Licence Appeal Tribunal File Number: 14797/HRLA

In the matter of an appeal of an Order of Immediate Suspension issued by the Registrar under the Alcohol and Gaming Commission of Ontario Act, 2019 pursuant to the Horse Racing Licence Act, 2015, S.O. 2015, c. 38, Sched. 9

Between:

Richard Lopez

Appellant

and

Registrar under the Alcohol and Gaming Commission of Ontario Act, 2019

Respondent

DECISION

VICE-CHAIR:

Avril A. Farlam

APPEARANCES:

For the Appellant:

Shale Wagman, Counsel

For the Respondent:

Elizabeth S. Maishlish and Dragana Rakic, Counsel

HEARD:

April 17, 2023

OVERVIEW

1Richard Lopez (the “appellant”) appeals the Order of Immediate Suspension dated March 16, 2023 (the “Order”) issued by the Registrar under the Alcohol and Gaming Commission of Ontario Act, 2019 (the “Registrar”) pursuant to the Horse Racing Licence Act, 2015, S.O. 2015, c. 38, Sched. 9 (the “Act”).

2The Registrar issued the Order to immediately suspend the appellant’s licences as a Horseperson, Exercise Person, and Association Official (the “licences”) under s. 21(1) of the Act, which provides that the Registrar may, by order, suspend a licence without serving a notice of proposed order under s. 20 if the Registrar considers it to be necessary in the public interest.

3The Order states that the immediate suspension is necessary in the public interest because the appellant was charged on March 14, 2023 with a total of seven charges under the Criminal Code, held for bail and later released pursuant to a release order with conditions imposed by the court. The Order states that the Registrar has learned that the alleged conduct took place on numerous occasions over nearly four years and at a time when the appellant was in a position of trust and authority towards the alleged victim, a minor at the time, and a family friend.

4The Order also states that the Registrar considers it necessary in the public interest to immediately suspend the appellant’s licences on the basis that, as a regulated industry in Ontario, participation in horse racing requires the utmost honesty and integrity to be demonstrated by a licensee in order to maintain the confidence of the public in the integrity and the regulation of the conduct of horse racing.

5The charges against the appellant are:

i. Sexual assault: January 1, 2014 – September 30, 2017 (1 charge);

ii. Sexual interference, invitation to sexual touching, and indecent exposure: January 1, 2014 – March 1, 2016 (3 charges); and

iii. Sexual exploitation, luring a person under 18 by means of telecommunication, and making sexually explicit material available to a person under 18: March 2, 2016 – September 30, 2017 (3 charges)

6The appellant’s Notice of Appeal states that he has been charged with offences that allegedly took place five years ago, he is not guilty, these are only allegations, he should be allowed to work pending the outcome of the charges, and he is innocent unless proven otherwise.

PRELIMINARY ISSUE: CONFIDENTIALITY ORDER

7The Registrar brought a motion dated April 14, 2023 seeking an order of the Tribunal for a publication ban of the court file documents contained at tabs 3 to 6 inclusive in the Registrars book of documents for this hearing (the “documents”) which are:

Tab 3: Unsworn Information (redacted)

Tab 4: Release Order (redacted)

Tab 5: Crown Brief Synopsis (redacted)

Tab 6: Copy of Certified Copy of Information and Release Order (Publication Ban – Redacted)

8The appellant consented to the publication ban. Given that consent of the appellant to the relief claimed, leave was granted to the Registrar to proceed with the motion although it was served with short notice.

9Both counsel confirmed that the Ontario Court of Justice file from which the documents were obtained contained a warning as follows:

Warning: This file involves reference to matters governed by a court ordered publication ban pursuant to the Criminal Code. While access to the material is permitted, members of the public are reminded that publishing, broadcasting, or transmitting in any way some or all of the material in this file is a contravention of the Criminal Code.

10The Registrar submitted that a publication ban is important in the public interest because the charges against the appellant involve a minor and relate to sensitive issues. When minors come forward they should be able to do so without fear that their names and information will be published, no measure short of a publication ban would protect the minor involved here and would fall short of the intent which is to protect minors coming forward in sexual assault or other cases involving other forms of victimization, and the benefits of the publication ban, namely to protect the identity and information of minors, outweigh any possible negative effect of the publication ban.

11The appellant submitted that a publication ban is appropriate because the alleged victim’s right to privacy is paramount here.

12At the hearing I granted the publication ban sought for reasons to be delivered later. These are my reasons.

