Editor's Note: Addendum released October 17, 2007. Original judgment has been corrected, with text of addendum appended.
ALCOHOL AND GAMING COMMISSION
OF ONTARIO
IN THE MATTER OF The : Liquor Licence Act, R.S.O. 1990, c. L.19, as amended
B E T W E E N:
Registrar, Alcohol and Gaming Commission Ontario
Registrar
-and-
Manuel Goncalves Pereira intending to operate as Blue Moon
Applicant
DECISION
Panel: Kirsti Hunt, Vice-Chair
Guy Maurice, Board Member
Decision Date: October 3, 2007
Hearing Location: Windsor, 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 Toll Free In Ontario: 1-800-522-2876
Website: www.agco.on.ca
Appearances
Registrar, Alcohol and Gaming Commission ) Brad Alton, Representative
Manuel Goncalves Pereira, Applicant ) On his own behalf
The Application
1. The Board of the Alcohol and Gaming Commission of Ontario ("AGCO") held a hearing on July 18, 2007 pursuant to a Notice of Proposal dated May 23, 2007 to review an application by Manuel Goncalves Pereira (the "applicant") for premises to be operated as BLUE MOON at 5270 Tecumseh Road East, Windsor, Ontario, N8T 1C6, establishment number 203840 to determine whether the applicant is disentitled to a licence on the basis of subsections 6(2)(d) and (e) of the Liquor Licence Act (“LLA”).
Decision
2. The Board DISMISSES the application for a liquor licence made by Manuel Goncalves Pereira for premises to be operated as Blue Moon at 5270 Tecumseh Road East, Windsor, Ontario, N8T 1C6. Reasons follow.
Preliminary Matters
3. Mr. Manuel Goncalves Pereira appeared on his own behalf and waived his right to a legal representative.
4. At the request of the applicant and on the consent of Registrar’s representative, the Board excluded the agent for the selling corporation who wished to make a statement regarding the previous licence holder. It was determined that he could add no further useful information to the Registrar’s case regarding this applicant. The Board explained to the applicant that, despite the exclusion of a witness, the proceedings were recorded and the decision of the Board would be a public document.
Registrar’s Evidence
5. Det. Douglas Knight of the Ontario Provincial Police ("OPP") conducted a liquor licence investigation of the applicant. There was a concern that the applicant may have an association with the previous owner whose licence was revoked. He found no such association.
6. On the Personal History Report (Ex 1), Mr. Pereira answered “no” to question 10 (a) which asks if he had ever been convicted of any offences including absolute and conditional discharges in any jurisdiction. Det. Knight’s investigation showed otherwise.
7. He requested additional information from Mr. Pereira through a lengthy questionnaire and subsequently interviewed him on January 25, 2007. On the questionnaire Mr. Pereira disclosed two contacts with police regarding his wife’s stolen car and a ticket for public intoxication. A National Crime Information Center ("NCIC") (a division of the Federal Bureau of Investigation) check revealed that there were criminal convictions for Mr. Pereira in the United States.
8. During the follow-up interview on February 8, 2007, Det. Knight was able to establish Mr. Pereira’s identity by a tattoo on his shoulder that Mr. Pereira showed him and which was described in the NCIC report. Mr. Pereira confirmed a conviction in 2000 for a felony offense of break and enter for which he was sentenced to 5 years incarceration. Mr. Pereira said he was incarcerated for 120 days and was released after completing a rehabilitation program. The officer brought a number of other charges to his attention and Mr. Pereira explained that some did not relate to him and given the American tracking offenses he could not give particulars.
9. Det. Knight spoke to Duncan McPherson, an Immigration Officer, who told him that Mr. Pereira had not been truthful with Immigration. When he first entered Canada at Toronto, he did not disclose his convictions in the US. He had the following charges in the US:
impaired driving on July 28, 1996;
aggravated assault of a pregnant woman on July 16, 1997. Mr. Pereira explained that the latter charge had been dismissed but the Officer was not able to confirm that;
possession of stolen property on December 12, 1989;
theft of a motor vehicle on September 5, 1989;
received stolen property on February 20, 1993 for which no disposition was established;
trespassing on September 25, 2000;
property damage, mischief on March 22, 2002;
resisting arrest on May 22. 2002; and
break and enter on Dec 12, 1989 which related to the stolen property on the same date.
10. Mr. Pereira was deported from the United States to Portugal in 2003. He arrived at Pearson Airport in Toronto in February 2003 on a 6 month temporary permit. He did not disclose his criminal record for 6 months. Mr. Pereira admitted to being deported because of his criminal convictions. This information was not disclosed during the January interview. Mr. Pereira also disclosed an April 24, 2005 “intoxicated in a public place charge” in Windsor. Det. Knight concluded that, based on the information on the application and the lack of truthfulness with Immigration, there seemed to be a pattern of failing to disclose past history. He agreed that, during the interview, they went through most of the charges and Mr. Pereira explained that some of the things did not happen and all of them were lumped together in a plea bargain.
