Registrar, Alcohol and Gaming Commission Ontario v. Aimable Harerimana, 2007 CanLII 26960

ALCOHOL AND GAMING COMMISSION

OF ONTARIO

IN THE MATTER OF The : Gaming Control Act, 1992, as amended

B E T W E E N:

Registrar, Alcohol and Gaming Commission Ontario

Registrar

-and-

Aimable Harerimana

Registrant

DECISION

Panel: Allan Higdon, Board Member

Beryl Ford, Board Member

Decision Date: June 19, 2007

Hearing Location: Niagara Falls, Ontario

Alcohol and Gaming Commission of Ontario

90 Sheppard Avenue East, Suite 300

Toronto ON M2N 0A4

Phone (416) 326-0366 Fax (416) 326-5566

Website: agco.on.ca

Appearances

Registrar, Alcohol and Gaming Commission ) Ed Wren, Representative

Aimable Harerimana, Registrant ) Margaret Hoy, Representative

The Application

1. On April 2, 2007 the Registrar issued an Order of Immediate Suspension under the Gaming Control Act to Aimable Harerimana suspending his registration as a gaming assistant, registration number 88913. The Registrant requested a hearing before the Board of the Alcohol and Gaming Commission. The Hearing was held on May 24, 2007 in the City of Niagara Falls.

Decision

2. By Order dated June 13, 2007 the Board revoked the immediate suspension with reasons to follow. These are the Board’s reasons for that decision.

Preliminary Matters

3. In preliminary statements the Board heard Mr. Harerimana was initially employed in 2000 at Fort Erie Slots as an account attendant. In 2004 He moved to the more senior position of casino accountant at Casino Niagara. Mr. Harerimana currently holds that position but is not working as a consequence of the Immediate Suspension.

Registrar’s Evidence

4. Officer Cindy White of the Niagara Regional Police (“N.R.P.”) testified she first encountered Mr. Harerimana in her role as a Police Sergeant with the Sexual Assault Unit of the N.R.P. department.

5. The witness was called to St. Catherine's General Hospital Sexual Assault Treatment Centre on August 7th 2002 as a result of a statement made to another police officer by a sexual assault victim.

6. The victim reported she had been sexually assaulted on two occasions. She named the assailant as Aimable Harerimana. The victim reported the incidents had occurred on August 5th 2002 at approximately 11 p.m. at Mr. Harerimana's home and the second incident happened in the early morning hours of August 6th 2002 at the victim's home. The report indicated the victim suffered minor injuries.

7. Officer White conducted an investigation and learned that Mr. Harerimana had left Canada on August 6th 2002 to return to Rwanda to be married. Mr. Harerimana returned to Canada approximately 6 weeks from the time of his departure. On his return, Officer White visited his apartment and made an arrest based on an investigation of sexual assault.

8. The witness stated the period leading up to the sexual assault trial was very lengthy due to a variety of scheduling issues, including the need for interpreters. On December l5, 2006, Mr. Harerimana was found guilty of sexual assault. The sentencing took place in February 2007. The order included probation, a restitution order, fines and conditions. (Exhibit 1 Probation Order, received March 8th 2007.)

9. Both Mr. Harerimana and the Crown are appealing the decision.

10. In cross examination, Officer White agreed that the Justice who ruled on the case was known for making “different decisions.” Officer White also agreed she thought the sentence "bizarre and outrageous." In the five years she had investigated sexual assault cases and the 300 cases in which she had been involved, she had never ever seen a case where restitution was ordered to be paid to the victim.

11. Officer White clarified she was surprised that the judge had ordered probation. Usually in sexual assault cases the perpetrator is given prison time. She said the penalty was very unusual.

12. In response to further questions, Officer White clarified that in her initial report she had noted that the victim's mother and a nurse were present at the hospital. The victim spoke little English but the victim had told her that the assault occurred only once. After the incident, the victim called Mr. Harerimana the next day to ask him for a ride to work. It was only at the trial that the victim said the assault had occurred on two occasions.

13. Mr. Jeff Longhurst, Deputy Registrar with the Alcohol and Gaming Commission of Ontario (“AGCO”), testified that one of his responsibilities is to review all applications received for employment in the gaming industry. In this capacity he reviewed Mr. Harerimana's application for renewal as a gaming assistant.

14. In the case of Mr. Harerimana's renewal application it was found there was a serious charge against him and ultimately a conviction for sexual assault. It is the responsibility of the Registrar to ensure that all applicants meet the criteria established by the Gaming Control Act and the AGCO. Registrants must be above reproach. They must be, and must been seen to be, of the highest integrity and honesty in order to work in the gaming industry.

15. The gaming industry is very vulnerable to fraud, theft and other criminal activities. It is the responsibility of the Registrar and the AGCO to ensure that persons working in the industry are honest, trustworthy and of the highest integrity. It is not in the public interest to issue a gaming licence or register persons who have a criminal record.

