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-
1298438 Ontario Inc. O/A Reactor
Licensee
DECISION
Panel: David C. Gavsie, Chair, AGCO
S. Grace Kerr, Board Member
Decision Date: December 18, 2008
Hearing Location: Windsor, Ontario
Alcohol and Gaming Commission of Ontario
90 Sheppard Avenue East, Suite 300
Toronto, ON M2N 0A4
Phone: (416) 326-0366 Fax: (416) 326-5566
Toll Free In Ontario: 1-800-522-2876
Website: www.agco.on.ca
Appearances
Registrar, Alcohol and Gaming Commission ) Phillip Morris, Representative
1298438 Ontario Inc., Licensee ) Dewar Laing, Representative
Allegations
- A hearing of the Board of the Alcohol and Gaming Commission of Ontario (“AGCO”) was held in Windsor, Ontario on November 13, 2008 regarding a Notice of Proposal being number 16066 issued by the Deputy Registrar on February 26, 2008 (the “NOP”), to suspend for 25 days the liquor licence of 1298438 Ontario Inc., (the “Licensee”) operating as REACTOR, 546 Ouellette Avenue, Windsor, Ontario, N9A 1B7, (the “Premises”), licence number 92584 (the “Licence”). The NOP alleged that the Licensee breached subsection 45(1) of Ontario Regulation 719/90 (the “O.Reg”) under the Liquor Licence Act (“LLA”).
Decision
- Having reviewed the evidence presented and the submissions made by the parties at the hearing, the Board declines to make a finding.
Preliminary Matter
- On consent, the Board ORDERED the exclusion of witnesses from the hearing room until they were called to give evidence. An exception was made for Kevin Lafontaine, the principal of the Licensee.
Registrar’s Evidence
Bill Tetler gave evidence. He is an inspector with the City of Windsor, Licensing and Enforcement Department, and has been in that position since September 2004.
Inspector Tetler enforces City by-laws in Windsor.
He entered the Premises in the early morning hours of October 14, 2007 to check compliance with City of Windsor By-law 395-2004, Schedule E-1. He was looking, for example, to see if doors and windows were open, checking the occupancy or whether contests were taking place, and, if so, then as part of them, whether certain parts of a woman’s body were being exposed that should not be.
On approaching the Premises outside, Inspector Tetler noticed a line queuing. Door personnel were looking at patrons’ identification. Inspector Tetler said he looked at the liquor licence to see the permitted occupancy for the Premises.
Inspector Tetler made notes shortly after his visit to the Premises. After discussion, it was agreed he could refer to his notes to refresh his memory.
Inspector Tetler stated that Reactor was a nightclub situated in downtown Windsor. It is open evenings seven days a week, usually from 8:00 p.m. to 2:00 a.m. The front door is up to the sidewalk of the street. There is a patio behind a set of double doors. One enters the patio by going through a garage door.
Inspector Tetler described the inside of the Premises.
October 14, 2007 was a Sunday. Inspector Tetler attended the Premises with fellow Inspector Bart Pogorzelski. They arrived at 00:55 a.m. They had received information that there would be a hot body contest at 1:00 a.m. The Inspectors were present to see if participants at the contest breached the Windsor by-law which prohibited the display of parts of a body during a contest. Inspector Tetler said he had monitored this type of a contest at Reactor previously.
On arrival, Inspector Tetler entered the Premises through the front door, walked by the main service bar on his left side, and stood 15 to 20 feet away from the main stage located on the south side of the Premises. No contest had yet started.
Two or three minutes after he took up his position, Inspector Tetler was approached by Kevin Lafontaine. Inspector Pogorzelski was standing close to Inspector Tetler, to his right.
Inspector Tetler said Mr. Lafontaine came at him aggressively, saying, “Why are you here?” and “Are you here to harass me?” Mr. Lafontaine also asked Inspector Tetler, “Did you get a memo from Diane Sibley?” Inspector Tetler explained that Ms. Sibley was Windsor’s Executive Director of Licensing.
Mr. Lafontaine’s demeanour was aggressive and showing anger. He was swearing and yelling. Mr. Lafontaine was within one and a half to two feet of Inspector Tetler.