11. Mr. Duncan Macpherson is an Immigration Enforcement Officer with Canada Border Services Agency. He testified that he is not familiar with Mr. Pereira personally but has reviewed the report on him from the immigration system.
12. Mr. Pereira objected to the use of the report since Mr. Macpherson had had no involvement with it and could not confirm whether statements in it were true or not. Mr. Alton submitted the information in the report is relevant and will give Mr. Pereira’s current status with Canada Border Services Agency. The Board agreed to hear Mr. MacPherson’s evidence keeping in mind that it was based on a report.
13. Mr. Macpherson explained that Mr. Pereira is a failed refugee claimant who is waiting for a decision on his application for pre-removal risk assessment. He entered Canada on or around February 2003 at Pearson Airport in Toronto. Entry was granted to him for 6 months as a visitor. Mr, Pereira failed to advise the immigration officer that he had been convicted in the United States. He knowingly withheld that information. Subsequently, he went to an immigration office in Toronto and made a refugee claim. It was determined that Mr. Pereira had criminal convictions. If he had been truthful on entry, he would have been deemed inadmissible to enter. When the criminal convictions were identified, he was arrested. He agreed that it is possible that Mr. Pereira was not asked about criminal convictions on his arrival at Pearson Airport.
14. He did not have a copy of Mr. Pereira’s refugee claim. The record shows that in Mr. Pereira’s case, there is an application for permanent residence on humanitarian grounds. He added that such an application does not necessarily stay an order of Pre-Removal Risk Assessment ("PRRA"). He did not know how long PRRA takes but he knows that there is a huge backlog in Toronto.
15. Mr. McPherson added that Mr. Pereira was deported from the United States to Portugal in 2003 because of serious criminal convictions. It appears that he concealed his past and deportation when entering Canada and knowingly removed the notation on his passport regarding the deportation. He did not know where Mr. Pereira’s passport was. Tampering with a passport is an indictable offence. He believed that officials in Portugal would have been aware that he had been deported but did not know if they would put a notation about the deportation on a travel document.
16. Mr. David Baxter was the Manager of Liquor Sales Licensing at the time the application was received on December 13, 2006 which included a personal history report (Ex 1). Background checks were done. A liquor licence investigation was done based on concerns about the previous licence holder and subsequent application for this location. That investigation showed that there was no relationship between Mr. Pereira and the previous applicant or the previous licence holder.
17. The General Occurrence Report (Ex 2) revealed that Mr. Pereira had previous charges and convictions and Mr. Pereira had said on the application that he had not been convicted or charged in any jurisdiction. He did not report the offences or the deportation. This does not meet the standard of honesty and integrity expected of a licensee. Mr. Pereira had also completed a substance abuse program related to alcohol in 2000. Licensees are required to control patrons and employees so people do not get intoxicated and, if he has a problem with alcohol, his judgment about intoxicated patrons may be impaired.
18. There seems to be a pattern of behaviour of failing to disclose his past. He did not disclose his convictions or deportation when he came into the country and he did not make full disclosure on the application or during the first interview.
Applicant’s Evidence
19. Mr. Manuel Goncalves Pereira does not dispute that he has been charged with offences or deported. From Det. Knight and a call to the AGCO, he understood that a conviction did not automatically exclude a person from getting a licence but that a number of things were taken into consideration. As a result, he spent considerable time and money gathering 5 years of information. He asked the Board to consider the fact that all the information about him is not true so. until the information can be verified, he should not be presumed to be guilty. Also since he has been charged with offences, a lot of time has passed and those events are in his past. Now he has a home for his wife and children and a business in Windsor.
20. When he was deported to Portugal, he had no ties there for he had left in 1974. The immigration laws in the U.S. are such that regardless of impact on the family, a person is deported with no legal recourse. He decided to come to Canada because he had family in Toronto. On his arrival, he was granted a 6 month stay. At no time was he asked about his past. Before that time period was up, he contacted Canadian Immigration and explained that he was in Canada, had been charged in the U.S. with criminal offences and deported. He was told that his best option was to go to Etobicoke and apply for refugee status because he feared that he would not make it in Portugal because he could not speak the language. After filling out an application admitting the offences, he went to an interview where OPP officers arrested him because he was not supposed to be in Canada.
21. He was taken to the immigration holding centre of the Canadian Border Agency to be held. Because of his offenses, he had to serve so much time to be eligible to apply to stay in Canada. The Immigration Board deemed him eligible to remain in Canada.