16. The AGCO, through the Registrar, mandates that persons working in a casino must be registered under the Gaming Control Act. Although, Mr. Harerimana does not physically work at a casino, there are occasions when he must visit the casino in his work capacity. It is mandatory that anyone who works for the gaming industry be registered whether they work on-site or off-site a casino.

17. Mr. Longhurst testified the Registrar considered the conviction of Mr. Harerimana a serious criminal offence that would put public confidence at risk if he were allowed to continue in his position with Casino Niagara. The same standards apply to all gaming employees and key employees who have extra managerial responsibilities.

18. Mr. Longhurst noted the fact that an appeal is underway does not effect the decision of the Registrar to suspend Mr. Harerimana's registration. Mr. Harerimana was charged over 4 years ago but a suspension order was not issued until he was convicted of a criminal offence.

19. In cross-examination Mr. Longhurst stated he was not aware of Mr. Harerimana's work record. He has no knowledge of any other criminal incidents involving Mr. Harerimana. He agreed that for the past 4½ years Mr. Harerimana had performed his job well, and with honesty and integrity. Mr. Longhurst was not aware of any complaints lodged against Mr. Harerimana with regard to his work ethic or relationships with colleagues, including male or female staff or guests.

20. Mr. Longhurst acknowledged that during the investigation he had a person speak to the Crown Attorney involved in the case and discussion took place with respect to the how the case was handled by the trial judge. It was no surprise that an appeal was taking place. Mr. Longhurst said a defence lawyer working for Mr. Harerimana said there was a possibility his conviction would be overturned on appeal.

Registrant’s Evidence

21. Mr. Mark Eshuis has been a lawyer for the past eleven years. He testified an appeal has been filed on behalf of Mr. Harerimana.

22. Mr. Eshuis stated the Crown had pursued a Summary Conviction against Mr. Harerimana. This normally indicates a less serious offence than an Indictable Offence that carries a more serious penalty. There was no evidence of violence or coercion on the part of Mr. Harerimana. The request by the Crown Attorney to seek Summary Conviction was a surprise to the witness and other witnesses. Mr. Eshuis testified he gained the impression from the Crown Attorney's actions that the incident was not considered a serious offence.

23. The Notice of Appeal (Exhibit 2) was entered into evidence.

24. Mr. Eshuis stated the summary of the allegations was that the victim was assaulted at the assailant's apartment, she had then asked him to drive her home, invited him into her apartment where she was sexually assaulted again, after which her assailant left her apartment. The following morning the victim telephoned Mr. Harerimana and asked him if he would drive her to work.

25. Mr. Harerimana's version was that they were at his apartment, they kissed consensually, they did not have sex, she asked him to drive her home, he did, she invited him in, and they engaged in consensual sex.

26. Mr. Eshuis gave his opinion that the conviction will be overturned on appeal. In cross-examination Mr. Eshuis confirmed that he is not the lawyer for the appeal.

27. Mr. Eshuis told the Board that in his opinion the sentence was bizarre. If the judge thought Mr. Harerimana were truly guilty of rape he would have ordered a prison sentence.

28. Mr. Kevin Gennings is a Senior Accountant at Casino Niagara. He works on Queen Street in Niagara Falls, an off-site facility of Casino Niagara.

29. The witness said he had known Mr. Harerimana for the past three years - he sits besides him in the office. Although he is not Mr. Harerimana's supervisor, it was his responsibility to review data that Mr. Harerimana worked on, including journal entries and daily reports. He finds Mr. Harerimana to be a decent, hard working man who is knowledgeable, very personable, and gets on well with all staff, both male and female, Mr. Harerimana conducts casino audits, which involve him being part of a team of four people including three women.

30. The witness considers Mr. Harerimana to be a good family man. He talks about his wife and two children. He has never seen him angry and has every reason to believe he is a trustworthy and honest employee. Mr. Gennings stated that Mr. Harerimana is one of the hardest workers they have in the office; he would never consider him a threat to anyone. Those that work with him trust him implicitly.

31. Mr. Harerimana had told the witness he was involved in a lawsuit but he did not disclose the details.

32. Mr. Christopher Lazarz is the Manager of Casino Counting for Casino Niagara and has known Mr. Harerimana for the past 8 months through his employment. He has found Mr. Harerimana to be a very good worker who is diligent and reliable. He has never received a complaint about him.

33. Mr. Lazarz stated he has no concerns about Mr. Harerimana and would welcome him back to work immediately if the suspension were lifted.

34. Ms. Hoy asked Mr. Lazarz to explain the performance sheet entered as Exhibit #3 Hourly Performance Report. Mr. Lazarz explained the performance sheet for Mr. Harerimana, dated March 28th 2007, showed he had met and exceeded all standards, procedures, and internal practices. He noted that Mr. Harerimana didn't just do his job; he excelled at it and showed great diligence.

