Stretching the law too far is ridiculous.

Many years ago in Tokyo, Japan, a motorist was driving on a street in that city and he stuck out his left arm to signal that he was going to make a left turn into the lane on his left. No sooner had he stuck his arm out of his window when a truck smashed into it and took the motorist’s arm right off. Meanwhile, the motorist’s car was still turning into the left lane. While the man was recovering in the hospital, the police officer who saw the man lose his arm in the mishap, charged him with making a left turn without signaling. He said in court that he was aware that the accused had lost his arm in the accident but he as he put it, “The left arm must remain outside the car until the turn has been completed.” Needless to say, the man was acquitted.

Several years later when Queen Elizabeth II was visiting Canada, her plane arrived at the Pearson International Airport in Toronto and as she was being escorted to the main area where a large crowd and dignitaries were waiting for her, a security guard asked her to open her purse; which she did. Needless to say, everyone was shocked. The guard’s explanation was, “When anyone comes into Canada, they can be searched. I was just doing my job.”

Common sense tells us that there is a limit as to just how much someone is expected to do their job. These two fools stretched the limit to extremes. One would hope that fools like them went the way of the dodo bird---gone for ever. Alas, that isn’t so and I doubt that we will ever see the last of them. Here is a current case in point.

In 2009, a couple had been drinking in a local tavern in the city of Bowmanville, Ontario, Canada and like sensible and responsible citizens, they arranged to be driven home by a designated driver rather than drive home in their own car. While they were waiting in the tavern’s parking lot for the designated driver to show up, a police officer appeared and noticed that the two were intoxicated. Would you believe it? He charged them with being intoxicated in a public place. Police officers must have better things to do than pick off patrons of a bar or restaurant as they leave. Not that twerp. This sort of conduct of police officers turns people off. And they wonder why so many citizens hate them.

Surely, it can’t be against the law to have a few drinks at a bar or consume a bottle of wine at dinner and walk outside to wait for a ride home. According to the police officer, it is against the law. Suppose fifty people were in a restaurant celebrating and they had made arrangements for a private bus to take each of them home. And suppose approaching the bus to climb into it, they were all intoxicated and while intoxicated, they were not making a ruckus and they were in no danger to themselves or anyone else. What would a stupid police officer do? He would charge them all because while standing on the sidewalk, they were all intoxicated in a public place.

In 1964, I represented my first client in court. He was charged with drinking under age. He was nineteen at that time. He told the police officer that charged him that he wasn’t drinking alcohol but rather he had just eaten some liquored Bon Bons and that was why his breath smelled as if he had been drinking. The officer didn’t care. When the matter got to court, I argued that if eating liquored Bon Bons was against the law, that law would be in the Code and it wasn’t in the Code. The judge agreed and threw the case out.

Public intoxication falls under provincial jurisdiction so the laws can differ from province to province. At one extreme we have British Columbia where the liquor laws prohibit an intoxicated person from being in a public place and police are given the power to arrest, without a warrant, any person found intoxicated in a public place. It became an issue in Vancouver during the Olympics and liquor stores closed their doors early to try and curtail drunkenness on the streets. Still, the police were lenient during Olympic celebrations. To have gone wild arresting intoxicated celebrants on the streets would have been a bad public relations fiasco.

Ontario laws are more nuanced and set out two levels of intoxication. If you are slightly intoxicated, you may be given a ticket and sent on your way. The first level is ordinary intoxication. This kind of intoxication is more than mere impairment and it isn’t enough that a person appears to be under the influence of alcohol where he could be a danger to himself (by walking directly into traffic) or to someone else. (by pushing them into oncoming traffic) What this means is that having consumed enough alcohol to be impaired for the purpose of driving doesn’t necessarily mean that that person is intoxicated. For an arrest to be made, there must be ‘substantial’ or ‘extreme’ impairment, or as one judge has put it, the person must be ‘stupefied by liquor.’ The second level of intoxication in Ontario requires a higher level of intoxication. If you qualify under the second level, you may be arrested, that is taken to a police station and charged.

Now there are some who will say that an arrest should be rare even if the person is stupefied by liquor as there are other ways of eliminating the risk to himself or others, like putting the individual in a cab. I disagree with that reasoning. Anyone that is that drunk may very well tell the cab driver to let him out of the cab and then walk directly into an oncoming car and be killed.