Inspector Tetler said the music was loud in the Premises but one did not have to speak so loud as to be heard over it.
In the past when in the Premises, Mr. Lafontaine had not approached him. Instead, he had dealt with Derek Drouillard who was the manager. Inspector Tetler knew Mr. Lafontaine. They had played baseball together a couple of years before. The two had no problems from that.
Inspector Tetler said he recognized Mr. Lafontaine on sight and assumes Mr. Lafontaine also recognized him on sight.
Inspector Tetler said he did not respond to Mr. Lafontaine’s initial questions, but Mr. Lafontaine did not calm down. Mr. Lafontaine then said, “If you are here for the contest, I will cancel it.” Inspector Tetler said in response, “Do what you need to do,” because in his mind, there was no need to cancel it.
Inspector Tetler said he wrote a statement on Monday morning to expand on his notes from the event early Sunday morning. On consent, Inspector Tetler was permitted to use the statement to refresh his memory.
Mr. Lafontaine continued to yell and swear, contending Inspector Tetler had attended other bars and harassed them as well. Inspector Tetler said he did not recall responding to Mr. Lafontaine.
At that point, Inspector Tetler said Mr. Lafontaine used his right hand on the Inspector’s left bicep. It was a “shove”. Inspector Tetler told Mr. Lafontaine, “Never touch me again.” Inspector Tetler said his body did not move from the contact. He said he is six feet one inch tall, and weighs 204-5 pounds.
At that point, Mr. Lafontaine said, “Go ahead and call the f…(epithet) cops. What violations are you looking for?” Mr. Lafontaine wanted to know why the inspectors were in the establishment. His yelling and swearing went on for four to six minutes.
Inspector Tetler said he responded to Mr. Lafontaine by telling him the inspectors were looking for by-law violations, things like a licence or placard not being posted.
Mr. Lafontaine cut off the conversation by saying, “Is everything okay so f…(epithet) far?” Inspector Tetler replied that it was, and told Mr. Lafontaine that the City By-law was on-line for his review. Mr. Lafontaine walked away.
Inspector Tetler stayed where he was and waited to see if the contest would go on. At that point the manager asked a photographer to take photos of the two inspectors, which was done.
Inspector Tetler was then approached by a member of the door staff and asked questions about the smoke-free legislation, and also as to how he would react if a topless woman walked into the bar.
Inspector Tetler left the Premises at 1:27 a.m. No contest was held.
His employer requires documentation of incidents. On Tuesday, October 16, Inspector Tetler called Windsor police because of the rule that no one should touch him during an inspection. Charges were laid against Mr. Lafontaine, but were dismissed at trial.
In answers to questions on cross-examination, Inspector Tetler said door staff was on duty at the front door, and that both he and his partner showed their identification. They were not in uniform.
Inspector Tetler said the Premises were fairly busy. Music was playing and it was fairly loud. He and his partner stood facing the stage.
Mr. Lafontaine approached him in an aggressive manner, walking quickly. He came from the main bar area, walking through patrons. Inspector Tetler does not expect people to be upset when they see him as he goes inside places all the time to do his job.
Inspector Tetler said he and Mr. Lafontaine call each other by their first names as they had played baseball together. On the team, Inspector Tetler knew some players worked for Reactor, but not all did. He played on the team in 2005 and 2006. He recalled going out with the team after games, but he did not remember having drinks.
When playing baseball, Inspector Tetler said both he and Mr. Lafontaine used the “f” (epithet) word. They would give “high fives” to each other.
In the Premises, Mr. Lafontaine was yelling in a loud voice when he approached Inspector Tetler. He agreed that due to the crowd and noise one had to speak louder than normal.
Inspector Tetler was asked about Mr. Lafontaine touching him. He said it was more of a hit than a slap and certainly more than a simple touch. There was no bruise on Inspector Tetler’s arm afterwards. It did not cause Inspector Tetler to shift his body weight. Inspector Tetler described it as a forward side motion across his body.
In any event, Inspector Tetler said there should not have been any physical contact.