35. In cross-examination Mr. Lazarz agreed that a high degree of honesty and integrity must be upheld at all times by casino employees. He agreed he was only fully aware of the details of the charges today. As he had only supervised Mr. Harerimana in recent months, he could not be sure if Mr. Harerimana had or had not reported to his previous supervisor the details of the case. Mr. Lazarz stated that, even knowing the details, it would not influence his decision to continue working with Mr. Harerimana.

36. Aimable Harerimana testified that he immigrated to Canada in March 1998 from Rwanda where he was born. Prior to coming to Canada, Mr. Harerimana earned a university degree in Rwanda, taught high school for a short time, and from 1995 –1997 worked as a custom inspector in Rwanda. He lives with his wife and two children and continues to support his mother and grandmother in Rwanda.

37. His first job in Canada was working at the Fort Erie racetrack slots. He went to work at Casino Niagara in 2004 after he was promoted to Account Attendant. He has never had difficulty working with people.

38. The witness stated he has been under tremendous stress due to the charges laid against him and has tried to do his job the best he could. He has complied with all the regulations related to reporting to the AGCO. He has followed his bail conditions diligently and only went back and forth to work and his home. He has filed an appeal against his conviction.

Registrar’s Submissions

39. Mr. Wren submitted that the offence of which Mr. Harerimana stands convicted is a very serious offence. A court of law has found he committed sexual assault.

40. The Registrar chose to wait until the criminal trial was over and only took action to suspend registration upon conviction. Mr. Wren emphasized that Mr. Harerimana's work ethic is not at issue, only his suitability for employment given his conviction for sexual assault.

41. Mr. Wren further submitted that any individual registered through the AGCO to work as a gaming assistant, or in any capacity in a casino operation requiring registration, must demonstrate the highest standards of trust and integrity in order to maintain the confidence of the public. It is clear that Mr. Harerimana does not meet that standard.

Registrant’s Submissions

42. Ms. Hoy submitted that Mr. Harerimana had not had his day in court. He is only part-way through the process. The case is under appeal by both defence and crown attorneys.

43. She submitted it is not often a decision is made in a court of law where both parties agree the sentence was “bizarre and outrageous,” as one witness claimed. It was very unusual in her opinion to hear those words coming from a police officer involved in the original arrest.

44. Ms. Hoy submitted the sexual assault conviction was based on one person's word against another without witnesses. Since the offence, Mr. Harerimana has worked for four and half years without incident. Evidence from his working colleagues, including his supervisor, was consistent that he was honest, credible and of high integrity.

45. Ms. Hoy submitted that Mr. Harerimana has a right by law to appeal, he is exercising that right, and he deserves to be able to work and support his family while that appeal is pending. Counsel asked the Board to dismiss the suspension of the registration of Mr. Harerimana.

Analysis

46. Mr. Harerimana has exercised his right to appeal his conviction for sexual assault. It is unknown when the courts will hear this appeal.

47. Mr. Harerimana has been convicted of a serious offence. However, there appear to be mitigating factors, given the treatment of this case by both the Crown and the Court. The Board heard evidence from witnesses for both parties stating the trial was unusual. The Crown pursued the prosecution as a Summary Conviction. Mr. Eshuis’ evidence was that this was an unusual decision and suggested the Crown considered the incident was not serious. The Registrar did not challenge this analysis.

48. Witnesses for both parties expressed surprise that the sentence included restitution, a fine, and probation rather than a period of incarceration. The penalty suggests the Court also did not consider the offence to be serious. Witnesses described the penalty as “bizarre and outrageous”.

49. Mr. Harerimana has continued to work in the gaming industry for four and half years since the charges were laid. There has not been a single incident or complaint against him during that time.

50. The Board heard testimony from Mr. Harerimana's co-worker and supervisor who both described him as honest, hard working, reliable, a person of high integrity with an excellent work ethic and highly respected by his colleagues.

51. Mr. Harerimana's integrity has never been questioned during his employment for the past four and half years. He has taken a leadership role in his employment by mentoring other employees and his employment evaluation describes him as a person who demonstrates trust, commitment, and diligence. He is a person who goes beyond the expectations of his job description.

52. The Board heard that Mr. Harerimana would be immediately welcomed back to his positions with Casino Niagara if his suspension were lifted.

53. The Board sees no useful purpose in continuing the suspension of Mr. Harerimana. In over 4 years of continued employment in the gaming industry Mr. Harerimana has demonstrated his honesty and integrity.

54. His evaluations indicate that his work ethic and conduct is above reproach.

55. Testimony by co-workers confirmed that Mr. Harerimana has a strong working relationship with his colleagues and is a positive influence and mentor who is highly respected by his peers and supervisor.

56. It is the opinion of the Board that Mr. Harerimana does not pose a threat to the public; nor would public interest or trust be compromised by his continued registration with the AGCO.

Order

57. The Board therefore ORDERS that the immediate suspension order of the registration of Mr. Aimable Harerimana under the Gaming Control Act be revoked.

DATED AT TORONTO THIS 19^th^ DAY OF JUNE, 2007

BERYL FORD, BOAD MEMBER ALLAN HIGDON, BOARD MEMBER

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