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 of Ontario
Registrar
-and-
Santiago (Nelson) Joaquin-Ortega o/a Casa Nova Bar & Dance
Licensee
DECISION
Panel: S. Grace Kerr, Board Member Alex McCauley, Board Member
Decision Date: August 1, 2008
Hearing Location: Cambridge, 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 ) Phillip Morris, Representative
Santiago (Nelson) Joaquin-Ortega, Licensee ) Karen Zvulony, Representative
Authorities
Joaquin-Ortega (Casa Nova Bar & Dance), 2008 CanLII 16829 (ON A.G.C.)
Allegations
- On June 19, 2008 in the City of Cambridge a hearing was held into Notice of Proposal number 16354 dated May 30, 2008 to revoke a liquor licence and an Order dated May 30, 2008 to immediately suspend a liquor licence on an interim basis to liquor licence number 805675 (‘the Licence’), issued to Santiago (Nelson) Joaquin-Ortega (the “Licensee”) operating as CASA NOVA BAR & DANCE, 1-5 Water Street North, Cambridge, Ontario, N1R 3B2, on the basis of alleged violations of section 6 of the Liquor Licence Act ("LLA") and subsection 45(2) Ontario Regulation 719/90 (“O.Reg”) made pursuant to the LLA, was held on June 19, 2008 in the City of Cambridge.
Decision
- After considering all the evidence and submissions the Board FINDS the Licensee violated subsection 45(2) of the O.Reg and section 6(2)(d) of the LLA. Reasons follow.
Preliminary Matters
The Board ORDERED the exclusion of witnesses.
Mr. Morris requested that the interim order remain in effect until at least the end of the hearing day. The Board granted the request.
At the conclusion of the hearing the Board heard arguments from both counsel regarding the maintaining or lifting of the interim suspension. The Board ORDERED that the interim suspension remain in effect until the Board rendered its final decision (see written order dated June 25, 2008).
Registrar’s Evidence
Rodney Lewis is a Detective Constable with the Waterloo Regional Police Service (WPS). Mr. Lewis has been a police officer for approximately 10 years and assigned to the drug unit for 3 years. D/Cst. Lewis was the officer in charge of the operation which resulted in the matters before this Board.
The drug investigation was the result of D/Cst. Lewis receiving information that the Licensee who was known by the name “Nelson” (Nelson) was selling narcotics out of the licensed premise and also 31 Cedar St. Unit 6 in Cambridge, Ontario.
The registered tenant at 31 Cedar St. Unit was Miquel Abreu Larancunt. The information the police had was that Nelson took orders at both places and he would let a person named “Miquel” (Miquel) complete the transactions; Nelson did not want to jeopardise his liquor licence.
D/Cst. Lewis got to know the Licensee by his full name. He was able to identify the person known as Nelson as the Licensee by pointing him out at the hearing.
A file was established and the investigation commenced. Constable Jerome Codrington of the WPS was assigned to attempt to make undercover drug buys from Nelson. Constable Codrington contacted Nelson by calling telephone number 519-504-0526. On April 21 and 23, 2008, Constable Codrington was able to make two purchases of cocaine that were arranged by Nelson and delivered to Constable Codrington by Miquel.
D/Cst. Lewis had established that the phone associated to the number 519-504-0526 was registered to Anita Heron. Ms Heron was known by the witness. During a surveillance operation he observed Nelson hand over a quantity of cash wrapped with an elastic to Ms. Heron. Police subsequently seized a quantity of cash from Ms. Heron wrapped in an elastic band. The total amount recovered from her was $8,500.00. Ms. Heron stated that the cash was for rent. Rent charged by her to the Licensee was $3,000.00 per month.
Ms. Heron’s relationship to the Licensee is remarked upon in the decision of the Board to grant a liquor licence to the current Licensee (Ex. #2). Conditions 9, 10, and 11 explicitly limit Ms. Heron’s involvement with the Licensee or the licensed premises.
D/Cst. Lewis stated that the first purchase of cocaine was made by Cst. Codrington on April 21, 2008. On that date Cst. Codrington had contacted Nelson at the phone number previously reported. Nelson had advised Cst. Codrington to come to his place.
