Licence Appeal Tribunal
Tribunal d'appel en matière de permis
FILE: 10014/GCA
CASE NAME: 10014 v. Registrar of Alcohol and Gaming
Appeal from a Notice of Proposed Order of the Registrar under the Gaming Control Act, 1992, S.O. 1992 c. 24 - to Refuse Registration
Christopher Rockwell o/a Four Leaf Convenience Appellant
-and-
Registrar of Alcohol and Gaming Respondent
REASONS FOR DECISION AND ORDER
ADJUDICATOR: Geneviève Blais, Member
APPEARANCES:
For the Appellant: André Bourgon, Counsel
For the Respondent: Joyce Taylor, Counsel
Heard in Ottawa: May 3, 2016
DECISION AND ORDER
BACKGROUND
The Registrar of Alcohol and Gaming (the “Registrar”) under the Gaming Control Act, 1992, (the “Act”) issued a Notice of Proposed Order dated January 15, 2016, which proposed to refuse registration of Christopher Rockwell, o/a Four Leaf Convenience (“the Appellant”) as a gaming supplier in the class of Seller under the Act. The Appellant appealed this Notice of Proposed Order to the Licence Appeal Tribunal.
The Appellant completed an application, dated March 3, 2015, to be registered as a gaming supplier in the class of Seller. The application was received by the Registrar on June 1, 2015. The Registrar issued the Notice of Proposal to refuse to register the Appellant.
The reason given by the Registrar was that there were reasonable grounds to believe that the Appellant will not act as a gaming supplier in accordance with law, or with integrity, honesty, or in the public interest, based on his past conduct. The particulars that the Registrar relied on were that Mr. Rockwell had been convicted of various offences under the Criminal Code in 2012 and 2013. In addition, the Registrar relied on the Appellant’s failure to disclose an outstanding judgment in the United States.
The Registrar’s position is that as a regulated industry in Ontario, the provision of gaming services requires that the utmost honesty and integrity be demonstrated by a registered gaming supplier in order to maintain the integrity of gaming operations, to protect the public and to maintain confidence in the regulation of gaming operations.
ISSUE
The issue that this Tribunal must decide upon is whether there are reasonable grounds to believe that the Appellant will not act as a gaming supplier in accordance with law, or with integrity, honesty, or in the public interest, having regard to the past conduct of the Appellant.
Evidence on behalf of the Registrar
Ms. Taylor, Counsel for the Registrar called two witnesses, Mr. Brian Adkin and Mr. Frank Cuda.
Mr. Adkin has been an investigator with the Alcohol and Gaming Commission of Ontario (“AGCO”) since 2007. Previously, he had been with the Ontario Provincial Police (“OPP”) for 33 years. His duties with the AGCO include investigating concerns raised by the gaming registration officer’s review of applications for registration made to the Registrar pursuant to the Act. In the case of the Appellant, the purpose of the investigation was to conduct an interview with Mr. Rockwell and review some of the explanations he provided on his application. The AGCO identified the Appellant’s criminal convictions and an outstanding judgement as areas of concern.
Mr. Adkin’s evidence consisted of a detailed review of police and court documents obtained from the Cornwall Community Police Service, Akwesasne Mohawk Police Services, the Ontario Provincial Police and the Ontario Court of Justice. (Exhibit 5) These documents related to each of the matters that resulted in convictions against the Appellant in 2012 and 2013. Mr. Adkin did not request a Canadian Police Information Centre (CPIC) official copy of the Appellant’s record. He was uncertain if the AGCO had a copy on their file. Mr. Cuda, in his testimony, stated he reviewed a CPIC record on the Appellant; however a copy of this record was not submitted as documentary evidence to the Tribunal. Mr. Adkin confirmed that Mr. Rockwell disclosed a list of convictions from the Cornwall Community Police records in his application for registration.