22. All sorts of allegations have been made, none of which are true. There were no alterations or variations on his passport or his papers. Det. Knight is correct in saying that he did not mention everything he was charged with. Because the OPP was involved, he would have been naive or out of touch to believe that his past would not come out. He thought that Det. Knight would get his background report and he would be able to give an explanation. In his report there were a lot of allegations but no disposition on any of them. For the second interview, all the dispositions were there. The documents from the Immigration Board do not show passport fraud or charges. He never had a Portuguese passport. He was issued 30 day travel documents which would give him time to get back to his home country.
23. He admitted that his answer to question number 10 on the application was not correct but he disclosed 150 pages of personal documents besides what is asked for in question 10. Unfortunately, the Board heard allegations that have not been substantiated and been provided with evidence that should not be considered. Based on that information, he is considered a violent person because of the charge of aggravated battery on a pregnant person. He denies being violent. His wife charged him but his counsel investigated and it was proved that she assaulted him. She wanted him out of the residence but she was not on the lease. She hit him on the head and kicked the door. The police said that the neighbours heard screaming and her pounding on the door. He had to get that cleared up.
24. His intent is to establish and build his business and he is willing to operate in any manner required including with conditions and with the Registrar checking on him. He agreed to exclude the previous owners and install cameras. He will do everything in accordance with the AGCO requirements. The Board has the option to put on terms and conditions on the licence to address any concerns that it has. Mr. Pereira asked the Board to afford him that opportunity and clear everything up by sending in documents. He feels that his personal integrity and personal honour are being attacked by malicious comments with no or little truth to them.
25. With the information from the AGCO that you can have offenses and still get a licence, he applied in good faith. People should have the opportunity to change, and go in a new direction without having things follow them for the rest of their life. He hopes to move forwards. He employs people now and this licence will allow him to provide another 8 to 10 jobs. If he is given an opportunity despite people having concerns, he will in a short time prove them wrong. He asked that Board to grant him a licence.
26. On cross-examination, Mr. Pereira explained that he did not know that the public intoxication charge was an offense but thought it was like a parking ticket. He was given an $85 fine and told to pay it or go to court to fight it. It would have cost him more to go to court so he pled guilty and paid the fine. He did not know its seriousness. The substance abuse program he completed was not any substance in particular. He agreed that at the time of the offence he had been drinking.
27. The report from Canada Immigration has no truth. Any application to Immigration clearly identifies everything about him. It was his application in Etobicoke that was the reason for his arrest. Mr. Pereira explained that he has been in jail 4 times, in Etobicoke and the 120 days in a correctional setting for the Florida offence and 90 days in Massachusetts. He also agreed that he had been on probation five times and explained that for any offence that you commit, you are put on probation.
28. He explained further that at the first interview, he did not have the details to all the charges in the report. The second time, they went over each item and he told the officer that some of the charges had been dismissed. Det. Knight did not identify him by his tattoo. He didn’t see it but he asked and Mr. Pereira told him that he did have a tiny cross on his shoulder but it was barely visible. Det. Knight had the disposition of all the charges. He had pulled up a report on anyone with the name Manuel Pereira. Det. Knight had all the information then, but now the information is not available. He did not know where the information went. He explained to Det. Knight that there was a lot of duplication and that you had to match the case with the line number. He does not dispute the charges but disputes whether he was guilty or not.
29. His present status in Canada is such that he can work, live and do everything but vote. He is awaiting a pre-removal risk assessment because his application for refugee status was denied. That generally takes 4 to 6 months.
30. His last criminal charge was in 2001. The last disposition of any charge is the treatment program in 2003 that related to issues in 2002. Mr. Pereira didn’t know how many criminal conviction he has had. He explained that if you commit an offence, you get charged with many counts. He thought he had fewer than 10 convictions. He agreed that he had been convicted of public intoxication in 2005 in Windsor. He was taken into custody and held for 4 hours, released and given a ticket.
31. His business now is the Lakeside Industrial Supply Company. He wants to operate the licensed establishment as a lounge same as it was before. It has a capacity of 121 persons. Because extensive renovations are needed in the kitchen to bring it up to fire code, they do not have adequate warmed meals. If given a licence he will buy the premises and renovate the building which is now dilapidated. Given the circumstances of the previous establishment, he is open to terms and conditions. That establishment was open late and had problems with drugs and noise which disturbed the residential neighbours behind. He will ensure that drugs and undesirables are not a part of the establishment, including the previous owners whom he agreed to exclude.
