Registrar, Alcohol and Gaming Commission of Ontario v. 1551306 Ontario Ltd., 2008 CanLII 91920

Alcohol and Gaming Commission of Ontario

IN THE MATTER OF The: Liquor Licence Act, R.S.O. 1990, c. L.19, as amended

BETWEEN:

Registrar, Alcohol and Gaming Commission of Ontario Registrar

-and-

1551306 Ontario Ltd. O/A Westwood Place Burgers Restaurant Licensee

Decision

Panel: Brian J. Ford, Board Member; Eleanor Meslin, Board Member

Decision Date: September 22, 2008

Hearing Location: 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: Joyce Taylor, Representative 1551306 Ontario Ltd., Licensee: Moishe Reiter, Representative

Authorities

Browne v. Dunn (1893), 1893 CanLII 65 (FOREP), 6 R. 67 (H.L.) R. v. Harrison 2008 ONCA 85, [2008] O.J. No. 427

Allegations

1A hearing into a Notice of Proposal number 15310 dated June 4, 2007 (the "NOP"), to suspend liquor licence number 200233 (the "Licence"), issued to 1551306 Ontario Ltd., (the "Licensee"), operating as WESTWOOD PLACE BURGERS RESTAURANT, 1391 Weston Road, (York), Toronto, Ontario, M6M 4S3, (the "Establishment" or the "Premises"), on the basis of alleged violations of subsection 45(2) of the Liquor Licence Act (the "LLA") and subsection 45(1) of Ontario Regulation 719/90 (the "O.Reg"), made pursuant to the LLA, was held on April 15, 16, and 17, 2008, in the City of Toronto.

Decision

2After considering all the evidence and submissions, the Board DISMISSES the allegations of violations of subsection 45(2) of the LLA and of subsection 45(1) of the O.Reg. Reasons follow.

Preliminary Matters

3A request for adjournment was made by the Licensee's representative, Moishe Reiter, based on Provincial Offences disclosure issues. After hearing arguments from both parties, the Board DENIED the request for an adjournment as there was no basis to grant the motion.

Registrar's Evidence

4Jason Albanese is a Detective Constable ("D/Cst.") in the Toronto Police Service; with seven years experience. He advised the Board that he and Constable Ben Beard attended Westwood Place Burgers on February 9, 2007 at 8:20 p.m., to conduct a liquor licence inspection. He noted that at the time both officers were in uniform.

5On entering the establishment, D/Cst. Albanese noted that there were approximately twenty to thirty patrons. Three people were at the bar and there was one female who was behind the bar. She identified herself as Penny and said that she was the girlfriend of the owner. She was advised that she was not allowed behind the bar.

6D/Cst. Albanese asked a male person behind the bar for the Liquor Licence. It was pointed out to him and he noted that it was not obstructed. However it was not in the open and not in plain view.

7The male at the bar went to get the owner of the bar, Mr. Cocelli, who came out of a back room. D/Cst. Albanese stated that he had a brief conversation with Mr. Cocelli who became defensive.

8When D/Cst. Albanese asked Mr. Cocelli for identification, Mr. Cocelli refused telling the male bartender to tell the officer who he was. He refused to give the officer any identification.

9D/Cst. Albanese stated that he told Mr. Cocelli that he was going to search the kitchen and other areas of the establishment. Mr. Cocelli refused to let the officer search the premises.

10D/Cst. Albanese stated that while he was talking with Mr. Cocelli, Constable Beard was engaged in a conversation with a patron of the establishment and that the situation was escalating. Back up assistance was requested, at 8:26 p.m.

11D/Cst. Albanese stated that while waiting for backup he gave Mr. Cocelli an opportunity to facilitate the liquor inspection but that he continued to refuse. When the back up officers arrived Mr. Cocelli produced his driver's licence but he still refused entry to the back room. D/Cst. Albanese then told Mr. Cocelli that he was obstructing under the LLA. Mr. Cocelli said, "Fine, go search, I am doing nothing wrong."

12When asked how long from first encountering the owner until he was able to search the back room D/Cst. Albanese could not say how long it took. He noted that he completed the search and nothing untoward was found. He left the premises at 9:00 p.m.

13He returned on February 23, 2007, at 10:02 p.m., and served Mr. Cocelli with a Provincial Offences Act summons.

14D/Cst. Albanese returned again on February 26, 2007, at 12:54 p.m. to serve an Ontario Evidence Act Notice on Mr. Cocelli who, at first, refused to sign it, but did so later.

15Under cross-examination, D/Cst. Albanese stated that he told Mr. Cocelli that he was going to search the establishment and that he did not need a warrant, that he was searching under the LLA.

