Licence Tribunal
Appeal d'appel en Tribunal matière de permis
FILE: 7703/LLA
CASE NAME: 7703 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
Richard Brian Charlebois & Mary Elizabeth Charlebois, o/a Point Dining Lounge (The) Applicants
-and-
Registrar of Alcohol and Gaming Respondent
DECISION AND ORDER
ADJUDICATOR: Geneviève Blais, Member
APPEARANCES:
For the Applicants: Ainslie Stuart Dunstone, Paralegal
For the Respondent: Phillip Morris, Counsel
Heard in Ottawa: February 20,21,22,27, and 28, 2013
DECISION AND ORDER
BACKGROUND
The Registrar of Alcohol and Gaming (the “Registrar”) under the Liquor Licence Act, (the “Act”) issued a Notice of Proposal, dated August 17, 2012, which proposed to suspend a licence for 60 days, as stated on Proposal 19388. Richard Brian Charlebois and Mary Elizabeth Charlebois, o/a Point Dining Lounge (The), (the "Applicant") appealed this Notice of Proposal to the Licence Appeal Tribunal.
The Registrar’s Proposal is brought pursuant to sec. 15(1) of the Act.
The particulars in support of the Registrar’s Proposal state the following:
(a) contrary to section 29 of the Liquor Licence Act, liquor was permitted to be sold or supplied to a person who was or appeared to be intoxicated.
(b) contrary to subsection 45(1) of the Ontario Regulation 719/90 under the Liquor Licence Act, the licence holder permitted drunkenness or riotous, quarrelsome, violent or disorderly conduct to occur on the licensed premises or in the areas under the control of the licence holder.
(c) contrary to section 45.1 of Ontario Regulation 719/90 under the Liquor Licence Act, the licence holder failed to ensure that reasonable measures are in place and reasonable efforts are made to deter disorderly conduct on property adjacent to and in the vicinity of the premises and to minimize damage, nuisance or other harm to such property arising out of disorderly conduct engaged in by patrons of the licence holder or persons attempting or waiting to enter the premises or leaving the premises.
Other particulars allege that on March 18, 2012, there were numerous drunken patrons in the licensed premises who were served liquor. One of the patrons left the premises in a drunken state and operated a motor vehicle dangerously in the licensee’s parking lot. The drunken patron drove away and killed a pedestrian.
Preliminary Matter
As a preliminary matter, Mr. Morris requested an order excluding witnesses. Mr. Dunstone objected in part and requested that one of his witnesses, Mary Charlebois, one of the Applicants and co-licensee, be allowed to remain in the hearing room. Mr. Dunstone advised that she was instrumental in advising and instructing him during the proceedings and would be called as his first witness.
Mr. Morris argued that several of the witnesses are well known to the Applicant and reside in the same rural community. In an effort to preserve the independence of their testimony, the civilian witnesses should be afforded the opportunity to testify without her present. As the Applicant is a witness she should be excluded. Mr. Morris stated that the other co-licensee, Richard Charlebois was present at the hearing, would not be a witness so could advise and instruct Mr. Dunstone.
The Tribunal considered the submissions and concluded that procedural fairness to all parties would be better served by ordering all witnesses in the matter excluded, with one exception. Mary Charlebois would be exempt from the order during the testimony of witnesses acting in a professional capacity.
Evidence for the Registrar
The evidence of the Registrar consisted of documentation and oral testimony of ten witnesses. The evidence related to the allegations in the Notice of Proposal, from March 17/18, 2012, when a drunken patron, JR, was at Point Dining Lounge (“The Point”), drank there. When he left he became involved in a motor vehicle accident resulting in the death of EV, another patron who had chosen to walk home from the premises.
Evidence of DM
The witness was not able to testify due to health issues. Mr. Morris submitted a will-say statement (Exhibit 3). DM is an off-duty fire-fighter who was at the scene of the accident. DM’s report sets the time of the accident at 02:30 a.m. on March 18, 2012 and includes his observations on the state of sobriety of JUH and JR at scene of the accident. This document was part of the disclosure package provided to Mr. Dunstone who consented to the filing of the statement at the hearing.
Evidence of DL
DL is 26 years old and very familiar with The Point. She considered it her “local”. On March 17, 2012, she was at The Point with her friend EV to celebrate St. Patrick’s` Day. They got a ride with some friends and arrived around 9:30 p.m. She has known JR and his family for some fifteen years. Although they shared the same circle of friends, she described him as an acquaintance more than a good friend.
DL, EV and a couple friends sat at a table at the front of the service bar. As there was no table service, drinks were bought at the bar. There was one bartender on duty. DL did not see any other server or either of the licensees in the bar. She described the bar lounge area as small and when they arrived it wasn’t busy. Over the course of the evening, she consumed three rye and ginger.
Around 11:30 p.m., DL was standing at the service bar and she noticed JR with a large group of people that included witnesses JAH and JUH. JR approached DL and EV and engaged in light conversation. She noticed he was slurring his speech and swaying back and forth. DL saw him get a drink from the bartender. Although she did not see the label on the bottle, she thought it was a rum and coke. Shortly after, JR walked away. DL mingled around and EV joined up with JUH whom she was dating. DL saw JR consistently throughout the night mixing with other patrons. As the evening progressed, the bar got quite busy and most of the patrons were standing.
Around 12:30 a.m. DL testified that EV told her JR had just attempted to unhook her bra through her shirt. EV was angry and upset over the incident. DL approached JR, who had returned to service bar, to speak to him. JR reacted to her with a rude remark about her bust size. She was shocked as she had known JR for a long time and did not expect this type of behaviour.
Around 1:30 a.m. DL was leaving the female washroom and noticed JR with two younger girls around the cubicle area. JR was hanging onto the girls, one arm around each of their shoulders. She returned to meet EV and remarked to her that JR was ``wasted”, meaning very drunk.
Around 2:00 a.m., DL and EV agreed to go home separately as EV wanted to stay at the bar with JUH. Prior to leaving, DL walked to the patio of the premises for a cigarette. She testified seeing JR in his car, spinning and screeching his tires, doing “burnouts” in the front parking area. For about five minutes, the car engine revved creating considerable noise. She recalled seeing a male person in the passenger seat, but could not identify the person. She did not see the car drive off. There was no staff person at either the main or patio doors, nor was anyone monitoring the parking lot.
Around 2:20 a.m., DL left The Point and decided to walk with a couple of friends along the main road to get to where she would stay overnight. It was about a ten minute walk from the premises. EV and JUH had left a few minutes earlier, walking in the same direction.
Within five or ten minutes, the witness heard a very loud car noise as if something had hit some trees. She and a friend ran to the scene of the accident where she saw JUH screaming at JR “you hit her”. JR was standing by the driver’s door rather motionless. DL yelled at him “did you hit her” and JR said yes. She immediately left searching for EV in the wooded area and found her lying under bushes. DL called 911 and within minutes, DM, the off duty firefighter living across the street, arrived at the scene and began CPR.
DL stated JR should not have been driving because he was drunk. She based that on her observations and experience with him that evening. She stated that in all the years she had known JR, his behaviour that evening was unusual.
On cross examination, DL stated that although she did not specifically pay attention to JR after he arrived at The Point, she saw him consistently throughout the night talking to various patrons. She disputed the suggestion that JR may have left The Point several times. She saw him frequently enough during the night to feel as if he had never left. She acknowledged that although she was uncertain as to what JR was drinking, every time she saw him during the course of the evening he had a drink in his hand and he talked loudly. She did not see him drinking in his car.
DL was questioned about her statement to the police and some inconsistencies with her testimony. She amended her statement as to how many drinks she consumed during the evening and agreed it was possible she had five drinks and not three. It was also possible that she did not use the word “slurring” when she described JR’s behaviour at the bar. DL was very certain about all the other events and she emphasized her testimony was exactly how she remembered the evening. It was a night she would never forget as she lost her best friend who was like a sister to her.