D/Cst. Lewis drove Cst. Codrington to the area of the licensed premise, Casa Nova, and dropped him off. He then maintained surveillance in the area and provided cover for Cst. Codrington. D/Cst. Lewis saw Nelson, Miquel, and an unknown female exit the licensed premise. Nelson and the female got into a vehicle and drove off. Miquel walked to his vehicle took a package out. He took the package to D/Cst. Codrington in the alley beside the licensed premise.
An exchange took place between Miquel and Cst. Codrington. After that transaction, Miquel re-entered the licensed premise. Cst. Codrington left the area and subsequently turned over a quantity of cocaine to the police exhibit officer.
On April 22, 2008, the drug enforcement team was conducting surveillance on Nelson. He was observed driving with another male person in a white Cadillac Escalade. D/Cst. Lewis identified the male with Nelson as Fernando Bos. The witness had just learned this person’s name today when he saw him at the hearing. On April 22, 2008 the two males were observed entering the Factory Direct store in Kitchener. It was decided to check the telephone number 519-504-0526 to prove that it was being used by Nelson. Cst. Moyle, a member of the drug team, was directed to go into the store and get as close to Nelson as he could and to observe. Cst. Codrington was directed to call the phone number. The plan was instigated, the number was dialled, and Cst. Moyle observed Nelson answer his cell phone. Cst. Moyle and Cst. Codrington were able to establish the time the call was made, and the gist of the conversation during that call. The team was satisfied that Nelson was the contact at that phone number.
On Wednesday April 23, 2008 a second undercover purchase of cocaine was made by Cst. Codrington. In this case, the same procedure was followed as with the previous purchase. Cst. Codrington contacted the Licensee, Nelson, by calling 519-504-0526. Cst. Codrington attended in the alleyway by the licensed premise, Casa Nova. In this instance Miquel exited the bar and came to where Cst. Codrington waited. Then they both went up the alley to the street where Miquel’s vehicle was parked. Cst. Codrington and Miquel got in the vehicle and Miquel drove to 31 Cedar St., Unit 6, in Cambridge. Miquel entered those premises while Cst. Codrington remained in the vehicle. Shortly thereafter Miquel returned to his vehicle and sold a quantity of cocaine to Cst. Codrington.
On Friday, May 2, 2008, D/Cst. Lewis and the team supported by the Waterloo Regional Police Emergency Response Unit (ERU) made plans to arrest both Nelson and Miquel and execute drug search warrants. They also wanted to make one more undercover purchase from Nelson. On this occasion Cst. Codrington called Nelson at the 519-504-0526 number and spoke to him. Cst. Codrington was directed by Nelson to attend at the bar. Before Cst. Codrington arrived in the alley way D/Cst. Lewis observed Nelson coming out of the bar as though looking for someone and then returned to the bar. Miquel also went out to look for someone prior to Cst. Codrington’s arrival. When Cst. Codrington arrived in the alleyway he was observed By D/Cst. Lewis having a lengthy conversation with Nelson. Nelson refused to sell to Cst. Codrington on this occasion because he did not recognize Cst. Codrington as the person he originally thought he was.
At 5:55 p.m. on May 2, 2008 Miquel was arrested by ERU officers. At 6:07 p.m. the Licensee, Santiago (Nelson) Joaquin-Ortega, was arrested along with his daughter, Chailane, and Anita Heron.
At the police office Nelson was read his rights by D/Cst. Lewis. Nelson stated he understood his rights to counsel. D/Cst. Lewis stated that Nelson had no problem in conversing or understanding the English language.
Miquel admitted being a cocaine user. Miquel stated he had the only key for the licensed premises in his van. D/Cst. Lewis stated he has often seen Miquel alone at the establishment when Nelson wasn’t there. It was his view that Miquel was operating it in Nelson’s absence.
D/Cst. Lewis noticed people he knows from the drug sub-culture in the licensed premise. In his view, therefore, there would be significant officer safety issues in attempting to insert an undercover officer as an employee or patron into that environment.
According to D/Cst. Lewis, Miquel was released from custody on an undertaking, a condition of which was to stay away from Casa Nova. Approximately 2 weeks before the hearing, officers on surveillance observed Miquel drop a known drug dealer off in the downtown area. He then proceeded to Casa Nova where he was arrested for breach of his undertaking.
