University student fights for right to 'party'
UVic student successfully argues police lacked grounds for search of backpack which found beer cans
In a decision sure to confound campus authorities, a judicial justice has sided with a beer-toting University of Victoria student who argued that police had no right to search his backpack for alcohol
The 18-year-old — known as E.S. — was ticketed last September for being a minor in unlawful possession of liquor. He represented himself in provincial court, cross-examining the officer who charged him.
The officer testified that he searched the youth at about 10 p.m. on campus grounds because he had a backpack with a "boxy" outline, "consistent with the shape that would be made by a beer case."
But Judicial Justice Hunter Gordon said that didn't amount to reasonable and probable grounds for a search.
"In my view, E.S. had a reasonable expectation of privacy in his backpack, and that it would not be subject to an arbitrary search. E.S. was on the grounds of a university where, from my own experience, and from living only blocks from the University of Victoria, it is a very common occurrence for students to be wearing or carrying a backpack," Gordon wrote.
"In my view, this search was more in the realm of a fishing expedition based on mere suspicion."
A phenomenon known as 'partying'
In his ruling, Gordon said he hopes to provide clarity for authorities faced with a problem which rears its head like clockwork at the beginning and end of each semester.
"What occurs in September is that students in the residences, and some non-residence students, 'party'," Gordon wrote.
"That partying usually involves the consumption of liquor. Some consume too much liquor and acts of mischief and vandalism result, most often pulling the fire alarm or damaging property in a residence."
UVic hires local off-duty police officers to patrol the campus grounds in search of students violating the law banning minors from possessing liquor.
On the night in question, the officer stopped E.S. and asked him for identification.
"At the request of the officer, E.S. then opened his backpack. In it, there was no case of beer or any box of any kind. All the officer could see was a rolled up piece of clothing," the decision said.
"The officer then removed the piece of clothing and under it were three 355 ml cans of unopened Bud Light Apple and four 355 ml cans of unopened Lucky Lager."
The right to carry a 'boxy' backpack
Under cross-examination, the officer said he asked to search the student's backpack based on the time of day, his youthful appearance and the "boxy" shape of his backpack.
But E.S. challenged the officer, saying there was a group of about 10 students in close proximity at the time of the search, four of whom were wearing backpacks. None of them were searched. The officer couldn't recall.
In his ruling, Gordon said he's not suggesting the officer was being officious.
"The officer was there to ensure the safety of students at or in the residences and the good order of the residences and the university," Gordon wrote.
"But in doing so, the officer was required to maintain the proper balance between that duty and respecting the rights of those on campus to walk freely without interference."
And even had the officer had reasonable grounds for the search, Gordon said he should have stopped once he failed to find a box of beer, because the cans he did locate were rolled in a folded hoodie and not in plain view.