Victoria venue to infringe civil liberties

The Save-On Foods Memorial Centre in Victoria wants to take B.C.’s anti-smoking legislation a bit further.  Not only will they enforce the existing No Smoking laws, they will also prohibit the innocuous carrying of cigarettes by patrons on the premises.

Let me try that again:  You can’t smoke there.  Fine.  That is the law and it has bona fide justifications.  You also can’t walk in with a pack of cigarettes in your pocket.  In the words of Jon Stewart, “Whaaaaaaat?”

“Smugglers will have their cigarettes confiscated in the same way drugs or alcohol would be following a random search.”
-Victoria Times Colonist: Arena bans cigarettes; smoke breaks snuffed out.
September 5, 2008.
http://www.canada.com/victoriatimescolonist/story.html?id=026a6334-bb15-4fe9-870f-dacddbf4fa84

It has taken me a while to post on this because I have been struggling to find some cases where a venue has actually tried to enforce such a policy, not based on contraband or unlawful possession or consumption in a public place.

Searching through Quicklaw (at which I am something of a ninja, since that’s my day job), I uncovered the not very surprising truth that there are no cases where a movie theatre has been taken to court over seizing junk food in your pocket, or a concert venue over seizing other items not directly related to public safety.

So I had to dig deeper.

This is how the issue will break down if it is enforced and followed up in court:

First, there is a search.  This search must either be consensual, or performed under citizen’s arrest.  If performed under citizen’s arrest, then it is authorized under the Criminal Code, section 494, and thus subject to the scrutiny of the Charter.  The arrest itself must be sanctioned by the conditions set forth in s.494 (1):

Arrest without warrant by any person
Any one may arrest without warrant

(a) a person whom he finds committing an indictable offence; or

(b) a person who, on reasonable grounds, he believes

(i) has committed a criminal offence, and

(ii) is escaping from and freshly pursued by persons who have lawful authority to arrest that person.

Part (b) is a no-brainer.  As for part (a), there is no indictable offence in carrying cigarettes on one’s person.

So we are left with search as a condition of admission to a venue.  By convention, this is fairly common, but case law indicates it tends to be justified by public safety.

We must determine whether the condition, if they do hold to the conventions currently established for recording devices, outside food, etc., are sufficient for cigarettes.

On the face of it, there is no difference between carrying in one legal product or another.  Although there is a difference between recording devices and outside food:

The carrying of recording devices may be seen as intent to breach copyright, which is protected by law.  The carrying of outside food may be seen as intent to impair the ability of the vendors inside to profit, and although this prohibition may be prima facie enforceable as a private right in a private venue, it has not (as my Quicklaw searches showed) been tested in court.

The prohibition on cigarettes is closer to the former, but for one exception.  It is closer to carrying recording devices in that the intended action prevented is an illegal action:  copyright infringement in one case; smoking indoors in a public place in another.  The difference is this:  It is uncommon for one to carry a recording device regularly unless one is a photographer; it can be inferred that carrying such a device into a concert indicates an intention to record (note that I said it can be inferred, not that it should be inferred – I’m not sure if I buy that prohibition either).  Cigarettes are carried by smokers all the time, whether they intend to smoke during a given period of time or not.  For example, smokers are allowed to carry cigarettes on a plane, though it is illegal to smoke there.

As for whether there is even consent to the search, we can look back to an ancient case, to Smith v. City of London Insurance Co. (Ont. H.C., 1886), [1886] O.J. No. 159; 11 O.R. 38, in which Wilson C.J. wrote, at paragraphs 69-74, that a contract on a ticket requires, either a signature or some other evidence that the parties assented to the contract.  Paying for a ticket and entering a venue on the authority of that ticket should not, in my opinion, indicate assent to every condition – especially those which are unusual or private exceptions to public law – on the reverse of the ticket.  Especially when the conditions include consenting to a private, unwarranted trespass of your person for the purpose of uncovering licit goods deemed merely undesirable in a private venue!

Let’s assume that to get around the inapplicability of s.494 (citizen’s arrest), the SOFMC uses uniformed officers.  Now we no longer need the strict rules that allow trespass to the person or detention that are in 494; but we have not escaped Charter scrutiny.

R. v. Heisler (1984), [1984] A.J. No. 1008; 8 D.L.R. (4^th) 764; decided in the Alberta Court of Appeal by Justices Lieberman, Harradence, and Kerans, discusses a situation in which the accused, Charlene Heisler, was searched by a uniformed officer, Constable Leslie, on special duty as security at a concert.

The Charter applied, without question, as the searching person was a police officer in uniform.  The search that uncovered the marijuana in Heisler’s possession was deemed illegal, but was still valid under s.8, as it was reasonable:

Lieberman, J.A. [orally], at paragraph 6:

“We are all of the view that it does not follow that because a search is illegal it must therefore be unreasonable.  We respectfully adopt the reasoning of Mr. Justice Rehnquist in Bell v. Wolfish (1979), 441 U.S. 520, where he says at page 558:

‘The test of reasonableness under the Fourth Amendment is not capable of precise definition or mechanical application.  In each case it requires a balancing of the need for the particular search against the invasion of personal rights that the search entails.  Courts must consider the scope of the particular intrusion, the manner in which it is conducted, the justification for initiating it, and the place in which it is conducted.’”  R. v. Heisler, supra.

