Intoxicated Condition

R. v. Nahimana, 2004 ONCJ 265 (CanLII)

[9] Both officers confirmed that Mr. Nahimana was asked to identify himself on the basis that he was in contravention of section 31(4) of the Liquor Licence Act by being in an intoxicated condition in a public place.

[10] Mr. Nahimana refused to identify himself despite several requests. At 4:57 a.m., Officer Rheaume decided to place Mr. Nahimana under arrest for having failed to identify himself.

[17] This was a warrantless arrest. Crown counsel submitted that police were authorized to arrest Mr. Nahimana pursuant to section 48 of the Liquor Licence Act. Section 48 of the Act reads as follows:

If a police officer finds a person apparently in contravention of this Act…and the person refuses to give his or her name and address…the police officer may arrest the person without warrant.

[24] There was no inquiry as to Mr. Nahimana presenting any risk either to himself or to others. He was well orientated although he may not have a receptive attitude. It appears he may have felt challenged by the mere presence of the officers. His aptitude or ability to handle himself was otherwise of little or no concern.

[25] The odour of alcohol is simply indicative of Mr. Nahimana having consumed alcohol. Red or blood shot eyes can be attributed to many factors ranging from a medical condition to fatigue.

[27] The Liquor Licence Act speaks of a person being in an “intoxicated condition”. I have searched the word “intoxicate” in the Concise Oxford Dictionnary, 10th Edition. “Intoxicated” is defined as “a condition causing someone to lose control of their faculties”. There is no indicia of intoxication in the matter at hand. There are no objective signs that Mr. Nahimana was intoxicated upon being approached. He was not unsteady on his feet. He was not noted to be swaying from side to side. He appeared to have good motor skills. Further upon being handcuffed, Mr. Nahimana showed good cognitive ability. He fully understood the process. He identified himself.

[29] In the absence of Mr. Nahimana being a person apparently in contravention of the Act, the officers were not entitled to demand that he provide his name and address and they were not entitled to arrest him for having failed or refused to do so.

[30] In order to establish the actus reus of an offence under section 270(1)(a) of the Criminal Code the Crown must establish that at the time of the assault, the officer assaulted was in the execution of his duty. By proceeding to arrest Mr. Nahimana as they did, neither officer was lawfully engaged in the execution of his duty and consequently Mr. Nahimana was not obliged to subject himself to the arrest.

[31] Counsel for the Crown did not argue that in the alternative, it was open to the court to substitute a conviction for the included offence of simple assault. The accused is a person, who in the circumstances, was entitled to attempt to extricate himself so long as he did not use more force than reasonably necessary. Based on the evidence, even had I been urged to make a finding that a simple assault was committed, I could not have done in these circumstances beyond a reasonable doubt. In fact, in my assessment of the evidence it could have been argued that the punch referred to by Constable Rheaume had a lot to do with the fact that Mr. Nahimana was struggling to release his wrist from Constable Walden’s grip. It is likely at the moment that he yanked himself away his fist crossed Constable Rheaume’s face and thus became described by him as a punch.

[32] In the final analysis while it may have been open to the court to substitute a conviction for the included offence of assault, it would not have been possible to conclude beyond a reasonable doubt that the force used by Mr. Nahimana was more than necessary in the circumstances.

[33] In the absence of any common-law or statutory foundation justifying Mr. Nahimana’s arrest (which was not argued) and having found that Officer Rheaume (as well as Officer Walden) was not acting in the execution of his duty, the offence as charged has not been made out. There shall be a finding of not guilty and an acquittal entered.