Trang Thi Kim Do v. Registrar of Alcohol and Gaming, 2014 CanLII 2479

Licence Tribunal

Appeal d'appel en Tribunal matière de permis

DATE: 2014-01-10

FILE: 8423/GCA

CASE NAME: 8423 v. Registrar of Alcohol and Gaming

Appeal from an Order of the Registrar under the Gaming Control Act, 1992, S.O. 1992 c. 24 - to Immediately Suspend Registration

Trang Thi Kim Do Applicant

-and-

Registrar of Alcohol and Gaming Respondent

AMENDED REASONS FOR DECISION AND ORDER

ADJUDICATOR: Jane Weary, Vice-Chair

APPEARANCES:

For the Applicants: Corey Dalton, Agent

For the Respondent: Bryna Kaplan, Counsel

Heard in Toronto: December 16th, 2013

AMENDED DECISION AND ORDER

BACKGROUND

The Registrar of Alcohol and Gaming (the “Registrar”) under the Gaming Control Act, 1992, (the “Act”) issued an Order dated October 30th, 2013 (the “Order”), which immediately suspended the registration of Trang Thi Kim Do (the "Applicant") who has appealed this Order to the Licence Appeal Tribunal.

Ms Kaplan, Counsel for the Registrar, stated that the immediate suspension of the Applicant’s registration under the Act was necessary in the public interest due to serious criminal charges recently brought against the Applicant as well as the Applicant’s lack of disclosure on numerous forms mandated under the Act. She requested the Tribunal uphold the Registrar’s Order.

Mr. Dalton stated that the criminal charges remained unproved and that testimony from numerous co-workers of the Applicant demonstrating her positive working history would illustrate how the Applicant provided no threat to the public interest. He stated that the Suspension would result in the termination of her employment thereby causing the Applicant undue hardship and asked that the Suspension Order be lifted.

PRELIMINARY MATTERS

The Applicant requested a translator assist her with the Hearing process. The translator, Ms Lien Huynh, was confirmed as a speaker of English and Vietnamese. She has translated for courts in the past. She was sworn in.

A request for exclusion of witnesses was granted.

FACTS

DC Kerr has been a member of the Toronto Police for twelve years, the most recent four of which he leads the Clandestine Unit of the Drug Squad responsible for investigating the unlawful production of drugs including marijuana by “grow-ops”, or cultivation operations.

In April of this year he commenced such an investigation into a property owned by the Applicant (the “Property”) in Toronto. He had been alerted to a possible drug operation at this location by Toronto Hydro which works closely with the Drug Squad, informing it of abnormal readings of electrical activity which such productions frequently involve.

DC Kerr commenced exterior static surveillance of the Property the day before executing a Search Warrant on April 3, 2013. At the time of the surveillance he noted a strong smell of marijuana emanating from the location. He also observed people exiting the building with garbage bags, which when later investigated, contained soil also smelling of marijuana.

The following day two police officers took up position in the driveway of the Property in an unmarked police van. DC Kerr arrived sometime later to execute the Warrant. He was advised that the Applicant, her husband, a third adult female and two children had driven up to the house whereupon the husband had gesticulated to the officers to move the van from the driveway.

When DC Kerr arrived five people had been arrested including the Applicant’s sister and her boyfriend, both of whom had been in the house. The Applicant’s husband was also arrested. DC Kerr allowed the Applicant to leave with her children, on the condition she attend a police station within ten days to turn herself in. She did so. And was then charged with one count of Possession for the Purposes of Trafficking; one count of Production and a further count of Theft of electricity. These charges remain pending. No trial date has been set as yet.

On investigating the Property, extensive use of the basement was found to be dedicated to numerous marijuana plants; the basement bathroom was employed as an irrigation resource; high powered fans and high voltage lights assisted in the cultivation of the plants. Throughout the home, walls had been punched through allowing for greater ventilation to help in the growth of the product. In the attic, modifications to the electric system had resulted in by-passing the meter to allow for lighting subpanels in the basement.

In the kitchen bags of soil were located; in the living room were packaging materials for the transport, sale and sealing of the drug and the two bedrooms were dedicated to the growing and drying of the plants. In the living room there was also mail addressed to both the Applicant and her husband – one being a bill addressed to her husband from Hydro.

A search of Registry documents revealed the Property has been registered in the Applicant’s name since August, 2006. It was also determined that the Applicant is the Natural Gas customer for the Property.