13Tribunal hearings are generally open to the public in accordance with the open court principle. Central to the open court principle is access by the press. See Toronto Star v. AG Ontario, 2018 ONSC 2586 (“Toronto Star”) at para 4. Freedom of expression and of the press are protected by s. 2(b) of the Charter of Rights and Freedoms. As a publication ban necessarily infringes on those freedoms, the Tribunal may order a publication ban only in limited circumstances. The test for determining whether to impose a publication ban was recently recast by the Supreme Court of Canada in Sherman Estate v. Donovan, 2021 SCC 25. The Court held that a person seeking to limit the open court presumption must establish that:

(1) court openness poses a serious risk to an important public interest;

(2) the order sought is necessary to prevent this serious risk to the identified interest because reasonably alternative measures will not prevent this risk; and,

(3) as a matter of proportionality, the benefits of the order outweigh its negative effects.

14To the extent that a publication ban imposes restrictions on publishing information contained in the Tribunal’s adjudicative record, the Tribunal Adjudicative Records Act, 2019 (“TARA”) is also relevant. Pursuant to s. 2(2) of TARA, the Tribunal may order that all or part of an adjudicative record be treated as confidential and not disclosed to the public if the Tribunal determines that:

A. matters involving public security may be disclosed; or

B. intimate financial or personal matters or other matters contained in the record are of such a nature that the public interest or the interest of a person served by avoiding disclosure outweighs the desirability of adhering to the principle that the record be available to the public.

15The person seeking to restrict access has the onus to displace the general rule of openness. The open court principle takes primacy over privacy interests; exceptions to openness must be proven on a case-by-case basis: Toronto Star at para. 91.

16Here, I find that the publication ban is needed to prevent serious risk to the proper administration of justice because it is consistent with the warning contained on the Ontario Court of Justice court file from which the documents were obtained and is necessary to prevent the publication of the possible identity and information of the alleged victim, a minor at the time. To allow publication in these Tribunal proceedings while there is a publication ban for the criminal proceedings would undermine the court’s publication ban. Similarly, I agree that the protection of the identity of such an alleged minor victim is an important public interest to which court openness poses a serious risk.

17I also find that there is no reasonable alternative measure to prevent the risk that the possible identity and information of the alleged victim, a minor at the time, would be disclosed through publication. This is especially so given that the publication ban is consistent with the warning contained in the court file.

18Lastly, I find that benefits of the limited publication ban sought by the Registrar, namely the protection of the possible identity and information of the alleged minor victim, outweigh the public interest in openness. As a result, I accept the Registrar’s submissions on the motion and find that each element of the Dagenais/Mentuck test is met: R. v. Mentuck, 2001 SCC 76 at para 32.

CONFIDENTIALITY ORDER

19For the reasons set out above, I order that there be a publication ban with respect to tabs 3 to 6 inclusive of the Registrar’s Book of Documents marked as Exhibit 3, consistent with the warning contained in the court file from which the documents were obtained. While access to the material is permitted, members of the public are reminded that publishing, broadcasting, or transmitting in any way some or all of the material in tabs 3 to 6 inclusive of the Registrar’s Book of Documents in this Tribunal file is a contravention of the Criminal Code.

ISSUE

20Counsel for both parties agreed at the hearing that the sole issue in dispute is whether the immediate suspension of the appellant’s licences is necessary in the public interest.

RESULT

21Having considered all of the evidence, and for the reasons that follow, I order that the Order is set aside.

ANALYSIS

Registrar’s authority to immediately suspend licence and right to hearing

22The Registrar’s authority to immediately suspend the licence(s) of a licensee is found in s. 21(1) of the Act which provides that the Registrar may by order suspend a licence without serving notice of a proposed order under s. 20 if the Registrar considers it to be necessary in the public interest.

23The licensee may then request that the Tribunal hold a hearing to confirm or set aside the immediate suspension order, or direct the Registrar to take the action that the Tribunal considers the Registrar ought to take to give effect to the purposes of the Act under s. 20(6). The Tribunal may substitute its opinion for that of the Registrar under s. 20(7) and may attach conditions to its order or to the licence that it considers appropriate under s. 20(8). Section 20(2), (3) and (5) through (8) apply to this hearing for the Order with the necessary modifications.

24The Registrar bears the onus at the hearing to establish that the immediate suspension of the licence is necessary in the public interest.

25As related below, there is no notice of proposed order under s. 20 of the Act, and therefore there is no need to hold a combined hearing under s. 21(5) to deal with both the notice of proposed order and the immediate suspension Order at issue here.

Facts Not in Dispute

26The following facts are not in dispute:

27The appellant has been licenced under the current and predecessor legislation governing the horse racing industry in Ontario since 2006.

28There is no evidence at this hearing that the appellant has any prior criminal record.

29The appellant has no prior history of regulatory discipline under current or predecessor legislation governing the horse racing industry in Ontario since 2006.