On cross-examination D/Cst. Lewis stated he had heard about Nelson from “the street”. He had never dealt with him, he never recovered illicit drugs from him or see him pass drugs to Miquel. Miquel was known to police and had a criminal file with them.
D/Cst. Lewis described the location where the drug exchanges took place in relation to the licensed premise. There is a side door from Casa Nova that leads into a secluded alley. The alley goes to a t-intersection where there are the backs of a couple of businesses and a parking lot area.
D/Cst. Lewis was comfortable with the fact that even though the number called was a cell phone registered to Anita Heron, it was used exclusively by Nelson, and this was confirmed when officers had made the call to that cell phone while Nelson was under close observation in the Factory Direct store.
On re-examination, D/Cst. Nelson stated from the side door of the bar to the t-intersection at the end of the alley is approximately 100 to 150 feet.
D/Cst. Lewis advised that the under-cover officer was directed to do the transactions in the open (i.e. the parking lot) so that cover could be provided for the officer’s safety.
Daniel Deslippe is a liquor inspector with the AGCO for approximately 9 years. He conducted the licensing inspection (LIN) for the establishment prior to its opening.
On March 31, 2008 Inspector Deslippe’s voice mail at work indicated a call from the Licensee Santiago (Nelson) Joaquin-Ortega, Nelson, area code 519-504-0526 for the Inspector’s return call.
On April 3, 2008 Insp. Deslippe attended at the Casa Nova and met with Mr. Ortega (Nelson) to complete the LIN. Conversations between him and the Licensee on this occasion and subsequent meetings were always conducted in English. At no point did the Inspector ever detect a lack of understanding by the Licensee or himself in understanding one another.
Inspector Deslippe positively identified the person identified as the Licensee at the hearing as one and the same person as the Licensee he dealt with at Casa Nova. The only phone number of record that he had for the Licensee was 519-504-0526.
Inspector Deslippe met Miquel at Casa Nova, Mr. Ortega (Nelson) introducing him as the person in charge of security. Inspector Deslippe saw Miquel at the bar on subsequent visits. Miquel took part in discussions with Inspector Deslippe and the Licensee. In his mind, Miquel was an active participant in the business of the bar.
According to Inspector Deslippe’s day timer he had received voice mail call on April 7 and April 15, 2008 from the Licensee with a request to call him at 519-504-0526.
On cross-examination Inspector Deslippe stated that he recalled calling 519-504-0526, but could not recall definitely if the phone was answered.
Jerome Codrington has been a police officer with the WPS since 1997 and was attached to the drug unit from January 2003 until May 2008. While in the drug unit he has carried out many aspects of drug investigations from general investigation and surveillance to undercover work.
He identified the Licensee at the hearing as Santiago (Nelson) Joaquin-Ortega, the person he referred to as Nelson.
On April 21, 2008, Cst. Codrington was assigned to make an undercover purchase of cocaine from Nelson. D/Cst. Lewis gave him the number 519-504-0526. At 1:18 p.m. that day, he dialled that number and a male answered by saying “hello”. Cst. Codrington asked if he was speaking to Nelson and the person on the phone stated “Yeah, who is this?” Cst. Codrington gave his name as “Dalton”, a name he just made up. Nelson sounded like he recognized the name saying, “Yeah what’s up with you?” Cst. Codrington advised him he wanted a “half B”, which is a street term for 1.7 grams of cocaine. Nelson responded by chastising him for speaking so boldly over the phone by saying, “Yo. Yo. Yo, guy. Why you talkin’ like that over the phone?” Cst. Codrington apologized. Nelson asked him where he was and then asked him to come to his place. Cst. Codrington asked “What place?” and Nelson told him, “Casa Nova”.
Thereafter, Cst. Codrington had a short meeting with the drug team, and then left Kitchener and travelled to Cambridge together with D/Cst. Lewis. They arrived at 2:13 p.m. D/Cst. Lewis gave him $120.00 in Canadian currency as buy money. At that time he called 519-504-0526, but there was no answer. He tried again at 2:25 p.m. and the phone was answered by a male identifying himself as Nelson. Nelson wanted him to come to the bar. Cst. Codrington made an excuse to avoid having to enter the licensed premises directly. His excuse to Nelson was that he had been arrested and was under conditions to stay out of bars. Nelson accepted this reason and Cst. Codrington was advised to call back. In the meantime, Nelson explained, he was going to find out where his guy was.