Inspector Tetler stated that charges were laid by Windsor police because Mr. Lafontaine assaulted him in the performance of his job, in the course of his duties. He did not want a precedent set. No touching was permitted.
Inspector Tetler spoke to his manager right after leaving the Premises that night. Inspector Tetler called the police on Tuesday morning.
Inspector Tetler said Mr. Lafontaine used profanity while speaking to him in the Premises but did not use it against him. Rather the profanity was used as descriptive vocabulary.
Inspector Bart Pogorzelski gave evidence. He is also an inspector with the City of Windsor, By-law Enforcement. He has worked in that position for four years, but has been in the department for 11 years. At night, officers work in teams of two.
In the early morning of October 14, 2007, Inspector Pogozelski was working with Inspector Tetler. They visited the Premises. Inspector Pogozelski made notes and a report, which, on consent, he was permitted to refer to in order to refresh his memory.
Inspector Pogozelski said he arrived at the Premises at 12:55 a.m. He had observed that a “wet T-shirt” contest was to take place there at 1:00 a.m. He had been there before with Inspector Tetler. He was unaware of any problems between Inspector Tetler and Mr. Lafontaine.
Inspector Pogozelski identified himself to the doorman using his badge. Both inspectors walked to the end of the bar. They positioned themselves 15 to 20 feet from the main stage.
Mr. Lafontaine approached Inspector Tetler. The inspectors had only been there a short time before this happened. Mr. Lafontaine questioned why the inspectors were in the Premises. He swore quite a bit during the conversation. Mr. Lafontaine was angry and “in Inspector Tetler’s face”.
Mr. Lafontaine raised his voice. It was loud in the bar but Inspector Pogozelski could hear Mr. Lafontaine. There was only a foot or two between Inspector Tetler and Mr. Lafontaine. Inspector Pogozelski was three to four feet away.
Inspector Tetler using a normal speaking voice told Mr. Lafontaine they were there to observe. Mr. Lafontaine said if you are here for a contest that he would cancel it. He was angry. Inspector Tetler told him to do what he had to do.
Mr. Lafontaine was swearing toward Inspector Tetler. Inspector Pogozelski said he could not hear the full conversation.
At that point, Mr. Lafontaine gave an open-handed push to Inspector Tetler around his shoulder or left upper arm. Inspector Tetler’s shoulder went back.
Inspector Tetler said, “Don’t touch me again,” to Mr. Lafontaine, who said, “Go ahead and call the cops.”
Mr. Lafontaine questioned Inspector Tetler what he was looking for. Inspector Tetler said placards, licenses. These were listed in the by-law which was on-line.
Mr. Lafontaine stepped back a little after Inspector Tetler told him not to touch him again. He was still swearing. Inspector Tetler ended the conversation.
At that point a doorman came in front of the Inspectors to move some patrons. Derek, the manager, then brought a male photographer over to take a picture of the two inspectors. A doorman arrived to speak to Inspector Tetler.
Inspector Pogozelski and Inspector Tetler departed the Premises at 1:27 a.m. and informed their supervisor of the incident.
In answer to questions on cross-examination, Inspector Pogozelski said he has never seen anyone being touched while doing an inspection within an establishment.
He described the touch as a “push” or “shove”. There was forward movement, but not a “full smack”. It was not a punch. He was three or four feet away and was alarmed but did not need to intervene. Although worried for their safety, he did not step forward nor did he see the need to call police.
Inspector Pogozelski said that Inspector Tetler’s shoulder moved in a backwards-forwards motion, but his feet did not move. Inspector Tetler’s left arm or shoulder was touched.
The contest that night was a “wet T-shirt” one, not a “hot body” contest. Nudity is not permitted. Inspector Pogozelski said he has not seen any violation of this part of the municipal by-law at Reactor.
Inspector Pogozelski stated that there could have been a couple of hundred people inside Reactor. He could not hear whole sentences of conversation. He definitely heard swear words. Mr. Lafontaine’s attitude when he walked up to Inspector Tetler caught his attention. He was angry.