On April 27, 2012, the Appellant was convicted of a total of 14 charges, which occurred from February 12, 2011 to April 22, 2012. The convictions were for: (1) flight from a peace officer; (2) fail to provide a breath sample; (3) impaired operation of a motor vehicle; (4) seven charges of fail to comply with conditions of an undertaking; (5) two charges of fail to comply with recognizance; (6) obstruct police officer; and (7) fail to appear. The Appellant pled guilty to all charges and was sentenced to 85 days intermittent custody and 12 months probation. Exhibit 5 also revealed eight convictions against the Appellant on November 14, 2013. These offences occurred between June 14, 2012 and July 14, 2013. The convictions were for: (1) four charges of driving while disqualified; (2) four charges of failing to comply with a probation order; and (3) fail to attend court. The Appellant pled guilty to all these charges and was given a conditional sentence for 18 months and six months probation. The Conditional Sentence Order placed the Appellant under house arrest with strict terms and conditions. As a result of the convictions for driving while disqualified, four concurrent orders prohibiting the Appellant from driving were imposed for a period of three years. Mr. Adkin indicated that from then on, there is no record of any violations or breaches of any of the orders.
Mr. Adkin provided evidence on the Appellant’s outstanding judgment. Although the Registrar’s Notice of Proposed Order referred to an outstanding judgment of $2,805 in the United States, Mr. Adkin added that there are two more amounts of $466 and $562 outstanding, which Ms. Taylor confirmed were omitted on the Notice of Proposed Order. A credit search report on Mr. Rockwell revealed this information. Mr. Adkin provided no documentary evidence that verified the information. Ms. Taylor advised the Tribunal that the Registrar‘s main concern with regard to Mr. Rockwell’s application for registration is his criminal record and not the outstanding debts.
On June 24, 2015, Mr. Adkin interviewed the Appellant in person. The interview took place in his vehicle in the parking lot of the Appellant’s convenience store. He explained in cross-examination that he often conducts interviews in his vehicle as it is convenient and private. He confirmed that the Appellant was co-operative and forthright at all times. He accepted full responsibility for his criminal offences of 2012 and 2013. The Appellant stated that three months before pleading guilty to the charges before the court in November, 2013, he changed his lifestyle and stopped drinking. He is in a stable relationship and he is working hard to become a successful businessperson. His parents provided him with start-up money for his business as they are proud of his changed lifestyle and want him to succeed. For all these reasons, he hopes the AGCO will grant him a registration. Mr. Adkin further discussed the number of suspended driving offences on his record. The Appellant stated that at the time of those offences, he was immature and failed to realize the seriousness of the offence.
With regard to the outstanding judgment, Mr. Rockwell believed it was for medical expenses related to injuries he sustained several years ago while in the United States. He was unaware that a judgment had been issued and indicated that he could apply for financial assistance through the First Nations fund to resolve the issue.
Mr. Adkin indicated that he routinely raises the issue of the sale of illegal cigarettes with retailers of convenience stores during interviews. He finds it helpful to advise them of the pitfalls and consequences of engaging in such activity as store owners face considerable pressure in this regard. He stated that the Appellant understood the issue and candidly told him that he would not risk his business and sell illegal goods. He considered this as smuggling and would not engage in such actions.
Mr. Adkin told Mr. Rockwell that his written report to the gaming registration officer would recount facts. He would not make any recommendation with regard to registration application, as he has no role to play in this regard. At the end of the interview, Mr. Rockwell gave him a tour of his store, which he found well kept and organized. It was clear that the Appellant was very proud of what he had achieved. Mr. Rockwell revealed to him that he had recently passed a “secret shopper” test conducted by the local health unit and had received a commendation letter to that effect. Mr. Adkin explained that the secret shopper test is a tool used by organizations to measure compliance with regulations or other services. Passing this test spoke well of the Appellant and he gave him credit for exercising good judgment. He attached a copy of the letter to his report for the AGCO.
In cross-examination, Mr. Adkin confirmed that he had concerns about the Appellant’s criminal record, particularly the multiple driving suspensions. His probation order ended six months ago and he is a suspended driver until 2019. For these reasons, Mr. Adkin stated in his written report that the Appellant had not demonstrated an extended period of good conduct. He agreed that the offences occurred in two blocks of time between 2011 and 2013 and there have been no further convictions since November 14, 2013. He conceded that the Appellant had no convictions for theft, robbery or commercial crime. However, he stated that a conviction for obstruct justice, where the Appellant provided a false name, can be considered a crime of dishonesty. Nevertheless, he confirmed the Appellant was honest with him and took full ownership for his previous behaviour. He no longer owned a vehicle and had taken steps to make his business a success. Concerning the Appellant’s indebtedness in the United States, Mr. Adkin stated he was satisfied with Mr. Rockwell’s explanation.
