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-
Darchris Productions Inc. O/A Solid Gold Adult Entertainment
Licensee
DECISION
Panel: Allan Higdon, Board Member Alex McCauley, Board Member
Decision Date: February 27, 2008
Hearing Location: London & Toronto, 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
Darchris Productions Inc., Licensee ) Angelo Fazari & Andrew Iler, ) Representatives
Authorities
1505117 Ontario Inc. (Via Egnatia Restaurant and Bar), [2007] O.A.G.C.D. No. 392
R. v. Oakes, 1986 CanLII 46 (S.C.C.)
R. v. Hutchens [1998] O.J. No. 4127
Jacobi v. Griffiths 1999 CanLII 693 (SCC), 174 D.L.R. (4th) 71 (S.C.C.)
Royal Bank of Canada v. Intercon Security Ltd. [2005] O.J. No. 4700.
Notice of Proposal and Interim Suspension Order
- A hearing into Notice of Proposal number 15651 dated September 14, 2007 to revoke a liquor licence and an Order dated September 14, 2007 and amended September 21, 2007 to immediately suspend liquor licence number 92427 issued to Darchris Productions Inc. operating as SOLID GOLD ADULT ENTERTAINMENT, 398 Clarence Street, London, Ontario, N6A 3M7, on the basis of alleged violations of clause 6(2)(d) and subsection 45(1) and 45(2) of the Liquor Licence Act ("LLA") and subsection 45.1 of Ontario Regulation 719/90 (“O.Reg”) made pursuant to the LLA, was held on October 3 and 4, November 8, 9, 14,15 and 16, 2007 in the City of London and on December 10, 2007 in the City of Toronto.
Decision
- After considering all the evidence and submissions the Board FINDS the Licensee breached subsection 45(1) and clause 6(2)(d) of the LLA. The Board DISMISSES the allegations of violations of subsection 45.1 of the O.Reg and subsection 45(2) of the LLA. Reasons follow.
Preliminary Matters
The Board ordered witnesses excluded.
The Board heard the Licensee’s motion to dismiss the NOP and lift the interim suspension on the October hearing dates. Its reasons for dismissing the motion were issued October 15, 2007 and are reported at 2007 CanLII 47093.
Particulars of the Allegations
The Registrar alleges that on or about September 5 and 6, 2007 an 18-year-old patron, Kyle Van Heugten, was in the Premises. Van Heugten initially agreed to a “lap dance”, changed his mind and refused to pay the dancer her fee of $60.00. A bouncer, Douglas Exner, became involved. Van Heugten told Exner he had no money and had to go out and get some from a friend.
A video shows Van Heugten leaving the premises. Once outside Van Heugten ran off and Exner gave chase. Douglas Exner is alleged to have tracked Van Heugten down, assaulted him, and taken a quantity of cash from him. Exner then returned to Solid Gold.
The matter was reported to police who attended at Solid Gold. The manager on duty, Michel Fortier, advised them that no incident had occurred that night at the club or with any staff member. Fortier is alleged to have changed his story when police confronted him with video evidence.
The Registrar alleges the Licensee refused, withheld, concealed or destroyed relevant information required for the purpose of an inspection and obstructed a person carrying out an inspection contrary to subsection 45(1) of the LLA, failed to facilitate an inspection relevant to the licence contrary to subsection 45(2), and failed to ensure that reasonable measures were in place and reasonable efforts made to deter disorderly conduct on the property adjacent to and in the vicinity of the premises contrary to subsection 45.1 of the O.Reg. The Registrar further alleges that, contrary to clause 6(2)(d) of the LLA, the past/present conduct of the Licensee is such that there are reasonable grounds for belief the business will not be carried on in accordance with the law and with integrity and honesty.
Registrar’s Evidence
Kyle Van Heugten arrived at Solid Gold around midnight on the night of September 5/6, 2007 with a friend, Brent Cunningham. He was 18 years old at the time and used his older brother’s identification to enter the premises. Prior to entering Solid Gold the two had been drinking for approximately 2 to 3 hours at a club called J.T.’s.
Van Heugten and Cunningham ordered a beer. Cunningham then went with a dancer for a “lap dance”. A dancer approached Van Heugten and asked if he would like a “lap dance”. He went with her to a back room. She started the dance and Van Heugten stated he changed his mind. The dancer demanded $60.00. Mr. Van Heugten told her he didn’t have it.
The dancer took Van Heugten by the shoulder and escorted him to the bouncer, Doug Exner. The dancer spoke with the bouncer and explained Van Heugten owed her $60.00. The dancer then slapped him across the face. He wasn’t sure why.
Exner then grabbed Van Heugten and roughly escorted him out of the club. Once outside, Exner demanded the $60.00. Van Heugten took off running. Exner ran after him yelling that he was “going to kill him”. Van Heugten described Exner as a big man, over 6 feet tall and weighing over 200 pounds.
Van Heugten looked back and noticed the bouncer was catching up to him. He discarded his sandals and ran bare foot. He ran into a shop and offered the clerk $100.00 to let him hide in the store. He remained in the store for about 45 seconds. Van Heugten saw Exner go by, left the store and began running toward the John Labatt Centre (JLC). He found a bench behind the JLC and called Cunningham on his cell phone. Van Heugten explained his situation and Cunningham agreed to come and meet him.
Cunningham took a cab to meet Van Heugten. Van Heugten got in the rear seat but, before the cab could leave, an SUV pulled in front blocking its path. Exner got out and went to the cab. He forcefully ordered Van Heugten to get out but Van Heugten locked the rear door. Exner then reached in through the front passenger window, unlocked the rear door, opened it and dragged Van Heugten out.
Exner demanded the money and began to assault Van Heugten. He was kneed and punched several times in the face. Exner pulled Van Heugten’s wallet out of his pants pocket. Van Heugten stated he had $100.00 cash which he gave to Exner. Exner then got in the passenger side of the SUV and left. Van Heugten described the SUV as a newer model, greyish on the bottom but more red on top.
Both the cab driver and Cunningham remained in the cab during the altercation with Exner. Van Heugten stated his nose and cheek were bleeding from the assault. Van Heugten flagged a passing police vehicle down and told the police officer he had been assaulted. He also told him the person who assaulted him had taken his wallet and money. He told the officer twice that his wallet had been stolen. When the officer asked Van Heugten to turn around he notice the wallet was in his back pocket. Van Heugten admitted he had not told the truth to the officer and then was afraid to change his story.
The officer examined Van Heugten’s wallet. As it contained Van Heugten’s older brother’s identification, the officer assumed Van Heugten was Derrick Van Heugten. Van Heugten took no steps to clarify or correct this misapprehension. The officer then left. Van Heugten and Cunningham took a different cab home.
Early on September 6, 2007 the police called Van Heugten’s mother looking for Derrick. Van Heugten subsequently attended at the London police station later that morning to correctly identify himself. He told the police he did not want charges laid against the person who had allegedly assaulted him because he did not want the man coming back at him.
Exhibit 1 is a video from the downtown closed circuit television camera at Dundas and Clarence streets. It shows Van Heugten running and another male running behind him. Van Heugten identified the male running behind him as the Solid Gold bouncer (Exner). The video shows Exner walking back toward Solid Gold carrying a pair of sandals.
Exhibit 2 is a video from the Solid Gold security system. It shows Van Heugten exiting the entrance foyer of Solid Gold followed by Exner and, later, another Solid Gold employee subsequently identified as Michel Fortier. A female is also seen exiting who was identified by her stage name of “Bianca”.