16D/Cst. Albanese was asked if he was there because of an arrest the previous evening and he replied he was there to enforce the LLA.

17D/Cst. Albanese was asked if he knew Constable Beard's notes stated that the reason they were there was because of the arrest the night before and incidentally to do a LLA inspection.

18When further asked about Constable Beard's notes D/Cst. Albanese stated he could not speak to Constable Beard's notes and that he did not discuss Constable Beard's notes with him at any time.

19D/Cst. Albanese stated that he returned to the establishment on February 23, 2007, to serve 11 Provincial offence notices, and that he then prepared a report for the Alcohol and Gaming Commission of Ontario.

20D/Cst. Albanese stated when asked that he had never been to the bar before the night of February 9, 2007 and that it was the first time he met the owner Mr. Cocelli. The first time the bar came to his attention was when a "Mr. A" was arrested the night before.

21D/Cst. Albanese stated that he has done many liquor licence inspections and that it was part of his mandate as part of a community response unit to do them in his area.

22When asked why it took six weeks to lay the charges, he said that he has six months to lay a charge and work schedule and other issues got in the way.

23D/Cst. Albanese, in response to a question about Mr. A, said that he knew who Mr. A was.

24D/Cst. Albanese also stated that he was the officer ultimately responsible for the investigation of this matter (Westwood Burgers) but that on the night in question, February 9, 2007, he did not direct any officers. He stated, "I did what I did, they did what they did."

25When asked who called for the back up, D/Cst. Albanese stated that he did not remember who called for the back up.

26On re-direct D/Cst. Albanese stated that Mr. A was a male person who was arrested the night before in the vicinity of the establishment and that he told the officers that he sold stolen goods out of the back of this establishment.

27D/Cst. Albanese stated that he did not mention this to any member of the staff or Mr. Cocelli. He did however, ask Mr. Cocelli if he knew Mr. A and was told he knew the name and that was all. He stated that he told Mr. Cocelli right at the beginning about Mr. A.

28D/Cst. Albanese stated when asked that he never laid a charge against Mr. A for selling stolen property near or around Westwood Place Burgers.

29D/Cst. Albanese also stated that he could not say for certain if anyone else arrested Mr. A outside the bar but that he did know of an arrest.

30Benjamin Beard is a Constable with the Toronto Police Service with six years experience, and he stated that he, along with D/Cst. Albanese, conducted a liquor licence inspection on February 9, 2007, to look into information regarding a male who had been arrested with stolen property the night before. He stated that there was a possibility that this male was selling stolen goods at Westwood Place Burgers.

31Constable Beard stated that when D/Cst. Albanese went into the establishment, he stopped at the door and spoke with the doorman. He also stated at the time they were both in uniform.

32Constable Beard said that he was there just to support D/Cst. Albanese and that while he was talking to the doorman D/Cst. Albanese was talking to the owner. He did not hear the conversation between the two. He did however state that D/Cst. Albanese was in an argument with the owner.

33Constable Beard stated that he told the doorman why they were there and then proceeded into the establishment and the doorman followed him in.

34Constable Beard stated that at this time the doorman had agitated the patrons in the bar but that he managed to calm things down. The doorman stated to Constable Beard that the only reason the police were there was to harass the owner. Constable Beard told the doorman he would have to go outside, grabbed him by the arm and told him to leave until the investigation was complete.

35The doorman, Constable Beard noted, was not happy to leave and had to be removed as he was not cooperative.

36Constable Beard then spoke to the female bartender, Penny Hunt. She advised the Constable that she did not work there but that she had SmartServe. However two patrons said that she served them and one knew her by her first name.

37Constable Beard said that back up arrived at the bar but he was not sure if he or D/Cst. Albanese called for the back up. He stated that part of their community unit showed up but again he could not remember who called them.

38He stated that he could hear a heated conversation between D/Cst. Albanese and the owner but did not know what was said. He then stated that he had a conversation with the owner and that the owner said he was not aware that the officers could do a liquor inspection.

39Constable Beard advised the owner that they were allowed to do a liquor inspection, the owner said he just didn't know that. He also stated when asked, that he did not discuss the previous night's arrest with the owner.

40Under cross-examination, Constable Beard was referred to page eighty-one of his notes in which he wrote that the officers went in there (Westwood) primarily regarding the arrest the night before.

41As a result of the arrest the night before he was advised there was stolen property to sell at the bar. They also attended for a liquor licence inspection.

42He was asked why he reversed the sequence of his answer in his evidence-in-chief and he said that there was no reason only that when he testified he was not looking at his notes.

43Constable Beard when asked about how he learned of the arrest the night before, stated that it was information from another officer and that he put it down as to the two reasons he was at Westwood. He added that there is no significance in the order in which he wrote his notes.