In further cross examination, DL reiterated four observations during the evening that led her to believe JR was intoxicated. These were: 1) JR unhooking EV’s bra through her shirt, 2) JR’s rude remark to her about her bust size, 3) JR’s behaviour with the two girls at the washroom and 4) JR’s slurred speech, swaying back and forth, stepping side to side and speaking louder than necessary.
In re-examination, DL stated that she consumed two or three rye and ginger and two shots that evening.
To a question from the Tribunal, DL responded that she saw JR inside the bar about five times between 11:30 p.m. to 1:30 a.m. She last saw him around 2:00 a.m. in his car doing burnouts in the parking lot.
Evidence of JAH
JAH is 28 years old and twin brother to witness JUH. Both were close friends with JR for three or four years. JAH related that around 2:00 p.m. on March 17, 2012, he drove alone to meet friends at a trail in a rural area to do off road driving. JR and JUH were part of the group. The friends drove trucks around ponds and trails, had a small BBQ and left around 5:00 or 6:00 p.m. He drank a couple of beers and he assumed JR was drinking, but could not recall how much. The friends regrouped about an hour later at another track location. He drank a little more, but was vague on what JR or others consumed.
Around 9:00 p.m. JAH drove his truck to The Point. JR and JUH were already at the bar. He ran his own tab and drank five or six rum and coke during the evening. He recalled JR drinking at the bar. As JAH was busy talking to friends, he could not say how many drinks JR consumed. The bar was busy and he spent little time with him. He was told after the night in question that JR had been asked to leave the bar because he tried to steal a bottle of liquor. JAH had no personal knowledge of this happening, nor could he speculate as to what time it may have occurred.
JAH testified he left The Point around 1:00 a.m. and drove his truck home. He did not see JR leave The Point, nor was he ever a passenger in his car.
On cross examination, JAH stated that he could not fully remember details of his statement to the police. It was possible that he stated he overhead the bartender telling JR to leave the bar around midnight. He was unsure if afterwards he saw JR around the bar. What he does recall is the bar was fairly dark, the light was blocked by the large group of patrons, music was playing and it was a busy place. As the incident happened over a year ago, he found it difficult remembering some things.
In re-examination, JAH acknowledged that only a few weeks ago he had a conversation with the bartender (SB) and they talked about JR trying to steal a bottle on the night in question.
Evidence of JUH
JUH is 28 years old and works as a diesel mechanic. He has attended The Point on a regular basis and described it as his “local”. He has been friends with JR for about three years.
On March 17, 2012, in the early afternoon, JUH and JR spent most of the afternoon with his brother JAH and friends at a rural location mudding, meaning off road driving. JUH had filled a cooler with beer and everyone was drinking. He drank two beers and was uncertain as to how many JR or JAH consumed.
Around 6:30 or 7:00 p.m., JUH and JR left the first location in JUH`s truck. JUH bought more beer and topped up the cooler. They drove to his residence where JR picked up his car and transferred the cooler to the back of the car. They drove to another motocross track. Within an hour, they left as very little was happening. While at the second track, they had nothing further to drink.
Around 9:00 or 9:30 p.m., JUH and JR drove to The Point in JR’s blue Subaru. JR was driving. When asked about JR`s state of sobriety at the time, JUH stated he was probably buzzed, you could smell it off him.
Upon arrival at The Point, JUH stated it was not too crowded. JUH and JR stood at the service bar and each ordered a double rye and coke. JUH ran a tab and added JR’s drink to his tab. He stated JR was served four double rye and coke over the next 1½ hours. He described him as drinking fast and “putting them back pretty good``. JR became intoxicated and began to slur his words.
JUH consumed four or five double rye and coke during the evening. He estimated spending about $100 to $120 and he could not remember getting a receipt. JUH stated it was possible that friends bought drinks for himself and JR. It was a custom among friends to buy drinks for one another. Approximately fifteen of the patrons in the bar were friends or acquaintances. JAH ran his own tab.
Around 11:00 p.m., JUH met up with DL and EV, who were paying for their own drinks. JUH turned his attention to EV, whom he was dating. The bar became crowded and after 11:30 or midnight, he did not see much of JR. He stated he was never asked by the bartender to remove JR from the bar that evening. He recalled earlier in the evening having a conversation with JR and telling him not to drive home. Their plan was to drink at The Point and walk home to JUH’s house which was ten minutes away.
Around 2:00 a.m., he and EV left the bar and began walking against the traffic, down the main road, away from The Point toward his house. Within a very short time, he saw a car coming toward them at a very high speed. He tried to push EV out of the way and almost immediately the car drove on the front lawn of a property, cutting a path through trees, bushes and posts. JUH, unable to see EV, believed she was under the car. He approached the car and noticed JR still in the driver’s seat attempting to start the vehicle. JR got out of his car and JUH described him as ``absolutely hammered” and unable to stand. JUH, angry and irate, began to scuffle with him. They were separated by bystanders and JR ran off. EV was located under the bushes and 911 was called. An off duty fire fighter who lived nearby arrived at the scene and began performing CPR.
On cross examination, JUH stated that when JR drove to The Point “his driving was not so bad”. He smelled of alcohol and his eyes were getting glossy. JR knew several of the patrons at the bar and he mingled around. JUH did not always see him. He last saw JR around midnight. When Mr. Dunstone asked JUH if he recalled in his statement to the police stating JR was gone for three hours during the evening, he answered no. The Tribunal was subsequently advised by Mr. Morris and Mr. Dunstone that a review of the audio recording of JUH’s statement to the police, (Exhibit 6) confirmed no such statement was made by the witness.
JUH confirmed that he did not witness JR being kicked out of the bar because he tried to steal a bottle of liquor. He reiterated that he consumed four or five drinks that evening. He confidently repeated that he saw JR consume at least four drinks between 9:30 and 11:00 p.m.
In re-examination, JUH stated it was after the night of the accident that he heard JR was kicked out of the bar. He was uncertain who told him and added things and stories got mixed up so much. Since the night of the accident, he has not talked with the bartender (SB) who was working the evening.
Responding to questions from the Tribunal, JUH stated there was one server behind the service bar from 9:30 p.m. to midnight. He believed there may have been another male server on the floor (MO), but he was uncertain. Over the past three years, he has attended The Point every couple of weekends. His alcohol consumption on the night in question was no more than usual. Although JR did not attend The Point as often, he was known to the establishment.
Evidence of MR
MR was a patron at The Point on March 17, 2012. Previously, when he lived in the area, he considered the bar his “local”. Upon arriving at around 11 p.m., he ordered a drink and mingled with friends. As there was standing room only, he stood behind patrons seated at the service bar. MR consumed four or five beers during the evening.
Shortly after his arrival, he bumped into a male patron, who he did not recognise. The patron was later identified to him as JR. JR began talking to him in a weird manner, making strange and odd comments. JR was drinking what looked like a beer. MR thought JR was “looped” and on drugs and moved away from him. He did not see him after that time.
Shortly after 12:00a.m., while outside on the patio, MR heard a car screaming in the parking lot, quickly make a u-turn and race down the road. He did not see the driver and described the car as a dark blue Subaru. About one half hour later, the same car screeched into the parking lot, stopped and the car’s interior light came on. MR did not recognize the driver’s face and he saw two girls in the rear seat. The car sped off the wrong way down a one way street.
On cross examination, the Licensee filed an email written by MR dated January 8, 2013 (Exhibit 13). In reviewing the document, MR stated the Licensees have been known to him for some time and he described them as responsible operators. He has seen them drive patrons home and he knows they have barred unruly patrons. He acknowledged he heard, after the accident, in conversation with an employee of the bar, that JR had been cut off because he was acting very strange. He did not personally witness this occurrence.
On re-examination, MR repeated that Mary Charlebois, the Licensee, offers rides to patrons even if they have had one or two drinks and not necessarily because they are drunk. MR admitted he has no first hand knowledge of a patron being barred by the Licensee and he was told of one such occurrence by an employee. He confirmed the bartender on duty told him a few days after the accident that JR was cut off.
In response to a question from the Tribunal, MR stated there was one male server, SB, working during the evening. He recalled seeing Mary Charlebois on the premises. He was uncertain as to whether or not she was serving drinks.
