ALCOHOL AND GAMING COMMISSION OF ONTARIO
IN THE MATTER OF The Gaming Control Act, 1992, as amended
B E T W E E N:
Registrar, Alcohol and Gaming Commission of Ontario Registrar
-and-
Carlos Michael De Sousa Registrant
DECISION
Panel: Joan Lougheed, Board Member Bruce S. Miller, Board Member
Decision Date: July 13, 2009 Hearing Location: Peterborough, 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 ) Daniel Alakas, Representative Carlos Michael De Sousa, Registrant ) Paul Byer, Representative
Authorities
Harerimana (Re), [2007] O.A.G.C.D. No. 247
Allegations
- A hearing into an Order of Immediate Suspension dated April 1, 2009 ordering the immediate suspension of the registration of CARLOS MICHAEL DE SOUSA, 1 Church Street, Unit #202, Peterborough, Ontario, K9J 7B9, as a gaming assistant, in the class of gaming employee, registration number 154542, file number 136438, on the basis that the Registrar considers it to be necessary in the public interest, was held on May 19 and 28, 2009, in the City of Peterborough.
Decision
- After considering all the evidence and submissions the Board UPHOLDS the Order of Immediate Suspension dated April 1, 2009. Reasons follow.
Registrar’s Evidence
Richard Barlow, a Police Constable (“PC”) with the Ontario Provincial Police (“OPP”) since 1994, has been working at the Great Blue Heron Casino since 2008. PC Barlow was informed by Commander Rimmer on March 8, 2009 that Mike De Sousa was being charged with domestic assault. He was told the victim, Ms J.H., was a fellow employee who also worked at Kawartha Downs in the Security Department.
He stated that under the Gaming Control Act (“GCA”), Mr. De Sousa is required to notify the Registrar of the Alcohol and Gaming Commission of Ontario (“AGCO”) of any charges.
Mr. Barlow stated he obtained a copy of the Occurrence Report, a copy of the Bail Release conditions and did a record check through CPIC. As presented in Exhibit #1, he completed the Derogatory Incident Report.
The witness stated that Mr. De Sousa was released on bail on condition that he abstain from seeing Ms J.H. and that he was not to attend Kawartha Downs if Ms J.H. was working. Ms Brenda Dennis, Mr. De Sousa’s Manager, had agreed to facilitate this condition.
On cross-examination, Mr. Barlow stated that the CPIC check only indicated the recent charge of assault. There was no record of any convictions.
In answer to the recent charge, Mr. Barlow stated that domestic assault is treated more seriously than common assault, but there is no differentiation between domestic or spousal assault. He stated that the victim protection would be the same for a spouse or for someone in an intimate trust relationship.
Brenda Dennis has worked as a Manager at the Slots at Kawartha Downs since October 2005. She is responsible for ensuring compliance of the GCA, trespass, and overseeing the safety and security of employees and patrons.
She stated that Mr. De Sousa was working as a Dual Rate Security Officer and Supervisor until the recent charge of assault.
On March 3, 2009 there was an Ontario Lottery and Gaming Commission (“OLG”) Social Club trip to the casino in Hull, Quebec, and to the Scotiabank Place Arena in Ottawa for an NHL hockey game. Mr. De Sousa was ejected from Scotiabank Place Arena a few minutes after the hockey game started.
She stated that she saw police officers talking with Mr. De Sousa and another male on the upper level. As well, two females were seen gathering their belongings and going toward the police and the two males.
She was asked to speak with police and also learned by text message, from an employee, that Mr. De Sousa had broken his hand.
She joined police and saw Ms J.H. crying uncontrollably, saying that they were in trouble and not being allowed back into the arena.
Ms Dennis stated that Mr. De Sousa yelled at the police, saying that another employee, “R.W.” had been taunting him during the national anthem and that he was not to blame. Mr. De Sousa told Ms Dennis that his girlfriend should have been more supportive of him.
While getting emergency care for his hand, Mr. De Sousa and Ms J.H. started arguing about her lack of support of him. Ms Dennis stated that Ms J.H. was crying and he was angry, telling Ms J.H. to leave. The argument continued as they moved to another area. Mr. De Sousa told Ms J.H. she could not go to the hospital with him.
Ms Dennis stated that she took Mr. De Sousa to the hospital by taxi, while the police escorted Ms J.H. to the bus. Mr. De Sousa was still angry with Ms J.H.
Ms Dennis told him to stop or he could lose his job. Ms Dennis told him Ms J.H. was just trying to keep him out of trouble. Ms Dennis said “he still did not get it.”
Ms Dennis stated that x-rays were done at the hospital and records were given to Mr. De Sousa so he could have it set in his home community.