D/Cst. Lewis drove Cst. Codrington to the area of the Casa Nova. Once there Cst. Codrington contacted a male person at the phone number 519-504-0526 who indicated he was Nelson. Nelson asked “If he was out back?” Cst. Codrington replied that he was there and Nelson stated he would send his guy right out.
A male described as 6’2”, 210 lbs., short dark hair, with a noticeable accent approached Cst. Codrington where he was waiting in the alley by the parking lot. After a short discussion where Cst. Codrington reiterated his request for “half a B”, this person took 4 “dime bags” of cocaine from a plastic bag in his shirt pocket and gave them to Cst. Codrington in exchange for the $120.00.
Cst. Codrington advised that “dime bags” are a street term for small bags of cocaine that at one time were $10.00 a bag. The cocaine was turned over to D/Cst. Schum for analysis. Cst. Codrington said he is experienced in dealing with illegal drugs and has seen cocaine in its various forms and is able to identify cocaine in all its forms. He is confident based on his experience that the white powder he received in the “dime bags” was in fact cocaine.
Cst. Codrington has had several conversations with Nelson in English and has never experienced any problems between them in understanding each other. Cst. Codrington stated the voice of the man he met when transferring the drugs was different than that of the Licensee at the hearing who he knew as Nelson.
Cst. Codrington stated that every phone call he made to 519-504-0526 was answered by the same person, that is, the person he knew as Nelson.
On Tuesday, April 22, 2008, Cst. Codrington was part of a surveillance team tracking Nelson and at the time an unknown male person in Kitchener. Nelson and the unknown male were in a white truck, licence number BBJV-791 being operated by Nelson. The vehicle operated by Nelson stopped at the Factory Direct store. Both parties exited the vehicle and entered the store. Cst. Codrington was directed by D/Cst. Lewis to call the number 519-504-0526 and see if Nelson answered the call. The call was made and the voice he recognized as Nelson answered. Cst. Codrington then pretended that he was having problems receiving the call and disconnected the call. The male with Nelson that day was later identified as Fernando Bos.
On Wednesday, April 23, 2008, D. Cst. Lewis showed a photograph of Miquel Abreularancunt. Cst. Codrington positively identified this person as being the person who had delivered the cocaine to him outside Casa Nova.
On April 23, 2008 at 2:09 p.m. Cst. Codrington was in the Cambridge area. Later that date, at 3:41 p.m., he called 519-504-0526 and spoke to Nelson and made arrangements to meet “Nelson’s guy” in the back in about half an hour.
At 4:06 p.m. on April 23, 2008, Cst. Codrington arrived in the area of the Casa Nova bar and attempted to call Nelson. At that time there was no answer. Cst. Codrington walked into the alley by the parking lot where he usually waited. At 4:23 p.m. he called D/Cst. Lewis, advised that there was no answer when he called Nelson and was told that “Miquel had just arrived at the bar. A minute later Miquel came into the alley and walked towards Cst. Codrington. Cst. Codrington told Miquel he wanted “the same as last time”. Miquel advised that he didn’t have it on him but would have to get it. Cst Codrington and Miquel left the alley way together, and got into Miquel’s vehicle. They parked ultimately on Reymore Street in Cambridge. Miquel left the vehicle and ran to a residence behind them. He returned shortly after and handed 4 “dime bags” of cocaine to Cst. Codrington, who in turn, handed over $120.00 to Miquel. Miquel and Cst. Codrington engaged in conversation in which Cst. Codrington attempted to secure Miquel as his main supplier, by-passing Nelson. Miquel stated “I have to ask Nelson. He’s the man. I’m just the delivery guy. If it is okay with him I will deal with you. I have a few customers, but Nelson “is the guy”. Cst. Codrington asked Miquel for his phone number, but Miquel declined to give it until he spoke to Nelson. He also said if it “was okay”, he would give a number and when Cst. Codrington could call. The call sign was to be “Hey amigo. It’s salsa”.