DC Kerr advised that the state of the home’s electrics posed a significant fire hazard given the illegal modifications to wiring and the bypasses involved, none of which had been subject to any safety inspection. He also stated that the high level of chemicals employed in such grow ops can pose a health hazard. The Arrest Record (Exhibit #4) also notes a public risk of increased potential for home invasions given the cultivation of marijuana attracting a criminal element to the Property and neighbouring areas.

Frank Ryder has been an Investigator with the Alcohol and Gaming Commission of Ontario (AGCO) since 2007. Prior to joining the AGCO he had been a member of the Ontario Provincial Police for 31 years rising to the rank of Detective Chief Superindendent. His last position with the police was that of Commander, Investigations Bureau responsible for investigations into crimes including homicide, drugs and child pornography. Mr. Ryder was responsible for the AGCO investigation into the Applicant in June, 2013 following her arrest.

In June of 2013, the Applicant provided the Registrar with a new contact address of 200 Exbury Ave. The Property had been provided as her address to the Registrar in February 2011. Other addresses provided by the Applicant and noted in her file with the AGCO (Exhibits #6, 7 and 8) were discussed with her in an interview she attended at the AGCO office in June, 2013. These included 2086 W St, listed in her licence renewal applications for 2005-2007 and 2138 E Dr. listed in her applications from 2001 through to 2011.

Given the number of addresses in the file, Mr. Ryder performed a cross-check with the Ministry of Transport (“MTO”) records on the Applicant. It revealed the Applicant had never listed the Property address with the MTO.

The Applicant attended the July, 2013 interview with her lawyer and her sister, the latter to assist with translation needs. She advised Mr. Ryder she was the owner of the Property and was responsible for the mortgage and gas bills. When asked when she lived in the house, she advised she could not remember but it was not in 2013. She confirmed that she rented the Property to an Indian couple – whose names she could not remember but she would supply their drivers’ licence and SIN numbers to the Investigator once she had returned to her home.

On receipt Mr. Ryder contacted the individuals listed as tenants for the Property on the copy of the Lease he later received from the Applicant. The Lease was for a month-to-month tenancy commencing June 2011 (Exhibit #9). Mr. Ryder’s follow-up telephone conversation with the tenants revealed that they had resided in the basement of the Property for three months during the summer of 2011 while the Applicant, her husband and child lived on the main floor. They advised that they had vacated the premises in September of 2011 when the Applicant told them her sister was moving in and they were commencing a new business together.

During the interview of July the Applicant denied any knowledge of the inside of the home, including the extensive alterations to the wiring, although she explained her arrival at the Property [on the date of her arres as due to her needing to pick up her income tax mail from an exterior box.

In response to questions from the Chair, the Applicant stated she had not been called into the Property over the last two years by the tenants and thus had no occasion to inspect the state of the home during that time.

The Applicant did acknowledge that the individuals arrested in April included her husband, her sister and her sister’s boyfriend. She said she had no idea why they were at the Property that day.

She insisted that all address changes she had provided to the AGCO on registration information disclosure were accurate. As to why she had never advised the MTO of her Property address in 2011, the Applicant said she found it easier to use her sister’s address because she was not certain how long she would be at other locations.

In follow up DC Kerr advised Mr. Ryder that the opened mail found in the living room by the police included a gas bill addressed to the Applicant as well as March, 2013 opened mail.

Jeff Longhurst is the Deputy Registrar of the AGCO and Director of Licencing and Regulation, a position he has held for a year and a half. He has been at the Commission for over twenty years, the last fifteen of which have been in the Registration section. He becomes involved in a specific registration when a problem is flagged based on investigation findings. In this way he has become familiar with the Applicant’s registration.

Mr. Longhurst believes that it is in the public interest to suspend the Applicant’s registration under the Act. He has reviewed her honesty and integrity and legal compliance within the context of all her cumulative past conduct, including the results of Mr. Ryder’s investigation, and concludes she is no longer suitable for registration.

He notes that the severity of the criminal charges, underscored by the specifics revealed in the investigation of DC Kerr, and believes these to be “as serious as it gets” in demonstrating the honesty and integrity of the Applicant. The charges are also very recent. Together, these lead to his misgivings as to the Applicant’s ability to act in accordance with the law and support his decision to suspend her registration until there is a finding by the court.

He acknowledges that, until then, these charges are only allegations, but believes that their nature, together with the independent investigation of Mr. Ryder, reveal sufficient grounds to demonstrate – at the very minimum – that she had knowledge of what was occurring at her property and therefore establish her failure to act in accordance with the law. He submits this is sufficient to support his decision to suspend her registration in the public interest.