While on the bus, she noted that there was no conversation between Mr. De Sousa and Ms J.H. during the trip back to Peterborough.
Ms Dennis noted that a taxi was waiting at a car-park. She said Ms J.H. had asked for a taxi to be called since Mr. De Sousa had been drinking and she could not drive cars with standard transmissions.
Ms Dennis stated that she did not observe Mr. De Sousa drinking at the arena. She said that he was only there a short time, but he had been drinking on the bus before that.
The witness stated that Mr. De Sousa was showing “signs of intoxication but was not falling down drunk.” He was yelling when he was talking to security and police and was told to settle down.
Ms Dennis stated that Ms J.H. did not consume alcohol on the return trip but may have had “a cooler or two” on the way to Ottawa.
On March 4, 2009 Ms Dennis received a message from Ms J.H. that police had contacted her and had a message from her General Manager that an assault had taken place. At this time Ms Dennis did not know who was involved. Ms Dennis phoned a supervisor who was on the bus and proceeded to Kawartha Downs Slots to follow up with her General Manager and with Mr. J., a Dual Rate Supervisor. Human Resources was notified that Mr. De Sousa was in jail.
On March 5, 2009 Ms Dennis went to the courthouse to testify that she would assist in fulfilling the conditions of bail, not letting Mr. De Sousa and Ms J.H. work together. She stated that she would ensure they would not work on the same day and that she would arrange for early departure from work, if necessary.
The witness stated that Mr. De Sousa returned to work on March 12, 2009. His position of Dual Rate Security Supervisor was revoked for these reasons:
- Arguing with police;
- Anger exhibited;
- Breaking his hand;
- Not portraying the values of the company on a company event.
Ms Dennis stated that the decision to revoke his position was not related to pending charges. She stated that all employees on the trip were delayed 45 minutes because of his actions. She said the employer expects “us to ‘walk the talk’, in and out of work, always representing OLG, especially on a social event.” She stated this was a poor example to set for people on the trip when in a supervisor role.
Ms Dennis indicated that she had told Mr. De Sousa on two occasions that it was up to him to notify the AGCO of the charge.
On cross-examination, Ms Dennis stated that she saw Ms J.H. drink one or two coolers. She did not see her constantly drinking. She stated that Ms J.H. was not disciplined since she had not done anything. At the arena Ms J.H. left with the males, but she was not evicted. She said Mr. De Sousa and R.W. were evicted from the game.
Ms Dennis stated that it was not unusual to drink on a bus trip and that there was no policy relating to this.
At the hospital Ms J.H. and Mr. De Sousa were text messaging each other, but did not talk directly during the two and one-half hours she was with him at the hospital.
Ms Dennis responded to questions stating that she had not witnessed any assault by Mr. De Sousa on Ms J.H.
The witness stated that Mr. De Sousa had received numerous written commendations for his work performance and customer related matters. As well, Mr. De Sousa received recognition for his quick response when a supervisor had a heart attack. He had a very good work record.
Ms Dennis stated that there were two options to consider before taking action with Mr. De Sousa, which included either a leave of absence or ending employment. The company decided on the leave of absence.
PC Cam Kenney is a constable with the City of Peterborough Police. On March 4, 2009 at 0207 hours he attended 1 Church Street in response to a domestic call, with PC Mason.
The witness stated that on arrival he noted a female driving an SUV, reversing in the parking lot. PC Mason went to Unit 203 to speak with the male and PC Kenney approached the female in the vehicle, asking if she had been involved in the altercation. She was crying and her eyes were red.
PC Kenney stated that the female said she was okay and when questioned further she said “he pushed me”, using a two-handed gesture.
PC Kenney stated that on questioning Ms J.H. further, she told him they had attended a trip through work. While at the Scotiabank Place arena, an incident took place that led to Mr. De Sousa being escorted out by police. She told PC Kenney that Mr. De Sousa had broken his hand when he struck a door. When he returned from seeking medical attention, an argument took place with Mr. De Sousa shoving her out of the way.
PC Kenney stated that Ms J.H. told him the yelling continued at the apartment. Ms J.H. told him that he was angry saying she did not stick up for him and that he did not deserve to get kicked out of the arena. At that time she packed up to leave but Mr. De Sousa kicked her property across the floor. She told PC Kenney that as she bent down to pick up her property, Mr. De Sousa reached down and pulled on her collar, causing it to become tight. He released her and followed her into the bedroom, crowding her into the wall and pushing her onto the bed.
PC Kenney stated that Ms J.H. went to the police station to give a video statement. He said that based on the statement and the physical altercation, he had grounds for a charge. He stated that this would apply whether the force was direct or indirect to another person.
