All Posts by Dan Coles

Liquor & Non-medical Cannabis Compliance & Enforcement: A&A’s 2019 round-up

2019 has been a busy year thus far for the British Columbia Liquor & Non-medical Cannabis Compliance & Enforcement program. Sales to minors, serving intoxicated patrons (or serving patrons to the point of intoxication) and staff drinking on the job remain the leading causes of enforcement action. No surprises here.

The rules and regulations in British Columbia that govern how liquor is bought, sold, stored, marketed and consumed are complex and always changing. It is important that licensees and their staff remain informed of changes to Branch policy and the terms and conditions handbook. Below is a snapshot of the enforcement proceedings that the Liquor and Cannabis Regulation Branch has pursued this year.

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Eastwood v. Walton: Liquor Law and the Importance of Preserving Evidence

On November 24, 2012 Desjardins held a Christmas party at the Versailles Convention Centre in Mississauga, Ontario.

Constance Walton, a longtime employee of the credit union, consumed enough alcohol at the party to put her two-to-three times over the legal limit (although she could not recall exactly how many drinks she had that evening). Ms. Walton decided to drive home and became involved in an accident with the plaintiff Whitney Eastwood who suffered a traumatic brain injury.

Ms. Eastwood alleges that Versailles, the commercial host on the evening in question, was responsible for the sale, service and monitoring of alcohol consumption by guests and was negligent in the performance of that duty.

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Legal Cannabis and your Liquor Licence

On October 17, 2018, non-medical cannabis was legalized in Canada. In December, 2018, British Columbia’s Liquor and Cannabis Regulation Branch published an information guide to help liquor licensees understand how legalized cannabis may impact their businesses.  A copy of the guide can be found here.

The following topics covered in the publication are of particular interest to readers of Alcohol & Advocacy:

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BC Liquor Branch updates policy for Online Sale and Delivery of Alcohol

On May 24, 2019 the Liquor Control and Cannabis Regulation Branch issued Policy Direction No. 19 – 03 which supersedes Policy Direction No. 16 – 13.

As readers of Alcohol & Advocacy know, in British Columbia private liquor stores (Licensee Retail Stores), Wine Stores and Manufacturers with Onsite Stores may deliver liquor to customers purchased online under certain terms and conditions. We’ve previously written about this topic here.

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BC Liquor Licensing Branch updates Penalty Schedule

On May 22, 2019 the Liquor and Cannabis Regulation Branch issued its 2nd Policy Directive of 2019. After years of frequent, and in many cases dramatic, changes to Branch policy, 2019 has been off to a slow start.

Changes to the Penalty Schedule

The Penalty Schedule (being Schedule 2 to the Liquor Control and Licensing Regulation) has been the subject of ongoing discussion and revision at the Branch since the halcyon days of the Yap Report.

In more recent history the first major change to the Penalty Schedule was the introduction of the “choice of penalty” component. This was set out back in Policy Directive No. 16 – 19. Previously the nature of the penalty issued following a contravention (licence suspension vs. penalty) was determined by the general manager. Since January, 2017 licensees on their first contravention who sign a waiver (read “plead guilty”) have generally been permitted to choose the nature of the penalty they receive.

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Williams v. Richard: Ontario Court of Appeal weighs in on Social Host Liability

In late 2018  the Court of Appeal for Ontario released its reasons for judgment in Williams v. Richard,  the latest in a series of court decisions grappling with the concept of social host liability in Canada. The decision can be read in full hereWilliams was an appeal from a summary judgment motion where the court dismissed the plaintiff’s claim for damages arising from serious personal injuries following a single vehicle incident involving a drunk driver. At issue before both the motion judge and the Court of Appeal was the state of social host liability law in Canada.

As Alcohol & Advocacy has previously reported, the law with respect to social host liability in Canada has been uncertain for some time. In another recent decision out of Ontario,  Wardak v. Froom, the court refused to determine at an early stage that a social host could not or did not owe its guests a duty of care to prevent them from driving drunk.

Williams, if it proceeds to trial, may establish precedent that firmly expands the legal liability of social hosts to include the actions of their intoxicated guests when they get behind the wheel. The facts in Williams are grim, creating a very real risk that bad facts may lead to bad law.

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Charter Rights and Vancouver’s BarWatch Program

In the recent British Columbia Supreme Court decision R. v. Roudiani, the accused was charged with aggravated assault arising from an incident near the intersection of Granville and Smithe Streets in Vancouver – the heart of the Granville Entertainment District. Mr. Roudiani was ultimately acquitted and those reasons can be read in full here. Mr. Roudiani was successfully defended by a friend of Alcohol & Advocacy – Mr. Joven Narwal.

Of interest to readers of Alcohol & Advocacy is the unreported decision of Mr. Justice N. Smith on a voir dire relating to the admissibility of BarWatch records at trial. Mr. Roudiani asserted that the use of this information gathered by the police during its investigation was a breach of his Charter right to be free from unreasonable search and seizure.

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BC Liquor Law: Serving after hours and drinking on the job

On November 26, 2018 the General Manager of the Liquor and Cannabis Regulation Branch released reasons for the decision in Re Oak & Carriage EH18-041. That decision can be read in full here. The Oak & Carriage is licensed as a liquor primary establishment in Duncan, BC and is operated by a third party.

In Re Oak & Carriage the Branch alleged that the licensee contravened the Liquor Control and Licensing Act by selling liquor outside the hours of service specified on the licence (being after 1:00 am) and failing to ensure that an employee did not consume alcohol while working.