Evidence of JR
Prior to the witness’ testimony, Mr. Morris advised the Tribunal that JR pled guilty to two criminal offences related to the fatal accident. Mr. Morris filed three documents related to the criminal proceedings: (1) a transcript of the guilty plea (Exhibit 8; (2) an agreed statement of facts (Exhibit 9); and (3) a transcript of the sentencing hearing (Exhibit 11). A conviction was registered by the Court. The witness is currently serving a term of imprisonment and Mr. Morris added that he is testifying voluntarily and not under the force of a subpoena.
JR is 24 years old and previously worked on a farm. On March 17, 2012, he and JUH went to a rural area for off road trail riding. JUH was one of his best friends at the time. JUH drove his truck and they purchased beer at a local store. JR purchased three tall cans of beer and JUH a case of beer, all of which went into a cooler in the rear of the truck.
JR recalled about fifteen people at the trail when they arrived around 2:00 p.m. JAH had driven to the trail in his own truck. Several others had brought beer for the afternoon. He recalled drinking three tall cans and another beer. He did not eat any food during the afternoon.
Around 6:00 p.m., JUH purchased another 24 case of beer to top up the cooler as they were regrouping with friends at another motocross track. A good part of the original beer had been consumed in the afternoon. JUH drove to his house and they switched to JR’s car. JAH was driving elsewhere to assist a friend and as he wanted to free up space in his truck, he transferred his case of beer to JR`s car. JR did not drink at the second track. JR and JUH left around 7:30 p.m.
Between 9:00 and 9:30 p.m., JR drove with JUH to The Point. JR parked his car in the front parking area near the establishment’s lighted sign post. When asked about his level of sobriety upon arriving, he stated he was sober.
JUH and JR stood at the service bar drinking and talking to friends who had gathered for the evening. JR was familiar with the bar as in the past two years he’d been at the premises six to twelve times. JUH and JAH attended The Point more often.
JR stated he had $40.00 on him and when he first arrived he purchased two bottles of beer. Between 11:30 p.m. and 1:30 a.m., he drank five rum and coke and half a bottle of beer. He believed the drinks contained one ounce shots. JUH was paying for the drinks and had told JR to drink what he liked. JUH often bought drinks for his friends. It was a common practice among friends to buy each other drinks.
Around 11:30 p.m., JR and JUH met up with DL and EV who were standing at tables near the service bar. Around 1:30 or 1:40 a.m. he left the bar, walked out the front door of The Point to his car in the parking lot. He left the bar with JAH who had asked him for a ride home. He dropped off JAH and he decided to drive home. While driving on the main road, he remembered speeding. He lost control of his car while he was adjusting the volume of his stereo. The car hit mail boxes, cable boxes, shrubs and stopped on a front lawn. He had no idea that he had hit a pedestrian.
When he got out of the car, JR was confronted by JUH who was screaming, yelling and telling him that he had hit EV. They got into a scuffle and JR left the accident scene.
When asked about his level of sobriety when leaving The Point, JR stated that he was intoxicated. He denied doing “burnouts” in the parking lot before leaving. He did not remember unhooking EV’s bra. He did not recall making a rude comment to DL but admitted it was possible he did so. He recalled being in the washroom with two young girls around midnight and the girls may have left after the incident. JR denied they were passengers in his car.
JR further denied he left The Point for a three hour period during the evening, drove around and attended a private party elsewhere. He denied being rude and abrupt to the bartender and denied that he was told to leave. He denied grabbing a bottle from the service bar and certainly not Tequila or Sambuca which he does not drink. He further denied being kicked out of the bar. He left because it was last call and he had to work early in the morning. JR indicated between leaving the bar to the time of the accident, he did not consume any additional alcohol.
On cross examination JR stated in the past he drank about three times a week. With five beers he would feel “buzzed” and not show outward signs like stumbling. When told that in previous testimony he was described as “hammered” at the scene of the accident, JR was surprised. He responded that at the accident he only had contact with JUH and he felt JUH had drunk as much as him, if not more.
The Tribunal listened to segments of an audio recording of JR’s statement to the police on March 19, 2012, (Exhibit 12). JR was challenged on the inconsistencies in the recording and his testimony. JR agreed telling police he had no money on him when he got to the bar and he had left his car at JUH and JAH’s house. He also stated that he had walked to the bar and he had no idea at what time he left The Point that night.
JR stressed his recollection of the nights’ events is better now than when he was interviewed by the police. When he talked to the police, he had just turned himself in and was still in a complete state of shock. He has replayed the night’s events and stands by his testimony to the Tribunal. He maintained he had money to buy his first two beers. He left the bar around 1:30 a.m. in his car to drop off JAH. He never planned to stay there overnight. He was driving home when within ten minutes he lost control of his car and the accident happened.
On re-examination, JR stated JUH was as equally intoxicated as he was and perhaps more. He did not recall JUH being intoxicated when they first arrived at the bar.
In response to questions from the Tribunal, JR stated while standing at the service bar, earlier in the evening, he saw two servers, a male and one female who alternated service. The female server knew him as he had previously been at the bar with his father who had lived in the area for twenty years. JR was adamant he was never refused service nor did any server ever tell him he had too much to drink.
Evidence of Inspector Mark Lambert
Since July, 2006, Mark Lambert has been an inspector with the Alcohol and Gaming Commission of Ontario (AGCO) responsible for the area which includes The Point. As a result of the fatal accident of March 17, 2012, Inspector Lambert conducted an investigation of the licensed premises pursuant to the Act
On the evening of March 19, 2012, he attended The Point and spoke to several staff and specifically interviewed SB and SW, the two servers on duty on the night in question. One other server, MO, was not interviewed as his shift that day had ended at 7:00 p.m.
Inspector Lambert was accompanied by an Ottawa Police detective who was conducting a separate criminal investigation of the accident. On March 20, 2012, Inspector Lambert returned to the premises and interviewed Mary Charlebois, the Licensee.
SB related the following information to the Inspector during his interview. He indicated the bar was busy during the evening and he estimated forty to fifty patrons on the premises. Inspector Lambert confirmed the legal capacity of the bar is sixty patrons. Mary Charlebois and SW were also working. SB recognized JR from the police photo identification.
SB stated that JR arrived at the bar with JUH and JAH and EV around 9:00 p.m. They had a few drinks and SB did not remember seeing JR for some time. SB at first was unsure as to whether or not he had served JR alcohol during the evening. He subsequently recalled JR had asked for a beer and he told SB to charge it to JUH’s bar tab. SW had started the bar tab for JUH. SB believed JUH and JAH were buying drinks for a group of four people sitting at a table. To better understand the level of intoxication at the table, Inspector Lambert asked SB if he would have allowed any of them to drive a vehicle. SB stated “no way, they had a lot to drink but they were not drunk”.
Later in the interview, SB acknowledged he may have served JR one or two rum and coke; however he was unsure as JUH and JAH were buying the rounds. JUH`s bar tab at the end of the night was approximately $80.00, which he paid by cash.
SB stated JR tried to steal a bottle of rye from the bar rail. JR had leaned over the bar rail twice. SB had stopped him and he spoke with JUH and JAH and asked them to control JR or “get him out”. In response to the Inspector’s questions as to whether or not JR showed signs of intoxication or if he was intoxicated, SB stated “I can’t really say; he was not fall down drunk”. SB twice refused JR alcohol service because he tried to charge drinks to JUH’s bar tab and because he was “being a goof trying to steal from the bar rail``. Around 12:15 a.m., SB saw JR again when he claimed JR came “speeding up in his vehicle that he described as a blue Subaru”. SB indicated three other patrons witnessed the same driving incident.
SB could not recall any door security and stated he would have acted as security if he had not been working the bar. He was serving behind the bar, SW was waiting tables and Mary Charlebois was cleaning tables and “driving drunks home”.
SW, the second server, related the following information to Inspector Lambert. She recognized JR from a police photo. SW confirmed JUH and JAH were buying drinks for everyone that evening. She had started their bar tabs. She left The Point around 10:30 or 11:00 p.m. to go home as her daughter was ill. She drove MO home as he had finished his shift. While she was on duty, SW did not recall any issue. She stated JUH and JAH paid their tabs.