44Constable Beard stated that the man referred to as the security guard was a manager but that he identified himself as a security person. He did not ask why they were there; he asked if anything was wrong. Constable Beard replied that they were there to do a liquor inspection.

45When asked about the female bartender Constable Beard said he asked two patrons who had served them, (he did not have a description of the patrons), and they said the female. He also told D/Cst. Albanese that he had proof they were served by a female who did not work there.

46He noted that in 12 Division the majority of cases are liquor violations and in this particular case D/Cst. Albanese took the lead in the investigation. He also stated that he did not ask or get direction from D/Cst. Albanese; he knew what to look for and where to go in the premises.

47Constable Beard said that he puts in his notes what he sees and what he did and said and forwards his notes to D/Cst. Albanese.

48Constable Beard, when asked, said that he did not know if Mr. Cocelli gave his identification or not, he had no idea.

49Constable Beard stated that the conversation he had with the Licensee was to explain to him that the officers had the right to do a liquor inspection and that the owner was apologetic afterwards.

50Constable Beard said that the unit had three main requirements for their duty: Liquor, Prostitution and Schools.

51When asked in re-direct, why he would go through drawers and pull stuff off shelves during the inspection, he replied that he was looking for receipts to see if the establishment's alcohol was bought properly.

52Constable Beard was asked about some beer bottles being broken and he explained that they were accidentally broken when a female officer dropped a case of empties.

53Constable Beard was asked about the information regarding the arrest the night before and why the person arrested would tell officers about the bar and selling stolen property and he replied that the person arrested was probably looking for leniency. He further stated that he did not have a conversation with him, nor remember speaking to D/Cst. Albanese about it.

54Constable Beard stated that information was relayed to him that stolen goods may possibly be being sold at the Westwood. The person who provided the information was very likely trying to help his case.

55When asked Constable Beard stated that he did not know what charges were laid at the Westwood and that D/Cst. Albanese asked for a copy of his notes and that he gave him a copy.

56David Haynes is a Constable with the Toronto Police Service and he stated that he went to Westwood Place Burgers in uniform, as a result of a call for back up on February 9, 2007. He noted on entering that there were 30 to 35 patrons in the establishment and they did not appear to be happy about the police presence.

57He stated that D/Cst. Albanese and Constable Beard were conducting a liquor inspection. He stated that he believed there were five officers in attendance. He noted that there was a female working behind the bar.

58Melissa Cohen, a member of the Toronto Police Service, attended at Westwood Burgers on February 9, 2007, at 8:27 p.m., with her partner Detective J. Kaszyca. She stated that on arriving there were three people out front of the main door. Once inside she noted that there were approximately 20 to 30 patrons in the main area drinking and talking.

59She stated that she saw Constable Beard and D/Cst. Albanese talking to a male and it did not appear that they were getting a whole lot of cooperation. She noted that this was evident through body language as it was hard to hear because of loud noise in the establishment.

60Constable Cohen stated that at some point she was asked to help check for receipts for alcohol and when she turned around she bumped into some boxes of empties and they fell and some broke. She stated that she offered to help clean up the broken glass but was told by an employee it was okay.

61Under cross-examination, when asked if the patrons were rowdy, she said that no one gave her any trouble. She noted that she was an officer at the time with only six months experience.

62When asked if she saw Constable Beard and D/Cst. Albanese speaking to Mr. Cocelli, she replied she saw them speaking for about two to three minutes. She also noted that she did not find any receipts.

63Joe Kaszyca, a Toronto Police Detective, stated that he attended Westwood Burgers with his partner Constable Cohen and that he had gone there as a result of a call for assistance by Constable Beard and D/Cst. Albanese. He stated that the voice asking for assistance sounded stressed.

64Detective Kaszyca noted that Mr. Cocelli and the officers were engaged in conversation and that Mr. Cocelli was blocking the door to the back room. He also stated that two more officers attended and that when they did the situation de-escalated.

65Detective Kaszyca stated that he was told by Constable Beard to speak to a female waitress who identified herself as Catherine Murray and she advised him that she had SmartServe.

66He also stated that he was told, by Constable Beard, to get identification from another female server, Penny Hunt.

67He stated that he went into the back room and did a quick inspection.

68Under cross-examination, Detective Kaszyca stated that the staff would have been advised that there would be several charges laid and that they would return another day.

69Detective Kaszyca also stated that he saw D/Cst. Albanese and Constable Beard standing in front of Mr. Cocelli who was standing in front of the entrance to the back room, but did not hear what was said.

70He replied, when asked about the noise in the establishment, that it was quite loud.

71He stated that Mr. Cocelli stepped away and let the officers continue their investigation.

