Licence Tribunal
Appeal d'appel en
Tribunal matière de permis
DATE:
2012-04-17
FILE:
6708/LLA
CASE NAME:
6708 v. Registrar of Alcohol and Gaming
Appeal from the Notice of Proposal of the Registrar of Alcohol and Gaming under the Liquor Licence Act, R.S.O. 1990, c.L.19 to Suspend a Licence
1634168 Ontario Inc. o/a Ye Olde Brunswick House
Applicant
-and-
Registrar of Alcohol and Gaming
Respondent
ORDER
ADJUDICATOR:
Laurie Sanford, Vice-Chair
APPEARANCES:
For the Applicants:
Randall Barrs, Counsel
For the Respondent:
Aviva R. Harari, Counsel
Heard in Toronto:
April 2, 3 and 4, 2012
ORDER
FACTS
At about 3:00 am on January 29, 2011, a 20 year old apprentice mason, who will be referred to as "Mr IF", was admitted to a Toronto hospital. According to hospital records and police photographs, Mr IF was suffering from several fractures to his nose, a black eye, minor facial lacerations, a large "goose egg" hematoma over his left eye and a second one on his left jaw. Mr IF received a CT scan of his brain and facial bones and was released at 7:00 am with instructions to take Tylenol for the pain and to use ice for the swelling. The question for the Tribunal is: how did Mr IF sustain these injuries? The Registrar of Alcohol and Gaming (the "Registrar") alleges that Mr IF was assaulted by the security guards at Ye Olde Brunswick House (the "Brunswick"). The Registrar is proposing to suspend the licence of the Brunswick for 14 days. The security guards have a different account of what happened and the Brunswick denies any wrongdoing.
Mr IF gave evidence as did his girlfriend, who will be referred to as "Ms KK". A second friend, who will be referred to as "Mr HF", also testified. Also giving evidence for the Registrar were numerous police officers.
The accounts of the three friends differ in many of the details but the outline of their testimony is in accord. The three agree that they met on the evening of January 28, 2011 at the home of a mutual friend at around 9:30 for the purpose of meeting and of pre-drinking, the practice of having drinks privately before going to a bar or club. Their accounts differ as to how much alcohol they consumed. Mr IF believed that he and Ms KK shared a small bottle of vodka or tequila. Ms KK testified that she had one or two glasses of wine and nothing else. Mr HF gave evidence that he split a 750 millilitre bottle of tequila with three or four friends, including Mr IF. The three friends agree that their goal was to achieve a degree of intoxication that gave them a buzz or left them tipsy but did not render them so intoxicated that they could not get past the door security at the Brunswick. At about 11:30, the three friends together with other members of their party, six people in all, went on to the Brunswick. Mr IF believes they went by subway. Ms KK denies that they ever used the subway and believes they walked or took a cab. Mr HF cannot remember how they got to the club but thinks they either walked or cabbed. They gained admittance and went to the dance floor where they met other friends. The Brunswick is a popular club for university students and it holds about 500 patrons. It is only open on Friday, Saturday and Sunday nights and it was full on that night. The three friends danced. It appears that Mr IF and Mr HF had one or more beer but Ms KK denies having any alcohol at the Brunswick.
According to Mr IF, someone pushed him on the dance floor and he pushed back. He has a vague recollection that the person who pushed him looked a bit like one of the security guards. He recalls that the pushing match ended and that several minutes later he was accosted by the security guards. He recalls thinking that they were going to expel him from the Brunswick but instead, Mr IF testified, they took him to the staff kitchen where some number of security guards – between four and seven - beat him and choked him. In self-defence, he bit one of the guards. After about 15 minutes of this beating, during which time they took his identification, they led him out of the kitchen and threw him down the three stairs that lead into the club. After he was thrown down the stairs, he was kicked by a security guard. He ran away from the club and his friends called an ambulance and the police when he collapsed several blocks away. Someone, Mr IF testified, either the police or the paramedics, took him to the hospital.
