SPVM backs off as Globe Restaurant had not committed offence

Par Beryl Wajsman le 9 juin 2013

The recent seizure of the Globe Restaurant’s liquor supply, subsequently overturned in court just before the Grand Prix, did not stem from any offence. In fact, the Globe’s owners were not even presented with a copy of the warrant as mandated by law. It has also come to light that a previous incident in 2011 may have been the result of  possible police entrapment, a tactic condemned in numerous judicial decisions going all the way to the Supreme Court and grounds for a legal defense usually resulting in acquittal.

The regulations that led to the seizure are contained in  “An Act respecting the Societe des alcools du Quebec.” That Act has provisions which state that establishments holding what are commonly known as “resto-bar” permits, are only able to sell alcohol accompanied with a meal. This law prevents restaurants from serving a glass of wine or a beer without a full meal. It dates back to 1921, dovetailing with the American prohibition era though Canada  never copied the notorious Volstead Act that brought the ultimate failed experiment in social engineering into existence. The Act has no clear definition of what constitutes a meal by Quebec’s “Regie des alcools, des courses et des jeux” or by the police. This has led to frequent cases of misapplication of the regulations. But what has usually occurred have been seizures of just the items “necessary to prove the commission of an offence”relating strictly to a specific incident - as the law states - not the entirety of a restaurant’s wine cellar, spirits, and money which have no relation to the alleged offence in question. No one can recall a total seizure of the wine and liquor inventory of a restaurant with thousands of bottles. Quebec is the only jurisdiction in North America with laws that require restaurants to serve a meal with all alcohol sales.

But it is one thing for an inspector from the SAQ to see an incident, or have one reported, and quite another for what may have happened at the Globe. Just after midnight on June 1st,some 20  members of the SPVM’s morality squad descended on the Globe’s location on Saint-Laurent Boulevard  with a warrant for search and seizure. Police officers refused to give a copy of the warrant to owner Massimo Lecas as is required by the law. The warrant did not disclose the infraction, which would normally disqualify it on its face as it is a principle of  law that an accused know what the charge is. It later turned out that the warrant was issued for past infractions which had already been resolved.  The Globe’s last infraction on record was in 2011 for selling alcohol without food to an undercover police officer. With the SPVM’s Anti-Gang squad in support – an almost unprecedented use of a special police unit - officers ejected some 130 clients from the restaurant without affording them the opportunity to finish their meals or pay their bills.  They confiscated an estimated  $100,000 in bottles of alcohol and wine from the establishment _ some 2400 bottles among which were 1700 bottles of wine - and seized thousands of dollars from the cash registers. The bottles were taken to a SAQ warehouse. The breadth and scope of the SPVM’s Globe action is without precedent.

The law requires that there be a determination made at the scene of an infraction. No such process was entered into at the Globe because the warrant was not based on any current infraction. The Globe’s owners were able to obtain a Superior Court hearing on the 4th and 5th of June just before the Grand Prix.  Judge Fraser Martin made it clear in his comments that he could not determine under what legislative wording or authority the police carried out their raid. The SPVM returned all of the Globe’s stock on the afternoon of June 5th. Seven hours and six employees were necessary for the alcohol to be returned to its original place. The Globe’s owners are consulting with their attorneys, Fasken Martineau, on the possibility of taking legal action against the SPVM and the City for damages.

But what makes this affair so compelling are two matters. Some observers have speculated that this was payback for the “Pastagate” furor that made Quebec a worldwide laughingstock after language inspectors fined the Buona Notte restaurant also owned by Lecas. The OQLF had to back down on that incident just as the SPVM had to back down on this one.. But perhaps just as important a matter of public policy is the manner in which the 2011 fine under the 1921 legislation occurred. As mentioned above, it did not occur because a SAQ inspector saw someone drinking without eating or a complaint was received. It occurred because an undercover police officer came into the restaurant and ordered a drink. He then decided to press the complaint. That kind of behavior by police is usually defined as entrapment. Entrapment is any activity where police officers instigate or induce the commission of an offence. The defense of entrapment was developed in three major decisions of the Supreme Court of Canada: R. v. Amato, [1982], R. v. Mack, [1988], and R. v. Barnes, [1991]  There are variants and subtleties in the use of the defense but what they all come down to is that if, after finding an accused guilty, a court determines that the accused was entrapped, a court will enter a judicial stay of proceedings. In effect, equivalent to an acquittal.

Now imagine for a moment what that undercover officer in 2011 did. The officer came into the restaurant. Sat down and asked for a drink. Merely because no one pressured the officer to order a meal, the officer was able to lodge a complaint. But obviously if the officer did not intend to entrap – to induce the commission of an offence – the officer would have ordered. But perhaps the waiters and waitresses were busy and were late getting around to asking the officer for his food order. Are restaurants to be fined because of lateness by staff? Normally when you enter a restaurant and sit down, you are given menus and asked what you would like to drink. You order a drink and take your time about ordering food. There are no guidelines in the Act that set out how long a period constitutes “drinking without eating.” Is it ten minutes to peruse the menu? Is it a half hour? Is the very fact of the waiter or waitress bringing you a drink while you are looking at the menu in and of itself a violation of this archaic law? No one knows because the law is so vague. 

Sandy White, President of the Quebec Nightlife Association,  put it perfectly this way, “That this took place at one of Montreal’s most famous restaurants a few days away from Grand Prix weekend and on such weak grounds is mystifying. If no infraction was the grounds for the seizure, it would stand to reason that every establishment in Quebec with a resto-bar license should likely also have all their alcoholic products and money confiscated for committing such an infraction. How can you force clients to purchase a meal once they’ve had a drink and changed their mind on whether to eat? And it is still unclear what really constitutes a meal. While we understand that police officers have a job to do, we very much take issue with the many senseless laws which continue to hurt an industry that is a major contributor to Quebec’s economy.The food and beverage industry comprises more than 20,000 establishments and employs more than 200,000 Quebecers, with the average business generating over $500,000 in annual sales. This type of treatment is both reprehensible and embarrassing for Montreal and Quebec as a whole and follows a pattern of harsh and arbitrary application of outdated laws. The laws in question must be changed and relations between the SPVM and this industry must be improved.”

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