Mr. Kenney indicated that in his experience it is common for victims not to be forthcoming with information. With the statistics of mortality and violence, the police focus on protecting the victim. Ms J.H. was told of conditions of bail release for Mr. De Sousa and referred to Victim Services for further support.
The witness stated that at the time of the arrest, Mr. De Sousa was very compliant and was not handcuffed due to injury to his hand. He stated that Mr. De Sousa was held until his bail hearing, following the procedure for domestic assault.
On cross-examination, PC Kenney stated that he could not address the events that took place in Ottawa. Ms J.H. was taken to the police station to ensure her personal safety, and to take her video statement.
Referring to Exhibit #4, the Arrest Report, PC Kenney stated that this was completed with PC Lennard at the change of shift.
Adjournment of Hearing to May 28, 2009
Due to the number of witnesses to be heard and the lateness of the day, the hearing was adjourned to May 28, 2009, on consent of the parties.
In response to the Registrant’s Representative’s request to lift the Order of Immediate Suspension, the Board acknowledged the financial hardships on Mr. De Sousa and that there is a need for timely conclusion of the proceeding for Mr. De Sousa. The Board also acknowledged that the charge is of a serious nature and must weigh the public interest factors.
Having given serious consideration to the matter, the Board ruled, that due to the seriousness of the charge and the fact that the totality of evidence had not been heard, the suspension would remain in effect and the Hearing would proceed at the earliest possible date.
Mr. Alakas stated the next witness, Mr. Renwick, would have a hardship attending due to a personal matter, but would make arrangements to be available until noon on May 28, 2009 to accommodate the Board. All parties indicated that this was understood and acceptable. All parties also agreed to a 9:00 a.m. start on May 28, 2009 to ensure adequate time for Mr. Renwick to present evidence.
Preliminary Matters – May 28, 2009
Mr. Alakis reminded the Board that his next witness, Mr. Renwick, had agreed to come on this day, provided he would be excused by noon to attend to an urgent personal matter.
It was noted that the Board understood the time restrictions for the witness and that he had made every effort to be available for testimony today.
As well the Board noted that all parties had agreed to commence the hearing a half hour early to ensure adequate time to hear all evidence relating to Mr. Renwick’s testimony.
Registrar’s Evidence
Jim Renwick, an AGCO investigator since 2000, stated that he reviews the history of applicants, looking at their financial and personal histories. He also interviews witnesses on behalf of the AGCO. He was asked to review allegations in relation to Mr. De Sousa.
During a telephone conversation with Ms Dennis, he was told of the events occurring on March 3, 2009 during a social outing with employees and guests. Ms Dennis told him that an event had occurred on the early morning of March 4th, between Mr. De Sousa and a female employee.
The witness was told that Mr. De Sousa was taken into custody by the police and Ms Dennis attended the bail hearing on March 6, 2009.
Mr. Renwick was told during his investigation that Ms Dennis was on the bus from Peterborough to Ottawa. The trip included a visit to the casino in Hull, Quebec and attending a hockey game in Ottawa. Some of the people on the bus were consuming alcohol. At the hockey game, during the national anthem, employees were misbehaving. Security asked Mr. De Sousa and another employee to come to another level where the police became involved.
Ms Dennis told Mr. Renwick she was summoned at the time the males were being escorted from the arena. Outside she was told Mr. De Sousa had hit the doorframe in anger, suffering a broken hand. She went to the hospital with Mr. De Sousa. The hand was not set due to time limitations.
Mr. Renwick was told by Ms Dennis that they returned to the bus and Mr. De Sousa sat at the back of the bus. At the car-park in Peterborough, a taxi was waiting to take Ms J.H. and Mr. De Sousa back to his residence. The police became involved a short time later.
Mr. Renwick interviewed the victim at an arranged time on March 19, 2009. Referring to Appendix C of Exhibit #6, Mr. Renwick stated the victim substantiated the information received from Ms Dennis. Ms J.H. said that De Sousa was rude to the police before being escorted out of the arena. He started kicking the door and received a warning from the police. He came up beside her and pushed her.
During the interview, Ms J.H. told Mr. Renwick that at the apartment she was sitting on the floor gathering her property when Mr. De Sousa grabbed the collar of her coat and pulled up choking her. She said that he held her against a wall and pushed her onto the bed, and hit her across the face.
Mr. Renwick, referred to his report saying that she took two loads of belongings to her car before meeting the police. She went to the police station to give a video statement.
Mr. Renwick stated that he felt Ms J.H. was forthright, truthful and had a fair recollection of what occurred.
