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Tom Rees | Criminal Defence Lawyer Winnipeg
18
Apr

Can Police Detain You in Your Own Home for Being Drunk?

 

On occasion, police will detain an intoxicated person in order to take them to a detox centre where the person can sober up. Typically, Winnipeg Police will take the intoxicated person to the Main Street Project, located at 75 Martha Street in Winnipeg. Once the person is sober, they are sent on their way and that is the end of the matter.

In Manitoba, the power to do this comes from the Intoxicated Persons Detention Act (IPDA). To be clear, being intoxicated in a public place is not a criminal offence. Ostensibly, the underlying reason for police to detain intoxicated persons is to protect the public as well as the intoxicated person from harm. The decision to take an intoxicated person into custody under IPDA, however, is within the discretion of the police officer.

The only limit the law places on this discretion is that the intoxicated person must be “in a place to which the public has access”. Clearly, a private residence is not a place to which the public has access, and therefore, police do not have a right to detain you for being drunk in your own home. Or, do they?

Earlier this year the Manitoba Court of Appeal came to the opposite conclusion in the case R. v. Alexson, 2015 MBCA 5 – that, yes, in some circumstances, police can detain you for being intoxicated in your own home.

In the case of Mr. Alexson, police attended his residence because a 911 call had been made, but the caller had hung up. Police attended to the residence to investigate, and were allowed inside by Mr. Alexson’s wife. Mr. Alexson was found by the police officers to be intoxicated and yelling profanities directed at his wife and child and also at police officers once they arrived.

Mr. Alexson, at no point committed any offence while in his home, and the police officers admitted they had no intention of charging him with any offence. However, the police officers concluded that Mr. Alexson would possibly assault his wife or child. Police then arrested Mr. Alexson pursuant to IPDA because he was intoxicated, even though he was not “in a place to which the public has access”.

The case was first heard in Provincial Court, where it was found that police had no authority to detain Mr. Alexson in the circumstances. The Crown appealed the decision to the Court of Queen’s Bench (click here to read the case R. v. Alexson 2013 MBQB 188), where the initial decision of the Provincial Court was affirmed. The Crown appealed a second time to the Manitoba Court of Appeal.

For unknown reasons, Mr. Alexson, nor anyone on his behalf appeared in the Court of Appeal, so the only arguments that were heard were the Crown’s arguments. The Court of Appeal sided with the Crown, and reasoned that police have a common law duty to prevent crime and protect property and life, regardless of whether or not this occurs in public or in private.

the arrest and detention were reasonably necessary for the carrying out of the duty to preserve the peace and prevent crime. It was a preventative and restrained measure taken to protect other members of the household. The nature and extent of the interference with [Mr. Alexson’s] liberty was limited to the time it took for him to sober up. It was also a reasonable interference that served an important public purpose.

Police have options as to how to do their duty to preserve the peace and prevent crime. In this case, however, the police chose to deal with a situation occurring in a private residence by way of IPDA – a statute that specifically applies only to situations occurring in spaces the public generally has access to. This issue was not addressed in the Manitoba Court of Appeal decision in Alexson. The Court of Appeal instead chose to focus on the importance of the police ability to carry out their duties.

In practical terms, this decision means that if the police can establish that detention was reasonably necessary in order to preserve the public peace or prevent crime, they can detain a person under IPDA in situations where it was clearly never meant to apply – in private residences. I anticipate that this decision is not the end of the matter, and the issue will be challenged in future court cases.

 

*note: The information in this article is not legal advice.