Cst. Codrington got out of Miquel’s vehicle at Cedar Street in Cambridge, and at 4:34 p.m., was picked up by D/Cst. Lewis. The cocaine was turned over to the exhibit officer at 5:00 p.m.
On May 2, 2008 Cst. Codrington attended in the Cambridge area and again attempted to purchase cocaine. At 2:39 p.m. that day, he called 519-504-0526 and spoke to Nelson, advising him Nelson it was “Dalton” and that he needed to see him at the back again. Ten minutes later he was dropped off in front of a business on Water Street, worked his way down to the alleyway and parking lot by the Casa Nova, and sat on a window ledge. He called 519-504-0526; Nelson answered. He told Nelson he was in the back and Nelson replied that he would be right out.
Two minutes later Cst. Codrington saw a male approach that he recognized as Nelson. Nelson walked by him toward the parking lot. Cst. Codrington called out his name and Nelson stopped, turned, and came back. The two shook hands. Codrington said to him, “That how you going to do me? Walk by, like you don’t know me.”
Nelson stated that he didn’t know Cst. Codrington and enquired where they knew each other. Cst. Codrington told he was a friend of “Flaves”, another drug dealer, whom he described to Nelson. Nelson and Cst. Codrington had about a 7 minute conversation where he tried to convince Nelson to sell him narcotics. Nelson made comments such as, “I have to be careful. There is a lot of shit going on. I have to be careful”. He also stated that when Miquel had described Cst. Codrington to him, Nelson realized he didn’t know Dalton. As a result, Miquel no longer wanted to deal with Cst. Codrington. Nelson said he would have to contact “Flaves”, and to bring him with him before Nelson would deal with Cst. Codrington.
On cross-examination, Cst. Codrington admitted to having no knowledge of Nelson prior to this undercover operation. He also stated that he had never received any drugs from Nelson, or exchanged any money with him. Other than in their conversation, he and Nelson never spoke in specific terms about purchasing drugs. The word ‘cocaine’ was not specifically used.
Cst. Codrington stated that Miquel never stated directly that he was an employee of Nelson’s or that Nelson sent him, but Miquel was clear when he stated to Cst. Codrington, Nelson is the man. I’m just the delivery guy.”
Cst. Codrington was on surveillance on April 22, 2008, which is why the incidents of that day were not in his notes. Rather his notes were kept by a central note taker.
Cst. Codrington was confident he was speaking to Nelson on calls he made to 519-504-0526.
On re-examination, Cst. Codrington recognized the fellow Nelson, who he met in the alleyway by Casa Nova on May 2, 2007 as having the same voice as the one he had heard on his telephone calls to Nelson. Further, Cst. Codrington said Miquel has a stronger accent than Nelson.
Nathan Moyle is a Constable with the WPS and has been a police officer for 8 1/2 years. He has been assigned to the drug squad for 1 ½ years. His role in the undercover operation was as surveillance officer, investigator and cover team officer. On April 22, 2008 he joined the ongoing surveillance of Mr. Ortega. He identified Mr. Ortega as the Licensee, seated at the counsel table at the hearing.
On April 22, 2008 he followed Nelson and another male, into the Factory Direct store in Kitchener. He entered the store as well and got as close as he dared to Nelson and his associate. At 11:58 a.m. he heard a phone ring, saw Nelson answer a cell phone, and heard Nelson say, “Who is this?” When Nelson hung up the phone Cst. Moyle exited the store.
On May 2, 2008, through his involvement in the arrests of Nelson and Miquel and the processing of property of the accused persons at the police station, Cst. Moyle came into possession of two cell phones. At 7:23 p.m. on May 2, 2008, he answered one of the phones, which was ringing. A male person asked for Miquel. The caller was advised that Miquel was busy and was asked to leave a message. The caller stated, “Yeah, I need 4 hard”. Cst. Moyle explained that “4 Hard” in drug street terms means 0.4 gms of crack cocaine.