In response to questions, Mr. Renwick stated that he understood Ms J.H. and Mr. De Sousa were girlfriend and boyfriend and had been so for some time.
When asked about the casino policy he replied that Ms Dennis had told him there was a policy in place that co-workers could not co-habitate.
Mr. Renwick also interviewed Mr. De Sousa. Referring to Page 6, Appendix A of Exhibit #6, Mr. Renwick stated that Mr. De Sousa told him that both he and Ms J.H. were consuming alcohol. At the arena, another employee was loud and obnoxious. Both males were asked to leave the arena. When Mr. De Sousa tried to plead his case, the police escorted them outside. It was at this time that he hit the door, fracturing his hand and required medical attention.
Mr. De Sousa told Mr. Renwick that at the apartment, they argued and he told Ms J.H. to leave and that it was over between the two of them. She pushed him a couple of times before leaving. About three hours later police came to the apartment arresting him for assault.
Mr. Renwick stated that Mr. De Sousa told him that he had not notified the Registrar as required. In Exhibit #6, Page 4, he presented the history of six previous offences and highlighted these two occurrences:
- September 7, 2007 - open liquor in a public place
- March 3, 2008 - intoxicated in a public place
It is noted by the Board that the Registrant’s Representative waived his right to cross-examine the witness. He stated that it was the wish of his client, Mr. De Sousa, to conclude the hearing today and he acknowledged his agreement to release the witness at noon to attend to a personal matter.
Jeff Longhurst has been the Deputy Registrar and Manager of Gaming Registration with the AGCO since 2000. He stated that Mr. De Sousa applied to be a gaming employee in May 2006. As part of the application process, there would have been an investigation and he would have been interviewed.
Referring to Exhibit #16, Question 10(a), he stated that the Registrant voluntarily disclosed details of previous charges. He provided a hand-written note explaining the details. Mr. Longhurst stated that the explanation was reasonable, the occurrence had been three years past and Mr. De Sousa had expressed regret. The decision was made to register him and he was offered a security officer position.
Mr. Longhurst indicated that the Registrant had signed a consent form allowing the AGCO to do a background check, before licensing Mr. De Sousa for four years. The consent is done yearly.
The witness acknowledged that Mr. De Sousa was offered a supervisory position in 2008, which required a gaming key registration. Referring to the application, he stated that Mr. De Sousa had provided information on five convictions: three related to speeding and two related to liquor offences. All resulted in fines.
The witness stated that there was no criminal record, but that these findings were a concern. As a result, terms were placed on the registration. One condition required Mr. De Sousa to notify the AGCO within 10 days if there were any charges or convictions. He stated that this was done to monitor the Registrant since there seemed to be a pattern of “brushes with the law” that had been emerging over the past two years. The conditions put the Registrant on notice of the concern.
He stated that Mr. De Sousa had consented to these terms on August 21, 2008 and he was issued a gaming key registration.
There were no reports received until Kawartha Downs Human Resources notified the Registrar of the recent charge of domestic assault.
The witness stated that immediate follow up was done to ensure that the information was accurate, to discover the general circumstances of the charge and to determine next steps.
Mr. Longhurst stated that the charge was assault, the victim was an employee supervised by Mr. De Sousa and there was cumulative past conduct. Therefore he recommended immediate suspension of the registration. This was issued on April 1, 2009.
The witness stated that the decision was based on:
- Whether the employee acted with honesty and integrity
- Was he acting in accordance with the law - there was evidence from the investigation that he did not on this and other occasions
- What was in the public interest.
Mr. Longhurst noted that his office never received notification from Mr. De Sousa. It would have been accepted by mail, e-mail or fax. He stated that third party notification is not accepted unless there is clear authority to act on behalf of the Registrant.
On cross-examination, Mr. Longhurst stated that he was aware of discrepancies in the police and investigator reports and the victim statement(s), relating to the assault charge. He stated that on a balance of probabilities, an assault had taken place and he acknowledged there was no reported physical injury. He was also aware that Mr. De Sousa had a dating or close relationship with a female and that they worked together.
Mr. Longhurst indicated that an investigation could begin before written notice. He clarified that Mr. De Sousa was given an order of suspension, not revoke. He stated that if the Registration had been revoked, Mr. De Sousa would have been banned from re-applying for a two year period.
Registrant’s Evidence
Carlos (Mike) De Sousa, the Registrant, is employed by the OLG at Kawartha Downs. Presently he is on an unpaid leave of absence.
Mr. De Sousa stated that he has not received any information from the Deputy Registrar’s office. He has applied for Employment Insurance but was denied under a “judgement of misconduct”.
He noted that as a result of his hardships he has had to seek counselling.