Through Inspector Pogozelski, a transcript from a trial in the Ontario Court of Justice held in Windsor on June 9, 2008 was introduced as Exhibit 1. This was the hearing of the criminal assault charge against Mr. Lafontaine. Inspector Pogozelski was referred to page 23 of the transcript (Exhibit 1), lines 15 to 30. The issue was whether Inspector Pogozelski’s evidence there was different or inconsistent with his evidence at this hearing. The Board ruled that it was not.
Inspector Pogozelski stated that he could hear most of the conversation between Inspector Tetler and Mr. Lafontaine.
Licensee’s Evidence
Kevin Lafontaine was called to give evidence. He is 41 years old. He is the principal and guiding mind of the corporate Licensee. He has owned Reactor for 10 ½ years and been in the bar business for 20 years.
In the early morning of October 14, 2007, Mr. Lafontaine was behind the bar. The head doorman told him that By-law officers were in Reactor. He knew Inspector Tetler and recognized Inspector Pogozelski. It was not unusual for them to be in the Premises.
Mr. Lafontaine said he knew Inspector Tetler from the time they played baseball together on a Reactor team. It was also sponsored by other bars. Bars sponsored the team with Reactor because they hoped team members would visit those establishments after games. Inspector Tetler had played on the team for two years. Mr. Lafontaine had spoken to him. Team members went out after games.
Mr. Lafontaine thought he and Mr. Lafontaine were not friends, but they knew and called each other by their first names. They would shake hands, high-five each other, or slap each other on the “butt” after plays occurred at the baseball games.
On the night in question, Mr. Lafontaine said he was glad it was Inspector Tetler in the Premises rather than another inspector, so he went over to see him after a few minutes. Mr. Lafontaine said he was not angry. The Inspectors stood in front of the stage, about 15 to 20 feet away from it.
Mr. Lafontaine said he was not aggressive when he approached the Inspector. He said something like, “Hey, Bill, what’s up?” Inspector Tetler was facing the stage, standing with his arms folded. He glanced over at Mr. Lafontaine but said nothing.
Mr. Lafontaine found it odd that Inspector Tetler did not acknowledge his question, so he asked, “Why are you guys here?” Mr. Lafontaine said he used no profanities up to that point. However, he was frustrated that Inspector Tetler would not have a conversation with him.
Mr. Lafontaine said Inspector Tetler was giving him the cold shoulder, being rude. On a previous occasion, Inspector Tetler had been helpful by telling Mr. Lafontaine to shut his front door after 11:00 p.m. because his supervisor was out that night. Before Inspector Tetler would discuss issues with him.
Mr. Lafontaine stated that there was not going to be a “hot body” contest that night because no one had signed up for it. In any case, it was not an illegal event.
Mr. Lafontaine said the inspectors did not look for posters or placards, nor did they ask to see them.
Inspector Tetler finally said to Mr. Lafontaine, “We’re just here doing our job.” Mr. Lafontaine responded, “If you are here for a ‘hot body’ contest, we’re not having one.” Mr. Lafontaine then said, “Did your f…(expletive) boss tell you to come here?” and added, “Other bars do it so I hope you are checking them out.”
Mr. Lafontaine said he then patted Inspector Tetler on his arm saying, “That’s cool.” Inspector Tetler told Mr. Lafontaine, “Don’t do that again,” to which Mr. Lafontaine made a response like, “Call the cops.”
Mr. Lafontaine stated any swear words he used were as adjectives. He would not have spoken like that to a person he did not know.
Mr. Lafontaine said he has surveillance cameras inside and covering the front sidewalk. He keeps the recording for 10 days, and the system then re-records over itself. He found out 17 days later about the police investigation when the police called him, so he had no tape of the incident with Inspector Tetler.
Mr. Lafontaine stated he was charged with assault arising out of the incident with Inspector Tetler on October 14, 2007. He went to trial in June 2008. He was acquitted of the charge after a full hearing. Both inspectors appeared as witnesses at the criminal hearing.
Mr. Lafontaine said he did not get in Inspector Tetler’s face. He had to speak in a loud voice because of the noise in the Premises. They were two feet away from each other. He could not use his normal voice.
