Dec 9, 2018

Public Intoxication in Manitoba: Should the IPDA Suspend Charter Rights?

Reference re Intoxicated Persons Detention Act, 1980 CanLII 2646 (MB CA)
Most people that I know, if not all, have stumbled home intoxicated from the bar at some point in their lives. It appears safe to say that most would see this as a “smart” choice as opposed to getting behind the wheel and breaking the law while putting people’s lives in danger. Now, we all know that it is not illegal to consume alcohol once you’re of age, right? Further, we know that it is not illegal to go for a walk while under the influence of alcohol, right? At least not under the Criminal Code it isn’t.[1]

Section 2 of the Intoxicated Persons Detention Act (IPDA) provides that “a peace officer who finds a person who is intoxicated in a place to which the public has access, may take that person into custody.”[2] Officers relying on this Act are then able to hold the intoxicated person in custody for up to 24 hours (s. 3.1).[3] Since this is not your typical “arrest” the police have no obligation to inform you of your Charter rights upon detention.[4] We, as Canadians, are entitled to certain protections under the Charter, including the right to be free from arbitrary detention protected by Section 9 as well as the right of life, liberty and security of the person, protected by Section 7.[5] Why then are we allowing this Act to infringe on those Charter protected rights in a way that we know would be unacceptable by officers executing their duties under the Criminal Code?[6]


It is well known that in the Charter-criminal law context, a lawful detention can be found to be arbitrary if the law authorizing the detention is arbitrary.[7] Arbitrariness can be found if there are no criteria, express or implied, which govern its exercise.[8] In circumstances where officers are making an arrest pursuant to the IPDA, they have the ultimate discretion in deciding who has reached the level of intoxication required to justify holding that person in custody.[9] It appears from the Act that it can be any level of intoxication as long as the person is found in a public place.


In Reference Re Intoxicated Persons Detention Act, the Court of Appeal dealt with the issue of whether or not this piece of legislation was intra vires the legislature of Manitoba.[10] In coming to the decision that it was intra vires, the Court expressed that, “one cannot gloss over the reality that, under the terms of the Act, a person who becomes intoxicated can be confined against his will in jail-like surroundings for a period of time of, and up to 24 hours. But the fact of confinement does not necessarily take this legislation into the realm of criminal law.”[11] The Court then stated that the purpose of the IPDA is made clear in s. 3(1) and is to “prevent an intoxicated person from being a danger either to himself or to others.”[12] So, essentially a person can be confined behind bars against his will for an entire 24 hours, but this is somehow different than circumstances in which “real criminals” are held behind bars against their will because they too pose a threat to society.

Looking back to the example of walking home after a night out, it is difficult to see how this endangers the public in any way, and if the real concern is actually for the safety of the person walking home, maybe a better use of the police officers’ time would be to go after the “real criminals” since, after all, this Act is supposed to be seen as a “protection” rather than a “penalty”. Yet, the Court of Appeal still felt the need to express that this Act is completely separate from the offence of causing a disturbance under the Criminal Code.[13] If intoxication leads to public disturbance, it will then constitute an offence. Yet, even if there is no public disturbance, and therefore no criminal offence under S. 175(1)(ii) of the Criminal Code, you may still have to spend up to 24 hours behind bars.[14]

It is also not surprising that the police frequently, upon failing to find any reasonable grounds to formally arrest an accused under the Criminal Code, attempt to justify an arrest under the IPDA, knowing that the IPDA does not apply outside of a public place.[15] For example, in the case of R v Alexson, officers received a hang-up call from 911 and attended the residence to investigate.[16] The caller allowed the officers entry, and she asked them to “take him away” because the accused was drunk and angry.[17] The officers wanted the accused out of the residence so they handcuffed him and placed him under arrest under the IPDA.[18] On their way to the police car, the accused broke free, kicked an officer in the face and was subsequently charged with assault peace officer.[19] At trial, the Crown did not dispute that the IPDA did not apply since it occurred inside a residence, yet the Crown still argued that the officers were acting within their duty by removing the accused from the residence to prevent an offence from “possibly happening”.[20] The trial judge failed to find that the officers were acting lawfully in the execution of their duty at the time of the assault and acquitted the accused.[21] The Queen’s Bench Court agreed with these findings and dismissed the appeal.[22]


Similarly, in the case of R v Anderson, the police officers were investigating a robbery investigation and attended a side-by-side house in an attempt to locate the perpetrator.[23] Anderson came down the stairs intoxicated screaming profanities at one of the officers.[24] The officer placed Anderson under arrest for “cause disturbance and IPDA” and did not provide her with a police caution or advise her of her Charter rights.[25] While in the cell at the drunk tank, she kicked a police officer and was charged with assault peace officer.[26] The trial judge stated that “not only were there no grounds for arresting Anderson for cause disturbance or detaining her under IPDA given that she was not in a public place, I find there were no grounds under the common law or the City of Winnipeg Charter for any detention”.[27] He therefore found her not guilty of the offence of assault peace officer.[28]


What these cases represent are situations in which police officers are abusing their discretion that they have been afforded under the IPDA by attempting to use the Act as a means to justify and unjustifiable arrest and detention of an accused.[29] If intoxication alone was enough to justify an arrest, it would be illegal, simple as that. The risk of abuse by police officers relying on this Act to infringe on our Charter protected rights has already been demonstrated in the case law above. This Act is simply another method of bringing uncertainty and abuse of state conduct into the realm of criminal law.


[1] Criminal Code, RSC 1985, c C-46 [Criminal Code].

[2] The Intoxicated Persons Detention Act, CCSM, c 190, s 2 [IPDA].

[3] Ibid at s 3.1.

[4] Canadian Charter of Rights and Freedoms, s 10(b), Part 1 of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11.

[5] Ibid.

[6] Criminal Code, supra note 1.

[7] R v Ladoucer, [1990] 1 SCR 1257.

[8] R v Hufsky, [1988] 1 SCR 621.

[9] IPDA, supra note 2.

[10] Reference Re Intoxicated Persons Detention Act, 1980 CarswellMan 144 [Reference Re IPDA].

[11] Ibid at para 21.

[12] Reference Re IPDA, supra note 10 at para 22.

[13] Reference Re IPDA, supra note 10 at para 29.

[14] Criminal Code, supra note 1 at s 175(1)(ii).

[15] Criminal Code, supra note 1; IPDA, supra note 2.

[16] R v Alexson, 2013 MBQB 188.

[17] Ibid.

[18] Ibid.

[19] Ibid.

[20] Ibid.

[21] Ibid.

[22] Ibid.

[23] R v Anderson, 2011 MBPC 33 [Anderson].

[24] Ibid.

[25] Ibid.

[26] Ibid.

[27] Ibid at para 25.

[28] Anderson, supra note 23 at para 26.

[29] IPDA, supra note 2.