72When asked what the patrons were doing he stated that all eyes were on the officers and they seemed to settle. He also said that his perception was that the crowd was aggressive, however no one attacked the police.

73When asked what the crowd was doing, he replied they were loud and were asking what was going on. He also stated that he felt that Mr. Cocelli was being defiant.

74Detective Kaszyca, in response to a question about the arrest of Mr. A the night before, stated that he was the assisting officer and that D/Cst. Albanese was the main arresting officer. He stated that Mr. A was charged under the Criminal Code with prowl by night, theft, possession and mischief under. He also stated that Mr. A was cautioned by D/Cst. Albanese and that D/Cst. Albanese was the prime investigator.

75Detective Kaszyca stated that earlier, at the station, he did recall a conversation about stolen goods and that he did recall something about the need to investigate Westwood.

76Detective Kaszyca also stated that at the station on February 9, 2007, while he did not remember the details, there was talk amongst the officers about a liquor licence check and stolen goods at the Westwood.

77When asked if there was a connection between the arrest of Mr. A and the liquor inspection he replied that there was some connection.

78When asked if anyone mentioned getting a search warrant he replied that there was some talk but he didn't recall anything about a search warrant.

79Detective Kaszyca stated that Constable Beard told them Mr. A was looking for leniency. He checked his notes and said he noted that they would be attending Mr. Cocelli's bar to investigate. He said he knew they were going to do a liquor licence check at the Westwood – that evening.

80When asked about the action of Mr. Cocelli he said he was standing in the doorway blocking it, at least that is what it looked like to him. He also said that when he looked into the office he could not recall seeing a mess.

81Detective Kaszyca stated when asked about Penny Hunt, Constable Beard had told him that he had seen her serving patrons.

82In re-direct, Detective Kaszyca stated that the team sometimes discusses what they are going to do on a given night. He stated that before he heads out he has an idea what they will be doing. He also stated that sometimes, depending on what they are going to do, they will ask for others to assist them.

83Again when asked about February 8, 2007, he stated that he responded to a radio call regarding a suspicious incident and that Constable Beard and D/Cst. Albanese already had Mr. A in custody.

84D/Cst. Albanese and Constable Beard handed Mr. A over to Detective Kaszyca for transportation to the station. He then said that Mr. A was held for show cause.

85When asked who interviewed Mr. A he stated he didn't know. When asked about case preparation he stated that Mr. A would have been processed by the unit.

86Detective Kaszyca stated in response to a question that he did not have a record of Mr. A saying anything about the Westwood during the time he transported him to the station.

87When asked about Mr. Cocelli's body language he said that it appeared to be defensive.

88Dayna Boyko is an Officer with the Toronto Police Service and she attended Westwood Burgers on February 9, 2007, at 8:30 p.m., in uniform, as a result of a request over the air by Constable Beard or D/Cst. Albanese for assistance with unruly customers.

89Constable Boyko stated that on arrival she noted that there were approximately 18 patrons in the establishment and five in the patio. She said that she did a head count. The patrons were yelling and there was loud music. The patrons were complaining that the police were harassing them.

90Constable Boyko stated that she walked over to the bar where Constables Beard and D/Cst. Albanese were talking to the owner and she heard the owner say "I don't give a fuck, you can look around, you won't find anything."

91Constable Boyko spoke to Mr. Cocelli asking him for the evening's receipts. She stated that he was upset and couldn't provide them at the time; he said he would provide them the next day. The reason Constable Boyko asked for the receipts, she said, was to see if liquor was purchased on the liquor licence. She noted that the receipts were provided when she returned to the bar a couple of days later.

92Constable Boyko continued checking behind the bar and seized a bottle of overproof white rum and gave the owner a property receipt. She told the owner she was going to check to see if it could be purchased at the liquor store.

93Constable Boyko stated that Mr. Cocelli was agitated and upset at first but that he did not tell her why. She explained to him that they were there to enforce the LLA and that they try to visit bars once a year. She further explained that if there was trouble at a bar they would visit more often.

94She stated that the bar seemed to get a little more crowded and got louder as one patron turned up the juke box.

95She stated that she left the bar at 9:00 p.m., returning to the station with the seized property.

96Under cross-examination, Constable Boyko said she did not have much to do with the bar before February 9, 2007, and had not heard of any previous problems.

97Constable Boyko stated that she left the station at 6:30 p.m. and that she saw D/Cst. Albanese and Constable Beard as they work out of the same office. She also noted that they do not normally have an agenda when they go out on patrol. She had not heard of Mr. A.

98Constable Boyko again reiterated that Mr. Cocelli said, "I don't give a fuck, you won't find anything." She also said that Mr. Cocelli did not give her any trouble and she was not aware of any adverse record.

