Licence Appeal Tribunal File Number: 15700/GCA

Appeal from a Notice of Proposed Order under the Gaming Control Act, 1992, to Refuse Registration as a Category 1 Gaming Assistant

Between:

A. M.

Appellant

and

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

Respondent

DECISION

VICE-CHAIR: Robert Maich

APPEARANCES:

For the Appellant: A. M., Self-represented

For the Respondent: Tim Edwards, Counsel

HEARD: September 9, 2024

OVERVIEW

1A. M. (“appellant”) appeals from the Notice of Proposed Order under the Gaming Control Act, 1992,(“Act”) dated February 27, 2024 (“NOP”) issued by the Deputy Registrar under the Alcohol and Gaming Commission of Ontario Act, 2019 (“Registrar”) to Refuse Registration of a Category 1 Gaming Assistant under s. 11 of the Act. The appellant submitted an application for registration to the Registrar pursuant to the Act on January 18, 2024.

2The NOP is based on the ground that there are reasonable grounds to believe that the appellant will not act as a gaming assistant in accordance with the law, or with integrity, honesty, in the public interest and/or with financial responsibility. This is based on the fact that the appellant was found guilty of invitation to sexual touching contrary to the Criminal Code s. 152, arising out of conduct by the appellant in a work environment where the victim was a fifteen year-old student working with the appellant.

3The appellant filed an appeal with the Licence Appeal Tribunal (“Tribunal”) on March 2, 2024, pursuant to s. 13 of the Act.

ISSUES

4The issues to be decided in this hearing are:

a. whether the Registrar has established reasonable grounds for belief that the appellant will not act as a gaming assistant in accordance with the law, or with integrity, honesty, or in the public interest having regard to his past conduct; and

b. if so, whether refusal of registration is appropriate.

RESULT

5Having considered all of the evidence, and for the reasons that follow, I confirm the NOP.

LAW

6Section 11(a) of the Act provides that the Registrar shall refuse to register an applicant as a gaming assistant if 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.

7Section 13 provides that if the Registrar refuses to grant registration, the Registrar shall serve notice of the proposed order together with written reasons on the applicant, following which the applicant may request a hearing by the Tribunal pursuant to s. 13(3).

8Section 13(8) provides that after holding a hearing, the Tribunal may confirm or set aside the proposed order or direct the Registrar to take such action as the Tribunal considers the Registrar ought to take to give effect to the purposes of the Act. Section 13(9) provides that the Tribunal may substitute its opinion for that of the Registrar and under s. 13(10) the Tribunal may attach such terms to its order or to the registration as it considers appropriate.

9The onus is on the Registrar to establish the grounds alleged in the NOP.

ANALYSIS

Issue a: Has the Registrar established reasonable grounds for belief that the appellant will not act as a gaming assistant in accordance with the law, or with integrity, honesty, or in the public interest having regard to his past conduct

10I find that the Registrar has established reasonable grounds for belief that the appellant will not act as a gaming assistant in accordance with the law, or with integrity, honesty, or in the public interest having regard to his past conduct for the following reasons.

11The Court of Appeal for Ontario in Ontario (Alcohol and Gaming Commission of Ontario) v. 751809 Ontario Inc. (Famous Flesh Gordon’s), 2013 ONCA 157 at paras. 18-19, held that the standard of proof with respect to reasonable grounds for belief does not require the Registrar to go so far as to show that the conduct makes it more likely than not that he will not carry on business as required.

12According to the Supreme Court of Canada in Mugesera v. Canada (Minister of Citizenship and Immigration), 2005 SCC 40 at para.114, the reasonable grounds for belief must be more than mere suspicion and will be found to exist where there is an objective basis for the belief which is based on compelling and credible information.

13Further, there must be a nexus between the appellant’s past conduct and his ability to conduct business as a gaming assistant serving the interests of the public: See CS v. Registrar, Real Estate and Business Brokers Act, 2002, 2019 ONSC 1652 (Div. Ct.) at para. 32.