Mary Charlebois related the following information when interviewed. On the evening in question, there was no table service, only bartender service. There was no hired security as she herself was acting as security. She confirmed approximately sixty persons were on the premises, both inside the bar and the outside patio. She did not recall any issues or fights during the evening.
Mary Charlebois knew JUH, JAH and EV as patrons. She was unsure if she recognized JR. When she discussed the condition of patrons, she stated DL and EV were not big drinkers and the boys (JUH, JAH and JR) normally drank beer, rye or rum and coke.
Inspector Lambert focused on the amount of alcohol consumed during the evening. As Ms. Charlebois had indicated the males in the group were drinking the most and the two females were not big drinkers, the Inspector concluded, given the number of drinks listed on the bar tabs, that a high amount of alcohol had been consumed by the three males over a three to four hour period. The Licensee made no comment on the Inspector’s analysis and conclusion.
The Licensee stated she would not have allowed JUH to drive in his condition. JR left the bar when JUH and JAH took him out of the bar as he was trying to steal a bottle of liquor. Inspector Lambert asked Ms. Charlebois if the bartender SC had refused or stopped service to a patron. She could not say that SB had cut anyone off.
Inspector Lambert reviewed a copy of an itemized printout of the bar tab made available to him during his investigation (Exhibit 14). The printed copy of the bill indicated fifteen double liquors, two import beer and four one shot liquors. As the photocopy was poor, the total cost was not clear. He was unable to state whose handwriting was on bar tab.
On cross examination, Inspector Lambert indicated his investigation was limited to the staff and Licensee of The Point. No patrons were interviewed and no written statements were obtained from the employees. Inspector Lambert acknowledged that during an investigation, he routinely reminds a licensee to alert employees of the severity of false or misleading information to police or inspectors. In the event of an error or omission, employees should feel comfortable to later contact the inspector. When asked if he suspected The Point staff withheld information during his interviews, he stated no.
In further questioning, Inspector Lambert reaffirmed SB did not use the word “cut off” when he described his actions toward JR’s behaviour at the bar. SB refused to serve him because he was a “goof” for trying to steal liquor and put drinks on someone else’s tab.
Inspector Lambert was also questioned about his conclusion that a high amount of alcohol was consumed by the three males. The Inspector was confident with his analysis and conclusion. He reaffirmed SW told him JUH and JAH were buying rounds and by that she meant for the group at the table and not for everyone in the bar.
In response to a question from the Tribunal, Inspector Lambert indicated that the employees and the Licensee cooperated with his investigation and answered questions in a timely manner.
Evidence of Constable Kevin Bradford
Kevin Bradford is a Constable with the Ottawa Police. On March 20, 2012, he examined the vehicle involved in the accident and seized and tagged the contents related to the investigation. The vehicle was a blue Subaru Outback wagon. On the front seat console he found a partially full 355 ml can of beer. In the rear passenger area, he found one opened 24 case of beer with ten empty bottles and one 473 ml empty beer can scattered in the case. In a cooler, he found four 473 ml unopened cans of beer, 21 unopened 355 ml cans of beer, one unopened beer bottle and one 355 ml unopened can of Red Bull.
Constable Bradford had no information as to the source of the alcohol found in the vehicle.
Evidence of Detective Cameron Graham
Cameron Graham is a Detective with the Ottawa Police Collision Investigative Unit. He is also an expert in collision reconstruction. Around 5:00 a.m. on March 18, 2012, he attended the scene of the fatal accident. The paved road conditions were dry and the rural area was misty with fog, very dark with very little artificial light. The posted speed limit was 40 kilometres per hour.
Detective Graham stated several factors were taken into consideration in the reconstruction of the accident. Based on the accident scene, he estimated the car was likely travelling between 61.9 to 75.7 kilometres an hour. Based on the direction of the vehicle, the victim was walking on the shoulder of the road facing oncoming traffic. Upon impact, the victim’s body was thrown 32 meters, travelled through bushes and possibly hit a tree.
Detective Graham stated the vehicle likely took a long sweeping arc at a continuous speed as there was no evidence brakes were applied, emergency steering was attempted or that the driver reacted to hitting someone.
Evidence of Constable Mark Lystiuk
Mark Lystiuk is a Constable with the Ottawa Police. On March 18, 2012, he was dispatched to the accident which occurred between 2:00 to 2:30 a.m. Upon arriving at 2:45 a.m. he witnessed a very chaotic and aggressive scene. Approximately twenty people were crying, yelling, shouting, pushing and milling in the centre of the road. It was evident the majority of the persons were intoxicated and certainly most had been drinking.
Constable Lystiuk spoke to an “AS” whom he knew from his nine years of patrol work in the area. AS told him DL, JUH, EV and JR were at The Point in the evening. AS and DL indicated they were first on the scene of the accident and JR was the driver of the vehicle. Although DL and AS were overwhelmed with grief and extremely distraught, Constable Lystiuk had no problems understanding their conversations.
Constable Lystiuk stated JUH was loud, very distraught, intoxicated and “beside himself”. He was certain JUH and others at the scene had surmised EV had been killed. JUH told him he saw the car coming toward them and he tried to push EV to safety. In approaching the car, JUH realized JR was driving. He pulled him out of the car, punched him in the face and JR ran away.
Constable Lystiuk stated JUH was overwhelmed by the accident. He was very angry and so agitated that he could not calm him down. He was pacing back and forth and would not sit still to talk. He was in no condition to provide a written statement.
On cross examination, Constable Lystiuk stated JUH was in a state of shock.
In response to a question from the Tribunal, Constable Lystiuk stated JUH was filled with emotion, anger and rage and showed signs of intoxication. Despite a disjointed conversation, he understood what he was saying.
Evidence of Constable Kevin Myers
Kevin Myers is a Constable with the Ottawa Police. Around 2:45 a.m. on March 18, 2012, he arrived at the scene of the accident. He was dispatched to manage the accident scene which was filled with multiple vehicles, an ambulance and a large group of people. He witnessed several people who showed signs of intoxication.
He took a statement from JUH as he was the person who had witnessed the accident. JUH related he had been at The Point during the evening with EV and other friends. JUH and EV had left around 2:00 a.m. to walk home. JUH saw the car speeding, tried to push EV out of the way and the car ran over her. JR, his friend, was driving the car.
Constable Myers stated JUH was extremely upset, distraught, yelling, screaming and angry at police and JR. It was obvious he had been drinking and he was not in a condition to drive anywhere. He was not prepared to comment more on his state of sobriety as JUH had just witnessed his girlfriend run over by a car.
On cross examination, Constable Myers confirmed JUH and EV left The Point around 2:00 a.m. Constable Myers stated the time made sense as it was approximately a seven to ten minute walk from The Point to the accident scene.
Evidence for the Applicants
The evidence of the Applicants consisted of oral testimony of four witnesses.
Evidence of Mary Charlebois
Mary Charlebois is a co-licensee, with her husband Richard Charlebois, of The Point. They have owned the establishment for 23 years. Of the seven employees, one is full time and the others are part-time. The Point is the family’s sole source of income.
On March 17, 2012, Ms Charlebois worked at the premises most of the day and evening. She did general security of the premises and did not work the service bar. It was a Saturday, St. Patrick’s Day, and the bar was busy with a day and evening crowd. It was a normal day and she did not see any patrons in a state of intoxication. She was not drinking that evening.
She knew JUH and JAH as regular patrons. As EV was not a regular at the bar, she only knew her to recognize her. She did not know JR as she had not previously served him at the bar. When the police investigator showed her a picture of JR, she did not recognize him. She did not recall seeing him on the premises that evening.
Around 9:00 p.m. she left The Point to drive her husband home which was a short distance away. When she returned around 9:45 p.m., she estimated the crowd at about thirty patrons. As there are no taxis that service the area of bar, regular patrons know to ask her for a ride home. During the evening she made “three or four runs”, i.e., driving patrons home. She estimated she was absent from the bar for perhaps thirty to forty minutes. When asked as to whether or not she would have let JUH drive home, she answered no. She thought he had been offered a ride home and he had declined.