In Ms KK's testimony, she was walking away from the dance floor when she heard shouting and turned back. She saw Mr IF in a pushing match with another patron and she saw the security guards separate them. Despite the fact that the dance floor was crowded and there were about ten people between her and Mr IF, she is certain that Mr IF was not injured at that time. She saw him being led off by security guards and concluded that he was to be expelled from the Brunswick. After waiting outside for him for a while, she re-entered the club in time to see Mr IF escorted from the kitchen. At this time his face was bloody and he told her the security guards had beaten him. In her testimony, the security guards threw him down the stairs and kicked him. When she attempted to intervene, they pushed her away. Eventually, all but two of the security guards went back into the club. She and her friends helped Mr IF away and called the police and an ambulance. The paramedics treated Mr IF and released him. However, his friends felt he needed further assistance, according to Ms KK, so they took him to the hospital in a cab.
Mr HF testified that the dance floor was very crowded that night. Although he was only four or five feet away from Mr IF, it was hard to keep track of what was going on because of the crowd. He saw Mr IF get into a tussle with someone, whether a security guard or someone else is unclear. Security guards "swarmed" onto the scene very quickly. Although he cannot guarantee that Mr IF did not throw some punches at the security guards, he does not believe that punches were thrown before the security guards arrived. Mr HF was not paying close enough attention to know if Mr IF bit a security guard or not. Mr HF concedes that Mr IF may have been a little aggressive with the security guards and may have resisted them but he does not believe that Mr IF deserved what was done to him. Mr IF was "way more beat up" when he left the kitchen than when he entered. His evidence is that the security guards threw Mr IF down the stairs and that someone – he believes it was a security guard - kicked Mr IF in the face in front of the line of people waiting to get into the club. He testified that the ambulance took Mr IF to the hospital and that he followed in a cab.
Police were called to the scene that night and several of them testified. The officers agree that Mr IF was intoxicated. One of them testified that Mr IF was "very impaired, very drunk" but another was unsure how much of Mr IF's behaviour was a result of intoxication and how much was a result of his injuries. There was agreement among the police who had dealings with him that Mr HF was inebriated. Several of the police and at least one of the security guards testified that while Ms KK was also intoxicated, she was not as inebriated as were her two friends. One police officer and one security guard described her as "hysterical" and when asked to elaborate on her level of intoxication, one police officer described her as "wasted", "hammered".
Despite the inebriation of the three friends, the police acted on their account. In the words of one of them, "in my experience, victims often tell the truth." The police went to the Brunswick and after a cursory investigation, they arrested one of the security guards. Criminal charges against him were later withdrawn.
The security guard arrested was Mr Ryan Wilson who was then and is now the supervisor of security for the Brunswick. Mr Wilson is currently 33 years old and is studying anthropology at University of Toronto on a part time basis. He is a graduate of George Brown College where he studied social work. He is also a veteran of the Canadian Armed Forces where he spent six years in the infantry, specialising in reconnaissance. In addition to his security work at the Brunswick, Mr Wilson is also a personal trainer. He is 5 foot, 9 inches, weighs 200 pounds and has a very muscular build. Mr Wilson is a licenced security guard but, apart from his self-defence training in the military and some boxing and wrestling experience in high school, he has no specific training in defusing fights or in martial arts. He has worked for 7 or 8 years in security work and has in that time routinely broken up fights. He has never been in trouble with the police and has not been arrested at any time before or after the night in question.
Mr Wilson's evidence is that it is standard practice at the Brunswick when a fight breaks out to separate the combatants and clear one set of protagonists from the vicinity of the club before releasing the other combatants. This is done to avoid a recurrence of the fight. The fighter or fighters being held back are routinely taken to the staff kitchen until the way is clear for them to be escorted from the club. The policy of the Brunswick is that both instigators and victims of fights are expelled from the club for the evening.
At about 12:30 am. on the morning of January 29, 2011, Mr Wilson testified that he and the two other security guards who were with him received a call to the dance floor. Several other security guards also responded to the call from different directions. When Mr Wilson arrived, he testified that he saw Mr IF in a punching match with three other patrons. The combatants were wildly throwing punches and several connected on each side. One security guard arrived ahead of Mr Wilson and inserted himself between the combatants. Mr IF head butted that security guard, according to Mr Wilson. When Mr Wilson arrived on the scene, his evidence is that he encircled Mr IF with his arms and turned him away from the fight. Mr IF was attempting to head butt him and was kicking so he lowered Mr IF to the ground so that Mr IF was sitting in Mr Wilson's lap. According to Mr Wilson, this was done to prevent Mr IF from doing any more damage and also to protect Mr IF from the other three fighters, who were trying to get past the security guard who had positioned himself between the men. According to Mr Wilson, Mr IF was behaving wildly, "like a guy possessed". Mr IF managed to push Mr Wilson's arms up his torso and bit Mr Wilson on the right forearm. Mr Wilson testified that he has been bitten before and that it "part of the job" but the bite meant that he needed to get Mr IF's identification to determine if he had any transmittable diseases. This was a factor in the decision to hold Mr IF in the kitchen while the other three combatants were cleared from the club. Two security guards arrived, took Mr IF by the arms and lifted him off Mr Wilson. At that time, according to Mr Wilson's evidence, Mr IF was bleeding from the nose and mouth. Mr Wilson was subsequently told that the other three combatants were taken out the back door.