Mr. Bourgon asked Mr. Adkin why he raised the topic of illegal cigarettes with the Appellant and whether or not it related to concerns of the AGCO that he is an individual from the First Nations community and he resides in a city where the sale of illegal tobacco products is well known to the authorities. Mr. Adkin refuted this allegation and stated that the Appellant was not treated differently to any other applicant. It is a standard practice for him to discuss the topic of selling illegal cigarettes during his investigations. Although the AGCO does not supervise tobacco sales, violations in this area could have serious implications for AGCO gaming registrants.
Mr. Frank Cuda is the Manager of Gaming Eligibility and the Deputy Registrar under the Act. He stated that the Act is consumer protection legislation and registrants must conduct themselves with honesty and integrity and in accordance with the law to maintain the confidence of the public. The Registrar must protect the public interest in demonstrating that all registrants have gone through a thorough research and scrutiny.
He testified that his primary reason for refusing to register Mr. Rockwell was his recent Criminal Code convictions and his driving record. According to Mr. Cuda, the Appellant’s past conduct, particularly the number of convictions for breaches of undertaking and driving while suspended are of concern and demonstrate his inability to comply with rules and regulations and conduct himself in a regulatory environment. An additional cause for concern is the fact that the he is a suspended driver until November, 2019.
Mr. Cuda stated that past conduct is a good indicator of future conduct. Although the Registrar’s current position is that the Appellant is not “ready” to be registered, it does not mean that the Appellant could never be registered in the future. Being “ready” would constitute the following: (1) demonstrating compliance with the law; (2) demonstrating compliance with current suspensions; and (3) demonstrating integrity and honesty.
In cross-examination, Mr. Cuda confirmed that Mr. Rockwell was honest in his dealings with the AGCO and had been transparent and forthright in his application for registration. He agreed that the Appellant had pled guilty to all the charges for which he was convicted in 2012 and 2013. He accepted that he had recognized his shortcomings and had since made changes to his lifestyle. When asked if the AGCO would issue a registration to applicants with a criminal record, he stated that there is always a possibility that the AGCO will grant such registrations, depending on the criminal record. Each case is assessed on its own merits.
Mr. Cuda further conceded that since the Appellant was sentenced on November 14, 2013, there is no information to show any violations. When asked if this may indicate Mr. Rockwell has shown his ability to be law-abiding person for a period of time, Mr. Cuda stated that he needs more time to demonstrate honesty. He agreed that the “sufficient time” test is subjective and is not defined by the AGCO. Mr. Cuda strongly refuted the allegation that a factor for refusing to register the Appellant is his status as an individual of the First Nations community.
Evidence of the Appellant
Mr. Rockwell testified in a short and direct manner. He was forthright and sincere in his answers. At the age of 15, he began working as a mason, a trade he learned from his father. In November 2013, he had the financial means to take a heavy machinery operator course and was successful in getting his operator licence. He did not work in this area as in 2014, with some financial assistance from his parents, he purchased a convenience store. He spent several months renovating the premises and on March 17, 2015, the Four Leaf Convenience store opened for business. He named the store after the Irish four-leaf clover, believing it was a sign of good luck. The Appellant stated that his customers are from the local area. Most of them walk to the store to purchase groceries and household goods and to socialize. When he purchased the business, part of his business plan was to become registered as a Seller with the AGCO. His customers frequently ask to purchase tickets and the Appellant believes that if he were a registered seller, the public would be well served and he would also likely benefit from increased sales at his store.