Mr. Lafontaine stated that when he touched Inspector Tetler, it was a parting gesture. There was zero pressure behind his touch. Inspector Tetler’s shoulders did not move.
Inspector Tetler said to Mr. Lafontaine, “Don’t ever touch me again.” Mr. Lafontaine said he did not know what Inspector Tetler’s problem was that night, so he said, “What are you going to do? Call the cops?” That was the end of the conversation. Mr. Lafontaine walked away from the two inspectors who stayed there for another ½ hour.
Mr. Lafontaine stated that Inspector Tetler’s demeanour that night was different. He could not figure out if Inspector Tetler was angry. Inspector Tetler had never referred him to use the internet. He was frustrated with Inspector Tetler, not angry. Previous exchanges between them had been good. Mr. Lafontaine was attempting to be cooperative. He would not try and alienate the Inspectors.
In answer to questions on cross-examination, Mr. Lafontaine said contests are popular. They draw crowds and make money. The girls who participate sign a waiver form which sets out the rules.
Mr. Lafontaine said touching Inspector Tetler was not inappropriate. He had done that on the ball-field. He had never done it before during an inspection.
Mr. Lafontaine said he did not challenge the Inspectors’ right to be in his Premises or their authority.
Mr. Lafontaine said he did not use the word “cancel” because no one had signed up for the contest. He was not yelling or swearing or being abusive. He used the “f” word because he assumed Inspector Tetler would not be offended, as he had used it around him before, on the ball-field.
Mr. Lafontaine stated that he touched Inspector Tetler on the upper arm in a manner that would not kill a fly, saying, “All right. That’s cool.”
Mr. Lafontaine said he did not order photographs of the Inspectors to be taken that night. He saw it in a report when he went to see the photos. The two officers were in the background with three girls.
Mr. Lafontaine said the interaction with Inspector Tetler lasted for perhaps two minutes.
Registrar’s Submissions
Mr. Morris began his submissions by asking whether Mr. Lafontaine acted in a “disorderly” fashion toward Inspector Tetler. Was his conduct so inappropriate as to constitute disorderly conduct. The Board is not dealing with an issue of criminal assault; the Board has to determine whether there was disorderly conduct.
What was said and how it was said did constitute disorderly conduct – the approach, the conversation, the touch.
Inspector Tetler’s evidence was to the effect that right from the time he first saw him, Mr. Lafontaine was out of the ordinary, inappropriate, and angry. Mr. Lafontaine exhibited inappropriate conduct in dealing with the Inspectors – swearing and yelling.
Inspector Pogozelski said Mr. Lafontaine was in Inspector Tetler’s face, real close, with an angry facial expression and a raised voice.
Regarding the degree of the touch, Inspector Tetler said it did not move him. Inspector Pogozelski said his shoulder moved. Mr. Lafontaine said he touched Inspector Tetler. However, Mr. Lafontaine should not have touched Inspector Tetler at all.
Mr. Lafontaine said he touched Inspector Tetler out of camaraderie. But that is not correct because of what happened just before which showed a confrontation and was also shown because of the exchange of remarks just after.
There was no evidence that the Inspectors brought on the situation themselves. It all came from Mr. Lafontaine.
Licensee’s Submissions
Mr. Laing referred to the allegation in the NOP, namely, that the Licensee had permitted violent or disorderly conduct to occur. There was a criminal assault charge as a result of this incident which the Court threw out.
Touching if not welcome is an assault. But is it disorderly conduct? It may be inappropriate. It should be more than a touch, more than laying a hand on someone’s arm.
Inspector Tetler got upset because he was touched. Because of his position, he thought he should be given respect and his authority recognized. The reason he went to the police is because there was an insult to his authority.
The foregoing behaviour does not fall within subsection 45(1) of the O.Reg as alleged in the NOP.
One must look at subsection 45(1) on a broad scale. There must be more than bickering. These two people knew each other. There is no evidence that Mr. Lafontaine or a staff member confronted the Inspectors.
