Open Alcohol (Public Place)

Liquor Licence Act, R.S.O. 1990, c. L.19

31 (1) In this section,

“residence” means a place that is actually occupied and used as a dwelling, whether or not in common with other persons, including all premises used in conjunction with the place to which the general public is not invited or permitted access, and, if the place occupied and used as a dwelling is a tent, includes the land immediately adjacent to and used in conjunction with the tent. R.S.O. 1990, c. L.19, s. 31 (1).

(2) No person shall have or consume liquor in any place other than,

(a) a residence;

(b) premises in respect of which a licence or permit is issued;

(c) a private place as defined in the regulations; or

(d) despite any designation of a place made under section 35 and subject to the regulations, a public place designated by a by-law made by the council of a municipality. R.S.O. 1990, c. L.19, s. 31 (2); 2019, c. 7, Sched. 38, s. 2.

(3) Subsection (2) does not apply to the possession of liquor that is in a closed container. R.S.O. 1990, c. L.19, s. 31 (3).

(3.1) Despite clause (2) (b), no person shall consume beer or wine in a licensed ferment on premise facility except as permitted by the regulations. 1998, c. 24, s. 13; 2006, c. 34, s. 16 (45).

R. v. Trela, 2009 ONCJ 167 (CanLII)

[47] The offences before the Court are created by subsection 32(1) of the Liquor Licence Act. In order to sustain a conviction against the defendant on both charges, the prosecution must establish, beyond a reasonable doubt, that the defendant committed all of the essential elements of the actus reus of each of the offences, as those elements are defined by subsection 32(1) of the said Act.

[48] In this regard, the prosecution must prove the identification of the defendant as the individual who committed the prohibited acts in each offence. In addition, the prosecution must prove that on the date in question and at the place described in the certificates of offence, the defendant was driving a motor vehicle, whether or not it was in motion, while there was liquor contained in the vehicle. The only evidence received by the Court during this trial was the testimony of Police Constable Paul Fretz and the two bottles, purportedly containing liquor, entered as exhibit nos. one and two. (a) Identification of the Defendant

[49] In my view, the element of identification has been established through the evidence of the prosecution witness.

R. v. M.B., 2007 CanLII 8004 (ON SC)

[286] The Crown further relies upon the plain view doctrine. P.C. McCue was lawfully positioned when he observed the items which he did not expect to see in the backpack. Nevertheless, he was lawfully authorized to conduct the search within the Liquor Licence Act and common law. R. v. Buhay (2003), 2003 SCC 30 (CanLII), 174 C.C.C. (3d) 97 (S.C.C.) at paragraph 37; R. v. Law (2002), 2002 SCC 10 (CanLII), 160 C.C.C. (3d) 449 (S.C.C.) at paragraph 27.

R. v. Ishmael, 2005 ONCJ 219 (CanLII)

[51] The power to search under the LLA has withstood constitutional scrutiny by the Ontario Court of Appeal (see R. v. Annett (1986), 1985 CanLII 3654 (SCC), 17 C.C.C. (3d) 332 (Ont. C.A.). The Crown is relying on the officer’s subjective perception of that statutory authority to justify the instant search. The Crown submits that the officer was uncertain as to the sealed nature of the bottle when he formulated his grounds to search the vehicle. She concedes, however, that if Constable Carrabs knew the beer bottle was sealed, he misperceived the scope of his authority, but subjectively held a bona fide belief a LLA offence was committed since the bottle was accessible to the driver. This mindset, she argues, means the search, if not authorized by statute, was reasonable in all the circumstances.

[52] Mr. Zaduk argues that this statutory power must be must considered in the context of all the circumstances in this case including the credibility of the officer conducting the search. He submits the officer’s subjective belief was not honestly held, and that no objective basis can be found to support that belief.

[55] The above testimony of Constable Carrabs is illustrative of its illogical nature, and it does not accord with common sense. The Court has carefully assessed the officer’s demeanour including the pauses between the thoughts expressed by him, the overreach in his explanation, and is compelled to conclude in all the circumstances that his explanation for the note of an “open” bottle of beer is disingenuous. This is particularly so given the temporality of the notation, made back at the police division, and well after viewing, handling, and according to the officer, the seizure of the bottle by him. At the time of making his notes, I find the officer well knew that the beer bottle was sealed and unopened.

[65] However, a purpose to search that is itself improper is not sanctioned. Nor are unconstitutional searches that render the police purpose improper. In addition, a thorough analysis of a number of applicable cases does not support the proposition that any additional or multipurpose need only be subjectively lawful to the officer: “If the police intended to pursue a lawful purpose through improper means, then...their purpose would be an improper one”: Brown v. Durham Regional Police Force (1998), 1998 CanLII 7198 (ON CA), 131 C.C.C. (3d) 1 at page 19(Ont. C.A.)

[66] At that point, the detention went beyond its lawful scope and taints the earlier lawful HTA and POA detention. The Crown relies on the LLA to have the Applicant step out of his car and to search the vehicle. Clearly the officer could not use the authority of the LLA to justify the search in this case. He was looking to “see what he was up to and possibly, if he was, you know, drinking or anything”. Thus, the adjunct search became unreasonable. The Crown has failed to meet its onus of justifying the warrantless search, and the Applicant has established an infringement of his constitutional right under s. 8 of the Charter to be secure against unreasonable search or seizure. The Applicant has also established an infringement of his constitutional right under s. 9 of the Charter, as the detention at the point of looking in the vehicle while the Applicant had been asked to exit the vehicle did not have a legally articulable basis.

(3) Plain View

(4) Inevitable Discovery

[72] Having found a breach pursuant to s. 8 of the Charter, the admission or exclusion of the crack cocaine found in the map pocket falls to be determined. Section 24(2) of the Charter reads:

Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute