely by an officer’s hunch based on intuition gained by experience [Mann, para 30]. [43] One of the reasons the officer gave in this case for supporting reasonable grounds was the boxy shape of the backpack whichlooked like a 12 pack case of beer.

The other reasons were based on intuition, experience and the reason the officer was there. [44] On the evidence before me in this case, the only objective ground the officer had for believing there was liquor in the backpackwas the shape of the backpack that appeared consistent with being the shape of a 12 pack case of beer. All of the other grounds weresubjective. [45] In my view, the officer did not have the threshold reasonable grounds to search E.S.’s backpack under section 67(1).

And evenif the boxy backpack could establish reasonable grounds, once the initial part of the search did not reveal a case of beer, the officer nolonger had reasonable grounds to continue the search. The cans of beer were not in plain view and were discovered only after the foldedhoodie was removed. Decision [46] For those reasons, I dismiss the charge. Without the search, the officer would not have any evidence that E.S. was in possessionof liquor. H.W. Gordon Judicial Justice