It’s obvious the law has been crafted so as to render it very difficult for a police officer to arrest someone for mere intoxication and that’s a good thing. While public intoxication isn’t something we want to encourage, we also don’t want police officers to be arresting people who merely appear to be tipsy. In Ontario at least, it isn’t against the law to have a few drinks at a bar or consume a bottle of wine at dinner and walk outside to wait for a ride home. You’re only committing an offence of intoxication in a public place if there is extreme or substantial impairment as would be evident to a reasonable person.

Now, if you are drunk and you cause a disturbance in a public place by fighting, screaming, swearing, singing or using insulting or obscene language that would disturb the public, you could be charged with the criminal offence of causing a public disturbance. Now you’re in criminal code territory and a conviction could result in a criminal record. A conviction under provincial law is not considered a criminal conviction.

As for the couple charged in Bowmanville, they pleaded guilty and paid a $65 fine, so we’ll never know if the police did the right thing in ticketing them. The police officer was within his right to charge the couple but in doing so, he brought ridicule on his local police force.

The criminal charge being of "drunk in public" actually requires more than a person being drunk and being in public: the legal standard usually requires that a person be so drunk as to be a danger to themselves or others before the law will intervene.

California's Penal Code Section 647 (f) provides that it is illegal to be in any public place under the influence of intoxicating liquor (or combination of liquor and drugs), in such a condition that he or she is unable to exercise care for his or her own safety or the safety of others, or by reason of his or her being under the influence of intoxicating liquor (or drugs), interferes with or obstructs or prevents the free use of any street, sidewalk, or other public way.

If the offending party is under the influence of alcohol only, as compared to being under the influence of drugs or a combination of alcohol and drugs, the officer may seek to place the arrestee in "civil protective custody" for 72-hours. This time will be used to evaluate the "inebriate" and will be a bar to further prosecution.

California's laws relating to people who are accused of being drunk in public are fairly typical of the laws around the United States.

One day after the turn of this Century, at about 2:00 a.m. Shaun Hagarty and his brother Michael were making their way along railway tracks in Pembroke, Ontario when they were approached by three police officers. To the officers, Michael Hagarty showed signs of drunkenness. Sgt. Warren, the senior police officer present arrested Michael for intoxication in a public place. In order to arrest for public intoxication, a police officer must have reasonable grounds to believe that an individual is intoxicated in a public place, and arrest is necessary for the protection of some person, be it the person who is intoxicated or someone else.

What is meant by the words, ‘public place’? Black’s Law Dictionary defines it to mean;

“A place to which the general public has a right to resort; (be in) not necessarily as place devoted solely to the uses of the public, but a place which is in point of fact, public rather than private. A place exposed to the public and where the public gather together or pass to and from.” In other words, it is a place in which the general public is invited or permitted access.

A railway track is not a public place because the general public has no right to be walking on railway tracks because to do so is in fact, trespassing on private property.

The judge hearing the case in December 16, 2005, found Shaun Hagarty not guilty of the offence charged. He analyzed the evidence of Sgt. Warren, Constable Carroll and Constable Roach and concluded that Sgt. Warren had no reasonable and probable grounds to arrest Michael Hagarty for public intoxication. I don’t know if he concluded that Hagarty wasn’t intoxicated but even if he was, a railway line is not a public place and for this reason, the arrest would have been illegal in any case.

Here is another case that bears retelling. On April 19, 2003 in Barry’s Bay, Ontario, an Ontario Provincial police officer who was alone on duty that evening, was driving his car on a residential street when he saw Jerry Yakabuskie and Vanessa Cowan walking down the street. Yakabuskie yelled a comment, the content of which is disputed. Yakabuskie and Ms. Cowan testified that he called out “Happy Easter”, while the officer claimed that he heard, “fuck you, fucking pig, fuck off”. In any case, it is not against the law to tell a police officer to fuck off. That right comes under the heading of freedom of speech.

Years ago, I represented a man who said the same thing to a police officer and who was subsequently charged with creating a disturbance. I argued in court that telling an officer to fuck off isn’t creating a disturbance. It is only an offence if it results in a disturbance being created and in that particular case, the disturbance had been underway long before my client came upon the scene. The judge agreed and dismissed the case.