Around midnight when she returned from a run, SB told her he had kicked out a person for trying to steal liquor. After the accident, she heard it was JR.
During the interview with Inspector Lambert, she felt intimidated by the tone of his caution and his questions on the patrons’ consumption of alcohol. She felt he was lecturing her on overserving. When she allocated the drinks on the bar tab sheet, she was satisfied there was no over service as the alcohol consumption for JUH, JAH, JR, DL and EV was within the two drinks, per hour, per person guideline previously recommended to her by the Inspector.
Ms Charlebois stated that as owners of The Point they have been active in a number of fundraising and charitable events in the community. The March 17, 2012 tragedy has affected the business. A licence suspension would have a serious financial impact on her family and the employees. It would further impact the reputation of the business.
On cross examination, Ms. Charlebois agreed that, given the location of The Point in a community surrounded by a rural area, a car could leave the parking area very quickly and not be seen by the patrons on the patio.
She stated she was perhaps more upset with Inspector Lambert’s tone than his caution during his investigation. When questioned on the establishment’s five previous suspensions between 1996 and 2005, the Licensee stated it was a long time ago and she could not remember specific details. For the past six or seven years, she has dealt with Inspector Lambert without issue.
Ms. Charlebois conceded she was uncertain as to how she learned about JR’s behaviour during the evening. She accepted it may have been important to report JR had been kicked out of the bar in her statement to the police and in the interview with Inspector Lambert.
The witness confirmed she did not witness JR steal alcohol nor did she see JUH or JAH take him out of the bar. The bar was busiest around 11:00 p.m., with forty to sixty patrons present. She had planned for two bartenders to work that evening and accepted she was short staffed when one server left early. When asked why she continued to drive several patrons home while short staffed, she stated the “runs” were short. She refuted the suggestion that she drove patrons home as they were intoxicated and not in condition to walk or drive home.
The bar tab sheet was reviewed. She agreed it was her writing. The allocation of drinks was based on information provided to her by SB. She conceded having no personal knowledge of what JUH, JAH, DL or EV drank that evening. She agreed Exhibit 14 is no proof of how much each person drank or who bought drinks for others. She accepted the guideline of two drinks per hour per patron is not a fixed rule and its relevance depends on a number of factors. She conceded a second bar tab sheet was likely in use therefore making it possible that thirty or more patrons were running tabs during the evening.
Since the accident, she has been part of five or six discussions with SB and others about the evening’s events. There has been a lot of talk in the small community as many of the patrons knew each other well. The fatal accident has affected the entire community.
In response to questions from the Tribunal, Ms. Charlebois was asked how she knew EV was not a big drinker given she did not know her as a regular patron. She responded that DL often came to The Point with a group of girls and they never drank very much. She believed DL and EV were together that evening and added “the girls never looked anything but sober”.
On re-examination, Ms. Charlebois agreed she allocated the drinks to JUH, JAH, DL and EV based on what SB remembered. SB told her that around 2:00 a.m., JUH paid for both his bill and that of his brother JAH. Apparently JAH had left the bar without paying.
Evidence of KD
KD was a patron at The Point on March 17, 2012. She does not drink alcohol and does not consider herself a regular patron. She was previously employed at the establishment from 2005 to 2008. She has her Smart Serve certification and is licenced as a security guard.
KD arrived at The Point with a girlfriend around 11:30 p.m. She recognized JUH, JAH, DL, EV and JR at the bar. Shortly after purchasing a non-alcoholic drink at the service bar, and as she walking away, JR bumped into her and excused himself. She described him as being energetic, more on drugs than overly intoxicated. He was coherent enough to excuse himself. It was a very brief conversation. KD could not recall if he was drinking or not. She did not see him afterwards. She could not say if he left or simply that she did not see him on the premises.
KD spent most of the evening outside on the patio talking with friends. At one point, while talking to Ms. Charlebois, she saw a vehicle going over a snow bank away from The Point property. She did not see the driver or any passengers. She remembered the car looking like a Subaru wagon-like vehicle. She had no knowledge of whether or not JR had driven to The Point.
KD stated there were forty to fifty patrons while she was at The Point. Between 1:00 and 2:00 a.m., the crowd started to dwindle. Ms Charlebois drove some patrons home while several others chose to walk. KD was preparing to leave when she was asked by a patron for a ride to an accident nearby involving EV.
Upon arriving at the scene, KD saw a vehicle on the side of the road and witnessed JUH pulling JR out of the car and being very upset. Although JUH and JR began to scuffle, KD focused her energy on locating EV and performing CPR as soon as possible. She was assisted in this regard by the off duty fire fighter and the paramedics who had arrived at the scene.
KD returned to speak to JUH and saw JR was no longer at the scene of the accident. JAH arrived shortly after the victim had been removed by the ambulance. He was frantic and relieved to see his brother. KD heard him exclaim “I told that idiot not to leave. I told him to stay here. I was going to bed, you are not going to be served at the bar anyway and everybody is coming back here”. KD interpreted the remark as meaning that JR was to stay overnight with JUH and JAH and he was not to drive as he had been drinking. Based on their appearances, KD stated it was obvious that JUH and JAH had been drinking; however they did not seem overly intoxicated.
KD stated she known the Licensees since she was twelve years old. She considers them responsible owners. Ms Charlebois goes out of her way, on a year round basis, to ensure patrons get home safely. KD indicated a patron need not appear intoxicated to be offered a ride home.
On cross examination, KD acknowledged in the past year she has talked on a few occasions with members of the community about the night’s events. It is an evening she prefers not to remember. She no longer lives in the community and she had attended The Point perhaps five or six times in the past year. Although she is friends with the Licensee, she does not see her socially.
KD indicated when she arrived at The Point there was one server and a mixed crowd of young and older patrons. Throughout the time she was there, she did not witness any patron fall down drunk or vomit.
The Tribunal listened to segments of an audio recording of KD’s statement to the police on March 24, 2012, (Exhibit 18). In her statement, KD indicated the patrons at The Point were coherently drunk. She had previously been given this definition by Inspector Lambert to illustrate a type of intoxicated patron who wobbled and slurred words. The other type of intoxicated patron would fall down, vomit and not remember their name, which was not the case that evening. She also stated she would not have given any patron a set of keys to drive that night. Everyone had been drinking a fair amount as it was St. Patrick’s Day. Although it may seem as if she was defending the Licensee, KD stated Ms Charlebois, the bartender and herself took every precaution to ensure everyone got home safely.
KD was queried on her statement to the police concerning JR’s state of sobriety. She had confidently stated to the police she would not have allowed JR to drive that night. If JR had bumped into her, it meant he was not steady on his feet. She had based this statement on a very short interaction with JR. In her testimony, she stated JR was not overly intoxicated, meaning he was able to stand, he was not falling down and he was able to say sorry when he bumped into her. KD accepted that perhaps her memory was fresher and more accurate one year ago when she spoke to the police. She added she has not seen or talked to SB, the bartender on duty, since the accident.
KD agreed some patrons were driven home because they had been drinking too much to drive. KD accepted some patrons were in that condition, but not all patrons. KD has always helped out the Charlebois’ when she has attended the bar to socialize. She agreed it was not her role to monitor patrons. However, it was an acceptable practice for patrons to help each other out. She added she would not have allowed either JUH or JAH to drive that night, although she did not know how much they had to drink and actually she did not see JAH at the bar. When at the scene of the accident, KD could not tell who was intoxicated as emotions were running very high and everyone was very upset.
KD confirmed no first hand knowledge concerning the type of vehicle in the parking lot, or the driver of the vehicle or from what direction the car came from. She did not observe SB cut off JR that evening night and she has no knowledge of when he may have left the bar.
On re-examination, KD indicated she did not see JUH and JAH sitting together at the bar. She knows them to be close as brothers and twins; however, they do not necessarily always stick together to do things.
In response to a question from the Tribunal, KD stated that based on her previous experience in the hospitality industry, managing forty to sixty patrons would be significant work for one bartender.