Cst. Moyle intercepted two further telephone calls, on one of the cellular phones seized. At 8:56 p.m. the same male as the previous caller, called again and asked for Miquel. He stated he only needed “4 hard”. Cst. Moyle advised the caller that Miquel was still busy and asked the caller if he knew Nelson saying that if he did he could call Nelson for a hook up. The caller said he knew Nelson and would call him. The caller also advised Cst. Moyle that he knew Nelson well and has dealt with him many times before.
At 9:12 p.m. Cst. Moyle intercepted another call on one of the cellular phones seized. This male caller was different from the previous male caller, refused to identify himself, and asked for Miquel. When told Miquel was busy, the caller became irate and said, “Get him. His partner had just got busted tonight”. He went on to say that he had seen Miquel’s partner arrested together with two females. When advised that Miquel was still busy, the caller stated that he believed Cst. Moyle was a cop and terminated the call.
On cross-examination Cst. Moyle stated he did not know if a cell phone had been seized from Nelson.
Cst. Moyle stated that when he followed Nelson into the Factory Direct store other persons were around them. When asked how he could be sure it was Nelson’s phone he heard ring that day, he stated that it came from where Nelson was. Cst. Moyle stated he never observed Miquel pass anything to Nelson or vice versa. He saw a female approach Nelson in his vehicle one day and when she backed away she was carrying a large amount of cash.
Licensee’s Evidence
Mr. Fernando Bos has known the Licensee Nelson for about a year. Mr. Bos testified he was helping Nelson get his music system set up at the establishment. He stated that things there were disorganized, so he was helping to get the place up and running. Eventually he was to become an employee, involved in the managing of the establishment and working 5-6 days a week.
Mr. Bos stated he never saw any drug dealing at the establishment and that it would not be permitted in any event. He also stated he knew Miquel, that Miquel helped around the bar from time to time and that Nelson looked after him. He stated that Miquel and Nelson were never partners and that he never saw the two of them deal in drugs.
He stated that Miquel and Nelson’s accents are similar, especially if they are speaking using Spanish slang. He recalled being in the Factory Direct store with Nelson, but did not recall Nelson’s cell phone ringing. He and Nelson visited many stores that day looking at computers/software for the business.
On cross examination Mr. Bos stated he could tell the difference between the accents of Miquel and Nelson, that Miquel’s voice was deeper. Mr. Bos had no knowledge of the narcotics trade or drug dealers.
Mr. Bos was in and around the bar on April 21, 22 and 23 but could not recall specifically what he was doing. Mr. Bos’ only experience working in a licensed establishment was in 1999-2000 when he worked at Roxy’s Nightclub as a bouncer. He has not worked in a bar since.
Registrar’s Submissions
Mr. Morris asked for a finding under section 45(2) of the O.Reg and a further finding under section 6(2) (d) of the LLA, that is, the Licensee will not carry on the business in accordance with the law and with integrity and honesty.
Mr. Morris drew the Board’s attention to its decision of March 12, 2008 (see Casa Nova, Ex. #2) in which the Licensee had obtained permission for a licence. The Board had several concerns at that time, which were listed in paragraphs 31, 32, 34 and 35 of that decision.
The telephone the Licensee used is registered to Anita Heron, a person with whom he is only supposed to have a distant business relationship; the phone number in question 519-504-0526 was used consistently by the Licensee, including his dealings with the Liquor Inspector, Daniel Deslippe, who called that number back on several occasions.
Mr. Morris said that, from the evidence of the witnesses, the Board should conclude that Miquel fulfilled a role at the establishment, and took part in discussions between him and the Licensee. Further evidence of Miquel’s close association with Casa Nova is that weeks after his arrest, he is re-arrested in breach of his bail conditions by again attending at the Casa Nova.
Cst. Codrington clearly identified Nelson’s voice as the same as that of the person identified as Nelson, whom he spoke with on May 2, 2008 in the alleyway.
Cst. Moyle’s evidence corroborates the evidence that the cell phone number 519-504-0526 was used by the Licensee when, in the Factory Direct store, he observed Nelson answer that number which had been dialled by Cst. Codrington.
Mr. Morris urged the Board to conclude that Nelson took the calls, and made the drug deals, Miquel does the delivery since he didn’t want drug deals done directly at the bar. The calls between Cst. Codrington and Nelson were clearly about selling to using drugs; there is no other reason for the call. Further, all transactions were initiated in the alley way by the bar.