Mr. De Sousa submitted that he had been a Dual Rate Security Officer until March 3, 2009. As a result of the incident on March 3rd, he returned to work as a regular officer.
He stated that he felt this change in employment was justified although his work record was excellent. He had received 11 commendations over his three years of employment, including Recognition of Excellence Certificates and Job Well Done recognition. He is a qualified emergency medical responder and has never had any complaints relating to his honesty and integrity.
Mr. De Sousa acknowledged that he and Ms J.H. were dating, but that this relationship was not spousal or common-law. He also told the Board that he had talked, confidentially, with his Manager, Brenda Dennis, about dating Ms J.H. Since they were not living together she told him that they could date.
Mr. De Sousa stated that he was aware Ms J.H. had psycho-social problems from childhood. He stated that Ms J.H. indicated to him that she wanted help and agreed to have Mr. De Sousa talk with her doctor.
When asked about the March 3, 2009 bus trip, Mr. De Sousa stated that his manager was on the bus, with Susan Dean, the Human Resources Manager and other employees. He stated that about three-quarters of the people, including managers and himself were drinking on the bus.
He stated that he knew it was an offence to drink on a bus.
Mr. De Sousa stated that he had purchased a 4-pack of coolers and a litre of cider for Ms J.H. to take on the bus.
All of this was consumed by her on the way to Hull and Ottawa. At the casino he bought her five whiskey sour drinks over a two to two and one-half hour period.
At the ScotiaBank Place Arena in Ottawa, Mr. De Sousa stated that the disturbance was caused by another employee. Mr. De Sousa was evicted from his seat about three minutes into the hockey game. He stated that security had asked him and the “intoxicated, obnoxious person” to come up to the next level. Security told him that they had received complaints from people seated in front of them.
Mr. De Sousa stated that security would not listen to his story and called the police. The two men and the two women with them were escorted out, down a back stairwell. He stated he was upset that the police and security would not listen to him.
He admitted that outside he was “pretty upset and struck the door” with his hand. He stated that he had done nothing wrong. He stated that with the police and security, he had not been “in their face,” he was “just stating my case and standing up for myself”.
Mr. De Sousa asked Ms J.H., several times, to “take his position.” She was swearing at him. He became upset and hit the door, breaking his hand. He never pushed Ms J.H. in the parking lot.
The witness stated he went to his manager, Ms Dennis, knowing he needed medical attention. She accompanied him to the hospital. An x-ray was done and he was released to be treated in Peterborough on his return.
Mr. De Sousa said that the bus was waiting to depart when they returned. Ms J.H. was asleep on the bus and he went to sit in the back of the bus. They did not speak.
At the car-park in Peterborough, a taxi was waiting for him and Ms J.H. Mr. De Sousa stated that Ms J.H. had called the cab to take them back to his apartment. He said that at the apartment he asked her again why she did not stick up for him and she was angry.
Mr. De Sousa stated that he could not deal with her problems anymore and asked her to leave. He stated that Ms J.H. pushed him several times before “grabbing a couple of bags” and leaving.
In response to questions, Mr. De Sousa said he did not hit her, insult her or grab her jacket.
Mr. De Sousa said that at the police station, Duty Counsel advised him not to speak to the police and told him he would be out shortly on his own recognizance. Referring to Exhibit #18, he stated he was surprised to see reference to a “spousal charge” and information that he had no fixed address. He did not know at the time that the police had recorded the information this way, even though they had picked him up at his apartment.
The witness stated that the Crown had made an offer of a conditional discharge if he pleaded guilty. He was told there would be no criminal record if he agreed.
He stated that he did not do it and did not plan to plead guilty to the charge.
On cross-examination he was asked about the demotion at work, Mr. De Sousa stated that it happened because he had punched the door. He stated that it had been a “stupid move” and accepted the change in employment “as punishment.” He stated that his behaviour was a lapse in judgement.
He stated that Ms Dennis spoke with several employees who told her that he had not taken part in the incident when still seated in the arena. As well, the HR Manager was seated behind him and also said he was quiet and just watching the game.
Mr. De Sousa admitted to having an intimate relationship with Ms J.H. He stated that he was aware of issues relating to Ms J.H.’s psychological well-being. He stated that he could not say he was in a position of trust.
Mr. De Sousa stated that on occasion he was in a position of authority over Ms J.H. at work.
When asked about the amount of alcohol he bought for Ms J.H., Mr. De Sousa stated “I am not her father – if she wanted a drink, I bought it for her”.
He stated that he had a 6-pack of beer, another three beers at the casino and two beers on the bus going home. He said he was not intoxicated, just feeling good. He stated it was his 25th birthday and that this was a big event. He said it was unfortunate that this had happened on his birthday.