Licensee's Evidence

99Aydin Cocelli, is the owner of Westwood Place Burgers, and he has owned it since 2002.

100He stated that he knows D/Cst. Albanese as the constable who visited his establishment before and he has checked Mr. Cocelli's identification before.

101On the night of February 9, 2007, he stated that at 8:20 p.m., he went into the back room for a little nap and asked Penny to watch the cash. He stated a short while later he heard noise and he came out of the back room and saw Constable Beard and D/Cst. Albanese.

102Mr. Cocelli explained that when the office door is open it blocks the entrance to the kitchen.

103When asked if he spoke to D/Cst. Albanese, Mr. Cocelli stated that D/Cst. Albanese came up to him and right away the D/Cst. said, "I'm going to search this place." He asked the officer what he was searching for and if he had to have a search warrant.

104Mr. Cocelli said that D/Cst. Albanese replied the he did not need a search warrant. He then told D/Cst. Albanese to go ahead he didn't have anything to hide.

105When asked about a Mr. A, Mr. Cocelli replied that he never heard of him and that no one sells stuff in his place.

106Mr. Cocelli said that he had never seen an inspection conducted the way the one on February 9th was conducted.

107Mr. Cocelli stated that he was asked for all his receipts for three years back, and he gave the three months' receipts the next day.

108Mr. Cocelli said that D/Cst. Albanese said he could smell marijuana. Mr. Cocelli noted that when D/Cst. Albanese was in the office he pulled out all the drawers and Officer Boyko took some pictures of the receipts. He in fact took pictures of everything.

109Mr. Cocelli said that D/Cst. Albanese mentioned Mr. A to him and said that he, Mr. Cocelli, knew him and knew he was selling stolen stuff. He told the D/Cst. that he did not know anything about that.

110Mr. Cocelli said that D/Cst. Albanese comes to his establishment once a week and often says he is looking for someone.

111Mr. Cocelli said that he has never had a complaint and has not done anything wrong.

112Under cross-examination, Mr. Cocelli replied that he believed that D/Cst. Albanese came there looking for marijuana in the back room. A floor plan was presented as Exhibit 1.

113In response to a question, Mr. Cocelli stated that he had never been convicted of an offence.

114Mr. Cocelli was then asked about a three hundred dollar fine for permitting drunkenness in December 2005, which he admitted to getting. The fine was a result of a Liquor Licence inspection on December 18, 2004, and was a provincial offence fine paid in Provincial Court.

115A "will say" letter addressed to the Board was presented as Exhibit 2.

116Mr. Cocelli stated that Penny woke him up and he came out and there were two officers in the bar area. He also stated that he saw Constable Cohen knock over the case of empties, accidentally.

117When asked what D/Cst. Albanese said, Mr. Cocelli said D/Cst. Albanese said he was there to do a search not an inspection.

118With respect to the cigarette butts in the garbage, Mr. Cocelli said you are not allowed to smoke in the bar and that he did not smell cigarette smoke.

119Mr. Cocelli stated that Officer Beard was speaking to a patron and that Constable Beard kicked out his manager.

120Mr. Cocelli stated that when D/Cst. Albanese asked for his identification he told D/Cst. Albanese, "you already know me," noting that D/Cst. Albanese is there about once a week. He thought the Constable was joking.

121Mr. Cocelli reiterated that D/Cst. Albanese is there every week and has been to his establishment numerous times and he doesn't know why the officer said he'd not been in the bar before.

122Mr. Cocelli said he gave them his identification.

123He noted that there were eight officers at the bar that night, while the officers said there were only six, he said he saw eight. He also stated that it was Officer Boyko who took the photographs.

124Mr. Cocelli said he never refused the officers, he told them, "I don't give a fuck, check anything you want."

125Mr. Cocelli said that he had a problem with the search aspect and he argued with D/Cst. Albanese about his searching the office and in his opinion it was not an inspection. He stated that when you search a place you need a search warrant.

126Mr. Cocelli stated that when he told D/Cst. Albanese that in order to do a search he needed a search warrant, D/Cst. Albanese replied that he did not need a search warrant, saying, "When you have a liquor licence I can do anything I want."

127Mr. Cocelli admitted that his office is part of the establishment.

128Mr. Cocelli, again when questioned as to what D/Cst. Albanese said, replied he used the word "search."

129Mr. Cocelli stated that D/Cst. Albanese came the next day to tell him that Mr. A was selling stolen stuff. He again stated that he knows D/Cst. Albanese very well.

130During re-direct, Mr. Cocelli stated that D/Cst. Albanese was not very nice to him but that Constable Beard was very courteous. He also again reiterated that D/Cst. Albanese said I am going to search you and he told the D/Cst. you need a search warrant and the D/Cst. said he did not need one.