The Appellant stated that prior to February, 2011, he was not a heavy alcohol drinker and had no record of criminal activity. He described the period from February, 2011 to July, 2013 as a very negative and dark period of time in his life. A seven year relationship with a girlfriend ended. He described it as a “bad break-up”. He experienced the deaths of a couple of family members. He was single and began drinking heavily. He soon found himself facing a series of driving offences and multiple court orders. He readily admitted he was immature and rebellious during that period of time. In July, 2013, the Appellant took steps to change his behaviour and lifestyle. He sold his vehicles, stopped drinking and moved in with his girlfriend. She remains a source of stability and support to him and they are now proud parents of a 13 month old child.
During cross-examination, Ms. Taylor asked the Appellant how he could be trusted to keep his word and be counted on to comply with regulations given his record of violations of court orders and the pattern of broken promises associated with his criminal record. The Appellant reiterated that he accepted responsibility for his past actions by pleading guilty to all charges. He is not happy about that period of time in his life. In July, 2013 he was determined to change his lifestyle and has been able to do so with the help of his family and a new business. He regained optimism and motivation with a new positive outlook on life.
With regard to the issue of a record in the United States, Ms. Taylor alleged he failed to disclose the information. The Appellant insisted he had no knowledge of such record. He stated he was last in the United States seven years ago and he thinks he may have a parking ticket violation; however, he has never been in court for any alleged offences.
In recounting his interview with Mr. Adkin, Mr. Rockwell stressed that he had been fully honest and open about his criminal record in completing the AGCO application. Ms. Taylor asked him if he thinks he is the subject of discrimination by the AGCO as he is an individual from the First Nations community. The Appellant responded in stating that he is not downplaying his criminal record and some of the AGCO concerns. However, when the topic of selling illegal cigarettes was raised by Mr. Adkin, he felt insulted and targeted as a person from the First Nations community. As a result of the discussion, he felt that he would have a better chance of being registered if he were not from the First Nations community.
In further questions from the Tribunal, the Appellant stated that the revenue from his convenience store allows him to support his family. He is not thriving as he pays a monthly lease cost for the store premises. His parents have been very supportive of his business interests. He hopes to be able to repay them the start-up money. Since July, 2013, he has been able to stay sober by keeping busy and living in a supportive and alcohol free relationship. He is able to walk to his store. He is very proud of what he has achieved and has put all of his efforts in being a law abiding person.
THE LAW
Section 10 of the Act sets out the grounds upon which the Registrar may refuse to register an applicant as a gaming supplier:
- The Registrar shall refuse to register an applicant as a supplier or to renew the registration of an applicant as a supplier if,
(b) there are reasonable grounds to believe that the applicant will not act as a supplier in accordance with law, or with integrity, honesty, or in the public interest, having regard to the past conduct of,
(i) the applicant or persons interested in the applicant,
(ii) the officers, directors or partners of the applicant, or persons interested in those officers, directors or partners, in the case of an applicant that is a corporation or partnership
APPLICATION OF LAW TO FACTS
Ms. Taylor submitted in her closing remarks that case law shows a long tradition of the Registrar’s entitlement to rely on any past or present conduct that affords reasonable grounds for belief that the Appellant will not carry on business in the future in accordance with the law and with integrity and honesty and contrary to the public interest. The gaming industry is highly cash intensive and as such the Registrar must ensure that the confidence of the public is maintained and registrants appear to have the utmost honesty and integrity.
Ms. Taylor further submitted that an important factor to weigh in this case is a demonstration by the Appellant of a significant period of time of good conduct. His probation order ended six months ago and he is prohibited from driving until 2019. She contends that, other than becoming a father and buying the convenience store, nothing has changed. She asserted that the short period of good conduct without supervision is insufficient time to fully demonstrate enough change by the Appellant. The Appellant’s record of convictions for violations of court orders and his repeated inability to comply with regulations, lead the Registrar to conclude that he is likely not to comply with the gaming industry regulations and demonstrate honesty and integrity as a registrant.
Ms. Taylor submitted six cases for the Tribunal’s consideration: Famous Flesh Gordon’s [2013] O.J. No.1139, Sandie’s Reading N’ Greetings, [2013] O.L.A.T.D. No. 79, Michels Tobacco & Variety [2009] O.A.G.C.D. No. 290, Macleod [2003] O.A.G.C.D. No. 104, Koo [2012] O.L.A.T.D. No. 235 and Laprise [2007] O.L.A.T.D. No. 530.
