A man who landed in the drunk tank after giving Halifax police the finger is questioning the rationale behind his arrest, a case one lawyer says highlights concerns about the "arbitrary" powers officers have to lock people up for public intoxication.

Jason Napier, 33, who lives in Alberta and was visiting Nova Scotia for his grandmother's burial, was one of 249 people arrested last month for public intoxication in Halifax.

Napier said he only had one scotch before Halifax Regional Police cuffed him around midnight on July 26 as he sat on the sidewalk outside his downtown hotel.

"I was in disbelief," he said. "In my opinion, the police are here to serve and protect. No one needed to be protected."

His wife, Alison Napier, recorded the arrest on her phone.

Night in custody, $134 fine

Napier said he's had previous negative experiences with police and was irritated after seeing an approaching cruiser slow down while he was enjoying a cigarette the night before an early flight. 

"I just wanted to sit down ... have a cigarette, go upstairs and go to bed," he said, noting that giving the offensive gesture was "entirely within my rights and my freedom."

Instead, Napier spent the night in custody and police issued him a summary ticket under the Liquor Control Act — a $134 fine.

He said he asked to call a lawyer but wasn't allowed. His request for a breathalyzer was also denied, he said.

Alison and Jason Napier

Alison and Jason Napier were in Halifax for his grandmother's burial and staying at the Prince George Hotel. (Submitted by Jason Napier)

Many signs of intoxication

In the first six months of this year, 1,225 people spent the night in cells for public intoxication, according to police statistics that cover the entire Halifax region. Most of them — 1,153 — were ticketed.

Over the past 18 months, an average of 170 people were detained for public intoxication each month in the Halifax region. 

Under the Liquor Control Act, an officer can arrest someone if they have "reasonable and probable grounds to believe a person is in an intoxicated condition in a public place."

Halifax police constable Diane Penfound

Const. Diane Penfound of the Halifax Regional Police says officers only administer breathalyzers when someone has been operating a motor vehicle. (CBC)

Officers consider a range of factors, from watery red eyes, the smell of liquor, unsteady feet, or slow response times, said Const. Dianne Penfound, a spokesperson for Halifax Regional Police. She said breathalyzers are only used in impaired driving cases.

"We don't want to take people into custody unless we absolutely have to," she said.

"If we feel the person is a risk to themselves, they can't look after themselves, or they're at potential of starting a fight with somebody or something to that effect. We don't take it lightly."

Red flag for police

Crown attorney Rick Woodburn, who routinely prosecutes summary offence fines in Halifax night court, said about one person a week disputes a ticket under the Liquor Control Act.

He said someone giving police on patrol the finger would be a red flag.

"It's fair to investigate because they're wondering whether or not the next person to come along they're going to do the same thing and there's going to be a fight in the middle of the street," he said.

"It's rare for police to take somebody in on this who is not intoxicated." 

Walter Thompson

Walter Thompson is a lawyer whose interests include civil liberties. (Elizabeth Chiu/CBC)

But Walter Thomson, a long-time Halifax lawyer who has an interest in civil liberties, has a different take. He said people have the right to say whatever they like to police, even if it's rude.

"Being drunk in a public place is terribly open to abuse in my experience," he said.

"[The Liquor Control Act] is really a way for police to get back at, or to deal with people they don't like or they've taken some objection to."

The legislation should be revised because it "passes the police a licence to be arbitrary and high-handed and to violate a person's right to liberty," he said. 

'Whole process is punitive'

Offences under the act are not criminal, but Thompson said people who get summary offence tickets under the Motor Vehicles Act for something like speeding don't have to spend the night in custody.

"The whole process is punitive. None of us want to spend the night in lockup," he said. 

Penfound said she couldn't speak to the specifics of Napier's case because it could be evidence in court. 

The act stipulates that people can be released if it is determined they are "unlikely to cause injury to himself or be a danger, nuisance or a disturbance to others" or if someone "capable of doing so" is able to care for them.

Plans to fight ticket

Napier said he admitted having one drink but disputes that he was a danger to himself or anyone else and questioned why he wasn't released into the custody of his wife, who was sober. 

He is now in the process of filing an official complaint with the Halifax Regional Police and said he plans to dispute the ticket, even if it means flying back from Alberta. 

"My concern is if this is how I was handled, how are other individuals being handled in situations like this?" he said.