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-
2186175 Ontario Inc. operating as Shannon’s Pub (Licensee)
DECISION ON FINDINGS
Panel: David C. Gavsie, Chair, AGCO Alex McCauley, Board Member
Decision Date: April 29, 2010 Hearing Location: Ottawa, Ontario
Alcohol and Gaming Commission of Ontario 90 Sheppard Avenue East, Suite 300 Toronto, Ontario 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 2186172 Ontario Inc., Licensee: Shannon McCullough, On her own behalf and on behalf of the corporate licensee
Allegations
- A hearing into Notice of Proposal (“NOP”) number 17825 dated January 27, 2010, to suspend liquor licence number 24938, issued to 2186172 Ontario Inc. (the “Licensee”), operating as SHANNON’S PUB, 266 Main Street East, Hawkesbury, Ontario, K6A 1A5, (the premises”), on the basis of an alleged violation of subsection 45(2) of Ontario Regulation 719/90 (the “O.Reg”) made pursuant to the Liquor Licence Act (the “LLA”), was held on April 19, 2010 in the City of Ottawa.
Decision
- The Board FINDS the Licensee contravened subsection 45(2) of the O.Reg. Reasons follow.
Preliminary Matters
Shannon McCullough is the shareholder, officer and director of the Licensee. She appeared on her own behalf and on behalf of the corporation and waived the right to be represented by a licensed representative.
The Board ORDERED the exclusion of witnesses on consent of the parties.
Registrar’s Evidence
Stephane Huneault is a Detective Constable (“D/Cst.”) with the Ontario Provincial Police (“O.P.P.”). He has 14 years experience and he has spent the last six years as a member of the O.P.P.’s drug enforcement team.
D/Cst. Huneault is familiar with Shannon’s Pub. He was at the premises in an undercover capacity on June 19, 2009. At the time he was in the company of fellow officer, Simon Turcotte. Their purpose for being at the premises was to uncover street level drug traffickers operating in the area. The undercover project code name was “Dover”.
In the past, D/Cst. Huneault had successfully purchased cocaine and methamphetamine from persons in Shannon’s Pub. On this occasion, he had information that Shannon McCullough’s brother, SM, was involved in trafficking cannabis marijuana.
D/Cst. Huneault and his partner arrived at Shannon’s Pub around noon and ordered a meal. Ms McCullough was bartending and cooking. Her father was present but there were no other patrons. D/Cst. Huneault spoke to Ms McCullough in the kitchen area. He told her he was looking for her brother, SM, because he wanted seven grams of marijuana. Ms McCullough advised her brother was not available as he was “gardening”, a term the witness took to mean he was tending to a “grow op” (marijuana grow operation). Ms McCullough offered to provide D/Cst. Huneault with some marijuana, but he declined her offer and returned to his seat. She later offered to provide him some marijuana; he declined again.
When D/Cst. Huneault and his partner were leaving, Ms McCullough called him over. She took a small foil packet out of her pocket and unwrapped it. It contained what appeared to be a large cannabis bud. She told him she wanted him to have it. No money was exchanged. The witness secured the marijuana on his person and later transferred the exhibit to Constable McLeod, who had the exhibit packaged and sent to Health Canada. Health Canada analyzed the substance and determined it to be cannabis (marijuana) and issued certificate of analysis #09 09302 T (Exhibit #1, our proceeding).
D/Cst. Huneault stated that drug trafficking in Shannon’s Pub was less frequent than other locations. Over the past two years, his team had only made two purchases of narcotics.
Ms McCullough did not cross-examine the witness.
Simon Turcotte has been a member of the O.P.P. for nine years and currently holds the rank of Acting Detective Sergeant (“A/D.S.”). On June 19, 2009, he was in an undercover capacity and was partnered with the previous witness, D/Cst. Huneault. A/D.S. Turcotte corroborated D/Cst. Huneault’s evidence as to where they were and why they were there. A/D.S. Turcotte stated that he saw Ms McCullough call over D/Cst. Huneault and that he knew she had given D/Cst. Huneault some marijuana.
A/D.S. Turcotte stated that drug trafficking was not a persistent problem at Shannon’s Pub and that Ms McCullough was not actively involved in drug trafficking.
In response to questions from the Board, A/D.S. Turcotte stated that criminal charges had been laid against Ms McCullough as a result of her passing off the marijuana, but these charges were withdrawn by the Crown prior to trial.
A/D.S. Turcotte stated that over the course of the project, he had been able to make only one drug purchase from a staff person and that was a purchase of a quantity of methamphetamine from M.D., a cook at the pub. The transaction was made in the washroom stall.
Ms McCullough did not cross-examine the witness.
Licensee’s Evidence
Shannon McCullough is the sole owner of Shannon’s Pub. She has been involved with the pub for about nine years and has owned the pub since April 2009.
Ms McCullough stated when she became aware that two of her patrons were trafficking drugs, she had them barred. When she caught MD, the cook, trafficking, she fired him.
Ms McCullough never refuted the evidence of the Registrar’s witnesses and in cross-examination, she again stated she did not dispute the evidence of the police officers.
Registrar’s Submissions
- Ms Taylor asked for findings to be made of a breach of subsection 45(2) of the O.Reg. There was unrefuted evidence that Ms McCullough held and distributed a controlled substance in the licensed premises on June 19, 2009 and that substance was cannabis marijuana.
Licensee’s Submissions
- Ms McCullough stated on the day in question she acted foolishly. She defended herself stating the police should not have been trying to involve her as she was not the target of their investigation.
Registrar’s Reply Submissions
- In reply submissions, Ms Taylor dismissed Ms McCullough’s excuse out of hand. It was the Registrar’s position that Ms McCullough’s actions were more than just foolish.
Decision
The Board has heard undisputed evidence that the Ms McCullough was holding a banned controlled substance, namely cannabis marijuana. She gifted the marijuana to an undercover police officer and this even after the police officer refused, on at least two occasions, to accept the marijuana.
The Licensee defends herself by stating that she took decisive action against those trafficking drugs in her premises, barring patrons and dismissing staff. Yet in the mind of the Board, there seems to be an underlying drug culture in the mind of this Licensee. She sees no difficulty in passing on a controlled substance to a patron and further, when the police ask to see her brother SM because they wished to purchase a quantity of marijuana, she flippantly describes SM as being away “tending the garden”, a comment the police drew to mean an illegal grow operation, a fact that was never disputed by Ms McCullough.
As it was the Licensee herself who was directly involved in passing on a controlled substance, she clearly knew of and permitted its activity.
Therefore, the Board finds that the Licensee breached subsection 45(2) of the O.Reg by permitting a person to hold and distribute a controlled substance as defined in the Controlled Drugs and Substances Act on the premises.
Conclusion
For the above reasons, the Board FINDS the Licensee contravened subsection 45(2) of the O.Reg.
The Board invites written submissions on penalty from the respective parties. The Registrar’s representative shall serve and file written submissions within seven (7) days of the date of this decision. The Licensee’s representative shall have seven (7) days to serve and file a written response. The Registrar’s representative may serve and file a reply within three (3) days of the receipt of the Licensee’s response. All submissions are to be filed with the Manager, Hearings Department, Alcohol and Gaming Commission, at the address on the front page of this decision in accordance with the Board’s Rules of Practice.
DATED AT TORONTO THIS 29th DAY OF April, 2010
DAVID C. GAVSIE, CHAIR, AGCO ALEX MCCAULEY, BOARD MEMBER