In cross-examination Van Heugten testified he is a student at Fanshawe College. On the night in question he was with friends. They did not party before going out. He confirmed he had been at a bar known as J.T’s before going to Solid Gold. He stated he had been to J.T’s before, as well as to other bars.
Pressed on this point, Van Heugten stated the bar might have been Jim Bobs, not J.T’s, but reiterated he had attended only one bar before going to Solid Gold. He admitted having about 5 drinks at Jim Bobs. They were drinking vodka at Jim Bob’s and he stated he was drunk when he left there.
The group took a cab from Jim Bobs to Solid Gold. Van Heugten admitted using his brother’s identification to get into both bars. He was drinking Coors Lite at Solid Gold when approached by the dancer. He was unable to recall why he went with the dancer but confirmed that, once he was in the back area, he told her he no longer wanted the dance. He stated he didn’t know what the dancer was going to do. He was unable to remember if he touched the dancer. Van Heugten also stated that, if the dancer said he touched her, her statement was inaccurate.
The witness maintained he was viciously dragged from the club. He was unable to explain the difference between his version of events and the video which showed him leaving the club on his own. He denied he was not telling the truth.
Van Heugten admitted he was incorrect in stating to the bouncer about having no money. He denied telling the bouncer he was going out to get money from a friend. He confirmed he did not call 911 or the police directly. He was unable to give a reason why he didn’t call the police.
Asked how he knew bouncer got out of an SUV, Van Heugten stated that the passenger door was open. He denied getting out of the cab voluntarily. He reiterated that he was kneed in the face and punched several times. He confirmed he gave cash to the bouncer. Van Heugten described the bouncer as wearing dark clothing without any badge or other identifier. After the bouncer left, Van Heugten got back in the cab. He did not go to the hospital because he felt there was no need.
Van Heugten admitted misstating to the police about having his wallet stolen. He denied he was untruthful because he was afraid of being charged by the police. Van Heugten also denied telling the police that he was viciously carried from the premises of Solid Gold explaining that “carried or dragged: same thing”. His response when asked if he was lying at the hearing was “I have nothing to say”.
On re-direct, Van Heugten clarified that he was drunk but not “wasted” when he entered Solid Gold and that he knew what he was doing. He explained the bouncer had grabbed him by the shoulder inside the club and walked him out to the front door, a distance of approximately 125 feet.
Lino Prelazzi is a constable with the London Police Service and has been a police officer for 25 years. He is the officer in charge of the robbery detail of the London Police.
Cst. Prelazzi became involved with the investigation of the alleged robbery of Kyle Van Heugten on September 6, 2007 at approximately 7:00 a.m. Cst. Trevor Pitts briefed both Cst. Prelazzi and his partner, Derrick Spence, about the allegations and advised that the suspect was a bouncer at Solid Gold.
Kyle Van Heugten attended the police station at 11:15 a.m. that morning and was interviewed by Cst. Prelazzi. Van Heugten revealed his true identity to Cst. Prelazzi and advised that he did not want to lay charges against the person who had assaulted him. He was reluctant to give a statement or go to court. He stated he wanted to speak to his parents and would contact police the next day. Cst. Prelazzi contacted Van Heugten the following day. He confirmed he did not want to pursue the matter and, consequently, the robbery file was closed.
On cross-examination, Licensee’s counsel noted that much of the officer’s testimony did not appear in his notes. Cst. Prelazzi agreed that Van Heugten’s failure to identify himself constituted an obstruction of justice. The fact that he “came clean” early on was satisfactory to the police.
Cst. Prelazzi confirmed he asked Van Heugten whether he had assaulted the dancer and that Van Heugten had said no. Pressed further regarding a possible assault complaint by the dancer, Cst. Prelazzi stated no victim had come forward. Therefore, in his view, there was no need for follow-up on that issue.
Derek Spence has been a Constable with the London Police Service for 21 years and is familiar with Solid Gold. Cst. Spence had no memo book notes, but had a computer generated report. He was given permission to refer this report as notes.
Constables Spence and Prelazzi were assigned to the robbery investigation. Uniform division officers were assigned to certain follow-up tasks, such as locating the cab driver and victim and obtaining statements.
Cst. Prelazzi told Cst. Spence they were in a holding pattern until Van Heugten called back on whether he wanted to proceed. Without the cooperation of the complainant there was no prospect of a conviction. Once Van Heugten said he did not want to proceed, the robbery file was closed.
On September 7, 2007 Cst. Spence left a message for Douglas Exner. Cst. Spence did not recall how he got Exner’s name. On September 11, 2007 Exner called Cst. Spence. He was asked to come to the police station for an interview.
Mr. Exner was interviewed at 2:30 p.m. on September 11, 2007 in one of the interview rooms. He was cautioned by Cst. Spence and advised of his right to counsel. Exner stated Van Heugten had 2 lap dances, became involved in inappropriate behaviour with the dancer, and owed the dancer money. Once outside, Van Heugten fled on foot. Exner lost him on Dundas Street and returned to Solid Gold with Van Heugten’s shoes. Upon his return, Exner was fired by Fortier, the manager. Exner threw the shoes away.
After being fired, Exner borrowed a friend’s truck and went looking for Van Heugten. He found him in a cab. There was an altercation, Van Heugten handed over $80 and Exner left. Exner then went home, returned to Solid Gold, turned over the money and went home again. Cst. Spence explained to Exner that his actions could lead to criminal charges but it did not appear the matter was going to court.
On cross-examination, Cst. Spence stated it was his decision to interview Exner, even though it was apparent that robbery charges were not going to be laid. Cst. Spence had no duty book notes of the interview and relied on his recollection of events and conversation with Exner. Cst. Spence did not do a record check on Doug Exner. Cst. Spence confirmed he advised Exner he would not be charged. He had no information about vehicles Exner had access to on the night in question.
Matthew Morton is a constable with the London Police Service and has been a police officer for 11 years. Currently he is responsible for the police liaison and oversight of bars in London in respect to the LLA. He is also a member of the Community Oriented Response Unit. He attended at Solid Gold at 12:20 p.m. on September 6, 2007. The witness was permitted to refer to his notes.
Cst. Prelazzi advised him of the incident and he was able to access the occurrence report on the RMS (Record Management System) at the police service. At Solid Gold he spoke to the assistant manager, Mike Fortier. Cst. Morton was familiar with Mike Fortier from previous dealings with Solid Gold. Grace Gomes, the manager of Solid Gold, was not yet aware of the incident.
Mike Fortier gave Cst. Morton his understanding of the events and advised he had not yet contacted the Rudan family, owners of the business. At 12:30 p.m. Ms. Gomes arrived at the bar. Cst. Morton asked to view the in-house video from the night before. The video showed the parties in question exiting the establishment on to Clarence Street at 12:35 am. Mike Fortier identified the parties as Van Heugten, Exner, and himself. Shortly thereafter the dancer “Bianca” was seen exiting and standing barely in camera range, apparently speaking to someone on the street. Cst. Morton that she appeared to him to be agitated. Ms. Gomes agreed to get a copy of the tape for Cst. Morton.
Fortier left the office several times for periods of time during this period. As well, both Fortier and Gomes received a number of telephone calls, some on a cell phone. One phone call was for Cst. Morton from Simo Rudan, the owner/operator of Solid Gold. In that telephone conversation, Mr. Rudan advised Cst. Morton that he became aware of alleged assault when Mike Fortier called him around 12:30 a.m. and told him he had fired Doug Exner. Cst. Morton told Rudan this was contrary to Fortier’s statement to him. Shortly after the phone call from Mr. Rudan, Cst. Morton left the premises of Solid Gold.
