Appeal from An Order of Immediate Suspension under the Gaming Control Act, 1992, S.O. 1992, c.24 and Regulations, as amended
Between:
Terrence D’Souza
Appellant
-and-
Registrar, Alcohol, Cannabis and Gaming Regulation and Public Protection Act, 1996
Respondent
Decision
Adjudicator: Katherine Livingstone, Member
Appearances:
For the Appellant: Self-represented
For the Respondent: Aviva Harari, Counsel
Hearing Date: January 12, 2021
Overview
1Since August 2012, the appellant has been registered under the Gaming Control Act, 1992, S.O. 1992, c.24 (the “Act”) as a gaming assistant, category 1. He has held a number of positions, most recently as a surveillance supervisor at a casino.
2On September 24, 2019, the appellant was charged with two counts each of sexual interference and sexual assault. He was released on a promise to appear. The matter has yet to come to trial.
3On October 2, 2020, pursuant to section 14(1) of the Act, the appellant’s registration as a gaming assistant was suspended on the basis that the Registrar under the Act considered the suspension necessary in the public interest.
4On October 14, 2020, the appellant appealed the suspension to the Licence Appeal Tribunal (the “Tribunal”).
Issue
5The issue to be determined is whether, on a balance of probabilities, the appellant’s suspension as a gaming assistant, category 1, under the Act is necessary in the public interest?
Result
6Based on the evidence heard and submitted during the course of the hearing, together with the submissions made by the parties, I am satisfied, at the present time, it is necessary in the public interest to suspend the appellant’s registration as a gaming assistant. I therefore confirm the Registrar’s Order of Suspension.
Law
7The Act sets out the ground for suspending an individual as a gaming assistant:
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).
(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).
8The Act also provides that following a hearing the Tribunal may confirm or set aside the suspension and in doing so may substitute its own opinion for that of the Registrar.1
9The Registrar has the burden of proving, on a balance of probabilities, that the appellant’s registration should be suspended.
Evidence
10The Registrar called two witnesses during the hearing.
11Detective Constable Hails is a member of the Peel Regional Police Service, presently attached to the Special Victims Unit. He investigated the matter that resulted in the charges against the appellant. He testified the charges involve incidents of sexual assault and sexual interference that are alleged to have occurred between 10 and 12 years ago, starting when the complainant was about five years of age.
12Mr. White, a senior manager in the licencing and registration branch of the Alcohol and Gaming Commission of Ontario, also testified. He said the appellant had been registered as a gaming assistant since 2012 and had held a number of gaming positions since that time. At the time of his suspension he was a surveillance supervisor at a casino. Prior to his suspension there had been no concerns about his employment as a gaming assistant.
13Mr. White explained there are two categories of gaming assistants and the appellant had a category 1 registration, which meant he had a supervisory role and access to company assets.2 According to Mr. White, this category of gaming assistant comes with a heightened review of the individual before they are registered. He said had the appellant applied as a new category 1 registrant, he would have been refused registration based on the outstanding charges.
14The appellant did not advise the Registrar of his outstanding charges. However, Mr. White went on to add the Registrar is not taking the position that the appellant failed to disclose the charges, as the next renewal date for his registration since the charges were laid would have been in 2021 and there would have been an expectation of disclosure at that point. Mr. White said the Registrar only became aware of the outstanding charges after an anonymous tip several months after the charges were laid. The tip resulted in the Ontario Provincial Police conducting an investigation to confirm the charges. The suspension was then effected.
15Mr. White testified that, in the appellant’s present position, he had very little contact with the public and none with persons under the age of 16. However, he stated the onus is on the Registrar to ensure the public perception of the gaming industry remains positive. The concern in the present matter is that the serious nature of the appellant’s charges could undermine the public’s confidence in the industry.
16The appellant did not testify or call any witnesses.
Position of the Parties and Analysis
17The Registrar submitted that when one looks at whether it is in the public interest to suspend the appellant’s registration, the fact the appellant does not deal with the public during the course of his employment is not determinative. Rather, the focus should be on the importance of maintaining the integrity of the gaming industry and ensuring public confidence in it.