Registrar's Submissions

131Ms. Taylor notes that the NOP alleges that the licensee failed to facilitate an inspection of the licensed premises and permitted disorderly conduct on the licensed premises.

132The evidence of the two primary officers and the two back up officers, was that the atmosphere was a threatening atmosphere and a situation about to get out of control.

133She states that the evidence of the officers is clear and credible and should be believed over that of the Licensee, which by contrast is contradictory.

134Ms. Taylor notes that the Licensee attempted to imply that the inspection was for an improper purpose; however his evidence has not shown an improper purpose.

135Ms. Taylor's opinion is that there is nothing improper with doing a liquor inspection the day after the arrest of Mr. A who said he sold stolen property outside the establishment. Ms. Taylor states that there is absolutely no evidence that the liquor inspection was somehow a search for stolen property.

136Ms. Taylor said that the officers are entitled to verify if their suspicions are correct or not; through an inspection.

137Ms. Taylor states that Mr. Cocelli thought they were there for marijuana and the officers said they smelled a slight smell of it, which she notes is an offence under the LLA.

138Ms. Taylor also notes that D/Cst. Albanese and Beard had never been to the establishment before February 9, 2007, and that the evidence of the officers should be preferred over the Licensee's who said the officers had been there on several occasions.

139Ms. Taylor said that the Licensee's counsel did not cross-examine the officers on whether they knew the licensee or not, and referred to Browne v. Dunn noting that when a party knows contradictory evidence is presented, there is an obligation to put it to the witness in cross-examination.

140Ms. Taylor asserts that the evidence was not put to the officers about it being their first visit to the bar which indicates acceptance of the evidence by the Licensee.

141Ms. Taylor also notes that evidence regarding Constable Boyko using a camera was never put to her and should have been.

142Ms. Taylor also suggests that some of the evidence given by Mr. Cocelli contradicted his "will say" statement, pointing out that Mr. Cocelli stated during examination-in-chief that he had never been charged with anything. The Board notes however that this was clarified when he admitted under cross-examination that he had been fined $300.00 for a violation.

143Ms. Taylor notes the aggressive atmosphere of Westwood Place Burgers and the fact that Constable Beard had to remove the security staff member.

144Ms. Taylor believes that on the balance of probabilities, the Board should find that there was a breach of subsection 45(2) of the LLA and section 45 (1) of the O.Reg.

Licensee's Submissions

145Mr. Reiter stated the fact of a uniform does not guarantee veracity of evidence and the evidence of the officers may not be reliable.

146He also noted that the officers work and socialize together and just because the officers told you something you do not have to believe it.

147It is Mr. Reiter's opinion that the officers had more interest than a liquor inspection. They did mention Mr. A in passing.

148When the officers were questioned about Mr. A why did they not tell the Board that they were the arresting officers and the officers in charge of the arrest of Mr. A?

149Constable Beard and D/Cst. Albanese did not tell the Board; the first time the Board heard of their actual involvement with Mr. A was in the cross-examination, and not in the examination-in-chief, of Detective Kaszyca.

150Mr. Reiter asked the rhetorical question why did Constable Beard and D/Cst. Albanese, not tell the Board about the arrest. His belief is that they did not tell the Board because it goes back to the word "search" being used ("the devil is in the detail"). Mr. Reiter notes that search is the only word that Mr. Cocelli heard.

151This is confirmed by what Constable Boyko testified. She heard the owner saying, "I don't give a fuck, look around, you won't find anything." Also D/Cst. Albanese in his examination-in-chief said Mr. Cocelli said, "Go ahead search, I am doing nothing wrong."

152The word "search" is supported by the evidence.

153Mr. Reiter refers to R. v. Harrison. In this case the court found that kilos of cocaine that were found in a vehicle, as a result of a falsely stated purpose, could not be excluded from evidence because it was such a serious matter. The court however found that the officer mislead the court.

154Mr. Reiter stated, "the evidence we heard from D/Cst. Albanese and Constable Beard, the two officers who arrested someone the night before, did not tell the Board they were involved and did not tell the Board they were in charge and by happenstance show up the next day at Westwood and then the word "search" comes into play."

155Mr. Reiter notes that an inspection is not a search and does not require a search warrant. Their logic is: don't bother with a warrant since under the LLA you can do what you want. D/Cst. Albanese said he could do anything he wanted under the Act.

156Mr. Reiter notes that D/Cst. Albanese, when asked in re-direct about his involvement with Mr. A, replied that he never laid charges against Mr. A for selling stolen property outside the Westwood.

157Mr. Reiter notes that Constable Beard said that he could hear a heated confrontation between D/Cst. Albanese and the owner but could not hear what was said. He later attributed Mr. Cocelli's initial reluctance to the inspection to ignorance or misunderstanding.

