Court Information

Court: Ontario Court of Justice, Brampton, Ontario

Judge: Quon J.P.

Date of Judgment: January 30, 2014

Parties

Prosecutor: Her Majesty The Queen

Defendants:

Turntable Restaurant and Lounge
Carl Rose-Green
Patrick Dolley

Counsel

For the Prosecution: A. Bruno and R. Gill

For the Defendants: L. Wickham

Charges

Section 29, O. Reg. 719/90 – "fail to remove signs of service"
Section 45(2), O. Reg. 719/90 – "permit use of narcotic on premises"
Section 30.1(1)(a), Liquor Licence Act – "fail to display warning sign (Sandy's Law)"
Section 34, O. Reg. 719/90 – "permit removal of liquor from premises"

Trial Dates

August 13, 2012
February 28, 2013
August 29, 2013

Reasons for Judgment

1. BACKGROUND

[1] The Caterer's Endorsement

The Alcohol and Gaming Commission of Ontario (A.G.C.O.) issues many types of liquor permits or licences that allow for the sale and provision of liquor in Ontario. One such special permit is called the "caterer's endorsement", which allows the holders of a valid liquor sales licence with this special endorsement to sell and serve alcohol at events that are held in unlicenced areas or that are held in unlicenced areas within a licensed establishment, such as in an unlicenced basement of a banquet hall. Moreover, the holder of a caterer's endorsement may sell and serve liquor at a catered event in an unlicenced or licensed area away from the holder's own licensed premises. And, when liquor is being sold or served under the "caterer's endorsement", a special occasion permit is not required. However, the catered event must be sponsored by someone other than the licence holder, have light meals available for event goers, not be more than ten days in duration, and that liquor cannot be offered for sale at a series of sponsored events as an ongoing business with the same sponsor. Furthermore, the licence holder with the "caterer's endorsement" is not permitted to sell or serve liquor in a residence or promote or invite persons to attend the catered event where the licence holder is offering liquor for sale.

[2] Responsibility for Compliance

Moreover, under Ontario's Liquor Licence Act, R.S.O. 1990, c. L.19, the specified location of the catered event is deemed to be licensed premises during the time of the event. Accordingly, the liquor licence holder with the "caterer's endorsement", who is catering the event, is legally responsible for ensuring compliance with the Liquor Licence Act and other Ontario regulations, which includes complying with all health, fire, police and building regulations.

[3] The Charges

Now, for the case at bar, the Peel Regional Police have charged Carl Rose-Green, Patrick Dolley, and Turntable Restaurant and Lounge ("the defendants"), who are the holders of a valid liquor sales licence that contain a "caterer's endorsement", with committing four offences under Ontario's Liquor Licence Act in respect to not complying with the Act and the regulations provided for in the Licences To Sell Liquor Regulation, Ont. Reg. 719/90.

[4] The Inspection

Specifically, during a period that spanned the evening of Sunday, July 31, 2011, to the early morning of Monday, August 1, 2011, Officer Degenstein, an officer with the Peel Regional Police, on two separate occasions had attended the Natraj Banquet Hall, located at 7295 Torbram Road in the City of Mississauga, as part of Project Alert, in order to provide education to liquor sale licence holders and to conduct compliance checks on licensed establishments and banquet halls that support special occasion permits and catering endorsements for liquor licence venues, such as for parties and special events. During that period, liquor was being sold and served by the defendants' under their "caterer's endorsement" at a sponsored event that was being held in the banquet hall from 10:00 p.m. to 3:30 a.m., with about 400 to 500 people expected to attend.

Furthermore, Tyrone Plummer, a self-proclaimed promoter of events and disc jockey had obtained that banquet hall for a cultural event that had been scheduled to begin in the evening of July 31, 2011, and end in the early morning of August 1, 2011. In addition, Plummer testified he had sponsored and organized the event being held at the Natraj Banquet Hall. He also said 10 birthday parties were being held as part of an event called "Girl Power", which also promoted Caribbean culture and provided the national dishes of Jamaica and a venue for the sale of Caribbean arts.