When Mr Wilson arrived at the kitchen, the two security guards who had taken Mr IF from the dance floor were there and the manager of the Brunswick arrived shortly after. The staff kitchen is near the front door of the club and had 2 foot by 2 foot window set into its swivel door which Mr Wilson believes permits anyone to see into the room. While in the kitchen, Mr Wilson only had time to take some gauze and begin wrapping the bite on his arm before the manager ordered all the security back out onto the floor. He estimates that he was in the kitchen for a minute. In the testimony of another security guard, Mr IF was being verbally aggressive but the aggression was aimed at the security staff, not the manager so they were not concerned about leaving Mr IF alone in the kitchen with their boss, who was not a security guard. Mr IF does not allege that the manager assaulted him.
All the security left the kitchen and Mr Wilson was shortly called outside to deal with another incident which he believed involved one of Mr IF's friends. This incident was occurring about 300 or 400 feet from the Brunswick and Mr Wilson believes it took seven or eight minutes to sort out. When he returned to the Brunswick, Mr IF was lying on the ground. His testimony is that Mr IF's friends refused assistance and got Mr IF up. Mr IF walked away with them. Mr Wilson denies assaulting Mr IF or witnessing any other security guard assaulting him.
Several other security guards gave evidence which collaborates that of Mr Wilson. There are minor differences in their evidence which may be explained by their different locations and responsibilities within the Brunswick. One security guard testified that as he approached the dance floor, he saw Mr IF get punched in the face.
Mr Michael Poulson-Maye testified that he was working as a security guard at the Brunswick on the morning of January 29, 2011. When he was called to the dance floor, he testified that he could see Mr IF fighting with security but he did not become involved. He grabbed and subdued another fighter and took him out the front door. When he returned to the dance floor, everyone involved in the fight was gone. He saw Mr IF again when Mr IF left the kitchen. In his testimony, Mr IF was being verbally abusive but the Brunswick manager, who was following Mr IF, told Mr Poulson-Maye just to leave Mr IF. Mr IF walked past Mr Poulson-Maye and pushed the club's doorman into the wall. Mr. Poulson-Maye, who is trained in practical self-defence, put his hand into Mr IF's face and swept his feet out from under him tripping him to the ground in what is called a roll-down. Mr Poulson-Maye bent over Mr IF to restrain him. As he was bent over, Mr Poulson-Maye testified, someone came up on his left and kicked Mr IF, a glancing blow that hit his shoulder and slid up his face. Mr Poulson-Maye angled to his left and went down on one knee to protect Mr IF. The assailant moved past Mr Poulson-Maye and left the club. Mr IF was in and out of consciousness as a result of the kick, according to Mr Poulson-Maye. To protect him from the crowd of people who were by this time trying to leave the club, Mr Poulson-May, with the assistance of another security guard, lifted Mr IF down the three steps to the club and put him in what is called a recovery position at the bottom of the stairs on the sidewalk. The recovery position is like a fetal position and is designed, according to Mr Poulson-Maye, to prevent someone from choking on their own vomit. His evidence is that he stayed with Mr IF and tried to encourage him to lie still. However, his friends refused any assistance and helped him leave.