On cross-examination Cst. Morton confirmed that the video played in the hearing (Exhibit 2) was the video he viewed in the office at Solid Gold on September 6, 2007. He stated he observed no pushing or shoving by any of the parties at any time on the video. He reiterated that the actions of the dancer Bianca on the video in his opinion were actions of someone who was in a heated discussion.
Cst. Morton agreed he spoke to Cst. Spence regarding Doug Exner. Cst. Morton also spoke to an AGCO Inspector about Doug Exner but did not provide the details of his discussions with Cst. Spence to her.
Cst. Morton returned to Solid Gold on September 14, 2007 with several police officers and Liquor Inspector Deslippe to issue a notice of suspension on Solid Gold. At that time Ms. Gomes gave him a copy of the video he had viewed at Solid Gold on September 6, 2007.
Licensee’s counsel criticised the lack of detail in the officer’s duty book. There were no details regarding the September 6, 2007 visit to the bar, statements made by Fortier during his interview, or a duty book entry about the events of September 14, 2007. There is no reference to a conversation with an AGCO Inspector. Cst. Morton explained he does not enter statements in his duty book but, rather, enters them on the computer. He had created a “will state” (Exhibit 5) from his notes and information that he had received.
While he suggested that charges would be laid against Mr. Rudan for “obstructing a liquor licence investigation”, the note he has with respect to his conversation with Rudan says only “between 12:30 and 1:00”. Licensee’s representative challenged the accuracy of the witness’s notes and recollection.
Cst. Morton confirmed he was responsible for determining whether charges under the LLA should be laid against the Licensee. He concluded, based on his investigation, there were no grounds to lay for charges against Solid Gold under the LLA. He repeated his conclusion in response to a question from the Panel.
Trevor Pitts has been a Constable with the London Police Service for 15 years. Cst. Pitts was the first officer on scene and commenced the investigation involving Kyle Van Heugten.
Extensive discussion took place with regard to Cst. Pitts’s duty book and style of taking notes. He stated he uses the duty book for specifics of the case or occurrence, but uses the computer for in-depth notes or reports. He uses the “Mobile Data Terminal” (MDT) in the police vehicle for notes reports references and other needs. The duty book notes became Exhibit 6.
On the night in question the witness was on routine patrol northbound on Talbot Street by the JLC when he heard someone calling for police and saw a male waving his arms. He turned and drove over to this person. The male was injured, bleeding from the nose and mouth. The injured person identified himself verbally as Derrick Van Heugten.
Cst. Pitts spoke to the person from inside the police vehicle. Van Heugten told Cst. Pitts he had gone to Solid Gold with his friend. While there he was approached by a dancer and asked if he wanted a dance. He declined which angered the dancer and she told the bouncer. The bouncer demanded money and started to get physical.
Van Heugten stated he was frightened and ran from the bar. The bouncer chased him but he managed to elude the bouncer. He contacted his friend by cell phone and told him to come and pick him up. His friend came in a cab but before they could leave, a vehicle pulled in front of the cab. The bouncer was the driver. The bouncer pulled Van Heugten from the cab, punched him a couple of times in the face, his wallet and left in his vehicle. Van Heugten described the bouncer as white male, 30 years old, blonde hair, fairly tall and wearing black shirt and pants. The shirt was a button up. Van Heugten said the bouncer was driving a Buick Rendezvous.
Cst. Pitts got out of his cruiser and noticed Van Heugten appeared to conceal something. He had him turn around and discovered Van Heugten’s wallet in his back pocket. Van Heugten apologized to Cst. Pitts, admitted his wallet had not been stolen and claimed the bouncer had stolen $100.00 from him.
Van Heugten then told the officer he had a dance with the dancer and had touched the dancer. She told him he couldn’t do that and challenged him at least twice to try that again and see what would happen.
Van Heugten stated he was feeling uncomfortable and went back out to the main bar area. The dancer went to the bouncer and told him that Van Heugten owed her $60.00. He told the bouncer he had no money and, at that point, the bouncer physically dragged him out of the premises. Once outside, Van Heugten fled.
Van Heugten was permitted to leave after providing his residence phone number. Cst. Pitts and three other police officers proceeded to Solid Gold arriving at approximately 1:20 a.m. They noted a Buick Rendezvous, licence number BAHT-946, parked in the parking lot adjacent to Solid Gold. Cst. Pitts was unable to identify the vehicle registration.
Mike Fortier was on duty along with another doorman, Mr. Boyland (Cst. Pitts could not recall Boyland’s first name). Neither Boyland nor Fortier admitted to any problems in Solid Gold that evening. They did not mention Doug Exner and did not recall anyone matching Exner’s description being on the premises that evening. Asked about video on the premises, Mr. Fortier stated there was video but he did not know how to access it.
Cst. Pitts called Van Heugten after he left Solid Gold and Van Heugten repeated his earlier story.
The City of London has video surveillance in its downtown. The headquarters and surveillance centre is located in City Hall. The Corps of Commissionaires are in charge of the video surveillance operations.
Cst. Pitts estimated he attended at the Commissionaire’s office at 1:45 a.m. where he requested and received a copy of the relevant video from the Commissionaire in charge. The video shows Van Heugten running and Doug Exner running behind him. (Exhibit 1) The video also shows Exner returning to Solid Gold carrying sandals. Fortier is shown walking back to Solid Gold with Exner. The video also showed what appeared to be a Buick Rendezvous parked in front of Solid Gold and a male, identity unknown, entering the vehicle after Exner had returned to the bar. It is possible but not certain that the male getting into the vehicle was Doug Exner. The video was turned over to Cst. Prelazzi. Cst. Pitts had not viewed the video again.
Cst. Pitts returned to Solid Gold at approximately 2:30 a.m. and spoke to both Fortier and Boyland. Both men stuck to their original statements until confronted with the video evidence. Boyland admitted there was another person working that night but was adamant he had no knowledge of anything happening that night and had not witnessed anything out of the ordinary.
Fortier identified the other employee as Doug Exner. Fortier denied any knowledge of an assault on a patron by Exner. Exner told him only that a dancer had been touched inappropriately by Van Heugten. Cst. Pitts attempted to contact Van Heughten after this conversation but was unable to reach him.
Cst. Pitts re-attended at Solid Gold at approximately 4:15 a.m. He interviewed and took a statement from Fortier. The interview was conducted in Cst. Pitts’s police vehicle. Fortier told Cst. Pitts that he sent Exner home after he returned from the foot pursuit of Van Heugten. He had no knowledge about what had happened to Van Heugten until advised by the police. At 4:29 a.m. Cst. Pitts administered a caution to Fortier because he believed that, after a full investigation, Fortier might be charged with an offence. The statement was transcribed on the MDT as it was being given and read back to Fortier. Cst. Pitts testified that the statement could not be changed on the computer once entered. Mr. Fortier’s knowledge of events contained in that statement was much different from his first interview. Fortier admitted he had not spoken the truth the first time officers attended the bar because he didn’t want to incriminate the bar.
On cross-examination Cst. Pitts admitted his notes were not made contemporaneously with the occurrence and that he did not commence typing his report until 4½ hours after the events. Cst. Pitts had no notes in his duty book of his conversations with Van Heugten at the scene.
Cst. Pitts stated he parked his police vehicle behind the cab when he first arrived on scene and indicated on a map of the area where his vehicle was parked (Exhibit 7). Cst. Pitts could not recall whether Van Heugten’s friend was in or out of the cab. He confirmed Van Heugten misled him about his true identity.