Licensee’s Submissions
Ms. Zvulony submitted that no drugs had ever been found in the possession of the Licensee, nor was any transfer of monies witnessed, except for rent. There has been no evidence that Nelson ever provided drugs to Miquel, or vice versa. On May 2 when Nelson met Cst. Codrington in the parking lot, he refused to sell him drugs. In fact, Cst. Codrington did not ask for drugs. Further, D/Cst. Lewis and Cst. Codrington are both experienced drug enforcement officers but have never before encountered the Licensee. The brief discussions between the Licensee and Cst. Codrington are not sufficient for Cst. Codrington to identify the Licensee’s voice as that of Nelson. Also, there is no way that Cst. Codrington could establish where Nelson was when he called to make arrangements for the drug deal so, she suggested section 45(2) of the O.Reg should not apply.
Ms. Zvulony argued that it was an error in the Licensee’s judgement to associate with Miquel, but the Licensee only did it to help him out. The Licensee would not tolerate the selling of cocaine. The Licensee has never been convicted of a criminal offence.
She urged that a penalty of revocation of the liquor licence is very harsh especially in light of the doubt about the Licensee’s involvement.
Reply
- Mr. Morris pointed out D/Cst. Lewis’ testimony in which he stated that the police had heard of the Licensee being involved in trafficking drugs in another bar.
Analysis/Reasons/Findings
- The Board concludes that the Registrar’s witnesses to be very credible. Their evidence was presented in a frank and fair manner.
Subsection 45(2) of the O.Reg
The Licensee, who the Board will refer to as Nelson, became the focus of a police undercover operation to see if in fact he was trafficking in narcotics. Once he was identified the police instituted a “sting” operation involving Cst. Codrington whose job it was to call a telephone number, speak to a person named Nelson and arrange to purchase drugs from him. The telephone number was 519-504-0526.
The Board concludes that the phone number, 519-504-0526, was in fact, the phone number of the Licensee, Nelson. This was the contact number left by the Licensee with the Liquor Inspector Deslippe. Even though Inspector Deslippe could not recall if the Licensee actually answered the phone when he called that number, the Board is satisfied, on the balance of probabilities, that this was the contact number left in order for the Inspector to contact the Licensee.
This conclusion is further corroborated by the evidence related to the surveillance operation undertaken on April 22, 2008. When Cst. Moyle was close to the Licensee at the Factory Direct store, and heard a phone ring and saw the Licensee answer. The number 519-504-0526 had just been called by Cst. Codrington. Finally, all of the calls placed to that phone number by Cst. Codrington were answered by a person who acknowledged himself as Nelson. There is no doubt in the mind of the Board that 519-504-0526 was the contact number and the principal phone used for his business by the Licensee. Further the Board concludes that when that number was called by Cst. Codrington that he was in fact speaking to the Licensee.
The evidence of D/Cst. Lewis also supports the conclusion that Nelson was at the bar when the calls are made. On the date of the first transaction Nelson was seen exiting the establishment, Casa Nova, immediately after the second call was made to him by Cst. Codrington. The Board is satisfied based on this evidence that Nelson arranged the drug deals involving Cst. Codrington from the establishment.
Next the Board is satisfied that, except for the phone call of April 22, 2008, the phone calls between Cst. Codrington and the Licensee were for one purpose and that was for Cst. Codrington to purchase drugs from the Licensee. In the first phone call between Cst. Codrington and the Licensee, Cst. Codrington specifically asked over the phone for “half a B” and was chastised by the Licensee for being so bold on the phone. The Board concludes from this evidence that it is clear the Licensee understands that the request by Cst. Codrington is for drugs.
Further, once the Licensee (wrongly) concluded that in that first call that he knew Cst. Codrington, he advised him that it could be done and invited Cst. Codrington to come down to the establishment, Casa Nova. The Licensee stated clearly, “Come to my place”, which he explained was the establishment. When Cst. Codrington attended in the area of the establishment he again contacted the Licensee and was told he would, “send his guy right out”. That person was Miquel.