Mr Poulson-Maye's evidence was corroborated by the doorman who testified that he was pushed by Mr IF and that he saw the kicker but could not identify him. Mr Poulson-Maye's evidence was also collaborated by Mr Steven Bugden. Mr Bugden works as a security guard at the Brunswick while studying biology and molecular structures at University of Toronto. On the morning of January 29th, he was working at the front door, checking identification and assessing intoxication levels. His testimony was that he witnessed the kick and that he assisted Mr Poulson-Maye in lifting Mr IF down the stairs. Mr Bugden testified that the man who kicked Mr IF was a patron of the Brunswick, not a member of the staff. His evidence was that Mr IF's friends came out after Mr IF was moved down the stairs and that they assumed that the security guards had attacked him.
There is no doubt that Mr IF, Ms KK and Mr HF sincerely believe that their testimony is accurate. There is also the unmistakable ring of sincerity in the moral outrage that the three of them feel about what they perceive happened that night. However, the question for the Tribunal in assessing their evidence is not whether they are sincere but whether their evidence is reliable. The Tribunal accepts the testimony of the police as to the state of intoxication of the three friends and finds that their evidence cannot be regarded as reliable due to the effect that severe inebriation would have had on their individual judgement and perception. Their differing accounts of how they got to the Brunswick or how they went from there to the hospital is evidence of how their inebriation affected their recall of the events of that evening.
The security guards are obviously not disinterested witnesses but two of the security guards in particular impressed the Tribunal as credible witnesses. Mr Wilson's account of the events of that night was credibly told and the Tribunal accepts his version of what he saw and took part in on the dance floor and in the staff kitchen. Therefore the Tribunal concludes that the security guards did not assault Mr IF on the dance floor or in the kitchen. Indeed, while it is not impossible, it is implausible that the security guards would set upon Mr IF in the presence of their manager.
The kick that Mr IF received in the doorway of the Brunswick is more problematic. It is not impossible but it is implausible that a patron would kick a man who is in the grip of one security guard and in the presence of two others and then make his escape from what the witnesses describe as a narrow doorway. It is only slightly less implausible that one or more security guards would kick a patron in front of a line of witnesses. Mr Bugden's testimony was credibly given and shifts the balance of probabilities to favour the account of Mr Poulson-Maye as to what happened in the doorway. The Tribunal accepts Mr Bugden's evidence and concludes that the security guards did not kick Mr IF in the entrance way to the Brunswick.
This is not to suggest that the security guards at the Brunswick were blameless. When they took Mr IF into their custody, he was bleeding, inebriated and abusive but he was conscious. When they left him, he was drifting in and out of consciousness, lying on the sidewalk. As an exercise in maintaining public safety, this result points to serious shortcomings on the part of the security staff. The Tribunal is reluctant to reason beyond the evidence but it follows from the kick that Mr IF received in the doorway of the club that the security guards did not clear the Brunswick of all of Mr IF's assailants before they brought him out of the kitchen. Although they did offer assistance, it is not clear whether any of the security guards had the responsibility of calling for emergency medical assistance. Instead, the decision to call for emergency medical treatment was left to three people whom the security staff recognised as intoxicated.
On June 21, 2011, the Registrar issued a Notice of Proposal proposing to suspend the Liquor Licence of the Brunswick for 14 days on the grounds that: "On January 29, 2011 a patron was assaulted by representatives of the licence holder." The Canadian Oxford Dictionary gives the primary meaning of the word "assault" as "a violent physical or verbal attack". Using the word "assault" in this way and based on the evidence before it, the Tribunal concludes that Mr IF was not assaulted by representatives of the licence holder on January 29, 2011.
At the outset of this hearing, the Tribunal advised counsel that they would be granted an opportunity to make written submissions as to the appropriate sanction, if any, after the Tribunal had made a finding of fact. Credibility was a central issue of this case and in the interests of fairness, the Tribunal wished to rule on the credibility issue before submissions as to sanction were sought.
ORDER
Accordingly, the Tribunal orders as follows:
On or before May 11, 2012, the Registrar may make submissions as to the sanction, if any, that ought to follow from the above findings of fact. If the Registrar choses to make no submissions, then the Registrar will advise the Brunswick and the Tribunal of his choice.
Within 14 days of receiving the Registrar's submissions, or notice that the Registrar will not be making submissions, the Brunswick may make submissions as to the sanction, if any, that ought to follow from the above findings of fact. If the Brunswick choses to make no submissions, then the Brunswick will advise the Registrar and the Tribunal of its choice.
LICENCE APPEAL TRIBUNAL
Laurie Sanford, Vice-Chair
Released: April 17, 2012