Cst. Pitts explained that the “Identification Unit” of the police service was not called out because at that hour of the morning there would be no staff on duty. Cst. Pitts admitted the police had not taken any pictures of Van Heugten or his injuries. Cst. Pitts stated that, in his opinion, Van Heugten had been drinking but was not intoxicated.
Cst. Pitts has never seen the Solid Gold video. (Exhibit 2)
Cst. Pitts stated that, initially, Van Heugten told him that he had declined the dancer’s request but later admitted touching the dancer. Cst. Pitts agreed he never followed up on the touching issue. Van Heugten never told Cst. Pitts he had been slapped. Cst. Pitts admitted he had no accurate times for the events at Solid Gold and that there is no video available of the scene of the assault.
Cst. Pitts spoke to the cab driver, Diateuzua Ndombele, at the scene and met him to take a statement at 3:07 a.m. He was in his police vehicle and Ndombele was in his cab. They spoke through the windows to each other. Cst. Pitts transcribed the statement on his MDT as the Ndombele dictated it. He read the statement back to Ndombele who agreed with its content. There are no material notes of this interview in Cst. Pitts’s duty book.
Licensee’s representative suggested that Fortier had given him Doug Exner’s name during their first conversation at 1:30 am. Cst. Pitts denied this and stated Fortier gave him Exner’s name at 2:30 a.m. Fortier was still lying to him during their 2:30 conversation. Cst. Pitts admitted to being angry when he spoke to Fortier at 2:30 a.m. but denied threatening to shut the bar down. Cst. Pitts admitted to having no notes in regards to the conversation with Mr. Fortier at 2:30 a.m.
His memo book (Exhibit 6) contains the following entry “suspect Doug Exner” without a time notation. The next timed notation is “0429-Caution”.
Cst. Pitts stated that when Van Heugten misled him about his true identity he was not obstructing justice. He did not caution Van Heugten at the time because he was unaware he was lying to him. No statement was taken from Van Heugten because he was anxious to get to the bar
Cst. Pitts had no notes in his duty book about the Buick Rendezvous. His notes were part of the typed package. He did not have the ownership details for the vehicle. He thought it was owned by a female and couldn’t say if there was a connection to Solid Gold.
Extensive cross-examination took place around the 4:30 interview with Fortier. Licensee’s representative alleged Cst. Pitts had questioned Fortier even when Fortier was reluctant to continue the questioning. Cst. Pitts denied this and stated Fortier was cooperative during the taking of the statement.
Cst. Pitts stated it was only minutes between seeing Exner return to the bar and the unidentified male left the bar and entered the vehicle parked in front of the bar. The video shows a white clip or badge on Exner’s shirt when he returns to the bar carrying the shoes. The person entering the vehicle does not appear to have a badge or identification clip on his shirt.
Cst. Pitts testified the investigation changed from robbery to obstruct investigation against Solid Gold about a week after the initial incident.
Diateuzua Ndombele drives cab number 131 for Uneeda Cab. He was working from 6:00 p.m. until 6:00 a.m on September 5/6, 2007.
At approximately 12:30 a.m. on September 6, 2007 he had a fare from the front of Solid Gold to the JLC. The fare got out and came back to the cab with a friend. The friend, Van Heugten, got in the back seat and told Mr. Ndombele to “drive”. Ndombele turned to ask for a destination but another man person approached the cab and said, “Don’t drive - this guy just ripped me off”. Ndombele did not see where this person had come from
The person was at the passenger side of the cab. He did not see the rear door of his cab open. He did see Van Heugten get pulled out and heard him state to the person, “Here is my wallet, that’s all the money I have”. Mr. Ndombele couldn’t see what was happening outside the cab, other than there was some form of struggle.
The other man left and Van Heugten got back inside the cab stating, “Drive I told you”. Mr. Ndombele turned to get an address and, at that time, a police car came into view. Ndombele told Van Heugten if he wanted to complain there was a police car. Van Heugten got out and flagged the police down. He was bleeding from the nose.
Mr. Ndombele could not state if the man involved in the altercation was the driver or passenger of a grey SUV that had been parked in front of his cab. He was spoken to briefly by the officer at the scene and allowed to leave. The officer advised he might call him later.
Mr. Ndombele met with a police officer at a parking lot at the corner of Clarence Street and King Street. He gave a verbal statement to the officer who was typing it on a laptop as he spoke to him. On cross-examination, Ndombele stated he met with the police officer about 2 hours after the incident. Ndombele stated his original fare was speaking on a cell phone to someone when he drove him to the JLC. He was unable to provide any detail about the ages or level of sobriety of his fare or the other passenger. He confirmed one passenger had a bleeding nose and he was concerned about getting blood on the seat of the cab. Mr. Ndombele had told the police officer things happened very fast and he didn’t see much.
The person who approached the cab would not have to reach in to unlock the back door, as the cab was unlocked. He could not say with certainty that his passenger had opened the door himself or had been pulled from the cab. In answer to a question from the Panel, Mr. Ndombele recalled the male who approached the cab and was in the altercation was dressed in black and bigger than the passenger.
Chris Ross has been a Constable with the London Police Service for 4 years. He was on duty and assisted Cst. Pitts at the initial scene by the JLC and later at Solid Gold. His notes of were made exhibits. The 12:57 a.m. September 6, 2007 entries were made Exhibit 8A and the 2:25 a.m. September 6, 2007 entries were made Exhibit 8B.
At approximately 1:20 a.m. he attended at Solid Gold together with other officers. He was aware there was an allegation of a robbery and a suspect was a bouncer at Solid Gold. He spoke briefly with Mr. Fortier. Fortier identified the bouncers on duty that night as himself and Brad. He heard Cst. Pitts speaking to Fortier but did not hear what was said. He then left the bar and cleared the call. He was sent on another call and when he cleared he was dispatched to Solid Gold to back up Cst. Pitts.
Upon returning to Solid Gold Cst. Pitts told him about the downtown video. They spoke to Fortier again who admitted another bouncer named Doug Exner had been working earlier. When Cst. Pitts asked where Exner was Fortier stated he had been sent home and that he had been fired. Fortier got a file with Doug Exner’s information in it and showed it to Cst. Pitts but not Cst. Ross. Cst. Ross had no duty book notes of these events.
Cst. Ross stated there was nothing remarkable about Van Heugten other than the fact he appeared slightly intoxicated. He estimated his second visit to Solid Gold lasted between 20 and 30 minutes. He started typing his notes into his MDT in front of Solid Gold at 2:54 a.m.
On cross-examination, Cst. Ross confirmed hearing Mr. Fortier saying he had fired Doug Exner during their second visit to Solid Gold around 2:25 a.m.
Licensee’s Evidence
Michel Fortier is 52 and has worked in the bar and entertainment industry for 35 years. He was employed as the assistant manager of Solid Gold at the material times. While employed at Solid Gold he resided in an apartment above the bar.
Fortier hired Doug Exner. Exner had no police file. His background had been in security, as a bodyguard. Mr. Fortier stated he had explained and gone over Solid Gold’s policies and procedures manual with Mr. Exner when he was hired. The policies and procedures manual (Exhibit 6) was being upgraded at the time of the incident so Exner did not have his own copy yet. Mr. Fortier stated that staff could not leave the premises while on duty without the permission of a manager. He personally told Exner about this policy. Prior to the incident in question he had never had any problems with Mr. Exner’s work.