14The appellant disclosed in his application the existence of a criminal finding of guilt on the offence of invitation to sexual touching contrary to the prohibition provided at s.152 of the Criminal Code:

Invitation to sexual touching

152 Every person who, for a sexual purpose, invites, counsels or incites a person under the age of 16 years to touch, directly or indirectly, with a part of the body or with an object, the body of any person, including the body of the person who so invites, counsels or incites and the body of the person under the age of 16 years,

(a) is guilty of an indictable offence and is liable to imprisonment for a term of not more than 14 years and to a minimum punishment of imprisonment for a term of one year; or

(b) is guilty of an offence punishable on summary conviction and is liable to imprisonment for a term of not more than two years less a day and to a minimum punishment of imprisonment for a term of 90 days.

15There is no issue with respect to non-disclosure; both parties agree that the appellant properly disclosed the offence in his application.

16The findings of fact of the Court are detailed in R. v. A.M., 2018 ONCJ 299 as follows at paragraphs [5], [7], [8], [49] and [54]:

i. “[5] The City of Kitchener owns and operates The A[…] for the benefit of the community at large. A number of activities and events occur at the complex, including Ontario Hockey League games involving the Kitchener Rangers. A.M. began working for the city in 2001 as a part-time employee and, after other assignments, came to be a full-time employee working at the A[…]. As of February 2017, his job title was facility attendant, meaning he was in charge of day-to-day operations at the arena.

ii. “[7] During ice season, the defendant would direct part-time staff regarding a number of their assigned tasks, including which areas in the arena to clean and what rooms needed to be set up because of a pending booking or event. This included the suites located in the upper level of the The A[…], and the dressing rooms connected to the two other sheets of ice that formed part of the complex…

iii. “[8] The defendant’s role as facility attendant did not mean he had managerial oversight over the part-time employees. He could not hire or fire them. However, he was in many ways their supervisor, and could impact their employment through comments made to the lead hand or the other actual managers in the workplace hierarchy.

iv. “[49] On January 31, 2017, H.B. was working at The A[…] when the defendant led him to the building’s upper corridor. He asked to see his penis after H.B. got it erect. He told him to go in the bathroom to do so, while at the same time explaining that other young men had, in the past, ejaculated on the A[…]’s seats by masturbating up on the catwalk. I have no trouble inferring that this entire course of conduct was designed to have H.B. touch his own penis in aid of getting it erect. It properly amounts to counselling. Was it for a sexual purpose? In a word, yes. The defendant encouraged H.B. to touch his own penis – a sexual organ – in order to become aroused. The defendant will be found guilty of invitation to sexual touching.

v. “[54] For the sake of completeness, however, I can advise that I was otherwise satisfied that the remaining elements were made out with respect to C.R. and A.R. They were reliable witnesses whose evidence was largely left undisturbed. I am satisfied that they both describe the defendant counselling them to touch their own penises for a sexual purpose. But for my doubt with regard to whether he stood in a position of trust or authority towards them, I would have found him guilty of these offences as well.”

17It is clear from the findings of fact of the Court that the above described incidents took place in a work setting, where the appellant acted in some ways as the complainants’ supervisor. Further, but for the Court’s doubt as to whether the appellant was in a position of authority, the appellant would also have been found guilty of multiple counts of sexual exploitation.

18I find that the licence the appellant applied for is a “Gaming Assistant 1” licence for applicants who will be in a supervisory position and, under s. 1 of O.Reg. 78/12, exercise “a significant level of decision-making authority” or have “significant supervisor or training responsibilities.”

19I find that, although the appellant’s criminal conviction was with respect to a single victim and limited series of events, the Court’s findings make it clear that the appellant also engaged in similar conduct towards two other student employees under his supervision. This was not an isolated incident, but persistent conduct over time.

20The appellant gave evidence that he has been a law-abiding citizen since the time of the conviction in 2018. There is no evidence to contradict the appellant’s assertion.