158Mr. Reiter notes that if it is a misunderstanding then it is not unlawful if he felt that a criminal search was about to be conducted and had the right to ask for a search warrant.

159Mr. Reiter points out that Constable Beard's conversation with the owner is important in that at the end of it, Mr. Cocelli said to go ahead and search because you won't find anything and then provided his identification. Where is the lack of facilitation?

160Mr. Reiter notes that Detective Kaszyca told the Board that Constable Beard and D/Cst. Albanese arrested Mr. A, and that Constable Beard told him he had found Penny Hunt serving customers.

161Mr. Reiter is of the belief that nothing happened at Westwood that justified an NOP.

162Mr. Reiter reiterates that his client did not obstruct but merely questioned the need for a search warrant.

Reply

163Ms. Taylor pointed out that Mr. Cocelli indicated that he had no past record of violations before the Board, since the outcome of the Provincial Offences Act charges have not been decided.

164Ms. Taylor is of the belief that the issue of Mr. A's arrest the night before is irrelevant. She also said that the only person using the word search was Mr. Cocelli.

Analysis/Reasons/Findings

[Subsection 45 (2)](https://www.canlii.org/en/on/laws/stat/rso-1990-c-l19/latest/rso-1990-c-l19.html#sec45subsec2_smooth) of the [LLA](https://www.canlii.org/en/on/laws/stat/rso-1990-c-l19/latest/rso-1990-c-l19.html)

165The Board heard evidence from the primary investigating officer, D/Cst. Albanese that he went to Westwood Burger Place to conduct a liquor licence inspection on the night of February 9, 2007.

166When D/Cst. Albanese spoke Mr. Cocelli, he told him that he was going to search the kitchen and back area of the establishment. D/Cst. Albanese also said that he asked Mr. Cocelli for his identification and that Mr. Cocelli refused, telling the bartender to tell the officer who he was.

167Back up was called because the patrons appeared to become unruly, and when the back up arrived Mr. Cocelli gave D/Cst. Albanese his driver's licence but still refused to let the officer go to the back room. D/Cst. Albanese said that he was obstructing under the LLA. At that point Mr. Cocelli said, "go, search I have done nothing wrong."

168Under cross-examination, D/Cst. Albanese said he told Mr. Cocelli he was going to search the establishment and that he did not need a warrant.

169Constable Beard said during his testimony that he heard an argument between D/Cst. Albanese and Mr. Cocelli but that he could not hear was being said. He also said that he spoke to Mr. Cocelli as well and stated that Mr. Cocelli misunderstood or was ignorant of the fact that the officers were conducting a liquor licence inspection. He explained it to Mr. Cocelli who stated go ahead and search I have nothing to hide.

170During the testimony of D/Cst. Albanese and Constable Beard evidence came out that on the evening of February 8, 2007, an arrest had been made in the immediate vicinity of Westwood Burgers. A Mr. A had been arrested on that occasion for possession of stolen property.

171Both officers testified that they had been informed that Mr. A had said that he had sold stolen property out of Westwood Burgers. They said that other officers had told them this.

172D/Cst. Albanese said that he did not have anything to do with the arrest of Mr. A on February 8, 2007, which was the night before the liquor licence inspection of Westwood Burgers on February 9, 2007.

173The reason Mr. Cocelli at first refused to allow an inspection is because he believed that the officers were at his establishment to conduct a criminal search. He testified that he told the officer, D/Cst. Albanese that if you are going to search you need a search warrant.

174Mr. Cocelli stated that D/Cst. Albanese mentioned Mr. A to him and said that he, Mr. Cocelli knew him and knew he was selling stolen stuff and he told D/Cst. Albanese he did not know that.

175D/Cst. Albanese said in his testimony that he did mention the name Mr. A to Mr. Cocelli.

176During his testimony Constable Beard confirmed that his notes stated that they went to Westwood Burgers regarding the arrest the night before and to conduct a liquor inspection.

177When Constable Beard was asked how he knew of the arrest the night before he stated that he had received the information from another officer.

178During the testimony of Detective Joe Kaszyca, he testified, that D/Cst. Albanese was the main officer who arrested Mr. A the night before.

179Detective Kaszyca also testified that he recalled that there was some conversation in the station about stolen goods and about the need to investigate Westwood.

180Detective Kaszyca further testified that at the station on February 9, 2007, while he did not remember the details there was talk amongst the officers about a liquor licence check and stolen goods at Westwood. He also confirmed that there was a connection between the arrest of Mr. A and the liquor inspection.