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BC Liquor Enforcement: Even police officers can be bad witnesses

When you or your establishment has been served with a Notice of Enforcement Action, it can feel like the full weight of British Columbia’s Liquor Control and Licensing regime, and its endless resources, are bearing down on you. Exacerbating matters, you may learn that police officers will be giving evidence for the prosecution. Despite your convictions, and your firm belief that the contravention alleged by the Branch did not occur, you may be tempted to sign a waiver notice – just to get the unpleasant process behind you. Resist this urge!

As the recent decision of the General Manager of the (then) Liquor Control and Licensing Branch in Re Days Inn, EH18-006 exemplifies, liquor inspectors and police officers do not always make good witnesses. Sometimes their evidence can be inconsistent and incomplete, forcing the Delegate hearing the matter to favour the evidence of the licensee and conclude that the alleged contravention has not been established. The decision in Re Days Inn can be read in full here.

Facts

On December 4, 2017 two on-duty RCMP officers sat in their patrol car near a Licensee Retail Store, the Days Inn (Inn of the West) in Terrace, BC.

“Officer 2” (as he is identified in the Branch’s reasons) observed a male cross the intersection and enter the LRS. Both officers then exited the police vehicle and observed the customer, through the LRS windows, purchase a 15 pack of Wildcat beer.  When the customer exited the store, the police spoke with the customer and observed a high degree of intoxication.The officers concluded that the customer was intoxicated.

“Officer 1” subsequently entered the LRS, spoke with the clerk who sold the customer the beer, and asked that she refund the purchase. The clerk did, and the customer was allowed to continue home on his own accord. The clerk advised police she thought the customer merely had something wrong with his leg, and was not staggering from alcohol consumption.

Officer 2 wrote his report immediately after the incident. Officer 1 did not produce a written report of the incident until the following day. The local liquor inspector learned of the incident from Officer 1 at a hockey game later that same day. The liquor inspector attended the LRS on December 8 (four days after the incident) to speak with the LRS supervisor. On December 11 the liquor inspector, having now received the RCMP reports interviewed the LRS clerk, and issued a contravention notice to the licensee for selling liquor to an intoxicated person.

Analysis

At first blush the facts in Re Days Inn are not particularly remarkable: the LRS employee denied selling alcohol to an intoxicated person, two police officers filed reports saying otherwise. However, upon closer examination, the Branch’s case against the licensee was plagued by the police officer’s poor note taking, contradictory evidence at the hearing, and tainted by the liquor inspector’s request that Officer 1 provide a supplemental report on December 27th.

The evidence of the police was as follows:

  • Officer 1’s report, written the day after the incident, confirms observing a male known to police walking in a “staggering manner”.  His first report also mentioned that the customer was in the presence of his sober brother.
  • Officer 2’s evidence was that the customer was  intoxicated and set out particulars of that intoxication in his report. However his evidence at the hearing was that the customer was alone (and not with his brother).
  • Officer 1, at the request of the liquor inspector, authored a subsequent report on December 27th that included additional observations of the customer’s “physical symptomology” made by him through the LRS’s window while the customer was inside. The subsequent report contained additional information about glossy eyes, slurred speech and odour of liquor. Officer 1 was of the view that the customer was extremely intoxicated.

In dismissing the contravention, the General Manager’s Delegate Nerys Poole set out her concerns with the Branch’s evidence as follows:

  • Officer 1’s first report did not mention any of the constellation of symptoms that Officer 2’s report contained about odour of liquor, heavily slurred speech and glassy eyes. Those details only appeared in Officer 1’s second report made three weeks later, and at the request of the liquor inspector.
  • The Branch led inconsistent evidence about the “normal gait” of the customer. The liquor inspect testified he had known the customer for 18 years and that he always walks with a “shuffle.” The police officers testified to also being familiar with the customer, but that he had a perfectly normal gait when sober. This conflicting evidence from the Branch witnesses left the Delegate with doubt as to how the customer normally walks, and whether or not his gait could be evidence of his intoxication.
  • Other points of conflict in the police officer’s evidence was whether or not the customer was alone, or with his brother, and whether or not he was “extremely intoxicated” or merely intoxicated simpliciter. Officers 1 and 2 gave differing evidence on each point.

While each of inconsistencies outlined above may not individually have been sufficient to undermine the Branch’s case against the LRS, the totality of the contradictions in the Branch’s evidence caused concern for Delegate Poole. When contrasted with the compelling evidence of the LRS store clerk on her training, and established practice of not serving intoxicated individuals, the General Manager’s Delegate had little choice but to dismiss the contravention allegations.

Liquor Control and Licensing Act contraventions related to intoxication turn significantly on the observations made by liquor inspectors, police officers, and sometimes other witnesses. When the reliability of those observations are in doubt, as they were in Re Days Inn, it is difficult for the General Manager’s Delegate to be satisfied that a contravention in fact occurred.

Conclusion

Re Days Inn is an important reminder to licensees to be cautious before signing a waiver notice – resist the urge to “plead guilty” before all the facts are known, and the Branch has made proper and fulsome disclosure of the case against you.

Being served with a Contravention Notice or Notice of Enforcement Action can be intimating especially when the police have been involved. Retaining counsel familiar with British Columbia’s liquor laws and the enforcement process can go a long way to ensuring your business makes an informed decision about signing a waiver notice, or proceeding to a hearing. If you have questions about this process please contact Dan Coles at Owen Bird.

*Alcohol & Advocacy publishes articles for information purposes only. They are not a substitute for legal advice, and persons requiring such advice should consult legal counsel.

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