21The appellant took issue with some of the findings of fact of the Court in its reasons dated May 7, 2018. It is well established law that the findings of fact in a criminal proceeding may not be re-litigated before this Tribunal.

22The appellant also took issue with the sex offender registry, and the type of status ascribed to him in terms of restrictions. He was adamant that he was not prohibited from public parks and that he was not prohibited from being in the company of a minor. This evidence was not contested; however, the appellant was clearly concerned that the respondent did not fully explain the different restrictions within the registry. In any event, it is not contested that the appellant was ordered to be listed on the sex offender registry until 2028.

23The appellant testified “he was not in a good place” at the time of the events that led to his conviction, but was “better now”. I note that the appellant offered no expert evidence as to his condition, in particular no expert opinion in regard to risk of recidivism, if any.

24I find that the appellant openly disclosed and described the circumstances of his conviction. I also find that the appellant did not discuss his treatment, if any, nor did he offer any expert evidence as to any underlying psychological condition that led to his conviction, nor if it has been addressed in terms of potential relapse or recidivism.

25I find the evidence is the appellant behaved in a manner that lacked integrity and was, in at least one case, contrary to the law, towards several individuals in respect of whom he was in a supervisory capacity.

26The appellant has applied for a licence involving supervisory functions.

27I have considered the passage of time and the appellant’s 'law-abiding' status in the interim. Nevertheless I find the Registrar has met its burden particularly given the appellant’s lack of detailed supporting evidence regarding any change in his circumstances that may reduce his risk of misconduct towards individuals in respect of whom he acts in a supervisory capacity; in addition, I find the appellant’s defensiveness regarding the underlying facts of his conviction and his presence on the sex offender registry concerning.

28I find the appellant’s past conduct to be reasonable grounds for belief that the appellant will not act as a gaming assistant in accordance with the law, or with integrity, honesty, or in the public interest.

Issue b: Is refusal of the appellant’s registration appropriate?

29The Registrar submits that there are no appropriate conditions which could be attached to the registration of the appellant to ensure that the appellant would act in accordance with the law, or with integrity, honesty, or in the public interest in the future.

30The appellant submits that he wishes to return to work but did not suggest any conditions.

31I find that the registration of the appellant with conditions is not appropriate. I find the evidence the appellant offered about the circumstances that resulted in his offence lacked specific detail to the extent that I am unable to conclude any specific condition(s) could be effective. Nothing in the evidence led me to believe that imposing any conditions attached to the registration would be appropriate or effective.

32One of the purposes of the Act is the protection of the public when engaging in gaming and the refusal of registration of the appellant at this time is consistent with that mandate.

Conclusion

33As a result of considering the evidence, in totality, I find that the Registrar has established there are reasonable grounds for belief that the appellant will not act as a gaming assistant in accordance with the law, or with integrity, honesty, or in the public interest having regard to his past conduct within the meaning of s. 11(a) of the Act.

NON-PUBLICATION ORDER

34In the cited court decision R. v. A.M., 2018 ONCJ 299 which details the appellant’s conduct, the court issued the following warning as a preamble to the decision:

“WARNING

The court hearing this matter directs that the following notice be attached to the file:

A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code. This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1), read as follows:

486.4 Order restricting publication — sexual offences. — (1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of

(a) any of the following offences:

(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1,172, 172.1, 172.2, 173, 210, 211, 212, 212, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii) any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant’s sexual integrity and that conduct would be an offence referred to in subpara-graph (i) if it occurred on or after that day; or

(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).

(2) MANDATORY ORDER ON APPLICATION — In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall

(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the complainant of the right to make an application for the order; and

(b) on application made by the complainant, the prosecutor or any such witness, make the order.

486.6 OFFENCE — (1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

35The Tribunal requested submissions from the parties in respect to the scope of the non-publication order subsequent to the completion of the oral hearing, particularly whether it requires anonymizing/initializing the appellant’s name. The Tribunal also requested submissions on whether an order protecting confidentiality of personal information, specifically the appellant’s name, is appropriate in this case, addressing Rule 13.1 of the LAT Rules and the test set out in Sherman Estate v. Donovan, 2021 SCC 25. The appellant chose not to make any submissions and the Registrar made written submissions.