30The appellant has been charged under the Criminal Code with the seven charges described above, was arrested on March 14, 2023, held for bail and following a bail hearing, was released pursuant to a release order with eight separate conditions imposed by the court including a condition that the appellant is “not to be in the presence of anyone under the age of 18 years unless in the presence of someone over the age of 21 years except with a family court order dated after this date“.

31There is no evidence at this hearing that the appellant has breached any of the court-ordered conditions of his release.

32The appellant’s charges are pending before the court and there is no conviction at the time of this hearing.

Positions of the Parties

33The Registrar submits that the Order is necessary in the public interest.

34The appellant submits that the Order is not necessary in the public interest.

Immediate Suspension is not necessary in the public interest

35For the following reasons, I find that the Registrar has not established that the Order is necessary in the public interest.

36The Registrar’s witnesses Detective Sergeant Matthew Noble and Tanya Cadeau both testified at the hearing. The appellant did not testify or call any witnesses.

37Detective Sergeant Noble, an experienced Ontario Provincial Police officer currently seconded to the AGCO, learned about the appellant’s charges from the Caledon police at a briefing so that if he came across the appellant at the racetrack where he works, he could arrest him. Detective Sergeant Noble testified that he received the Information setting out the charges against the appellant, the crown brief synopsis, the court’s release order following the appellant’s bail hearing, and information from another detective and from a report management system he has access to by virtue of his employment. Detective Sergeant Noble assisted the Caledon police during the arrest and reviewed all the information provided to him by the police and available to him on the police reporting system. Detective Sergeant Noble informed Tanya Cadeau about the charges and information he had obtained.

38Tanya Cadeau, Senior Manager, Regulatory Compliance Branch of the AGCO testified that she oversees the horse racing industry in Ontario and is aware that the appellant’s licence as an association official allows him access to not just the backstretch but also other areas of the racetrack which employs him. On March 14, 2023, Ms. Cadeau was informed of the appellant’s charges and the conduct alleged against him by Detective Sergeant Noble who had prepared an information package for her. Ms. Cadeau reviewed the information provided to her and engaged the legal process shortly thereafter which she felt was necessary due to the nature of the charges and the conduct leading to them.

39Ms. Cadeau testified that the charges raise concerns about the honesty and integrity of the appellant and his ability to act properly. Although Ms. Cadeau noted that the appellant does not have a history of regulatory non-compliance, she was concerned that the alleged conduct took place over a long period of time, involved serious behavioural allegations against minors and some behaviours did not start until later, indicating possible escalation perhaps resulting from confidence from getting away with this conduct. From a public interest perspective, Ms. Cadeau was of the view that others not be exposed to harm in their workplaces and also that allowing the appellant to remain licensed would cause a loss of public confidence in the conduct of the horse racing sport and the Registrar’s ability to regulate horse racing. Ms. Cadeau testified that there is no enforceable condition that could be attached to the appellant’s licences that would safeguard the public interest and that further, she recognized that the charges have not yet been proven in court, and because of this, has not sought a revocation of the appellant’s licences yet, just an immediate suspension until the charges are resolved. Ms. Cadeau said the appellant would not likely meet the legislated test for licensing if he was a new applicant until the charges had been dealt with.

40The Order was issued two days later, on March 16, 2023.

41Detective Sergeant Noble had no first-hand knowledge of the conduct leading to the laying of the appellant’s Criminal Code charges by the Caledon police. His knowledge is all second-hand knowledge which he obtained by accepting information from other sources. He did not know whether the appellant has a prior criminal record. Detective Sergeant Noble testified generally about security issues at the Ontario racetrack where the appellant works, his concerns for safety of minors and other members of the public, and the opportunity for a sexual predator to find private places at the racetrack where undesirable and possibly criminal sexual and other behaviour could take place. However, Detective Sergeant Noble’s testimony about the appellant’s conduct leading to the charges was largely hearsay from others and based on his review of the police, court and other file documentation. While accepting that this Tribunal may admit hearsay evidence, as long as it is relevant to the subject-matter of the proceeding, there are inherent dangers with hearsay because it may be given more weight than it deserves. Although Detective Sergeant Noble’s testimony was under oath, there is no evidence that he conducted any investigation or interviewed any alleged victim and provided me with no sworn statement by any alleged victim, investigating police officer, or any other persuasive evidence that the alleged conduct likely took place.

42Here, I find that this hearsay evidence is unpersuasive evidence which fails to establish that the alleged conduct has likely occurred and that, as a result, the immediate suspension of the appellant’s licences is necessary in the public interest. This is a pre-requisite to my finding that the Order is necessary in the public interest as a result of the appellant’s conduct.

43It is clear from Ms. Cadeau’s testimony that her information about the charges and the conduct attributed to the appellant is limited to that provided to her by Detective Sergeant Noble.