All of this was a falling out between two friends. Inspector Tetler was ignoring Mr. Lafontaine. Mr. Lafontaine expected a response. Mr. Lafontaine knows Inspector Tetler. While playing baseball together, they had touched in the past.
Under the circumstances, one cannot expect Mr. Lafontaine to treat Inspector Tetler like any other inspector. They were not communicating. Mr. Lafontaine felt ill-used. But this was not disorderly conduct. This was an isolated event between two individuals.
Offensive conduct must be looked at from a public view. After a trial, it was found not to be a criminal offence. It may have been inappropriate. Mr. Lafontaine probably should not have said what he did, but he was not offensive or disorderly.
Mr. Lafontaine used the “f” word. This is the language he uses with friends. Normally he would not use it with an authority figure. Inspector Tetler was not getting respect from Mr. Lafontaine and it bothered him.
It took Inspector Tetler three days to report the incident to police. He did not call police the night of the incident. He probably reflected on it. He saw this incident as an assault. His authority was questioned.
The quality of friendship interfered with Inspector Tetler’s respect and authority. It was Inspector Tetler’s decision to lay criminal charges. The City took no steps. It was a personal, not a public, matter.
Inspector Tetler may have felt embarrassed. The parting words from Mr. Lafontaine were sarcastic. Inspector Tetler decided he had to do something. The event itself was not violent as Inspector Tetler was not in distress from the touching.
A mountain was made out of a molehill. Touching became an assault.
The two Inspectors were in the Premises longer than usual. They had taken up positions and were standing as authority figures. They were waiting to see if a breach of a by-law was going to occur. This was not usual for the inspectors to do.
Mr. Lafontaine knew that the inspectors could put him out of business. He asked them a question. He did not approach them in an aggressive or swearing manner. Mr. Lafontaine would not risk his livelihood.
Why would Mr. Lafontaine attack Inspector Tetler? Inspector Tetler had been helpful before. Mr. Lafontaine wanted to keep his help and his friendship.
In reviewing the transcript of the criminal trial (Exhibit 1) technically an assault took place. But no harm was done. It does not in and by itself constitute disorderly conduct.
A 25 day suspension is being proposed for the touching incident. This level of penalty is not warranted. There are “assaults” and then there are “assaults.” This incident is on the mild side. It did not give rise to violent disarray in the Premises.
Registrar’s Reply
In reply, Mr. Morris asked if the Board thinks the matter would have been brought before it if Mr. Lafontaine had simply gone up to his buddy, said, “That’s cool”, and touched him in a friendly manner. If so, there would be nothing warranting a finding. But the evidence did not show that.
The question to be asked is whether Mr. Lafontaine’s conduct before and after the assault constituted disorderly conduct in all the circumstances. The Registrar says it did.
There was reasonable doubt whether the criminal assault occurred. Here, we are dealing with disorderly conduct. The relationship is between the regulator and the regulated person.
Mr. Lafontaine was unfriendly.
Nothing Inspector Tetler said showed he was concerned with his authority. Mr. Lafontaine touched an enforcement person while he was carrying out his duties.
The incident was reported to police on Tuesday. Inspector Tetler could have called 9-1-1 but he did not feel under an immediate threat. Instead, he reported the incident to his boss on Monday and to the police on Tuesday.
Reasons
The Registrar has alleged in the NOP that, on October 14, 2007, a breach of subsection 45(1) of the O.Reg took place in that there was an assault against a Windsor by-law officer conducting an inspection.
Subsection 45(1) of the O.Reg reads, in part:
“45(1) The licence holder shall not permit… riotous, quarrelsome, violent or disorderly conduct to occur on the premises…”
A criminal charge of assault against Mr. Lafontaine arising from the same incident giving rise to the NOP was dismissed by the Court without hearing the accused’s representative as to submissions (page 45, Exhibit 1).
The burden of proof on the Crown in a criminal case is to prove the case “beyond a reasonable doubt”, a much higher burden than that of an alleged regulatory breach, which is the present case. Here, the Registrar has to establish its case “on the balance of probabilities.”
The question to be decided is whether Mr. Lafontaine’s physical contact – his hand – with Inspector Tetler – his upper arm – constituted “violent or disorderly conduct” as set out in subsection 45(1) of the O.Reg.