Evidence of DC
DC is a regular patron at The Point; he attends the bar a couple of times a week after work. On busy nights, generally speaking, two employees are on duty bartending, serving and cleaning. He does not know JR personally, but he knows him to recognize him. He knew of JUH, JAH and EV, but not personally.
On March 17, 2012, DC arrived at the bar between 9:00 and 9:30 p.m. He spent about an hour chatting with old friends at a table and later sat at the end of the service bar. DC indicated he first saw JR when he was sitting on the bar stool. DC had his back against the wall and a girl was standing between his legs facing outwards when JR got very close to the girl. DC pushed him away and JR retreated. JR looked “out of it”, meaning glassy eyed and very lethargic although he was not stumbling. He next observed JR making an inappropriate gesture to an off duty staff member. DC told him to “back-off” and he did. There was no verbal response from JR on either incident. When asked if JR was drinking, DC recalled JR had a drink in his hand, possibly a bottle of beer.
Later in the evening, DC saw JR reach over the service bar and grab a bottle of liquor. He yelled at him “hey buddy” and at the same time SB, the bartender came out of the back kitchen area and yelled something to JR. DC thinks it was at that point that SB “kicked” JR out of the bar. He could not state whether or not JR was then “cut off” or refused service. After 11:30 p.m., DC did not see JR.
Later on, while sitting at the service bar and close to a window overlooking the patio, he saw a car slowly drive into the parking lot and quickly drive away, down the one way street. The car looked like a bronze or gold SUV or Jeep. He is uncertain about the colour as he is color blind. He could not identify the driver or any passengers as it was too dark. Around 2:00 a.m., while walking home along the road, DC saw the same car travelling very fast around the corner of the road. He could not identify the driver.
DC stated he left his car at the bar and chose to walk home from The Point that evening as he felt he was over the legal limit to drive. He has lived in the area for two and one half years and he described the owners as careful operators who have driven him home on occasions when he has had too much to drink.
On cross examination, DC stated he is friends with Mary and Richard Charlebois and two of the female employees. He is not friends with SB, the bartender on duty that evening. He was not under the influence of alcohol or drugs prior to arriving at the bar. He paid for his own drinks that evening and stated he drank four or five gin and soda.
DC acknowledged that he did not know JUH, JAH and JR prior to the events of the evening in question. When he first arrived, there were a handful of patrons present. His first encounter with JR was around 10:30 p.m. when JR pushed himself against the girl near him on the bar stool. DC further described JR squatting and looking up the skirt of the off duty staff member who was sitting on a bar stool. DC agreed that JR showed signs of intoxication from either alcohol or drugs or both.
DC confirmed he saw JR lift the bottle from the rail and immediately put it down when the bartender said something to him. He does not remember hearing what was said. DC saw JR walk away from the bar toward the door. He was walking with another male who he did not recognize. He did not see JR exit nor could he say if he left the bar. He knows he did not see him after that time.
Evidence of SB
SB was the bartender on duty at The Point on March 17, 2012. He has worked on a part time basis at the establishment for about 12 years. He knew both JUH and JAH for years and only met JR that evening.
SB arrived at The Point at 9:00 p.m. as a back up server to SW who was working as the main bartender. Soon after he started his shift, SW advised SB she wanted to go home as her daughter was ill. SB agreed as it was not too busy at the time, perhaps ten patrons, and he took over as bartender. No table service was provided as he was alone as bartender.
Around 9:15 p.m., JUH walked into the bar with a male and introduced JR as a friend. JUH ordered a drink for JR. Around 9:45 p.m., JUH ordered another drink for himself and indicated to SB that it was “ok.” to add another drink for JR to his tab. JUH began talking to DL and EV. JR mingled with the crowd of patrons.
Around midnight, JR returned to the service bar and asked SB for a drink on JUH’s tab. SB refused him because as a rule a drink is not added to a tab unless the tab patron is present to authorize the purchase. SB stated that while at the bar fridge with his back to the front of the bar, he heard the clinking of a bottle. He turned around to see JR with his hand on a bottle lifting it out of the bar rail. He told him in very short words “you are out of here, get out, and get going”. JR abided, turned around and started to walk toward the door. SB came out of the service bar area and saw JUH nearby. He told him what had happened and JUH said he would take care of it.
Around 12:45 a.m., SB heard a commotion and spotted JR in the area. SB thought JR sensed he had been spotted and headed toward the door. SB approached JAH who was sitting on the side of the service bar and told him that he had kicked JR out once previously and he did not want him at the bar. JAH responded with “don’t worry SB; I will take care of it”. Approximately five minutes later, JAH approached SB and said “he is gone, don’t worry he is not coming back”. SB did not see JR again that evening. He believed JAH may have left the bar around 1:30 a.m. However, he could not be certain as JAH left without paying his bar bill.
SB indicated The Point was busiest around 1:30 a.m., with thirty to forty patrons inside the bar. Due to the nice weather, patrons were also drinking on the patio. Ms. Charlebois was on site during the evening cleaning tables inside and outside and driving patrons who wished to have a ride home. He estimated she was absent for approximately twenty minutes during the evening while driving patrons home. SB stated it was a calm night with no fights, and patrons were having a good time. He believed he had adequate control of the bar. When the crowd increased, he was busy at the service bar area and could not often see beyond the first row of patrons who were standing throughout the night.
His interactions with JR were extremely brief and he saw no obvious signs of intoxication. He was not slurring his speech and the request for a drink on JUH’s tab was a straight question. He found JR reaching over for the bottle to be unusual behaviour. SB had only once before encountered this type of behaviour from a patron. JR was refused service because of this behaviour and not because he was intoxicated.
SB described how he assesses patrons to determine a refusal of service. If a patron comes into the bar intoxicated, the individual will not be served and efforts will be made to take the person home. If a patron is power drinking and begins to show signs of intoxication, he will slow them down by serving the patron nonalcoholic drinks. If a patron is intoxicated he will cut them off and, if applicable, cut off the patron running the bar tab.
On cross examination, SB indicated he has worked part- time at The Point from 1999 to the present. He pointed out that although he still considers himself an employee of the establishment, he no longer works shifts. Mr. Morris reviewed The Point’s record of five suspensions with the AGCO from 1996 to 2005. SB acknowledged he was on duty as a bartender during one suspension in 2003.
SB agreed the bar was almost at its indoor legal capacity and he could not estimate the number of patrons on the outside patio. He was working alone at the service bar and there was no table service as the other scheduled server had gone home. It was busy and the diverse crowd of young and older patrons went back and forth to the patio. As there was no employee serving tables, SB agreed the normal monitoring of patrons drinking at tables was not possible. He agreed he could not see much of what was going on beyond the service bar. Furthermore, as he was alone providing bar service it was difficult for him to ensure patrons drinking did not drive home. Mary Charlebois was driving patrons’ home. SB denied describing her as “driving drunks home” during his interview with Inspector Lambert. He did not agree patrons were driven home only because they were too intoxicated to drive.
When Inspector Lambert asked SB if JR was intoxicated, SB insisted he was not in a position to assess his condition. JR was not slurring his words and he was not falling down drunk. He disagreed with Mr. Morris’ inference that his interaction with JR was so short that evening that he was in no position whatsoever to comment on his level of intoxication. He had stated to Inspector Lambert that he would not have let JUH drive because he had a lot to drink, but yet he was not drunk. He made this remark because JUH had enough common sense to ask him at the end of the night if his brother had paid his bill.
Mr. Morris reviewed a statement (Exhibit 19) dated November 20, 2012 wherein SB stated “at around 10:00 p.m. JR left; around midnight or 12:15 a.m., JR showed up again”. SB explained that, as he had not seen JR during that time, he had assumed he was gone. He disagreed with Mr. Morris’ suggestion it was a highly misleading statement as SB had no way of knowing if JR was in the bar or not during that time period.