Mr. Bourgon submitted that the Appellant has a qualified right to a registration and the onus on the Registrar has not been discharged. The Registrar’s main argument to refuse the registration is to rely on the premise that past conduct is an indicator of future behaviour and the Appellant has not demonstrated a sufficient period of good conduct. He stressed that the Appellant paid his price for his criminal activity. He accepted full responsibility for his criminal behaviour and dealt with his alcohol abuse. He began to demonstrate a significant pattern of change in July, 2013 which was recognized by the trial judge, who allowed him to remain in the community in his last conviction in November, 2013. He has been crime free since that time and has become a productive member of the community raising a family and operating a small business. His successful completion of a two year period of community supervision with onerous conditions with no evidence of any improper conduct on his part and his demonstrated law-abiding lifestyle since July, 2013, is a testament to his ability to abide to regulations and terms that may be part of a gaming registration.
Mr. Bourgon stressed that the Appellant has been honest and straightforward with the AGCO. His application for registration revealed all the required information that he was aware of. A 2012 conviction for providing a false name to a police officer does not make him a dishonest person. The confidence of the public is not at risk as a result of the Appellant’s convictions for driving under suspension. The Appellant has demonstrated sufficient stability to be registered as a seller. He is motivated to succeed and is proud and confident that his life is back on track. He recognizes fully that he if he fails to comply with the regulations, he stands to lose much more than he will gain.
The Tribunal accepts that the highest levels of honesty and integrity must be maintained in the gaming industry in Ontario. This is essential if the public is to maintain the confidence in their operation. The issues for the Tribunal to determine are: (1) is the Appellant capable of maintaining those standards in the context of his past conduct and (2) is the Appellant’s period of good conduct sufficient to grant him a seller’s registration?
The evidence before the Tribunal indicated that the Registrar carefully reviewed the information provided by the Appellant on the application. Both Mr. Adkin and Mr. Cuda agreed that the Appellant was honest on the application and in their subsequent in person and telephone discussions. He was forthright and made no attempt to hide information. With regard to the issue of a record in the United States that Ms. Taylor alleged he failed to disclose, the Registrar’s evidence on this record consisted of a short statement written by a police officer of the Akwesasne Mohawk Police Service in an occurrence report when the Appellant was stopped for a driving offence in February 2011. Mr. Adkin did not speak to the officer about the information, nor was the officer called as a witness to vouch for the reliability of the record. Furthermore, the Registrar provided no proof of the existence of such a record, citing that access to international records is difficult. There is nothing in the evidence before this Tribunal that would lead the Tribunal to conclude that the Appellant’s evidence on this matter is false. Since the Registrar provided no supporting evidence of this record, the Tribunal gives it no weight.
For the Registrar to focus on one issue ignores the fact that the Appellant disclosed everything else on the application, including the list of criminal convictions provided to him by the local police department. Such complete disclosure by the Appellant is, indeed, evidence of honesty and integrity.
The Tribunal has considered the cases submitted by Ms. Taylor. All of these cases can be distinguished from the matter currently before the Tribunal in that the past conduct of the appellants and the nature of the criminal offences are appreciably different. With regard to the Famous Flesh Gordon case, the appellant was a long standing member of the Hells Angels and the AGCO was seeking to revoke his liquor licence. With regard to the Sandie and Macleod cases, they can be distinguished in that the appellants worked in the gaming industry. One was convicted of selling counterfeit goods and the other of fraud, forgery and theft charges. With regard to the Laprise case, he was still on probation and had been convicted of serious offences, including assault. In Michel, the appellant failed to be honest on his application and had been convicted of forgery at his place of business. In Koo, the appellant stood to benefit from the crime of theft.