However, he is further concerned that for the regulatory requirements within the gaming industry to be meaningful, they must stand for some level of additional oversight. He noted the casino industry is cash intensive and that there must be a high level of public confidence in the honesty and integrity of those individuals licensed within it.

He believes that an employee charged with such significant breaches of law - even though in personal and not professional life – fall short of the standard of honesty and integrity demanded of them.

In cross examination he allowed that each case is unique. In other circumstances (for example where criminal charges do not include theft, or do not include the inherent dangers to public safety associated with grow ops as described by DC Kerr), public interest concerns may not be triggered. For this reason, each potential issue of this nature is subject to its own investigation by AGCO staff.

He acknowledged that, while gaming staff are subject to intense video surveillance on the job, this can not be relied upon 100% to protect the public as illegal activities can and do still occur within casinos. He believes it is reasonable to infer that an individual, such as the Applicant, who is willing to take such immense risks in breaching the law in one area of her life demonstrates the increased possibility of risky behaviour in the casino environment.

The regulator is also concerned with the Applicant’s seeming confusion and numerous contradictions in her responses to Mr. Ryder’s questions as to her lease, her tenants, her mail arrangements, no less than her misleading information on AGCO and MTO mandated documentation regarding her addresses over the time of her registration.

Florence Janine Black is a registered dealer at the same employer casino as the Applicant. She has known the Applicant for eight and a half years. They work closely together at the casino although they do not socialize outside of work. Ms Black has found the Applicant to be a fun, customer service oriented and reliable co-worker during her entire time at the casino.

She recognizes that personal conduct might affect eligibility for registration given the need in the industry to ensure you “play be the rules”. She has always found the Applicant to be entirely responsible in the work environment.

Andrew Suh has worked at the same casino for fifteen years. He is a Gaming Inspector Supervisor to whom all the Dealers must report. It is his job to ensure there are no issues among Dealers or customers at the tables. In this capacity he knows the Applicant. She has been a hard worker who has rarely called in sick despite having two children and needing to commute some hour and a half each way to work. Mr .Suh has no relationship with the Applicant outside of work.

Wsee Pang was hired at the same casino almost six years ago. Three years ago she was elected a Union representative for which she is responsible, with others, as a “Committee Person” for all Union members’ discipline issues. Ms. Pang is not familiar with the Applicant, other than seeing her in the cafeteria over the years but does know there has been no discipline action noted in her file at any time.

Trang Thi Kim Do confirmed she has never had any corrective action from her workplace in all the years she has been with the casino.

She advised that she had moved around a lot before her marriage, although she did not remember when the marriage took place. She explained that this transience explained her need to use relatives’ addresses for official purposes as she feared losing mail in all her wanderings.

She explained she had attended the Property on April 3rd of this year to collect income tax mail at the address. She had been charged and told to attend at the police station on a given date, which she had done.

It was her own information to the Registrar’s office that alerted the AGCO to her charges. She had supplied this information voluntarily because she knew it was her responsibility to disclose any wrong-doing. When asked why there had been a delay in her relaying the information, she responded that she was first legally advised that she need not provide the information as she had not been convicted but later a second lawyer advised differently.

The Applicant stated she was suffering considerably economically as she had not been working for two months. She did not provide information as to her husband’s income. In response to questions from the Chair, it appeared she had not made an effort to seek alternate employment, in part because of her weak English language skills; in part due to her not wanting to lie about her current criminal charges.

The Applicant stated she had committed no wrong-doing.

In cross examination she could not remember when she had lived in the Property. She advised too much had happened and she was now confused. It was her position that she had provided correct information regarding her addresses to the authorities but did not consider such information that significant and had done nothing wrong in using family addresses.

The Applicant acknowledged she owned the Property but had rented it to the Indian couple who had continued their possession until she was arrested this April. She said that the last rent cheque she had received was in March of this year, but then appeared confused and thought it might have been March or April of 2012. After some questioning on the issue, she concluded that the tenants had brought in their parents after she left the premises in 2011 whereupon their rent had increased from the $700.00 per month disclosed in the Lease to $1,000.00 per month up until this spring. She had no amended lease, bank statements or cheque copies to support this testimony.

When questioned why she had not informed Mr. Ryder of the changed terms to the Lease, the Applicant advised he had not asked her any of this information. She said she had been truthful – since, at the time of entering into the Lease arrangement in 2011, the document she provided to him reflected the terms.

The Applicant stated her husband paid no bills on the Property as he did not speak any English. She said it was the tenants who paid all utilities, including gas and hydro. This directly contradicts the written terms of the 2011 lease which specifies all such utilities are to be paid by the Applicant Landlord. It also contradicts the information she provided to Mr. Ryder in the July interview.