SB agreed that once a patron running a tab bought a round of drinks and left the service bar, he had no knowledge of which patron consumed what or how many drinks. SB insisted he only served JR one double and one single drink during the evening. SB also agreed he was too busy at the service bar to follow the actions of either JUH or JAH in “looking after” JR. Although he saw JR walking toward a door, he lost sight of him and had no idea where he went. When Mr. Morris submitted that JR was not “cut off” at all, he disagreed. SB reiterated that he had cut off JR because he was stealing a bottle and not because he was drunk.
Registrar’s closing submissions
Mr. Morris submitted the allegations of permitting liquor to be served to a person who appeared to be intoxicated, failing to ensure reasonable measures were in place and efforts were made to deter an intoxicated person from leaving the premises and permitting drunkenness have been proven.
Three patrons, JUH, JAH and JR, testified to drinking during the day. Although all had been drinking, none were so intoxicated that they should not have been allowed to enter when they arrived at The Point in the evening. Over the course of the next three to four hours, they consumed a great deal more liquor. JR admitted to drinking around seven drinks, purchased by him or by others for him. People normally bought drinks for each other. This practice was common among those at the bar. The bar tab system did not permit the Licensee to monitor patrons’ drinking. Indeed, it created a problem on a busy night with a crowd of friends and one bartender who could not see beyond the service bar.
Five witnesses testified JR clearly showed signs of intoxication. He behaved inappropriately on five separate occasions with female patrons. He was slurring his speech, swaying back and forth, speaking louder than necessary and drinking fast. He acted strangely, clearly looked intoxicated from something and attempted to steal a bottle of liquor.
Witness DL was clear, forthright and specific in her evidence. She consistently saw JR at various intervals throughout the night. She never noticed him or his friends gone. There is no evidence that JR left the bar for a period of time. Every time she saw him he had a drink in his hand. She was the most credible witness. The events of the evening are seared in her memory. EV, the victim, was her best friend.
Mr. Morris submitted little credence could be put on SB’s evidence as he made seriously misleading statements about JR leaving the bar for two hours. SB’s evidence that he cut JR off is suspect. Was JR cut off because he insisted on a drink on JUH’s tab or trying to take a bottle from the bar rail or because he was intoxicated? If indeed JR tried to steal a bottle, Mr Morris submits that the senselessness of the act was another sign of intoxication. There is no credible evidence that JR was told to leave or whether or not JUH and JAH were asked to get him out. There is no evidence at what time JR left the establishment. SB’s change of evidence from what he reported to Inspector Lambert and his testimony, his misleading statements and his conversations with various patrons after the accident all point to concerns about his evidence.
JR admitted to being intoxicated when he left the bar and drove his car. He was adamant that he consumed no alcohol from the time he left the bar to the time of the accident. He has nothing to gain from lying about what he consumed after leaving the bar.
DL described JR as wasted and very drunk. JUH stated JR was pretty intoxicated. KD described him as coherently drunk and in no condition to drive. What is clear is there was no staff member who watched him leave.
JR denied some of his behaviour as described by others that evening. It is possible he may simply not remember some of his actions. He remembered speeding and losing control of his car. JUH described JR at the accident scene as hammered and unable to stand. Witnesses at the scene of the accident stated JUH and JR showed obvious signs of intoxication. Both were angry and drunk. They had glassy eyes, slurred speech, stumbling, tripping and slow motions and reactions.
The Tribunal heard evidence that the owners of The Point are responsible operators. The evidence was provided by friends of the Licensee and it was submitted they were being protective. Ms Charlebois stated she would not have let JUH drive in his condition. Nevertheless, she maintained no one was in a state of intoxication where they should have been cut off. It is clear that the bar was busy, understaffed and that no one really knew what anyone was drinking. The fact that she drove drunks home does not obviate the fact that the patrons should not have become drunk in the premises in the first place.
In summary, JR pled guilty to the criminal charges and it is clear that he was drunk when he hit EV. At minimum, JUH was also drunk. The accident scene was a short five to ten minute walk from the bar. Indeed, many of the patrons in the bar were intoxicated. No one gave JR a ride home, with tragic consequences. His intoxicated conduct and the drunkenness of other patrons establish the alleged breaches of the Act occurred at the licensed premises.
Licensee’s closing submission
Mr. Dunstone submitted the Registrar has failed to prove, on the balance of probabilities, the allegations against the Licensee. The Licensee does not dispute that JR was likely intoxicated at the time of the accident. He submitted JR was not in the care of the Licensee for sufficient amount of time to become intoxicated. Furthermore JR was not on the premises long enough for the Licensee to determine his level of intoxication.
There is overwhelming evidence suggesting JR left The Point for up to two hours before the accident. There is sufficient evidence that JR was not seen between 11:00 p.m. and 12:30 a.m. Although the evidence provided by the Licensee’s witnesses may not be exact in terms of times and observations, it was submitted that JR was at The Point for a certain amount of time, was not seen again, returned and was kicked out. Police found considerable alcohol in his car leading to the conclusion that JR consumed a lot of beer when he went in and out of the bar and after he left the bar around 12:30 a.m. His consumption of alcohol outside of The Point ultimately led to his level of intoxication.
The credibility of some of the civilian witnesses was better than others. However, he submitted that the Registrar’s witnesses had all consumed alcohol. Their recollection of events in their testimony seldom matched statements provided to police one year ago. Very little of DL’s testimony is similar to her police statement. He contended she only guessed at the number of times she saw JR during the evening.
Police evidence was limited to the witnesses’ version of events. JR’s testimony is suspect as some of his testimony is inconsistent with his statement to the police. He contradicted himself on driving to The Point and on having money on his person. He is not credible as to what time he left The Point. The Licensee submits there was ample time for him to consume more alcohol while he was away from The Point either driving or stopping elsewhere.
Mr. Dunstone further submitted that SB, the bartender on duty provided clear, cogent and credible evidence. He is a qualified and experienced server with no history of violations resulting in disciplinary actions under the Act. He served JR two drinks during the entire evening. Between 10:00 p.m. and 12:30 a.m. SB did not see him, nor was he seen by other witnesses. Mr. Dunstone agreed there was a difference to whether or not JR left the premises or he simply was not seen on the premises.
JR was refused service because of his rudeness in demanding a drink be charged to a tab and not because he was intoxicated. When JR tried to take a bottle of liquor, he ordered him removed from the premises. He suggested the evidence on JR’s level of sobriety during the evening was vague. While some evidence described him not in a condition to drive and “hammered” at the scene of the accident, other evidence suggested he did not really look that bad at all.
Mr. Dunstone submitted there is no evidence some patrons bought drinks for others. The Licensee provided a convincing explanation that JR and JUH were served drinks well below the standard indicated by Inspector Lambert of two drinks per hour per patron. There is no evidence the Licensee failed to deter disorderly conduct on the premises. The bartender had previously handled similar crowds and he felt he had control of the premises. The Licensee was on duty all night and beyond driving patrons home, she patrolled the premises. She was assisted by a former employee who volunteered to help keep an eye on things.
In summary, Mr. Dunstone submitted the impact of a suspension would be devastating for the Licensees and their employees. The license, livelihood and reputation of the licensed premises would be deeply affected by a finding that is based on the simple suspicion that JR was served to a level of intoxication while at the establishment. He submitted that the Notice of Proposal by the Registrar should be set aside.
In reply submissions, Mr. Morris’ rejected the submission no evidence was provided that patrons were buying drinks for other patrons. JUH and JR clearly testified this was part of the culture and it was a common occurrence. Only one bar tab page was entered in evidence and indeed the Tribunal heard there was likely a second bar tab page. The evidence showed significant alcohol was served during the evening. It was impossible for one bartender to see or tell who drank what, which is a most important factor in observing the signs of intoxication.
Mr. Morris submitted that is unacceptable for a Licensee to rely on willing patrons to monitor or remove patrons who have consumed too much alcohol. That responsibility lies with the Licensee.
THE LAW
The Liquor Licence Act states:
29 No person shall sell or supply liquor or permit liquor to be sold or supplied to any person who is or appears to be intoxicated.
Ontario Regulation 719/90 under the Act reads:
45 (1) The licence holder shall not permit drunkenness, unlawful gambling or riotous, quarrelsome, violent or disorderly conduct to occur on the premises or in the adjacent washrooms, liquor and food preparation areas and storage areas under the exclusive control of the licence holder.