Mr. De Sousa stated that he was angry that security would not listen to his side of the story and he was getting “kicked out” for no reason. He had punched the door in frustration.
Mr. De Sousa stated that he bickered with Ms J.H. in the parking lot before going to the hospital. Ms J.H. was swearing. He said he was upset that “she did not stick up for me, after everything I had done”.
Mr. De Sousa stated that he has had no contact with Ms J.H. since the incident nor has he had any alcohol to drink. He stated these were conditions of his bail.
Mr. De Sousa acknowledged that his past history of involvement with the police relates to alcohol. He stated that alcohol caused his momentary lack of judgement when he hit the door during an argument with his girlfriend.
Referring to Tab 4 of Exhibit #2, Mr. De Sousa stated that at police college training, he learned that “summarily” means a lesser serious offence.
He stated that he received his promotion to Supervisor even though the OLG knew of the previous charges. He said the promotion had also been authorized by the Deputy Registrar. He pointed out that the OLG had told him he would get his job back if he got his licence back.
Registrar’s Submissions
Mr. Alakas requested that the Interim Suspension, under subsection 14(1) of the GCA which states that the Registrar may do this if in the public interest, be upheld.
Mr. Alakas pointed out that this hearing is not the forum to determine the outcome of the criminal charges that are still to be dealt with in court at a future date. He stated that the purpose of the hearing is to determine if the suspension should be maintained as necessary in the public interest. The decision should be based on a balance of probabilities as the Board considers the evidence relating to the criminal charges.
Mr. Alakas stated that the test should include an assessment of public interest and safety, as well as the public’s perception of ongoing integrity of gaming registrations and gaming advocacy.
He stated that it will be important to weigh the factual underpinnings of the evidence provided. The police reports and evidence indicate that they are required to have reasonable and probable grounds, based on the totality of factual evidence, before laying a charge.
Mr. Alakas further stated that in considering public safety, consideration must be given to Ms. J.H. who is a member of the public. The pending charges of assault reflect an offence of violence.
He addressed the relationship between Ms J.H. and Mr. De Sousa, stating that this was both an intimate relationship and a working relationship. This causes the offence to take on a more significant context.
He stated that the evidence shows a beginning pattern of unacceptable behaviour that involves alcohol and acting out physically. This has now culminated in a charge involving violence and raises concerns relating to the maturity of the employee. The Order of Immediate Suspension was based on the totality of behaviours.
Mr. Alakas indicated that it is not enough to say that the release conditions provide adequate protection for Ms J.H. The Registrar must also act for the safety of Ms J.H. and uphold the suspension. Risks also relate to the public perception of upholding the integrity and honesty of the gaming industry while these charges are outstanding.
Mr. Alakas stated that, although there are discrepancies in evidence relating to Ms J.H.’s statements, her statements remain credible. He stated that when charges of domestic violence occur, the victim may initially be reluctant to talk and events may be misstated during an emotional time. This should not be considered an issue of credibility for the victim.
In response to the debate about terminology relating to domestic, spousal or common-law, he stated that following procedures, police use these terms interchangeably. This should not be a basis for argument given the fact that the relationship was defined through the evidence given.
He suggested that it is incorrect to suggest that an assault against a spouse is more insidious than an assault against an intimate partner where a relationship of trust exists.
He clarified that the AGCO is not the employer. The application for registration is conducted in accordance with the Freedom of Information and Protection of Privacy Act. Mr. De Sousa signed the consent agreeing to disclosure as required. As well, on Aug 21, 2008 he signed and agreed to “Terms of Registration”. Mr. De Sousa did not notify the AGCO of the charges as required; he did not act with integrity.
Mr. Alakas asked, in considering the two tests described, that the Board uphold the Order of Immediate Suspension.
Registrant’s Submissions
Mr. Byer stated that Mr. De Sousa was held in custody for three days due to errors on reports and the interpretation of “spouse” when he was charged by police. When he was released, he was not able to return home and had to live with his grandparents.
He stated that assault is a serious offence, but during evidence, the police officer stated that this was the “least serious”. As well he stated that the police officer seemed surprised to learn that the report had included words such as ‘spousal assault’ and falsely stated that Mr. De Sousa had no fixed address.
Mr. Byer stated that spousal assault is treated very differently and often involves children who need protection. He stated that there is legislation that protects the common-law relationship.
He submitted that the Crown had “summarily” offered Mr. De Sousa the opportunity to plead guilty, with a discharge and no conviction. Mr. Byer stated that this indicates that the Crown had read the synopsis of events, saw no injuries to the victim and believed this to be the least serious of assaults.