181Mr. Cocelli testified that D/Cst. Albanese told him that he was going to search his place and that he, Mr. Cocelli, asked what he was searching for and that he had to have a search warrant.

182The Board accepts the evidence of Mr. Cocelli that having facilitated inspections in the past, on this occasion he believed officers Albanese and Beard wanted to conduct a search for marijuana or stolen goods and needed a search warrant to do so.

183Once the situation was explained to him by Constable Beard he permitted the inspection of the back room.

184The Board finds that the evidence of the officers is inconsistent and the evidence of the Licensee is believable. The Licensee questioned the officers as to whether or not they needed a search warrant. When it was explained to him he allowed and even co-operated with the inspection.

185Mr. Cocelli is not fluent in English and spoke with a heavy accent, which may have led to some part in the misunderstanding.

186It is also noted that both Constable Beard and D/Cst. Albanese failed to inform the Board of their involvement in the arrest of Mr. A the night before and its relevance to the matter. They in fact indicated that they were not involved in the arrest. This seriously compromises their credibility.

187Constable Beard also informed the Board that he asked a patron who had served him and he stated that the patron said it was a Penny Hunt. However, Detective Kaszyca stated that Constable Beard told him that he, Constable Beard, saw Ms Hunt serving the patrons.

188The Licensee did not obstruct the officers he merely questioned whether or not they needed a search warrant and then let them conduct their inspection.

189The Board questions whether or not the original and intended purpose was for a liquor inspection or a search for evidence of a criminal offence. If it was a search for evidence of a criminal offence then indeed a search warrant would be necessary and the owner of the establishment given the circumstances, had every right to raise the question, which he did.

190The Board also notes that D/Cst. Albanese used the word search several times in his testimony.

191Therefore the Board does not find, on the balance of probabilities, that there was a breach of subsection 45(2) of the LLA.

Subsection 45 (1) of the O.Reg

192D/Cst. Albanese and Constable Beard both testified that they entered Westwood Burgers on February 9, 2007. On entering D/Cst. Albanese went to the bar area of the establishment and asked to speak to the owner. Constable Beard went to the bar followed by the doorman who questioned as to the officers purpose in being at the bar.

193Constable Beard stated that he told doorman that they were conducting a liquor inspection, to which the doorman replied you are here just to harass the bar.

194Constable Beard told the doorman he would have to leave until such time as the inspection was completed and escorted the doorman outside.

195Constable Beard did not say that the doorman was aggressive but he did say that his question seemed to agitate the patrons who became loud asking what was going on.

196Constable Beard and D/Cst. Albanese both stated that back up was called when Mr. Cocelli would not move from the door or give his I.D., but neither could recall who called for the back up.

197Given the Board's finding on the credibility of D/Cst. Albanese, the Board prefers the testimony of Mr. Cocelli. Mr. Cocelli's evidence that his reason for not giving I.D. to D/Cst. Albanese was that he thought the officer was joking, since he had been in the bar on several other occasions to do inspections and knew Mr. Cocelli. The Board accepts this reasoning.

198With respect to the Registrar's submission regarding the rule in Browne v. Dunn, while it would have been preferable for a question to put to the officers during cross-examination, the Board notes that it is not an absolute rule; the Registrar could have requested to call reply evidence; the credibility of the officers was impeached primarily by the Registrar's own witness, Detective Daszyca. With regard to whether Officer Boyd took photographs, the Board's decision and reasons do not turn on this.

199The back up officers who testified, Constables Cohen, Boyko, and Haynes and Detective Kaszyca, all testified that they went to Westwood Burgers as a result of a backup call for assistance. However none of the officers could recall if Constable Beard or D/Cst. Albanese made the call for assistance.

200When the officers were asked what the patrons in the bar were doing they stated that they were loud.

201The officers gave no evidence that the crowd was aggressive nor was there evidence that there was any fighting in the bar. There is also no evidence that the officers were threatened in any way.

202Constable Beard as a precautionary matter told only one person, the doorman, that he would have to wait outside and led him out of the bar.

203There is also no evidence that the Constable Beard and D/Cst. Albanese found an unruly bar when they arrived at the establishment.

204As for the owner permitting any unruly behaviour, there is no evidence that this was the case. At the time that patrons were talking loudly he was engaged, by D/Cst. Albanese, in a conversation and the police were essentially in control of the bar.

205The Board is of the opinion that the owner of the bar did not permit or allow unruly behaviour in the establishment. Therefore the Board finds that, on the balance of probabilities, there was not a breach of subsection 45(1) of the O.Reg.

Conclusion

206For the reasons given, the Board DISMISSES the allegations of violations of subsection 45(2) of the LLA and of subsection 45(1) of the O.Reg.

DATED AT TORONTO THIS 22nd DAY OF September , 2008