The evidence in this case established that this 32 year old Appellant has been law abiding most of his adult life, except for a two year period where he had brushes with the law as a result of a difficult and rebellious period in his life when he abused alcohol. In July, 2013, he stopped using alcohol, entered into a stable relationship with his current partner, sold his vehicles and his criminal activity ceased. While under a court ordered supervision for a period of two years, there were no further violations of the law or of the release conditions. In March 2014, he purchased a convenience store within walking distance of his residence. He operates this business seven days a week and has invested a great deal of time and effort in this venture. Being registered as a seller in the gaming industry would increase his overall revenue and add to the success of his business. The Tribunal has, in assessing the evidence in this case, paid attention to all these factors in assessing past conduct and a period of time of good conduct.
Ms Taylor placed a great deal of emphasis on the Appellant’s “broken promises” of the past and that his past conduct does not extol the values of honesty and integrity. Mr. Rockwell is a prohibited driver until 2019 and his probation ended six months ago. She submitted that there needs to be a reasonable period of time of unsupervised good conduct to ascertain good conduct in the future and compliance with regulations. The Tribunal notes that Mr. Adkin’s evidence concerning an extended period of good conduct made no reference to a period free of supervision. Mr. Cuda admitted that a period of time of good conduct is not defined in specific terms by the AGCO. He described it as a subjective measure based on an applicant’s individual facts.
In this case, the Tribunal must consider the totality of the Appellant’s past conduct, to determine whether he will not act as a gaming supplier in accordance with the law and with integrity and honesty and in the public interest. As stated by Vice-Chair Koprowski in K.D.R. v. Registrar of Alcohol and Gaming, 2014 CanLII 18121 (ON LAT), when one considers past conduct, the period of years during which an appellant was steadily employed at the gaming facility cannot be ignored. That period involves “past conduct” as much as any breaches of the law relied on by the Registrar. Vice-Chair Koprowski further added that past conduct may be excused in some cases where there is evidence to indicate that an applicant’s activity will be conducted in accordance with the law and with honesty and integrity in the future. The Tribunal accepts the above reasoning as being applicable to the case now before it.
A significant factor in the Appellant’s past conduct includes the successful completion of two years of terms and conditions of the court ordered community supervision with no further breach of the law or with the use of alcohol. He sincerely regrets his past transgressions with the law and has paid the penalty for his illegal actions. The Tribunal finds it commendable that he has resumed a responsible and law abiding lifestyle since his last conviction. The Tribunal considers favourably the honest and sincere information he provided on his application. He was consistently truthful and forthright during the AGCO investigation. There is no evidence that the Appellant, at any time during the past three years, has put the public at risk. The Tribunal found him to be optimistic and motivated to running a successful business and exercising good judgement as stated in Mr. Adkin’s testimony on the secret shopper test. Mr. Rockwell’s period of good conduct since July, 2013 demonstrates a renewed respect for the law and his ability to act with integrity, honesty and in the public interest. The fact that a sanction prohibiting him from driving is still in effect, is not, in itself, sufficient to deny him registration. His otherwise lawful and completely compliant conduct prior to his two periods of brushes with the law and since his last conviction is influential to the Tribunal’s final conclusion and decision.
The Tribunal has weighed the evidence of the Appellant’s past conduct and considered the likely future conduct in light of that past conduct. In assessing the entire past conduct of the Appellant, the Tribunal concludes that it does not afford reasonable grounds to believe that the Appellant will not act in accordance with the law, or with integrity and honesty, or in the public interest.
As one of the grounds that the Registrar advanced for denying Mr. Rockwell registration, was that he is a prohibited driver, the Tribunal considers that it would be appropriate to register Mr. Rockwell subject to a condition that he report to the Registrar any new charges laid against him. Considering the term of the prohibition order, it seems reasonable to continue this condition until the expiry of the order, that being November 14, 2019.
ORDER
Pursuant to the authority vested in it under the provisions of the Act, the Tribunal directs the Registrar to not carry out the Proposal. The Tribunal directs the Registrar to register Mr. Rockwell as a gaming supplier in the class of Seller, subject to the following condition:
- Until November 14, 2019, Christopher Rockwell shall advise the Registrar, in writing, within 5 days, of any and all charges, convictions and findings of guilt for any offence in Canada, which includes all federal and provincial offences, including but not limited to the Criminal Code of Canada and the Highway Traffic Act.
LICENCE APPEAL TRIBUNAL
Geneviève Blais, Member