He submitted that Mr. De Sousa denies any assault. Without witnesses, this becomes a he says / she says situation.
He stated that the statements made by Ms J.H. to Mr. Renwick were not sworn statements. Her allegations were shown to be discredited by Ms Brenda Dennis who gave evidence at the bail hearing stating that there was no altercation with spectators at the arena and no assault in the parking lot at the arena. Witnesses on the bus can confirm this.
Mr. Byer submitted there are serious discrepancies in the statements given. As a result, there is a good chance that the charge will not proceed to court, and that a peace bond could be put in place.
He stated that Mr. De Sousa did return to work for one month before the Order of Immediate Suspension was enacted. He is not working as a Supervisor now and there is no report of any problems. His employer has told Mr. De Sousa that if he is re-instated, he can come back to work.
Mr. Byer asked the Board to consider Mr. De Sousa’s excellent work record, his commendations and his actions in providing life support in an emergency situation when working. He pointed out that Mr. De Sousa has never come to work in an untidy manner, nor having the odour of alcohol on his breath. There has been no evidence of dishonest behaviour.
He stated that Mr. De Sousa was promoted by the OLG after an investigation was completed by the AGCO. There were no concerns at this time and he was accepted as a Gaming Key Employee. He submitted that the Terms of Registration signed in 2008, was not intended as an entrapment device to suspend a licence but rather, to keep the Registrar informed.
He stated that Mr. De Sousa was in jail for three days and not able to report. Written notification was not possible since Mr. De Sousa had broken his writing hand.
He was aware that the OLG had notified the AGCO. Mr. Byer submitted that this fulfilled the agreement and Mr. De Sousa should not be judged on a technicality.
Mr. Byer admitted that his client had hit the door at the arena. He stated that Mr. De Sousa was upset and it was his birthday. This is not an indicator of his lack of integrity or honesty. He was reacting, trying to protect his innocence.
Mr. Byer suggested that there was a lack of integrity shown by Ms J.H. since she did not come to the aid of Mr. De Sousa. As well, he stated that Ms J.H. has mental health and psychiatric problems, as given in evidence by Mr. De Sousa, and this should be factored in, especially since she is the accuser.
Citing the Harerimana decision of June 19, 2007, Mr. Byer stated that the Registrar did not order a suspension in this case and, given the similarities, this decision should be given consideration by the Board.
Mr. Byer outlined the hardships experienced by Mr. De Sousa since the Order of Immediate Suspension. Mr. De Sousa has lost wages and did not qualify for Employment Insurance. The court case could not be scheduled before September, delaying his opportunity to clear his name.
He submitted that Mr. De Sousa deserves the benefit of the doubt since the charges have been based solely on the statements of Ms J.H. He suggested that the Registrar may not have been aware of the discrepancies in statements made by Ms J.H.
Mr. Byer stated that any Act you consider, refers to the definition of a spouse as being a husband and wife relationship. He stated that a common-law relationship only occurs when two people are living together for more than a year and neither applies to Mr. De Sousa’s situation.
Mr. Byer stated that it is not in the public interest to continue his suspension and asked that Mr. De Sousa be reinstated.
Registrar’s Reply
Mr. Alakas stated that the Registrar had access to all the information collected prior to making a decision. The Registrar did not rely just on the statements by Ms J.H., but looked at the combination of events along with the charges made by police and the statement made by Mr. De Sousa.
He stated that the Registrar takes domestic assault very seriously and uses the two-part test, looking at public safety and public integrity.
Mr. Alakas submitted that there is a shared personal and professional relationship between Ms J.H. and Mr. De Sousa. Therefore, it is important to protect the victim.
Mr. Alakas objected to the suggestion that the Terms of Registration may be entrapment stating that the conditions are put in place to act as a deterrent. This puts the Registrant on notice that they are being monitored and are encouraged to act responsibly.
Mr. Alakas stated Mr. De Sousa had shown a lack of responsibility and that Ms Dennis had reminded Mr. De Sousa on two occasions that he needed to report the charge to the AGCO.
He stated that, although Mr. De Sousa had an immaculate work record, this situation occurred during a work outing and involved intoxication and acts of immaturity. Mr. De Sousa knew of Ms J.H.’s psychiatric history and still was upset that she did not “stick up” for him. These matters raises concern relating to integrity.
Mr. Alakas, referred to Exhibit #19, the Harerimana Decision, dated June 19, 2007, pointing out that there were numerous differences and it was not a valid comparison.
Mr. Alakas stated that he chose not to call Ms J.H., not wanting to jeopardize the pending court proceedings and recognizes how hard it is for victims.
Mr. Alakas stated that financial hardship is not a valid argument for lifting the suspension.