Fortier stated he had daily meetings with staff to ensure they were up to date on rules and policies. A number of new conditions had recently been added to the liquor licence. All conditions were being met in the time allotted. The standard uniform for Solid Gold security personnel and doormen is black pants and black button-up shirt with an identification badge on the left side.
On the night of September 5/6, 2007 Fortier was the manager on duty. There were 2 security persons, Doug Exner and Brad Boyland, a bartender, a waitress, a disc jockey and dancers working that night. Doug Exner began his shift at 7:00 p.m.
Fortier’s first memory of Van Heugten is when he saw him in the VIP room getting a “lap dance”. The next time he saw him was when Exner was escorting him out of the club. Fortier asked what was going on and was told that Van Heugten had refused to pay the dancer. Fortier stated that there was no physical contact between Exner and Van Heugten. There were no apparent indications of anger on anyone’s part. Mr. Exner advised Fortier that Van Heugten had touched the dancer.
Fortier was very concerned when Exner ran off after Van Heugten. He went outside several times while waiting for Exner to return. When he did return Fortier walked into the club with him, told him to leave his badge and go home and that he was fired. He later saw Exner in the ladies change room at approximately 1:00 a.m. He told him to leave and Exner left via the back door.
When Fortier returned to the front of the bar the police were in attendance. He had a brief conversation with Cst. Pitts, whom he knew and told him who had been on duty that evening. He gave Doug Exner’s name to Cst. Pitts. Cst. Pitts made no notes of this conversation. Fortier called Simo Rudan to inform him of what had taken place at the bar sometime after 1:00 a.m.
At 2:30 a.m. Cst. Pitts and another officer returned to Solid Gold. They told him someone from the bar had beaten up a Solid Gold customer at the JLC. He told Cst. Pitts that he had fired Doug Exner that night and gave him Exner’s information from his employee file. Fortier described Cst. Pitts’s demeanor as aggressive and angry and he felt threatened. The police were there about 15 minutes. After the police left he closed the bar and went up to his apartment.
At 4:30 a.m. Cst. Pitts called and asked him to come out to the cruiser and give a statement. He was directed to the back seat where he was cautioned. During the statement he testified he often felt pressured to answer questions he was reluctant to answer in spite of having received a caution from the officer.
On cross-examination, Fortier denied having any knowledge of the assault on Van Heugten when first spoken to by the police. As well, when he confronted Doug Exner in the change room, Exner never mentioned anything about money but stated he had come back for his jacket.
Fortier began to compile his statement September 6, 2007. He spoke to Simo Rudan several times that day. Rudan instructed him to cooperate.
Fortier stated he fired Exner right on the street. His identification badge was turned over to Brad Boyland.
Simo Rudan is the General Manager of Solid Gold. Solid Gold is a family business and Mr. Rudan has managed the facility for 14 years. Rudan has management interests or control in several other licensed establishments, some similar to Solid Gold. Exhibit 10 is a letter from the Adult Entertainment Association of Canada. The Association helps direct the industry and set standards throughout the country. Rudan is a vice-president of the Association. The letter was complimentary of Rudan’s contributions to the industry.
Following a previous suspension of the liquor licence, Solid Gold instituted new and upgraded procedures to avoid problems. In addition many new conditions, some with time lines attached, were placed on the license. All these conditions had been met by the time of this incident.
Rudan has invested in equipment to make it harder for persons using false identification to enter the bar. He has invested in “TreoScope” (Exhibit 12) and a security firm, Shepherd K-9 Security Service (Exhibit 13).
Mr. Rudan attends often at Solid Gold in London to speak with Mr. Fortier and his manager Grace Gomes. Rudan never met Doug Exner.
On September 6, 2007 Rudan was at home asleep when Fortier called and told him about firing Doug Exner. Their conversation was brief. Rudan stated it is not uncommon for him to receive phone calls after midnight.
On cross-examination, Rudan stated that the club re-opened mid-July after the last suspension. AGCO Liquor Inspector Lorraine Simpson had attended at Solid Gold and signed off on many of the conditions.
Registrar’s Submissions
- Mr. Alton submitted that the following facts are essentially uncontested:
an underage male, Van Heugten, entered Solid Gold, was served beer, and not asked to produce identification. He was intoxicated.
Van Heugten was offered a “lap dance” and, after the dance, was assaulted by the stripper;
Van Heugten alleges he was assaulted in the premises by Exner and violently taken outside;
once outside Van Heugten ran off and was pursued by Exner who told Van Heugten that he “would kill him”. Exner returned to the bar after the foot chase with Van Heugten’s shoes;
Exner left in a vehicle owned by someone connected with Solid Gold and tracked down Van Heugten in a cab;
Exner took Van Heugten forcibly from the cab, kneed and punched him several times in the face;
Van Heugten had between $80.00 and $100.00 dollars taken from him or offered under duress to Exner;
Exner returned to Solid Gold and gave the money to the stripper; and,
Van Heugten flagged down Cst. Pitts and told him he was robbed by a bouncer from Solid Gold. Cst. Pitts noted Van Heugten was bleeding from the nose and mouth. Cst. Pitts then started an investigation;
Exhibit 1 clearly shows Van Heugten being chased by Exner. While Exhibit 2 fails to show the assaults by the stripper and Exner on Van Heugten this does not mean those assaults never occurred. Fortier was in his office and only saw the parties all standing together when he left the office. Van Heugten told the Board he was assaulted in the bar and there is no evidence to contradict this testimony.
The fact of the assault on Van Heugten outside of the cab is equally clear. The assault resulted in serious injuries to his face.
Mr. Fortier’s claim that he told Cst. Pitts about Doug Exner at 1:25 a.m. is not true. Mr. Alton suggested Fortier tried to cover up the facts. If it were true, why would Cst. Pitts secure the video and then return to Solid Gold at 2:30 a.m. to confront Fortier? This analysis is also supported Cst. Ross’s evidence who heard Fortier tell Pitts about Exner at 2:30 a.m. and Fortier’s formal statement to Cst. Pitts at 4:30 a.m. that he didn’t want to incriminate himself or the bar.
By deceiving Cst. Pitts, Fortier and Boyland obstructed an investigation by withholding information and failed to facilitate an investigation thereby breaching subsections 45(1) and 45(2) of the LLA.
Mr. Alton suggested the deception didn’t stop there. Fortier told Cst. Morton he had not spoken to Simo Rudan during the night. Yet in his testimony Fortier stated he did speak to Rudan that night. On three occasions Fortier spoke to police officers that night and never mentioned the telephone call to Rudan. Mr. Rudan could not recall exactly what time the call had come in because his clock radio was not set correctly. The Licensee never introduced any evidence to corroborate the phone call took place. Mr. Alton submits this further supports the Registrar’s alleged breaches of subsection 45(1) and 45(2) of the LLA.
With respect to Exner’s alleged firing Mr. Alton noted that Cst. Pitts did not believe Fortier had fired Exner, but, rather, told him to “go, just go”. Doug Exner did not testify, leaving only the testimony of Rudan and Fortier on this point. Mr. Alton suggested this evidence does not have a ring of truth. Mr. Alton suggested Exner’s statement to Cst. Spence that he was fired when he returned to the club may not be true. Exner’s recollection of events was questionable and Exner was still not truthful when he denied assaulting Van Heugten.
In any event, Exner’s firing is irrelevant. Assaults had been perpetrated inside the bar as well as outside and Van Heugten was in the bar both drunk and underage. The last three suspensions against Solid Gold have been the result of employees physically attacking patrons. Mr. Alton suggests that management cannot be absolved of its liability when a person has been assaulted simply by terminating the perpetrator of the assault.