18While acknowledging it is not up to the Registrar, nor indeed this Tribunal, to decide the guilt or innocence of the appellant, the Registrar submitted that, given the serious nature of the charges, which involve allegations of sexual misconduct towards a young child over a period of time, public confidence in the industry could be adversely affected should the appellant not be suspended while the matters are before the court.
19Counsel for the Registrar referred me to three cases in support of her position.
20In Carlini (Re), [2007] O.A.G.C.D. No. 70 (“Carlini”), the registrant was charged with computer sex crimes involving sending nude photos of his genitals to a person he believed to be under the age of 14 years. A press conference by the police accompanied the laying the of criminal charges.
21In Registrar, Alcohol and Gaming Commission of Ontario and JDM [2011] O.A.G.C.D. No. 51 (“JDM”), the registrant was facing 10 criminal charges ranging from sexual assault to possessing and making child pornography.
22In both JDM and Carlini the adjudicators found it to be in the public interest to suspend the registrant’s registration pending the outcome of the criminal proceedings, concluding the integrity of the gaming industry could be negatively impacted if the registrant was allowed to continue his employment while the charges were outstanding.
23In 9984 v Registrar of Alcohol and Gaming, 2016 CanLII 9436 (ONLAT) (“9984”), the registrant was charged with assault and obstructing a police officer after an incident in Montreal while the registrant was visiting there with co-workers. In overturning the suspension of the registrant, the Tribunal distinguished JDM and Carlini, finding the charges in those cases more serious than the one before it. The Tribunal could not conclude that allowing the appellant to work in the industry while the charges were outstanding would give rise to the “perception by the public that the integrity of gaming or gaming operations is somehow compromised or threatened.”
24The appellant submitted his allegations could be distinguished from JDM and Carlini. He asserted that, as Carlini had received considerable publicity, he could “understand why this was necessary”. He added although his charges were serious, there had been no publicity.
25With respect to JDM, the appellant distinguished it on the basis of the number of charges and the fact that the allegations against the appellant are dated.
26I have some sympathy for the appellant’s position. The allegations of sexual misconduct go back many years. The suspension will deprive him of his livelihood in the gaming industry when the charges have not been proven in court. There is no indication of any troublesome conduct on the part of the appellant during the time he has been registered as a gaming assistant. Throughout the hearing he was respectful in his manner and seemed to appreciate the seriousness of the issue of public confidence in the gaming industry.
27However, I am mindful of Mr. White’s evidence that the appellant would not have been registered as a category 1 gaming assistant if he had been a fresh applicant with the same outstanding charges. Additionally, the lack of publicity as in the Carlini case does not diminish the responsibility of the Registrar to ensure employees in the gaming industry are individuals who will ensure public confidence in the industry.
28Someone knows about the appellant’s outstanding charges, as evidenced by the tip the Registrar received. The appellant would have been obliged to disclose the charges on the date of the renewal of his registration in 2021.
29The appellant’s charges are serious. The overarching duty of the Registrar is to protect public confidence in the gaming industry and avoid the perception that the integrity of gaming operations is or has been in any way compromised.
30In all the circumstances, I find on a balance of probabilities the respondent has met its burden and demonstrated the suspension of the appellant’s registration is in the public interest because public confidence in the gaming industry would be undermined if he were allowed to maintain his registration while facing the serious criminal charges to which he is subject.
Order
31Pursuant to the authority vested in the Tribunal under section 13(8) of the Act, I confirm the suspension of the appellant’s registration as a gaming assistant, category 1.
LICENCE APPEAL TRIBUNAL
________________________
Katherine Livingstone, Member
Released: February 22, 2021
Footnotes
- Gaming Control Act, 1992, S.O. 1992, c.24, ss. 14(3), 13(8)-(9).
- See also O. Reg. 78/12, ss.1, 8-9.