36The Registrar submitted the purpose of s.486.4 of the Criminal Code is to ban the publication of any information that could identify a victim or a witness. The Registrar submitted that, if the Trial Judge had been of the view that publishing the appellant’s name would not identify the victims or witnesses, the Criminal Code judgement would not have anonymized the appellant’s name.

37The Registrar submitted that the Criminal Code publication ban extended to the appellant’s name, the victim’s names, and the location of the offence, and that an anonymization order in these proceedings was therefore appropriate in order not to undo the Criminal Code publication ban.

38Further, the Registrar stated that there is no expiry to the publication ban under s.486.4, and cited H.A. v. S.M. 2017 ONSC 5650 at para. 16:

There is nothing in the language of the statute which purports to authorize a revocation of an order. Moreover, the statute itself does not contain a "sunset" provision found in other publication bans which automatically end the ban upon the occurrence of an event: see, e.g. ss. 539(1)(c) & (d) (preliminary hearing evidence ban ends on the completion of the trial) and s. 648(1) (ban on information heard outside the presence of a jury during a jury trial ends when the jury retires to consider its verdict). Thus, I am of the view that "once a [non-publication] order is made it continues in effect until varied by a court having jurisdiction to do so.": see R. v. V.K. (1991), 1991 CanLII 5761 (BC CA), 68 C.C.C. (3d) 18, at p. 21 (B.C.C.A.).

39I find the Registrar’s submissions to be persuasive and agree that the non-publication order remains in effect and covers the appellant’s name, which would not otherwise have been anonymized by the Trial Judge.

40The Registrar further submitted that LAT Rule 13.1 makes clear that public sharing of information related to a proceeding may be limited in certain circumstances.

41In addition, the Registrar submitted the test for determining limited public access to information was outlined by the Supreme Court of Canada in Sherman Estate v. Donovan, 2021 SCC 25 at para. 38:

(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.

42The Registrar submitted that application of this test supports a publication ban, including the anonymization of the appellant’s name and preventing the release of any information that could identify a victim or witness in the criminal proceeding. I accept the Registrar’s submission, agree that the test in Sherman Estate v. Donovan, 2021 SCC 25 is the correct test for the Tribunal to apply in this proceeding, and find as follows:

1. The openness of the Tribunal poses a serious risk to the public interest; there is a live risk regarding a potential violation of the non-publication order if a victim or witness in the criminal proceeding could be identified from the decision and/or documents, and the protection of victims is an important public interest.

2. There is no reasonable alternative to prevent this serious risk as the judge in the criminal proceedings anonymized the appellant’s name to protect the witnesses and/or victim. As the documentary record at the hearing contains the judgement in the criminal proceeding, anonymizing the appellant’s name is required in order to prevent the risk of identifying the victims or witnesses.

3. As a matter of proportionality, the benefits of anonymization outweigh its negative effects as the Criminal Code publication ban must be adhered to and outweighs any negative effects.

43I find the above cited non-publication order in the criminal proceeding remains in effect.

44I find that test applied in Sherman Estate v. Donovan, 2021 SCC 25 is met.

45I therefore order that the public shall not have access to any information in respect of this Tribunal’s proceeding that could identify the appellant, or a victim or a witness in the criminal proceeding, including in any document or record or hearing. The appellant’s name in the title of proceedings in this matter shall also be initialized.

ORDER

46I confirm the NOP for the reasons set out above.

47I order that the public shall not have access to any information in respect of this Tribunal’s proceeding that could identify the appellant, or a victim or a witness in the criminal proceeding, including in any document or record or hearing.

48I order the appellant’s name in the title of proceedings and in this Tribunal’s decision in this matter to be initialized.

LICENCE APPEAL TRIBUNAL

Robert Maich

Vice-Chair