[6] The Catering Arrangement

Moreover, as the sponsor of the event, Plummer, had engaged the defendants, who operate a restaurant and licensed premises at 7171 Torbram Road, Unit C5, in Mississauga, which is located about 200 feet south of the banquet hall, to cater the event being held in the Natraj Banquet Hall located at 7295 Torbram Road. The defendants were to provide the food and alcoholic beverages for the event. And, since the defendants held a valid liquor sales licence that contained a "caterer's endorsement", they were legally permitted to sell and serve alcohol to people attending the catered event that was being held away from their own licensed premises located at Unit C5, 7171 Torbram Road in the City of Mississauga.

[7] The Charges Laid

In addition, based on observations and events that he had personally perceived and detected at approximately 3:06 a.m. on August 1, 2011, while in attendance at the sponsored and catered event being held at the Natraj Banquet Hall, Officer Degenstein charged the liquor licence holders, Carl Rose-Green, Patrick Dolley, and Turntable Restaurant and Lounge, individually with committing four offences each under the Liquor Licence Act, R.S.O. 1990, c. L.19 and the Licences To Sell Liquor Regulation (Liquor Licence Act), R.R.O. 1990, Reg. 719. In particular, the three defendants were individually charged with the following:

"fail to remove signs of service", contrary to s. 29 of O. Reg. 719/90;
"permit use of narcotic on premises", contrary to s. 45(2) of O. Reg. 719/90;
"fail to display warning sign (Sandy's Law)", contrary to s. 30.1(1)(a) of the Liquor Licence Act;
"permit removal of liquor from premises", contrary to s. 34 of O. Reg. 719/90.

[8] Trial and Acquittal on Count 3

Furthermore, the trial of these four charges had been held on three separate days: August 13, 2012, February 28, 2013, and August 29, 2013. During final submissions, the Crown conceded and agreed with the defendants' submissions that the Sandy's Law warning sign did not have to be displayed at 3:06 a.m. when the bar had been closed and alcohol was no longer being sold or served, and had asked that the three defendants be acquitted of committing the charge of "fail to display warning sign" in count #3. That charge was then dismissed against all three defendants. Subsequently, after final submissions were completed, judgment was then reserved on the remaining three charges and adjourned to January 30, 2014, for my judgment to be rendered on those three remaining charges. These, therefore, are my written reasons for judgment.

2. THE CHARGES

[9] The Informations

The three defendants, Carl Rose-Green, Patrick Dolley, and Turntable Restaurant and Lounge were charged individually under three separate Part III informations sworn on September 7, 2011. All three defendants were in fact charged with the following same four Liquor Licence Act charges:

(a) Information no. 7831 – Carl Rose-Green

(1) Carl Rose-Green of [removed to protect privacy], Brampton, Ontario

on or about the 1st day of August, 2011, at the City of Mississauga in the Central West Region did commit the offence of at approximately 3:00 a.m., being the licence holder of the licenced premises at 7295 Torbram Road, operating as Turntable Restaurant and Lounge, did unlawfully fail to remove all evidence the service and consumption of liquor within forty-five minutes after the sale and service of liquor ceases as required under Section 29 of Ontario Regulation 719/90, contrary to the Liquor Licence Act

(2) AND FURTHER THAT Carl Rose-Green

on or about the 1st day of August, 2011, at the City of Mississauga in the Central West Region did unlawfully permit the use of narcotics at the premise situated at 7295 Torbram Road as proscribed under Section 45(2) Ontario Regulation 719/90, contrary to the Liquor Licence Act

(3) AND FURTHER THAT Carl Rose-Green

on or about the 1st day of August, 2011, at the City of Mississauga in the Central West Region did unlawfully fail to display warning sign, to wit: Fetal Alcohol Spectrum Disorder as proscribed under Section 30.1(1)(a), contrary to the Liquor Licence Act

(4) AND FURTHER THAT Carl Rose-Green

on or about the 1st day of August, 2011, at the City of Mississauga in the Central West Region did permit the removal of alcohol from the premises situated at 7295 Torbram Road in the City of Mississauga as proscribed under Section 34 of Ontario Regulation 719/90, contrary to the Liquor Licence Act