The Applicant said she had never advised the tenants to vacate because her sister was moving in. She thought they remained on the premises because their bicycles remained in the garage. She said she knew this only because they would call her to tell her. When questioned she then said she called to tell them to remove the bicycles because she did not want to” implicate them”. When asked about what implication, she denied having used that language. When asked what number she used to call them, she said it was her brother who called. He had made the calls as she had to renovate the property following the arrest. Later she acknowledged a condition of her arrest to keep away from the Property and stated that it was her brother who was to renovate.

The Applicant acknowledged her sister and her sister’s boyfriend had been in the Property at the time of their arrest in April, but that she had not known this until she saw their names on the Show Cause documentation months later. She has not been in contact with her sister or the boyfriend since that time. She doesn’t know the sister’s address as the sister “moves often”.

THE LAW

The relevant provisions of the Act are as follows:

Registration of gaming assistants

11. The Registrar shall refuse to register an applicant as a gaming assistant or to renew the registration of an applicant as a gaming assistant if,

(a) there are reasonable grounds to believe that the applicant will not act as a gaming assistant in accordance with law, or with integrity, honesty, or in the public interest, having regard to the past conduct of the applicant or persons interested in the applicant; or

(b) the applicant is carrying on activities that are, or will be, if the applicant is registered, in contravention of this Act, the regulations, the standards and requirements established by the Registrar under section 3.8 or the terms of the registration. 1992, c. 24, s. 11; 2011, c. 9, Sched. 17, s. 10.

Immediate Suspension

14. (1) The Registrar may by order suspend a registration without serving a proposed order under section 13 if he or she considers it to be necessary in the public interest. 1992, c.24, s.14(1).

Effect of Order

(2) The Registrar shall serve a copy of the order made together with written reasons for it on the registrant and it takes effect immediately on being served. 1992, c.24,s.14(2).

Right to a hearing

(3) Subsections 13 (2), (3), (5), (8), (9) and (10) apply to the order in the same way as to a proposed order under that section. 1992, c.24, s. 14(3); 1996, c.26, s.4 (14).

Expiry of order

(4) If the registrant requires a hearing, the order expires on the day the order of the Tribunal takes effect. 1992, c. 24, s.14(4); 2002, c. 18, Sched. E, s. 4(6); 2011, c. 1, Sched. 1, s. 3 (11).

ISSUE

On a balance of probabilities, is the suspension of the Applicant’s registration as a gaming assistant under the GCA necessary in the public interest?

APPLICATION OF LAW TO FACTS

Counsel for the Registrar argued that the issue as stated above must be analyzed having regard to the test for registration as set out within the Act. Section 14 requires that an order for Immediate Suspension be necessary in the public interest. Section 11 pertains to gaming assistants and subsection (a) provides the grounds relied on by the Registrar.

The Registrar takes the position that the continued registration of the Applicant is not in the public interest given the evidence of her past conduct. Past conduct which, cumulatively, provides reasonable grounds for his belief she will not act as a gaming assistant within the law and with honesty and integrity. He further submits that the Immediate Suspension order under section 14 is necessary in this proceeding due to both the nature and gravity of such past conduct.

It is not within the Tribunal’s mandate to determine the Applicant’s guilt or innocence in the criminal charges against her. That is a matter for the court. The role of this Tribunal is, rather, to review the evidence upon which the Registrar has acted and to confirm, or overturn, his order. In doing so it must consider all the evidence before it.

The testimony of DC Kerr was persuasive that at the time of the execution of the police warrant in April of this year the Applicant’s Property contained extensive marijuana plants, and other material consistent with an organized system for sales of the illegal drug. Further, the home’s electrics had been significantly altered to best provide heat and light for the cultivation of the plants and, as a result, posed a fire hazard. There was no evidence to challenge his observation that the state of the Property was in no way consistent with being used as a residence.

DC Kerr also gave convincing evidence that, at the time of his attendance at the Property, family members of the Applicant were found in the home and/or acting in a manner consistent with ownership of the Property. The Applicant herself was in attendance and opened mail inside the Property was addressed to her.

It is clear that her property was being used as an extensive grow op.

Nor does the Tribunal accept her suggestions that the Property and its illegal use was the work of tenants. It is not reasonable for the Applicant’s husband, in her presence, to gesticulate to the police to move their unmarked vehicle from the driveway were the residence still tenanted as argued by the Applicant. If tenanted, she would not know if the vehicle in fact belonged to the tenants, especially if, as she testified, she was never asked by the tenants to attend the premises (and thus could not know their vehicle and/or extensive remodelling inside for drug production).