The words “(his) guy” and “right out” is in the view of the Board very significant. It serves to directly connect Miquel with the Licensee, Mr. Ortega, or Nelson. Also, when Mr. Ortega states “right out”, this can only be from one place, the licensed premises. Accordingly, the Board concludes that narcotics were being trafficked from the licensed premises.
The Board concludes the relationship between the Licensee and Miquel is far from casual. Miquel’s actions when the Liquor Inspector attended the premises, indicates anything but a casual relationship. Further, the conversation between Miquel and Cst. Codrington in Miquel’s vehicle, when Cst. Codrington attempts to get Miquel to deal directly with him and by-pass Nelson, is very telling. Miquel is unwilling to without permission. He described Nelson as “the man”, and described himself only as the “Nelson’s delivery guy”. Also, surveillance evidence as given by D/Cst. Lewis indicated that in the absence of Nelson, Miquel was in the bar. The evidence given by Insp. Deslippe about Miquel’s activities in the bar when he attended further confirms his serious involvement in the licensed premises.
Cst. Codrington’s conversation with the Licensee in the alley by the bar is another example of the Licensee’s complicity in the drug trade. No doubt the Licensee is suspicious and concerned since he then realizes that he does not know Cst. Codrington as the person he thought he was. Despite this, once the two started talking, the Licensee never says he does not know anything about drug deals. Instead, he remarks about being careful and ultimately, agrees to do business with Cst. Codrington once the officer returned with a person named “Flaves”, a criminal whose name the Licensee recognized. The Board does not believe his reaction throughout this encounter as someone erroneously accused of being a drug trafficker; instead, he implicates himself as being one by stating, “You can’t be too careful”.
The evidence of Cst. Moyle from the telephone calls he intercepted on Miquel’s cellular phone May 2, 2008, the day of the arrests, is further evidence of the involvement of the Licensee in the drug world and also of his relationship with Miquel. The first caller, who called twice, asked for Miquel and placed an order for crack cocaine. On his second call, the caller responded to a question from Cst. Moyle by saying he knew Nelson very well and had often dealt with him in the past. The second caller asked for Miquel and stated that he had seen “his partner” get arrested. From earlier testimony from D/Cst. Lewis, the Board concludes the person this caller was speaking of was the Licensee.
The Board is satisfied based on the evidence of Cst. Codrington, and his experience, that the powder purchased by him from Miquel was in fact cocaine. This evidence was not refuted.
Thus, the Board concludes that the Licensee was in a partnership with Miquel to traffic in drugs and that the licensed premise was used in part to front the drug operation. There is un-refuted evidence that the Licensee arranged for two drug sales to Cst. Codrington, on April 21 and 23, 2008. The purchases were substantially connected to the licensed premises in that the undercover officer was advised to come there to effect the purchase, even though the drugs were ultimately handed over to the officer elsewhere. Further, on at least one occasion the Licensee was in the licensed premise when Miquel came out and completed the drug deal.
For the above reasons, the Board FINDS that the Licensee, Santiago (Nelson) Joaquin-Ortega breached subsection 45(2) of the O.Reg.
Section 6(2)(d) of the LLA
The Board concludes that the Licensee continued his association with Anita Heron despite strict conditions on the liquor licence to severely limit such associations. Even if the Licensee’s interactions with Ms. Heron did not constitute a ‘breach’ of the conditions per se, they certainly were not in keeping with their ‘spirit’.
Further, the Board is of the view that the licensed premises were used for the purposes of trafficking in a controlled substance, that is, cocaine, contrary to the Controlled Drugs and Substances Act.
For the above noted reasons the Board also FINDS the Licensee will not carry out its business in accordance with the law and with honesty and integrity based on the past/present conduct of the licence holder contrary to section 6(2)(d) of the LLA.
Conclusion
- The Board invites written submissions on penalty from the respective parties. The Registrar’s representative shall serve and file his written submissions within fourteen (14) days of the date of this decision. The Licensee’s representative shall have ten (10) days to serve and file her written response. Registrar’s Representative may serve and file any reply within five (5) 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 1^st^ DAY OF AUGUST, 2008.
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S. GRACE KERR, BOARD MEMBER ALEX MCCAULEY, BOARD MEMBER
AM/sm