Exner’s actions in tracking down Van Heugten using a vehicle borrowed from a staff member and taking money from him to give to the dancer is a breach of subsection 45.1 of the O.Reg. The licence holder has an obligation to prevent such events from happening on or around the establishment, especially initiated by a staff member. Deficient management practices allowed the events of the night in question to occur. There were breaches of subsection 45.1 of the O.Reg prior to Mr. Exner’s alleged firing.
With respect to the upgraded training manual (Exhibit 9), prepared by a former fire prevention officer rather than some one familiar with liquor licensing, Mr. Alton pointed out sections that illustrated the alleged offences committed on the premises that night.
With respect to the challenges to the quality of police notes, Mr. Alton submitted the officers’ notes were prepared in keeping with the London Police policy on note taking. The officers in this case have used similarly developed notes before the courts and they have been accepted. Mr. Alton noted the officers had a fresh recollection of the events they testified to because of the close time frame between the event and the hearing. The officers’ evidence was not inconsistent with that of the victim or the cab driver. He suggested Licensee’s representative was alleging a conspiracy by the London police against Solid Gold arising out of Cst. Pitts previous dealings with Solid Gold. Mr. Alton pointed out that Cst. Pitts did not initiate the investigation but was hailed by the victim.
In this situation, the Board must determine if there is a breach of clause 6(2)(d) of the LLA. Simo Rudan is an absentee manager. He believes Hells Angels and other criminal groups are undermining his business and the ability to properly run that business. Yet Rudan was not even aware that his manager Grace Gomes, a key employee, had the night off. This constituted gross negligence on the part of the Licensee, especially considering the past history of the club. Mr. Alton suggested that the extra management duty, taken on by Fortier that night as the result of Ms. Gomes having taken the night off, over-stretched an already weakened management team. Given the past history and these events it is clear the Licensee has not and cannot be expected to act with honesty or integrity in the operation of the licensed premises.
Licensee’s Submissions
Mr. Fazari submitted that the handling of this matter by the London Police Service constituted gross negligence on their part. The police officers’ notes were not clear. There were many inconsistencies between police evidence and the notes. There were many other inconsistencies and flaws in the Registrar’s evidence which undermine the credibility of the allegations.
With respect to Kyle Van Heugten’s evidence he noted, in particular,
Van Heugten misled police from the moment they arrived on scene;
at first Van Heugten indicated that he and his friends had been drinking at a bar called G.T’s or J.T’s, but then changed his story and said they were drinking at Jim Bobs;
Van Heugten never mentioned being slapped by the dancer to Cst. Pitts or any police officer;
there is conflicting evidence as to his state of intoxication. Cst. Pitts describes Van Heugten having been drinking not drunk. Mr. Alton suggests Van Heugten was obviously intoxicated;
Van Heugten admitted to using false identification to enter Solid Gold. He even wrote his false name down for the police. He did not give his correct identity until the following day;
Van Heugten first testified he roughly dragged out of Solid Gold by the bouncer. The video (Exhibit 1) shows him walking out on his own accord;
Van Heugten testified he locked the rear cab door. The cab driver stated the bouncer never put his hand through the front passenger window in order to unlock the rear door of the cab;
Van Heugten misled to Cst. Pitts about his wallet being stolen;
medical attention was neither given nor sought for Van Heugten’s injuries. This undermines their alleged seriousness;
There was no formal statement taken by Cst. Pitts from Van Heugten and he declined to give one to Sgt. Prelazzi. Mr. Fazari submitted Van Heugten was reluctant to give a statement because he didn’t want to attend court, or be charged with giving a false name to police. He never expressed a fear of retribution from the bouncer or staff at Solid Gold. In light of the lack of credibility displayed by Kyle Van Heugten, what weight can be given to any of his evidence? Mr. Fazari submitted that, throughout, the evidence of the police was that they were investigating a robbery, not a liquor licence offence.
With respect to Cst. Prelazzi’s evidence, Mr. Fazari noted Cst. Prelazzi had a single handwritten contemporaneous note in his duty book. The computer generated notes were prepared later. Mr. Fazari was critical of Cst. Prelazzi’s failure to take notes when first informed by Cst. Pitts of the alleged robbery.
Cst. Prelazzi confirmed that Cst. Pitts had generated a robbery investigation and not a liquor licence investigation and maintained throughout that his involvement was related to a robbery investigation not a liquor licence offence. He was aware an obstruct justice offence might be laid against Kyle Van Heugten for giving false statements to the police but chose not to follow that up. No one in the London Police service chose to follow up on the assault allegation against the dancer or the possible assault of the dancer by Van Heugten.
Mr. Fazari was equally critical of Cst. Spence’s lack of duty book notes. Cst. Spence took no notes of the interview with Exner on September 11, 2007. He entered the information onto the computer from memory at a later time.
Mr. Fazari expressed concern as to why Mr. Exner was contacted for an interview after the robbery file was closed. In that interview Exner admitted to being fired when he first returned to Solid Gold. There is no evidence from the Registrar refuting this statement. Cst. Spence’s evidence about when he learned Doug Exner was the bouncer at Solid Gold is inconsistent. Did he know this fact on September 7, 2007? If not, when and how did he get this information?
Cst. Morton’s duty book notes are also lacking. They were not made contemporaneously. For example, Cst. Morton made no notes of his meeting with Grace Gomes until several hours later when he was back at his office. The date of his first visit to Solid Gold is incorrect and recorded as September 7 instead of September 6. His notes on the events of September 14, 2007 are inconsistent. He has a note about Mike Fortier in his memo book but doesn’t know why or what was meant by it.
Mr. Fazari pointed out that Cst. Morton stated in his evidence that Ms. Gomes and Mr. Fortier were cooperative with him. Cst. Morton confirmed Fortier told him Exner had been fired. Mr. Fazari is critical of the fact never let the AGCO know this important information as, in his submission, it might have stopped the LLA investigation. In addition he criticised Cst. Morton for his failure to recall or make notes with respect to forwarding evidence to Cst. Pierzchalski of the OPP.
Dates are very important in establishing when the liquor licence investigation began and the criminal investigation ceased. If the police attended on September 6th to investigate a robbery how could the Licensee have obstructed a liquor inspection? Mr. Fazari stated that timing in that regard is crucial. Mr. Fazari submitted that Cst. Morton’s notes indicate his mind was made up by September 6, 2007 to charge Rudan with obstruct a liquor investigation. Yet, at the same time Cst. Morton testified there were no grounds to lay charges against Solid Gold under the LLA.
With respect to Cst. Pitts, the lead investigator, Mr. Fazari noted his duty book notes are brief. They contain no details as to exact times of the material events despite the fact he testified times of events are important and noteworthy. There are only two time entries 00:55hrs and 04:30 when he cautions Fortier. There are no detailed notes on his arrival and investigation of the alleged robbery when first hailed by Van Heugten. He could not recall clearly whether Van Heugten said Exner was the driver or passenger of the SUV and has no notes in that regard. There are no notes whatsoever of the 02:30 visit to Solid Gold.
Cst. Pitts stated Fortier did not tell him about Exner until 2:30 a.m. Fortier testified that he gave Cst. Pitts the name at 1:25 a.m. during his first interview. Mr. Fazari submitted that is very likely if one reviews the brief notation by Cst. Pitts. Mr. Fazari submitted that Cst. Pitts’ evidence in relation to times cannot be relied upon.