The police officer in Yakabuskie’s case described him as being intoxicated because he smelled of liquor, his eyes were bloodshot and blurry, and his speech was slurred. I represented a man in a court in Oshawa, Ontario who was charged with driving while impaired because his breath smelled of liquor, eyes were bloodshot and blurry and his speech was slurred. I argued that my client was suffering from diabetes (which gives off a smell of alcohol in one’s breath) his eyes were bloodshot because he just got off work where he worked in a flour mill for twelve hours non-stop and his voice was slurred because he was nervous at being pulled over by the police. He too was acquitted.

As a result of a complaint made by Yakabuskie, the appellant was charged with unlawful or unnecessary exercise of authority for making an unlawful or unnecessary arrest and using unnecessary force against a person contrary to section 2(g)(i) and (ii) of the Code of Conduct contained in the Schedule to O.Reg. 123/98. Yakabuskie said that the officer struck him three times in the head.

The Commission hearing Yakabuskie’s complaint referred to subsections 31(4) and (5) of the Liquor Licencing Act, which authorizes a police officer to arrest without warrant a person who is in an intoxicated condition in a place to which the general public is invited or permitted access. The Commission however observed that Yakabuskie did not display any of the classical symptoms of intoxication when he was arrested, such as falling down or vomiting. Given the above, and the testimony of both Ms. Cowan and Yakabuskie it was certainly open to the Hearing Officer to conclude that the arrest in question was neither lawful nor necessary.

In order to arrest a person for public intoxication, a police officer must have reasonable grounds to believe that an individual is intoxicated in a public place, and that that person’s arrest is necessary for the protection of that person or someone else. A police officer can also arrest a person if he or she finds a person apparently in contravention of the Liquor Licencing Act, and the person refuses to provide his name and address.

While the officer arrested Yakabuskie for public intoxication, his notes from the evening of the arrest did not mention any difficulty Yakabuskie had in walking, and the officer conceded in cross-examination that Yakabuskie did not seem mentally confused. His grounds for arrest were the smell of alcohol, the bloodshot eyes, slurred speech, and aggressive attitude.

The Commission observed in its reasons that Yakabuskie did not exhibit the classic symptoms of intoxication such as; “His clothing was not in disarray, he understood the questions being asked, he was not unsteady on his feet or falling down, urinating on the street or vomiting”. Incidentally, the charges against Yakabuskie were ultimately withdrawn or dismissed.

The officer testified he was of the opinion that Yakabuskie was a danger to himself or others, and yet, he made no effort to determine where Mr. Yakabuskie lived or how far he was from his home. For example, if Yakabuskie was just a hundred feet from his home, would the arrest been appropriate, even if Yakabuskie was falling down drunk?

Since the officer had no justifiable reason for arresting Yakabuskie, his assault of Yakabuskie because he was resisting a wrongful arrest, was unjustified and that is how the Commission ruled.

The police have the right to use their discretion in the enforcement of the law and as such, common sense should prevail in cases such as those I have written about. Of course, this does not mean that if the officer sees a crime being committed, he can ignore it. There's a difference between the ministration and administration of justice. Nobody (except mechanical jurisprudence theorists) wants a ministerial agency of justice, one that would ritually and religiously follow every rule and regulation down to the letter in a mechanistic, repetitive, assembly-line manner. Instead, we need responsible police officers who show ‘good judgment’ and exercise discretion by assessing the context of each and every situation.

There is a legal term that is often used in court that best defines these incidents. In Latin, it is; De minimis non curat lex. In English, it means; ‘The law does not care for, or take notice of very small or trifling matters.’ Had the couple in Bowmanville gone to court with respect to their charge, the justice of the peace would probably have dismissed the case based on the basis of De minimis non curat lex.

The officers I have written about did not display good judgment. Instead, they acted as bullies one finds on our streets. They abused their powers to the extent, that they caused their victims unnecessary grief. If the police want the support of the general public, they have to come across as reasonable and caring members of the public.

Charging the couple with intoxication who were standing in a parking lot of a tavern while waiting for their designated driver to pick them up, was not only unreasonable, it was outright stupid and it is also evidence that the police officer who charged them had an uncaring attitude about the impression it would leave on the image of his police force.