45.1 The licence holder shall ensure that reasonable measures are in place and reasonable efforts are made to deter disorderly conduct on property adjacent to and in the vicinity of the premises and to minimize damage, nuisance or other harm to such property arising out of disorderly conduct engaged in by patrons of the licence holder or persons attempting or waiting to enter the premises or leaving the premises.
ISSUES
Section 29 of the Act requires the evidence to show that the licensee or the licensee’s employee or agent sold or supplied liquor to a person who was or appeared to be intoxicated.
Subsection 45(1) of the O.Reg requires the Registrar to meet a two part test. First it must be established that there was drunkenness in the licensed establishment and second, it must be established that the licensee knew or ought to have known that the patron was drunk, thereby “permitting” drunkenness.
Section 45.1 of the O.Reg requires the Registrar to demonstrate that no reasonable measures were in place and no reasonable efforts were made to deter disorderly conduct on the property and in the vicinity of the premises and to minimize damage or harm to such property arising out of disorderly conduct engaged in by patrons leaving the premises.
The burden of proof is on a balance of probabilities.
APPLICATION OF LAW TO FACTS
The Tribunal has carefully reviewed and considered the evidence, exhibits and submissions of both parties in this matter.
The licensed premises location is in a small community and several witnesses are acquainted with the Licensees and one another. The impact of the loss of a young mother in this community has been significant.
In determining the issues before the Tribunal, the Tribunal found that the evidence of all the civilian witnesses contained inconsistencies. The Tribunal relied on the evidence of the witnesses who made observations at the material time and placed little reliability on evidence related to what some witnesses were told or heard in conversations.
The credibility of the witnesses present at the establishment during the evening is the central focus of the Tribunal. The Tribunal found DL to be a very credible witness. She recounted the events of the evening and early morning in a forthright manner. Her recall was credibly told. Her version of events during the evening aligns with other evidence regarding JR’s state of intoxication. She described clear signs of intoxication. Although she wavered a little on the recall of some details, her evidence was consistent and the Tribunal accepts her testimony in this regard.
Mr. Dunstone submits that very little of DL’s testimony was in her statement to the police. The Tribunal disagrees. Instead, the Tribunal saw a person who has lost a friend, someone she considered a sister. Her evidence was forthright and specific. Without hesitation, she admitted to being unsure on the exact time of some of her observations and to a few inconsistencies. The Tribunal finds it possible that in part, the inconsistencies may reflect a response of the witness to the sensitivities of an accident involving the death of her friend. Although she had consumed alcohol during the evening, the Ms Charlebois testified DL and EV were nothing but sober that night. A police constable testified he had no difficulty understanding her conversation at the scene of the accident.
On the evidence, the Tribunal concludes that the Licensee had no idea how much alcohol was consumed that evening or who drank what or how much. There was one bartender at the service bar for an estimated crowd of forty to sixty patrons. Bar tabs were used for fifteen patrons and possibly thirty or more. This situation was exacerbated by the culture of patrons buying drinks for their friends. The Tribunal disagrees with the Licensee’s submission that no evidence was provided to substantiate this practice during the evening. Evidence from three witnesses and a server interviewed by Inspector Lambert corroborated this was a common practice. It was impossible to monitor the alcohol consumption of a patron. With these conditions, JR had full opportunity to consume alcohol to a state of intoxication to which he admitted. The evidence of four witnesses indicated JR showed noticeable signs of intoxication. He was unsteady on his feet, swaying back and forth, spoke with slurred speech and behaved inappropriately. As he was from time to time at the bar and always had a drink, there was opportunity for SB to observe him. The Tribunal finds it reasonable to expect that SB ought to have noticed these signs of intoxication.
Therefore, considering all the above factors, the Tribunal finds that, on a balance of probabilities, the Licensee permitted liquor to be sold and supplied to a person who was or appeared to be intoxicated, violating section 29 of the Act.
The Tribunal recognizes that there are some inconsistencies in the testimony of JUH and JR concerning whether or not JR drove his car to the bar that evening. However, they were consistent on how much alcohol they drank and the events of the day and early evening. To the extent that they could remember what happened on the night in question, the Tribunal found enough consistencies in their testimony to consider it reliable.
The Tribunal also considers as speculation, in the absence of any corroborating evidence, the suggestion that JR left the premises for an extended period of time during the evening and ultimately left two hours before the accident to drink in his car or elsewhere which resulted in his level of intoxication.
The Tribunal is concerned about the evidence of SB. Although he may not have intended to do so, some of his statements were misleading. There were inconsistencies in his statement to the Inspector and his evidence. The Tribunal finds it reasonable to understand that, as he was working alone and busy managing the crowd of patrons, he could not see everything that was going on. There is no corroboration to his evidence that JR was refused service and kicked out of the bar after he tried to take a bottle. The Tribunal accepts that it is possible JR may have tried to take a bottle from the rail.
The Tribunal believes that the Licensee had good intentions in providing transportation to various patrons. It recognizes that in a rural area, transportation can be a challenge. However, the Tribunal must look at the role and responsibility of the Licensee in managing all aspects of a licensed business under legislation, which includes ensuring the safety and protection of staff, patrons and the general public. Patrons were described as coherently drunk, meaning not falling down, however not in a condition to drive. The evidence was clear that a lot of alcohol was bought and consumed by patrons. Evidence from three witnesses who assisted at the scene of the accident indicated the majority of persons, several of whom had been at The Point, were intoxicated.
The Tribunal is of the view that the Licensee’s efforts that evening were misdirected. It was a Saturday and a St. Patrick’s Day celebration, a near capacity crowd of patrons and the bar was short one server. Licensees are expected to have sufficient and properly trained staff to regulate alcohol consumption and have measures in place so that patrons do not become intoxicated. JR was intoxicated and not properly monitored and left the premises unnoticed.
Considering all the above, the Tribunal is satisfied that the server or Ms Charlebois, or both, knew, or ought to have known of the drunkenness on the premises. Therefore, the Tribunal concludes that the Registrar has proven, on a balance of probabilities, that the Applicant permitted drunkenness on the premises on March 17, 2012. Accordingly, the Tribunal finds the Licensee violated section 45(1) of O.Reg.
Section 45.1 of the O.Reg requires the Registrar to demonstrate that no reasonable measures were in place and no reasonable efforts were made to deter disorderly conduct on the property and in the vicinity of the premises and to minimize damage or harm to such property arising out of disorderly conduct (emphasis added) engaged in by patrons leaving the premises. In this case, the supposed disorderly conduct occurred in the parking lot area, immediately outside of the establishment.
The evidence was that a car screamed into the parking lot, doing burnouts. There was doubt in the minds of witnesses as to whether the vehicle came directly from the establishment. At the same time, the evidence was unclear as to who was driving the vehicle and whether or not the driver was a patron of the establishment. The Tribunal heard no evidence of damage to any property or problems with patrons outside the premises.
On these facts, with scant evidence of disorderly conduct on the premises that the Licensee either knew or ought to have been aware of, the Tribunal cannot conclude that there was a failure to take reasonable measures to deter. Without question, there was a tragic occurrence on the evening in question, which resulted in the loss of life, but on the evidence before the Tribunal, this does not fall within the parameters of this section of the O.Reg. The Tribunal therefore dismisses the allegation of a violation of section 45.1 of the O.Reg.
ORDER
Pursuant to the authority vested in it under the provisions of the Act, the Tribunal finds Point Dining Lounge (The), Licence number 22139 to be in breach section 29 and of subsection 45(1), but not in breach of Section 45.1 of O. Reg.719/90.
In light of these findings, the Tribunal invites written submissions on sanction from the respective parties. The Registrar’s representative shall serve and file written submissions with seven (7) days of the date of this decision. The Agent for the Applicant 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 Agent’s response. All submissions are to be filed with the Tribunal.
LICENCE APPEAL TRIBUNAL
_________________________
Geneviève Blais, Member
Released: April 09, 2013