Case to watch: Kirkland v. Attorney General of Alberta
Kyle Kirkland is a member of the Hells Angels Motorcycle Club.
Since at least 2016, spread over two different pieces of litigation (2016 court decisions outlining his first lawsuit can be read here and here, and a 2021 decision here) Mr. Kirkland has been seeking a declaration that several sections of Alberta’s Gaming, Liquor and Cannabis Act are unconstitutional, more specifically those sections that provide the police with powers to exclude and remove from licensed premises any person whom a police officer believes to be associated with a gang. The legislation came into force in October 2009.
The Act defines “gang” as “a group of people engaged in a pattern of unlawful behaviour or in creating an atmosphere of fear or intimidation in a community”. Mr. Kirkland does not acknowledge that the Hells Angels are a gang.
In Mr. Kirkland’s most recent lawsuit he asserts that in 2017, when at a licensed premises wearing “accessories” associated with the Hells Angels, he was ejected by police officers who were acting pursuant to the provisions of the Act he now challenges, namely s. 69.1. When he re-entered the establishment an hour later he was arrested and charged under the impugned legislation. That charge was later stayed.
Mr. Kirkland challenges the constitutionality of the Act on two bases:
- He says the impugned provisions of the Gaming, Liquor and Cannabis Act are ultra vires the province of Alberta, as they are in essence matters of criminal law and procedure which are subjects in the exclusive legislative jurisdiction of the federal Parliament; and
- The impugned provisions are violations of several rights and freedoms protected under the Charter, namely the section 2(b),(c) and (d) freedoms of expression, assembly and association, the section 7 right to liberty, the section 8 right to be free from unreasonable search and seizure, and the section 9 right not to be arbitrarily detained.
In response to Mr. Kirkland’s lawsuit, the Attorney General of Alberta says that the impugned provisions represent a legitimate exercise of Alberta’s legislative authority to supress conditions leading to criminal, unlawful or unsafe activities in licensed premises.
Alberta says that these provisions of the Act do not infringe on any of Mr. Kirkland’s Charter protected rights or freedoms, or the rights and freedoms of other gang members or gang associates. Instead Alberta says the impugned provisions are an appropriate response to the challenge posed by gang presence in licensed premises. In the alternative, Alberta says that if the provisions in the Act do limit any Charter rights or freedoms, they represent reasonable limits that are demonstrably justified in a free and democratic society under section 1 of the Charter.
Why this matters
There is a strong historical, as well as contemporary, basis for lawmakers and police officers to be concerned about the presence of organized crime in bars, nightclubs and restaurants. You don’t have to be a fan of The Sopranos or Hollywood gangster films to understand the lucrative connection between vice (drugs, firearms, gambling, prostitution, money laundering etc.) and the bar scene. It’s an age-old relationship.
In British Columbia many liquor primary licensees in and around the Granville Entertainment District are members of Bar Watch, and though our Liquor Control and Licensing Act does not make express reference to gangs it does make specific provisions for excluding persons engaged in “unlawful activities or conduct” or those who possess knives or weapons.
Mr. Kirkland’s 2016 challenge to Alberta’s Gaming, Liquor and Cannabis Act was dismissed by consent after long delay. With that history it’s far from certain that his most recent lawsuit will actually proceed to adjudication on the merits. If it does the outcome could have ramifications across the country with respect to how police, provincial regulators, and licensees operate to exclude (or perhaps turn a blind eye?) to criminal elements operating in the hospitality space.
Alcohol & Advocacy will be monitoring the litigation.
If your bar or restaurant is facing a licensing contravention, inquiries from the police, or you otherwise need assistance navigating British Columbia’s liquor licensing regime, 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
