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.