44Before me, there is no evidence that the appellant engaged in the conduct alleged against him except for the charges themselves, Detective Sergeant Noble’s testimony that information about the charges, the appellant’s arrest, the bail hearing and other information made available to him by others, and documents prepared by others.

45This leaves me with insufficient evidence that the appellant may have engaged in the conduct attributed to him in the charges. At this hearing there was no witness who had any first-hand evidence that the appellant may have engaged in the alleged conduct, such as evidence from an alleged victim. There was no independent investigation made by any person including Detective Sergeant Noble and no interviews of any alleged victim. The only evidence of the conduct attributed to the appellant came from Detective Sergeant Noble to whom information was supplied by others. Further, although the conduct alleged against the appellant is serious, the most recent of the conduct is alleged to have taken place more than five years ago, tending to indicate that lack of recent involvement.

46Both Detective Sergeant Noble and Ms. Cadeau testified about the importance of protecting members of the public from sexual predatory behaviour, particularly minors and where the conduct in question is alleged to have taken place over a course of years and possibly has escalated over time. Their concerns are of course appropriate, important and, in Ms. Cadeau’s case, consistent with the legislative mandate of her office. However, what is missing in this particular case, at this particular point in time, is sufficient evidence before me to persuade me that the appellant may have engaged in the conduct alleged against him. The appellant has not admitted any of the conduct and disputes it. The charges are pending before the court. All allegations against him remain unproven at this point in time. I have also taken into consideration that, in this case, at this particular point in time there is a condition which restricts the appellant’s dealings with minors. This condition was imposed by the court as part of his release on bail.

47The Registrar submitted some case law which cases are not binding on me. Nevertheless, I have considered them and decline to follow them for the following reasons. Although the Registrar submits I should reach the same conclusion here as in an earlier decision of mine, George Newland v. Registrar of Alcohol, Gaming and Racing, 2018 ONLAT HRLA 11321 (ONLAT), here, unlike in Newland, there was no evidence from any alleged victim or investigator that interviewed the appellant which establishes the appellant’s conduct may have occurred. The Roadsport Automotive Inc. (Re), [1998] O.C.R.A.T.D. No. 138 (Ontario Commercial Registration Appeal Tribunal) case is unhelpful because it involves different legislation, a different industry and the appellant had a pre-existing record of criminal activity based, in part, on a guilty plea. In the DeSousa (Re), [2009] O.A.G.C.D. No. 185 (Ontario Alcohol and Gaming Commission), the evidence about the alleged conduct came from an eyewitness, a police officer who dealt with the alleged victim and some admissions from the appellant. In Mancuso (Re), [2011] O.A.G.C.D. No. 51 (Ontario Alcohol and Gaming Commission), the evidence about the alleged conduct came from an AGCO investigator, the police Detective Constable who conducted an investigation into the conduct leading to the laying of charges including interviews with the alleged victims.

48While the Registrar’s concerns about the safety of the public, and specifically about the safety of vulnerable minors is understandable, the only evidence before me about the appellant’s conduct is comprised of unproven charges and hearsay evidence about the conduct leading to the charges. While the Tribunal may accept hearsay evidence, I am not persuaded in this particular case that it is sufficiently persuasive given the totality of the evidence.

49As the Tribunal has said before, criminal conduct, even if proven, may not preclude registration or continued registration as a licensee: see, for example: Jeffrey Lyndon MacLaren v. Registrar of Alcohol, Gaming and Racing, 2017 CanLII 80335 at para 42 (ONLAT).

50As a result, I find that the Registrar has not met its onus to establish that the Order is necessary in the public interest.

Conditions

51Given that I have found the Order not to be necessary in the public interest, I have considered whether any condition should be imposed on the appellant’s licences under s. 20(7) of the Act.

52Here, the Registrar submitted that there are no enforceable conditions that could be imposed on the appellant’s licences as an alternative to the immediate suspension and Ms. Cadeau testified to the same effect. The appellant made no submissions regarding conditions.

53I agree with the Registrar’s submission that there are no enforceable conditions that could be imposed on the appellant’s licences as an alternative to immediate suspension. The only condition that I might have considered appropriate here has already been imposed by the court in the release order, specifically the condition which provides that the appellant is “not to be in the presence of anyone under the age of 18 years unless in the presence of someone over the age of 21 years except with a family court order dated after this date“. Given that this condition has already been imposed by the court and that immediate suspension order was clearly predicated on the ongoing criminal charges, it would be redundant for the Tribunal to add the same condition to his licences and I decline to do so.

Conclusion

54I find that the immediate suspension of the appellant’s licences is not necessary in the public interest in this particular case.

ORDER

55For the reasons set out above, pursuant to sections 20(6) and 21(4) of the Act, I order that the Order of Immediate Suspension is set aside.

Released: April 27, 2023

__________________________

Avril A. Farlam

Vice-Chair