Does Prairie Bylaw Enforcement really have the power to stop someone and confiscate and dump their open liquor, even if they can't charge them?
Lou Morissette, a retired RCMP staff sergeant and former MLCC liquor inspector here who now operates Setting Security Consultants, has serious doubts, as expressed in his 68-page Jan. 8 five-year public safety plan presented to city council.
The City of Thompson's public safety committee will hold an information meeting for questions and answers, as well as general brainstorming, April 29 at R.D. Parker Collegiate from 6 p.m. to 9 p.m. for anyone interested in RCMP policing and Prairie Bylaw Enforcement and bylaw enforcement issues downtown, as well as other public safety issues to attend.
Members of the public safety committee include Morissette, Susan Buckle, Colleen Smook, Mark Matiasek, general manager of Thompson Unlimited, Coun. Brian Wilson and the chair, Coun. Judy Kolada.
While it is widely agreed Dave Prud'Homme's Prairie Bylaw Enforcement of Tyndall has no power under Manitoba's Liquor Control Act to lay possession of open liquor charges in a public place, an amendment last year to the City of Thompson's behavioural bylaw allows for the "confiscation" of liquor by "a designated officer."
It now reads, "In addition to being liable to the penalties of this bylaw, any person found to be in contravention of Part II, Section 2.05 of this bylaw may have any alcoholic or illegal substance in their possession confiscated from them and disposed of by a designated officer."
Morissette says in his report that while the city apparently got legal advice before amending the bylaw, the proposition that Prairie Bylaw Enforcement officers can "both confiscate and destroy personal property" is "tenuous" at best given their "enforcement standing."
Writes Morissette: "The issue becomes one of PBLE possessing the formal authority necessary to both confiscate and destroy personal property. I would suggest that because PBLE are not provincially appointed peace officers then they necessarily have tenuous enforcement standing. The problem is highlighted in terms of overall liability.
"Once a "presumed" peace officer initiates enforcement action, the officer becomes accountable. The danger lies in the legally justifiable use of force in containing the situation. I would further suggest that there is a real possibility of escalation given the client levels of intoxication in the downtown core.
"Even a RCMP member does not automatically have peace officer status relative to provincial legislation. For example, in Ontario and Quebec where the RCMP are not
under contract for provincial policing delivery, RCMP members must be sworn in as special constables in order to enforce the respective provincial statutes. This would include very common provincial statutes such as the respective highway traffic or liquor control legislation. In those provinces where the RCMP is contracted as the provincial police, there is typically umbrella provincial legislation, which specifically designates the RCMP as peace officers in and for that specific province.
The issue of associating any mitigating liability from injury or Charter infringement rests with absolute proof that the enforcement action at the onset was "legal." In other words, should PBLE act under the presumption that they are peace officers and a citizen is injured or pursues a Charter breach, the City would necessarily be liable?"
Morissette says, "During my discussions with the owner of PBLE, Mr. Dave Prud'homme it became apparent that he felt strongly that PBLE officers possessed 'de facto' peace officer status.
"The issue of confusion is one that primarily stems from the articulation of 'peace officer' as defined under the Criminal Code of Canada on this aspect but 'duly appointed' peace officer status should be critical to the City of Thompson. It is this status that is so instrumental in mitigating vicarious liability associated with law enforcement. Currently, the employment of a private enforcement agency that presumes to have peace officer status is tenuous at best The inherent legal risk falls primarily to the City of Thompson," Morissette says.
The Criminal Code of Canada says "peace officers" include mayors, wardens, reeves, sheriffs, deputy sheriffs, sheriff's officers and justices of the peace, prison guards, keepers, jailers, police officers, police bailiffs "or other persons employed for the preservation and maintenance of the public peace or for the service or execution of civil process."
It is that last group that "represents the crux of the discussion," Morissette says.
"I would suggest that the intent of this particular section was not to provide 'stand alone' authority. I have discussed the matter with senior Crown attorney David Gray, Manitoba Department of Justice," Morissette writes, and "he is of the opinion that peace officer status rests upon provincial appointment by the Manitoba Department of Justice." Prairie Bylaw Enforcement officers have not been appointed peace officers by the province.
Prud'Homme in an interview was adamant despite Morissette's comments that he "strongly" feels "that PBLE officers possessed 'de facto' peace officer status," that they "act as if we don't have it."
While Prud'Homme believes the behavioural bylaw, enacted pursuant to the provincial Municipal Act, provides adequate legal authority for confiscating and dumping open liquor found on persons in the city, he acknowledges Prairie Bylaw has no legal right to detain people in those circumstances or for simply being intoxicated in a public place.
He says during such an encounter, the bylaw officer may contact relatives or the homeless shelter for assistance and invited the person to wait in a Prairie Bylaw vehicle - perhaps even with the door shut - he insisted they are not being "detained" and are free to exit the vehicle and be on their way at any point.
In more serious situations, such as a person allegedly assaulting one of his bylaw officers, or wielding a dangerous weapon, for instance, Prud'Homme says Prairie Bylaw Enforcement would rely on the so-called "citizen's arrest" provision of the Criminal Code, which is available to anyone to use in specific limited circumstances. Section 494 says anyone may arrest without warrant "a person whom he finds committing an indictable offence" or "a person who, on reasonable grounds, he believes has committed a criminal offence, and is escaping from and freshly pursued by persons who have lawful authority" to arrest that person.
"Anyone other than a peace officer who arrests a person without warrant shall forthwith deliver the person to a peace officer."
In the case of making a citizen's arrest, Prud'Homme says, the person detained by the bylaw officer wouldn't be read their Charter rights until they were handed over to the RCMP when the police would be expected to inform them without delay.
Prud'Homme says officers have not made a citizen's arrest here since Prairie Bylaw Enforcement was contracted by the city 2 years ago at a cost of about $456,000 annually. While anyone can make a citizen's arrest in the appropriate specific limited circumstances, Prud'Homme says his bylaw enforcement officers are better trained than members of the general public to recognize what behaviour or actions constitute a serious indictable offence that provide the legal grounds for such an arrest.