When Cst. Pitt’s interviewed Fortier at 4:30 a.m. Fortier was feeling intimidated and did not want to answer some questions. In spite of being cautioned, Cst. Pitts continued the questioning. Fortier went out of his way to be cooperative with Cst. Pitts. There are no independent notes of this interview but Fortier tells Cst. Pitts he does not know about the incident at the JLC.
Cst. Pitts did not check out the SUV vehicle in question that night, despite investigating a robbery and in light of the fact he had the registration of the vehicle. Mr. Fazari submitted that there is no evidence to support Mr. Alton’s submission the vehicle was associated with Solid Gold.
Based on all the evidence it was clear Cst. Pitts was investigating a robbery, not a liquor complaint. The decision to caution Fortier was made because, at the time, Cst. Pitts felt that Mr. Fortier may have been an accessory to a criminal act.
In reviewing the evidence of Cst. Ross, Mr. Fazari again pointed to the lack of duty book notes. In his evidence Cst. Ross stated it was a busy Saturday night when in fact the events early on a Thursday morning. Cst. Ross recalled Fortier telling Cst. Pitts that he fired Doug Exner.
Mr. Fortier has been in the entertainment business 35 years. He hired Doug Exner and gone over the updated manual with him and had explained the rules of the bar. He told Doug Exner to stop when he pursued Van Heugten. Fortier was always cooperative with the police. He gave Doug Exner’s name to Cst. Pitts on Pitts’s first visit to the bar. He called Simo Rudan sometime between firing Exner and the first visit of the police to the bar at 1:20 a.m.
Mr. Fazari submitted that Simo Rudan is a responsible manager/owner. He and his family have many licensed establishments and employ upwards of 300 people. It is not necessary for him to be constantly on site and would be unreasonable to expect this. Mr. Rudan has complied with the conditions on the licence and has ensured compliance with all the rules required of him. In addition Mr. Rudan has upgraded systems at the bar to prevent fraudulent entries by underage patrons.
Where there are such gross inconsistencies in the evidence in a hearing of this nature the result must favour the Licensee. With regards to the alleged breach of subsection 45.1, Mr. Fazari submitted that the NOP makes no reference to an assault inside the premises. The altercation took place outside the premises. Mr. Fazari reviewed some decisions of the courts addressing onus, note taking and vicarious liability.
Reply
Mr. Alton disputed the submission that the NOP must be totally inclusive. Mr. Alton submitted that the circumstances of the allegations in the “particulars” of the NOP are not designed to be exhaustive, hence the wording “further particulars are outlined in the disclosure package.”
The timing of the LLA investigation and the criminal robbery investigation is irrelevant. Regardless of events taking place the Licensee is always responsible for his legal responsibilities under the LLA.
There is no law, no rule, and no procedure requiring police officers to make notes contemporaneous with their investigations. Finally, the fact Cst. Morton did not believe there were grounds to charge the bar under the Provincial Offences Act has no bearing on the matter before the Board.
Reasons
Order Lifting Interim Suspension
Based on information available to the Registrar at the time the decision to issue to the interim suspension was made, the Board is satisfied that decision was both reasonable and valid. Our reasons for this conclusion are found in the Board’s October 15, 2007 Order cited above.
Only after hearing all of the evidence and assessing the credibility of the witnesses, particularly Mr. Van Heugten, was the Board in a position to decide that continuing the interim suspension was no longer in the public interest. The Board’s order lifting the interim suspension was issued December 11, 2007 and is reported at 2007 CanLII 58248.
Analysis of the Evidence
As both Mr. Alton and Mr. Fazari submit, the evidence before the Board requires a careful analysis of the credibility of the witnesses. Whose testimony and evidence can be relied upon?
The evidence of Kyle Van Heugten is only of value to this Board where it can be independently corroborated by solid evidence. His evidence before the Board was full of obvious inconsistencies and exaggerations which he refused to address or explain. He was deceptive from the outset.
At the same time, the lack of comprehensive duty book notes presents a problem for the Board in weighing the reliability of the police evidence. When police fail to make significant entries into their duty books at the time of the investigation their reliability is diminished. This concern is exacerbated if the officers then wish to use later developed reports as notes in order to refresh their memory.
While the Board permitted the officers to rely on notes which were not made contemporaneously we agree with the court in Hutchens that the lack of contemporaneous recording makes the notes less reliable.
The investigation by the London Police Service was, in the view of the Board, not up to the professional standard expected of a modern police service in the Province of Ontario. At the initial scene Cst. Pitts made no detailed observations of Van Heugten and his observations were not noted in his duty book. There was no indication of the state of Van Heugten’s clothing (bloody or dishevelled) despite his alleging having been “dragged viciously from the bar”. No photograph was taken of Van Heugten because the identification unit staff was not on duty that night. It is troubling that the London Police Service would not have the capability to take a photograph of an injured party in order to preserve significant evidence of an assault and robbery. That Cst. Pitts hurried his investigation at the original scene in order to get to the bar before it closed to look for the suspect, or deal with witnesses, is questionable. There were other officers who could have immediately attended at the bar and this is confirmed by the fact that Cst. Pitts attended the bar with 3 other officers, two of whom were sergeants. Yet, while at Solid Gold, none of the officers took matters seriously enough to take comprehensive notes.
Although Cst. Pitts had the registration of the vehicle allegedly used by Exner when he tracked down Van Heugten the Board was provided with no evidence about the registered owner or any relationship between the owner or the car and Solid Gold. The allegation this vehicle was connected in any way to Solid Gold is not supported by credible evidence.
The focus of the police investigation seemed to change quickly from investigation of a robbery to liquor licence infractions. Sgt. Prelazzi did not pursue the investigation vigorously. He made no significant notes, and when the alleged victim declined to make a statement, he stopped the investigation. Robbery is a significant occurrence, yet there appeared to be no effort to bring the matter before the courts. Cst. Spence made no notes of his interview with Exner and only transcribed the information on his computer days after the London police had decided that the robbery investigation was not being pursued. Cst. Spence’s evidence that he took the statement from Doug Exner in the event Kyle Van Heugten changed his mind and decided to pursue the robbery complaint is questionable. Cst. Spence had told Doug Exner, even after cautioning him, that no criminal charges were being contemplated. In the view of the Board it appears the police focus in all of this was on Solid Gold. From evidence at the hearing, it was evident a myriad of serious criminal charges could have been laid – theft, robbery, obstruct justice, obstruct police - but all were ignored. Moreover, there is a suggestion in the evidence the dancer at Solid Gold may have been sexually assaulted. This was deemed not to warrant an investigation by London Police.
Given all of the above the Board is satisfied of the following on a balance of probabilities:
On September 5, 2007 Van Heugten entered Solid Gold and other bars using fraudulent identification;
Van Heugten’s identification passed the inspection of both the Solid Gold staff and, more tellingly, the London police. His identification was never challenged even after he was caught in an obvious untruth about having his wallet stolen. Only when he attended the police station did he finally give his true identity;
Given Van Heugten’s propensity to exaggerate, the Board prefers Cst. Pitts’ evidence that Van Heugten had been drinking but was not intoxicated;
The video evidence shows Van Heugten was not dragged or treated roughly when leaving Solid Gold. This is a further example of Van Heugten’s willingness to exaggerate. The Board does not accept he was assaulted in the establishment, either by the dancer or security staff;
The video evidence shows Van Heugten running away from Exner and, a short time later, Exner returning to Solid Gold carrying sandals;
Mr. Ndombele’s evidence confirms that Van Heugten and his friend were in his cab when confronted by another man. The Board is satisfied, based on Exner’s statement, that this man was Exner. Ndombele’s evidence does not corroborate Van Heugten’s allegations that he was forcibly removed from the locked cab and raises considerable doubt as to the nature and severity of the alleged assault;
There is no evidence to support Mr. Alton’s submissions that Van Heugten’s injuries were serious. Van Heugten did not seek medical assistance and Cst. Pitts’s actions confirm he did not consider the injuries serious enough to request an ambulance or medical assistance. Sgt. Prelazzi made no observations or notations of injuries when he interviewed Van Heugten the following day. If Van Heugten had been kneed and punched as often as he said by a man of Exner’s size his injuries would indeed have been substantial. The Board concludes Van Heugten exaggerated the extent of Exner’s assault and that the injuries suffered were very minor;
Fortier’s evidence confirms Exner returned to Solid Gold again after this incident;
No evidence was introduced to contradict Fortier’s statement that when Doug Exner returned from his initial pursuit of Kyle Van Heugten he was fired. Exner confirmed the fact he was fired when he initially returned to Solid Gold in his statement to the police. Therefore, when he tracked Van Heugten down later, he was not an employee of Solid Gold.