It is not credible that the Lease provided to Mr. Ryder by the Applicant remained effective up to the time of the police action; its terms as to rent amount as well as to who was responsible for utilities significantly altered. Such a position is entirely self-serving; it is directly contradicted by the information the Applicant provided to Mr. Ryder in his investigation that she was responsible for the gas utility and the mortgage. Most tellingly, despite such alleged alterations going to the very heart of the Lease, she provided no corroboration to support her contention.

It also does not sit right with her later testimony that she contacted the tenants to remove their bikes from the garage after the arrest so that she could clean. The Police Record contains the conditions of Bail which include her not attending the Property (Exhibit #4) and therefore she could not legally renovate or clean the property - although she later amended this testimony to state it was her brother who was to do the cleaning. When asked by the Tribunal how she knew there were bikes on the property, she stated the tenants had called her many times, presumably before the arrest, to tell her. Why would they do this if indeed they were in possession?

Further, were there indeed property belonging to tenants-in-possession, such would be in her interest to leave at the location to further implicate them. Although again, she later changed her testimony on this point, the Applicant originally stated she first contacted the tenants to remove their bicycles so as not to implicate them. If there was indeed any such contact made by her, and not by her brother, then I find this to be the only reasonable purpose.

The modifications and alterations made during her testimony are not simply a result of language barriers and translation issues. They were so repetitive and occurred on such basic issues (the time of her marriage, for example) that the Tribunal concludes that the Applicant was purposely evasive and obfuscated her testimony.

The Tribunal concludes from all the evidence that the Applicant knew her Property was being used as a grow-up, whether she was actively involved in the cultivation and sale or not. It also finds she was not honest with the Registrar’s investigator as well as this Tribunal by claiming the Property was in fact possessed by prior tenants.

Mr. Ryder also gave evidence as to the Applicant’s repeated instances of providing false information to the Registrar, and MTO, of her residence. In response the Applicant advised that her sister’s address was the more certain. In the end, the evidence on this issue was confusing and perplexing. It may be that some information was wrongly supplied by the Applicant to some authority. However, for two years (2011 and 2012) prior to her arrest, the Applicant had registered the Property as her residential mailing address with the Registrar. (Exhibits 6 and 7). The Tribunal can not conclude that any mis-information on her part in this was intentional.

Given the findings of the Tribunal that the Applicant was aware of the use of the Property as a marijuana grow-op in April of this year, as well as the Applicant’s mis-information to the Registrar’s investigator as well as this Tribunal as to the tenants, it concludes that she has not conducted herself within the law, nor with honesty and integrity.

Her representative argued that her employment record and testimony of her working colleagues does not demonstrate any grounds for belief her working life illustrates similar conduct. In fact, the opposite evidence was provided which was not contradicted. He argues that s.11(a) of the Act references her acting as a gaming assistant and therefore her personal conduct should not be the standard. In her working life, she has conducted herself within the terms and conditions set out in the Act.

The Tribunal decision of Roadsport ([1998] O.C.R.A.T.D. No. 138) dealt with this issue and determined that it is the cumulative conduct of the registrant/applicant which is pertinent. The individual personally and professionally cannot be severed for the purposes of the legislation. This would lead to absurdity of, for example, a repeat thief with no evidence of thieving in his/her work, being registered.

Mr. Longhurst provided the Tribunal with an explanation as to how an individual charged with such serious breaches of the law, including theft of public property, is investigated. Charges are independently investigated and found on a balance of probabilities to establish, if not criminal guilt, then at least actions inconsistent with honesty and integrity, that do not meet the public interest of registration as a trusted frontine casino employee. He spoke to public confidence in the regulated industry as being fundamental to his mandate.

For all these reasons, as well as the Applicant’s continued lack of honesty and integrity before this Tribunal, the Registrar’s Order of is found to be in the public interest.

While it was submitted that the loss of the Applicant’s registration has caused her financial hardship, there was no evidence of any efforts she has made to obtain alternative employment. Moreover, economic difficulties resulting from the loss of registration are not grounds to maintain a registration where the evidence demonstrates doing so is not in the public interest.

ORDER

Pursuant to the authority vested in it under the provisions of the Act, the Tribunal confirms the Registrar’s Order to immediately suspend the Applicant’s registration.

LICENCE APPEAL TRIBUNAL

Jane Weary, Vice-Chair

Released: January 10, 2014