Analysis/Reasons/Findings
The Board notes that Mr. De Sousa has exercised his right to appeal the Order of Immediate Suspension.
In making a decision, the Board gave consideration to all of the evidence and submissions. The Board decision also reflects consideration of the totality of events that occurred on March 3 and 4, 2009.
The Board acknowledges that Mr. De Sousa has been registered since May 2006 and initially was working as a security officer at Kawartha Downs.
On August 22, 2008, he received a promotion to Dual Rate Security Supervisor.
It is noted that registration was granted with a conditional designation as a Gaming Key Employee. The Board accepts the Registrar’s explanation that these conditions were in place to monitor the Registrant and encourage him to act responsibly and be accountable in the position following a report of police charges, with two of those charges relating to alcohol use.
The Board acknowledges that Mr. De Sousa has had an excellent work record and that he has received numerous commendations and received recognition for his quick response in the medical emergency of an employee. However, the Board is very concerned about his recent behaviour during recent events.
There have been two recent police charges related to alcohol. Mr. De Sousa acknowledged in his testimony that alcohol was a factor on March 4, 2009, when he struck the door frame fracturing his hand after being evicted from the arena.
Mr. De Sousa stated that while at the Scotiabank Place Arena in Ottawa, he was yelling and hit the door frame in frustration, upset that the security and police would not listen to his side of the story. As well, he stated that he was upset that his girlfriend did not defend his position. The Board is concerned with the demonstrated aggressive response shown by an employee who is in a supervisory position.
Evidence was consistent and undisputed that Mr. De Sousa and Ms J.H. were dating and had an intimate relationship. As Dual Rate Supervisor, he was in a position of authority over her. He also gave evidence stating that Ms J.H. confided with him that she had psychological problems. The Board believes these factors placed him in a position of trust both as a supervisor and in his personal relationship with Ms J.H.
Ms Dennis, Manager of Security, testified that Mr. De Sousa had not been portraying the values of the company on a company event. His position of Dual Rate Security Supervisor was revoked because of concerns with him yelling and arguing with police at the arena, and the anger he exhibited striking the door, resulting in a fractured hand.
The Board accepts Ms Dennis’ testimony expressing concern about the need for employees to represent the company values both on and off duty. In considering this evidence, the Board is concerned about the appropriateness of a company social event that does not reflect the values she expressed and one that puts all employees at risk if there is not adequate monitoring and supervision.
The Board agrees with the concern Ms Dennis expressed, relating to the behaviour of Mr. De Sousa that resulted in him yelling at police, and fracturing his hand in anger. While giving evidence, Mr. De Sousa himself, admitted to a growing problem with alcohol, anger management and inappropriate behaviour.
The Board is concerned that Mr. De Sousa did not report the assault charge to the AGCO. His manager, Ms Dennis reminded him on two occasions of his responsibility and he chose to ignore this obligation as required under the conditions of his registration. The Board does not accept the Registrant’s Representative’s argument that this was only a technicality as the AGCO learned of the matter from the OLG.
Although Mr. Byer suggests that his client be given the benefit of the doubt and be re-instated, the Board has concerns about the recent history of fines relating to alcohol and driving infractions and notes the Registrant’s admission that “he probably has a problem with alcohol”.
The Board does not believe that Mr. De Sousa’s assertion that he did not commit an aggressive act against Ms J.H. There is evidence to the contrary. There is evidence of other aggressive actions by Mr. De Sousa. He also has a direct interest in the outcome of the hearing. The Board accepts the police and investigative evidence that based on the statements made by Ms J.H. and finds that on a balance of probabilities, an aggressive act by Mr. De Sousa occurred that warranted a charge being laid. The Board has taken into consideration the assertions by Mr. De Sousa of mental health problems that Ms J.H. had, but finds on a balance of probabilities, that this had little or no bearing on Mr. De Sousa’s acts of aggression.
In considering the public interest, the Board has a responsibility to ensure public safety.
The Board must also ensure the public trust is maintained with regard to the integrity of gaming and gaming regulations. The aggressive acts by Mr. De Sousa, which included fracturing his hand in anger and yelling at police and security at another facility demonstrate a lack of responsibility, and poor conduct which raises serious concerns in relation to public trust.
Order
- Therefore, the Board CONFIRMS the Order of Immediate Suspension dated April 1, 2009 issued to CARLOS MICHAEL DE SOUSA, 1 Church Street, Unit #202, Peterborough, Ontario, K9J 7B9, registration number 154542.
DATED AT TORONTO THIS 13th DAY OF July , 2009
JOAN LOUGHEED, BOARD MEMBER BRUCE S. MILLER, BOARD MEMBER