Cst. Pitts spoke to but did not take a statement from Van Heugten outside the JLC. Van Heugten told him he had been assaulted and robbed by a bouncer from Solid Gold. He then proceeded to Solid Gold accompanied by several other officers. He spoke to Fortier and Boyland;
The evidence of both Simo Rudan and Michel Fortier was that at some point early on the morning of September 6, 2007 Fortier contacted Rudan and advised him he had fired Exner. Given the lack of detailed and timed notes made while at the premises the Board prefers Rudan and Fortier’s evidence to Cst. Morton’s testimony that Fortier initially denied having spoken to Mr. Rudan about the incident. The Board is not satisfied that Cst. Morton’s recollections are sufficiently reliable in these circumstances;
Cst. Pitts’s duty book notes show Exner’s name on the page between two times, 00:55 and 04:29;
Cst. Pitts obtained video of the downtown area showing Exner chasing Van Heughten and then returning to Solid Gold.;
After reviewing the video Cst. Pitts returned to Solid Gold and spoke to Fortier and Boyland again at approximately 2:30 am. The Board is satisfied that Fortier confirmed Exner’s presence in the premises and involvement with Van Heugten to Cst. Pitts at this time. The Board rejects Fortier’s testimony that he told Pitts about Exner during the first visit to Solid Gold. The Board agrees that Cst. Pitts’ steps in obtaining the video and then returning to the bar support this analysis of the facts. The Board is satisfied that Fortier intentionally deceived the police in order to divert a police investigation away from the bar;
Cst. Pitts returned to Solid Gold, cautioned, and took a statement from Fortier at 4:29 am.
Cst. Morton, the liaison officer of the London Police who has carriage and responsibility for LLA investigations, told the Board that there were no grounds to lay charges under the LLA. The Board finds this questionable in light of the breaches alleged against this Licensee. While Mr. Alton’s submission respecting the difference between laying charges under the Provincial Offences Act and a regulatory hearing before this Board is correct, there is a narrow line between requirements under the Provincial Offences Act and the burden of proving a matter before this Board. The Board sees it as very significant that a seasoned officer with a modern police force and all its resources stated categorically that he had no grounds to lay charges under the LLA. Even when questioned by the Board at the hearing he reiterated he had no grounds to lay charges under the LLA. He did not state that he chose not to, he stated he had no grounds. This is significant in the mind of the Board.
The Board is very concerned Mr. Fortier, the acting manager of the night in question, was not truthful with the police about Doug Exner. Having said that, the Board does not agree the management of Solid Gold is out of control. Mr. Fortier has been removed from any future involvement with the establishment. His initial misstep with the police was redeemed by Solid Gold management’s subsequent cooperation with police during the investigation, including its voluntary surrender of the video tape (Exhibit 2) on the day the police arrived to enforce the Interim Suspension Order.
Mr. Rudan’s testimony confirms his commitment to ensuring Solid Gold is run safely and in accordance with the law. The Board does not agree with Mr. Alton’s submission that it is necessary for Mr. Rudan to always be on site. That requirement would effectively preclude operation of multi-location establishments. Rudan makes weekly visits to the Premises and is in regular contact with his manager Grace Gomes. Further, he and his family have many years of practical management experience in the entertainment industry. Mr. Rudan and his family successfully operate other liquor licensed establishments with no negative encounters with the law. These establishments cover a broad spectrum of the entertainment industry from strip clubs to international hotel chains. Mr. Rudan has undertaken to upgrade security and other required procedures in a timely fashion. In addition, the Registrar did not introduce any evidence from AGCO Inspectors separate from the September 5/6 events which suggest the establishment was being operated improperly or not in accordance with the law.
The actions of Michel Fortier in initially denying any knowledge of Michel Exner were regrettable. Regardless of his motivation to protect the bar, he was wrong. He showed very poor judgment in his role as a manager and he wilfully obstructed police. The Board understands that Fortier has moved from the London operation and will not be returning to Solid Gold. The Board cautions the Licensee that Fortier’s responsibilities in their other licensed establishments should be limited.
The Board rejects Mr. Fazari’s submission that when police are investigating a criminal offence they cannot retroactively turn their proceedings into a liquor licence investigation. The Licensee’s duty and obligations to adhere to the LLA is constant. Liquor license infractions discovered during the course of another type of investigation are no less infractions than if disclosed as part of an independent LLA inspection.
Findings
The Board finds that the Licensee facilitated the inspection of the premises on at least two occasions. Therefore, the Board DISMISSES the alleged breach of subsection 45(2) of the LLA. However, the Board FINDS Mr. Fortier breached subsection 45(1) of the LLA when he initially withheld Doug Exner’s name from the police, did not reveal Doug Exner had been an employee, and told the police no one matching Exner’s description was in the bar that night. This was clearly relevant information required for the purpose of an inspection.
The Board finds there was no disorderly conduct on the property or adjacent thereto. The incident between Doug Exner and Kyle Van Heugten occurred at the JLC, far from Solid Gold, and after Exner had been fired by Fortier. The Board DISMISSES the alleged breach of subsection 45.1 of the O.Reg.
The Board is satisfied Mr. Rudan is intent on ensuring the Premises are operated lawfully with integrity and honesty. There is no evidence from the police that they considered the establishment out of control. In fact, the police evidence confirmed their interactions with bar management, including Mr. Fortier, and staff were always cooperative. The effort made to give the police access to the video from Solid Gold without a warrant is not the action of a management team operating without honesty and integrity.
Having said that, the actions of Mr. Fortier on the night in question cannot be condoned or ignored within the context 6(2)(d) of the LLA. He was the manager on duty and this incident follows closely on the heels of an earlier violent incident at Solid Gold when Mr. Fortier was in charge of security. Therefore, Board FINDS the Licensee failed to operate with honesty and integrity, in breach of clause 6(2)(d) of the LLA, based on this incident and past conduct.
Conclusion
- The Board invites written submissions on penalty from the respective parties. The Registrar’s representative shall serve and file written submissions within ten (10) days of the date of this decision. The Licensee’s representative shall have seven (7) days to serve and file written response. Registrar’s Representative may serve and file any reply within three (3) days of receipt of the Licensee’s response. All submissions are to be filed with the Manager, Hearings Department, Alcohol and Gaming Commission at the address on the front page of this decision in accordance with the Board’s Rules of Practice.
DATED AT TORONTO THIS 27th DAY OF FEBRUARY, 2008
ALEX MCCAULEY, BOARD MEMBER ALLAN HIGDON, BOARD MEMBER
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