The testimony of both by-law Inspectors was that Mr. Lafontaine approached them angrily. After asking questions which were unanswered, Mr. Lafontaine pushed or shoved Inspector Tetler.
Conversely, Mr. Lafontaine said he did not approach the Inspectors angrily. After asking questions to Inspector Tetler which went unanswered, Mr. Lafontaine placed his hand on Inspector Tetler’s upper arm, as one friend would do to another when having or ending a conversation.
All of the witnesses agreed that physical contact had occurred. Whether it was a “push”, a “shove” or a “placement” of a hand, depending on which witness testified, they all agree that the contact sparked an exchange between Inspector Tetler and Mr. Lafontaine.
More particularly, Inspector Tetler said something to the effect, “Don’t ever touch me again,” and Mr. Lafontaine replied to the effect, “Go call the cops.”
The parties also concur that the contact was unwanted.
To determine whether Mr. Lafontaine’s behaviour constituted “violent or disorderly conduct”, the Board has assessed the evidence as it relates to the “quality” as well as the “context” in which the physical contact occurred. First, with respect to the “quality” of the contact, Inspector Tetler, who was directly involved, says that it did not make him move. Inspector Pogozelski’s evidence conflicts with that testimony: standing about three or four feet away from his partner, he said he saw Inspector Tetler’s shoulder move back from Mr. Lafontaine’s contact. According to Mr. Lafontaine, he “patted” the Inspector on the arm.
Looking at the evidence from a “contextual” standpoint, the non-contradicted evidence is that Mr. Lafontaine and Inspector Tetler knew each other from playing baseball on the same team for two years. As Mr. Lafontaine said, ball players touch each other in different ways as a means of congratulating each other for having made good plays. That is part of the camaraderie of members of the same sports team.
Mr. Lafontaine knew that Inspector Tetler was a By-law Inspector with the City of Windsor, and that, on the night in question, the Inspector was attending the Premises in that capacity. He also knew that any physical or verbal action on his part towards Inspector Tetler would not be a good thing. The Board agrees with and reinforces the last particular point.
However, assessing the particular facts of this case within the context of Mr. Lafontaine’s and the Inspector’s past, both personal and professional, the Board concludes that the evidence before it is most consistent with the conclusion that Mr. Lafontaine touched Inspector Tetler in a non-violent, parting gesture, after trying to be co-operative with the Inspectors. It could well have been a touch from a person who believed he was doing so to a friend who was being unresponsive in answering his questions. The Board believes Mr. Lafontaine when he said that he was attempting to be co-operative and was not trying to alienate the Inspectors, given the historically good relationship he had with Inspector Tetler.
Even if the contact that occurred were to be more properly described as a “push” or a “shove” than a “touch”, the Board still concludes that what transpired between Mr. Lafontaine and Inspector Tetler cannot be said to be “violent or disorderly conduct” on the Premises.
The word “violence” is defined in The Concise Oxford Dictionary, Seventh Edition, as meaning: “involving great physical force.” The same term in Black’s Law Dictionary, Seventh Edition, is defined as meaning:
“1. Of, relating to, or characterized by strong physical force... 2. Resulting from extreme or intense force… 3. Vehemently or passionately threatening…”
- “Disorderly” is defined in The Concise Oxford Dictionary, Seventh Edition, as meaning:
“untidy, confused, irregular, unruly, riotous”
- In Black’s Law Dictionary, Seventh Edition, under the heading “Conduct”, “Disorderly Conduct” is defined as:
“behaviour that tends to disturb the public peace, offend public morals, or undermine public safety.”
- The Board finds that Mr. Lafontaine’s behaviour towards Inspector Tetler did not constitute either violent or disorderly conduct within any of the definitions set out above.
Conclusion
- For the reasons given, the Board DECLINES to make a finding under subsection 45(1) of the O.Reg on the facts before it.
DATED AT TORONTO THIS 18th DAY OF December , 2008
DAVID C. GAVSIE, CHAIR, AGCO S. GRACE KERR, BOARD MEMBER