Analysis and Findings
32. The Board agrees with the submission of the Registrar that there is clear evidence that the applicant answered “no” to question 10 (Ex 1) that asked if he had been convicted of any offences including absolute and conditional discharges against him in any jurisdiction. The applicant did not dispute his answer but submitted that his case is resting solely on question 10, that the Registrar is saying that he got 9 out of 10 questions right but he failed although other parts of the application ask similar questions and the Registrar is not relying on the other questions where he disclosed everything. The Board accepts the submission of the Registrar that the information asked for in that question was not disclosed elsewhere in the application. Since the applicant admitted to having convictions against him and did not dispute his failure to answer on the application or make full disclosure to Detective Douglas Knight the Board finds that the applicant breached subsection 6(2)(e) of the LLA.
33. Based on the evidence of Detective Douglas Knight, the Board is satisfied that there is no connection between the applicant and previous licence holders or the previous applicant. At issue, therefore, is the past conduct which relates to the criminal history of the applicant. The Board accepts the detailed and credible evidence of Detective Douglas Knight regarding a lengthy criminal history of Mr. Pereira in the United States. It is clear that Mr. Pereira has been charged and convicted of criminal offenses in the United States, that he was deported from the US to Portugal because of that criminal record and that Mr. Pereira pled guilty to being drunk in a public place in Windsor in 2005.
34. Mr. Pereira argued that some of the charges against him had been dismissed or did not relate to him since the officer had pulled up a report on anyone with the name Manuel Pereira. Based on the identification of a tattoo, which Mr. Pereira admitted to having, the Board accepts that the charges identified by Detective Douglas Knight relate to Mr. Pereira.
35. Despite his argument regarding identity, Mr. Pereira agreed that he had been charged with the criminal offenses presented but disputed whether he was guilty. He argued that until the disposition of those charges can be verified, they should not be held against him. The Board notes that Detective Douglas Knight could not confirm the disposition of some of the charges against Mr. Pereira in the United States but Mr. Pereira did admit the felony offense of break and enter. He admitted to being deported because of his criminal record and that he is considered to be a violent offender by law enforcement but denied being violent. He stated that he had been in jail 4 times including once in Windsor, on parole five times in the U.S. and estimated being convicted fewer than 10 times in the U.S. His answers about the number of times he was in jail and on parole kept changing and his evidence regarding the number of convictions against him was fuzzy as best which leads the Board to conclude that Mr. Pereira was not forthright. On the basis of all the evidence, the Board finds that Mr. Pereira has a sufficient lengthy criminal history to raise a serious concern about his suitability as a licence holder.
36. The Board also shares the Registrar’s concern about the applicant’s problems with alcohol in the past. The evidence shows a drinking and driving charge in 1996 and a completed substance abuse diversion program. The applicant explained the program can be for any substance but did admit to drinking when he was charged so, on a balance of probabilities, the Board finds the substance in question was alcohol. If the substance was not alcohol but drugs, that does not reassure the Board for that would add another dimension of concern. The applicant also admitted to being drunk in a public place in 2005. Given the responsibility of a licensee to ensure that patrons are not over-served and given evidence of his problems with alcohol in the past, the Board is concerned about the applicant’s ability to fulfil that responsibility.
37. The Board gives no weight to the evidence from Mr. Macpherson regarding the applicant not disclosing his criminal record upon his arrival in Canada or the allegation that he altered his passport or travel documents to eliminate any mention of the deportation since there is not sufficient evidence to arrive at those conclusions.
38. The applicant submitted to the Board that he has been very transparent about his past but the Board finds that not to be the case. The applicant did not disclose his criminal history on the application, did not disclose his deportation until the second interview with Detective Douglas Knight and has attempted to minimize to the Board the depth and seriousness of his record by being evasive and contradictory in his evidence.
39. The applicant submitted that he has changed his life, that his criminal record is in the past and asked the Board to give him a chance and grant the licence on terms and conditions and any oversight deemed necessary. The Board does not grant probationary licences. The applicant may have turned his life around but the Board finds that conditions on the licence would not satisfy its concerns at this time about this applicant’s pattern of negative past conduct some of which is recent. If in future the applicant builds up a history of good and law abiding conduct, he does have the ability to apply again for a licence which would at that time be considered by the Board.
40. Based on the totality of the evidence, the Board makes a finding under subsection 6(2)(d) of the Act, that the past conduct of the applicant affords reasonable grounds for the belief that the applicant will not carry on business in accordance with the law and with integrity and honesty.
Order
41. For the above reasons, the Board DISMISSES the application for a liquor licence made by Manuel Goncalves Pereira for premises to be operated as BLUE MOON at 5270 Tecumseh Road East, Windsor, Ontario, N8T 1C6, establishment number 203840.
DATED AT TORONTO THIS 3rd DAY OF OCTOBER, 2007
KIRSTI HUNT, VICE-CHAIR GUY MAURICE, BOARD MEMBER
KH/sm
Re: Manuel Goncalves Pereira intending to o/a Blue Moon,
Establishment Number 203840, Board’s Decision October 3, 2007.