Justice Lieberman goes on to suggest that the reasonableness of the search was found in “the duty of the occupier to ensure the safety of the persons attending.” R. v. Heisler, supra, at para. 8.

Can “the safety of the persons attending” be used to justify searching for cigarettes?

No.

Can it be used to justify searching for drugs, alcohol, or weapons?  It has been, with Heisler being but one example.

So what about the incidental discovery of cigarettes during a search for something else?

Exactly!

What then?  If drugs were found during a weapons search, the drugs could be confiscated and the person on which they were found arrested on drug charges.

But these are cigarettes!  It is legal to carry them on your person, at any time, anywhere, including in hospitals and on airplanes.  You can’t smoke them there, but this isn’t about smoking.  It’s about possession.

So now that we’ve dealt with the search issue, let’s deal with the seizure:

Let’s look at the Criminal Code, as it deals with seizure and disposition of stuff seized.

Section 489 (2):

Seizure without warrant

(2) [An officer] may, without a warrant, seize any thing that the officer believes on reasonable grounds

(a) has been obtained by the commission of an offence against this or any other Act of Parliament;

(b) has been used in the commission of an offence against this or any other Act of Parliament; or

(c) will afford evidence in respect of an offence against this or any other Act of Parliament.

In other words, seizure may occur without a warrant if the thing seized is relevant to an offence against the law, either criminal or other.  Possession of cigarettes would be a private policy, and neither an offence listed in the Criminal Code or “any other Act of Parliament.”

Section 490 (1):

Detention of things seized

Subject to this or any other Act of Parliament, where … anything that has been seized is brought before a justice or a report in respect of anything seized is made to a justice, the justice shall,

(a) where the lawful owner or person who is lawfully entitled to possession of the thing seized is known, order it to be returned to that owner or person, unless the prosecutor, or the peace officer or other person having custody of the thing seized, satisfies the justice that the detention of the thing seized is required for the purposes of any investigation or a preliminary inquiry, trial or other proceeding; or

(b) where the prosecutor, or the peace officer or other person having custody of the thing seized, satisfies the justice that the thing seized should be detained for a reason set out in paragraph (a), detain the thing seized or order that it be detained, taking reasonable care to ensure that it is preserved until the conclusion of any investigation or until it is required to be produced for the purposes of a preliminary inquiry, trial or other proceeding.

In other words, if the thing seized is not needed as evidence, it must be returned to the owner.  You can only seize something if it is to be used as evidence; otherwise it must be returned to the owner, provided the owner is lawfully entitled to its possession.  Drugs are not returned as there is no lawful right to their possession.  Cigarettes must be returned unless held as evidence for a further “investigation …, preliminary inquiry, trial or other proceeding.”

So where does that leave us?

In the first part, we have a search that may be illegal, though would likely be considered reasonable if it is ostensibly for the discovery of drugs or weapons.  So the Charter Section 8 test would probably pass on account of reasonability, as long as they maintain that the purpose is related to drugs, alcohol, and weapons, and don’t state plainly that they’re searching you for cigarettes.

But then the discovery of the cigarettes would be incidental to a legitimate search.  Can they confiscate them?  And if so, then what?

Section 490, above, gives a pretty clear indication of the conditions that would allow something to be confiscated and detained.  Barring those evidentiary or criminal possession conditions, we are looking at a clear case of what is called “conversion.”

Conversion is defined in Black’s Law Dictionary, 6^th Ed., as “An unauthorized assumption and exercise of the right of ownership over goods or personal chat-tels belonging to another, to the alteration of their condition or the exclusion of the owner’s rights.”  This definition is cited in case after case (which I won’t waste your time listing here, as Black’s is considered authoritative on its own).  In addition to the Black’s definition, in Re: Kostiuk, [2001] B.C.J. No. 1453, Hunter J. cites Fleming’s The Law of Torts, 9th ed. 1998:  “An intentional exercise of control over a chattel which so seriously interferes with the right of an-other to control it that the intermeddler may justly be required to pay its full value.”

Conversion was once defined to require the use of the thing by the person who has taken it.  In Simmons v Lillystone (1853), 8 Exch 431 at 442 (United Kingdom Court), Baron Parke included the phrase, “or to deprive the plaintiff of it.”  He went on to explain, “If the entire article is destroyed, as, for instance, by burning it, that would be a taking of the property from the plaintiff and depriving him of it, although the defendant might not be considered as appropriating it to his own use.”

Either the person confiscating the goods has a right to, as possession of the goods is illegal (or dangerous, thus “reasonable”) and therefore a s.494 arrest and a s.489 seizure are allowed, or the person has no right to and is guilty of conversion.

Possession of cigarettes is neither illegal nor dangerous per se.  Searching explicitly for cigarettes, without the pretence (which I assume will be assumed) of searching for illegal or dangerous goods, is trespass to the person, bordering on the tort of assault.  Confiscating those cigarettes is conversion; the Save-On Foods Memorial Centre is counting on your complacency and acquiescence as it invades your space and takes what it rightfully yours.  Are they going to compensate you for the cigarettes?  Return them at your whim?  I doubt it.  This erosion of civil liberties has gone on long enough.