(b) Information no. 7832 – Patrick Dolley

(1) Patrick Dolley of [removed to protect privacy], Brampton, Ontario

(2) AND FURTHER THAT Patrick Dolley

(3) AND FURTHER THAT Patrick Dolley

(4) AND FURTHER THAT Patrick Dolley

(c) Information no. 7833 – Turntable Restaurant and Lounge

(1) Turntable Restaurant and Lounge of 7171 Torbram Road, Unit C5, Mississauga, Ontario

on or about the 1st day of August, 2011, at the City of Mississauga in the Central West Region did commit the offence of at approximately 3:00 a.m., being the licence holder of the licenced premises at 7295 Torbram Road, operating as Turntable Restaurant and Lounge, did unlawfully fail to remove all evidence the service and consumption of liquor within forty-five minutes after the sale and service of liquor ceases, as required under Section 29 of Ontario Regulation 719/90, contrary to the Liquor Licence Act

(2) AND FURTHER THAT Turntable Restaurant and Lounge

(3) AND FURTHER THAT Turntable Restaurant and Lounge

(4) AND FURTHER THAT Turntable Restaurant and Lounge

3. BACKGROUND

[10] The Partnership and Licence

Turntable Restaurant and Lounge had been a valid and legally registered partnership in Ontario on August 1, 2011, which had been the date on which the alleged liquor licence offences had been committed by the defendants, and in which Carl Rose-Green and Patrick Dolley are the registered partners. In addition, the partnership had been registered on October 29, 2009, and this registration would not expire until October 28, 2014. Furthermore, the business name of "Turntable Restaurant and Lounge" had been registered as being operated as a general partnership by Carl Rose-Green and Patrick Dolley.

[11] The Liquor Sales Licence

In addition, Carl Rose-Green and Patrick Dolley, who were operating a partnership under the business name of "Turntable Restaurant and Lounge", had been issued a liquor sales licence by the A.G.C.O. that is numbered 200246, on September 3, 2010, and which would expire on November 12, 2011. As such, on August 1, 2011, which is the date they were alleged to have committed the four offences, the defendants held a valid licence to sell and serve liquor. Furthermore, the licence had been issued for the premises of Unit C5, 7171 Torbram Road, Mississauga, which is where the defendants operate their restaurant and lounge business. In addition, the liquor sales licence had been issued with a "caterer's endorsement", which permits the defendants to sell and serve liquor at an event they are hired to cater at premises other than their own licensed premises located at Unit C5, 7171 Torbram Road, Mississauga.

[12] Obligations of Caterer's Endorsement Holders

Furthermore, because the defendants had held a valid liquor sales licence with a catering endorsement, they were permitted to sell and serve alcoholic beverages at events that are held in unlicensed areas other than a licensed establishment, or that are held in unlicensed areas within a licensed establishment, such as in an unlicensed basement of that licensed establishment. Moreover, the defendants, as liquor sales licence holders are also required to notify their local police, fire, building and health departments about the details of each catered event at least ten days prior to the event taking place. Furthermore, the defendants are legally responsible for ensuring that the location of where the catered event is being held complies with all the same requirements that apply to their own licenced establishment.

[13] The Event Location

In addition, for the event in question that led to the defendants being charged, Tyrone Plummer had been the organizer or sponsor of an event that had commenced in the evening of Sunday, July 31, 2011, and that had extended to the early morning of Monday, August 1, 2011, at the Natraj Banquet Hall located at 7295 Torbram Road in the City of Mississauga. This banquet hall is located approximately 200 meters north of Carl Rose-Green and Patrick Dolley's restaurant and lounge located at Unit C5, 7171 Torbram Road in Mississauga.

[14] The Catering Engagement

Moreover, the defendants, Carl Rose-Green, Patrick Dolley, and Turntable Restaurant and Lounge were engaged to cater the event being held at the Natraj Banquet Hall Located at 7295 Torbram Road in Mississauga. And, since they also had a caterer's endorsement for their liquor sales licence, they were able to sell and serve liquor at that sponsored event being held in the banquet hall and in which the main banquet room would be deemed as the licensed premises for the sale and provision of alcoholic beverages under the defendants' liquor sales licence.

[15] The "Girl Power" Event

Furthermore, Tyrone Plummer had testified that the event was called "Girl Power" and was a cultural event highlighting Caribbean arts and the national dishes of Jamaica, which also included holding 10 birthday parties.

[16] Event Details

In addition, the banquet hall had been obtained by Tyrone Plummer to hold that sponsored event during the evening of Sunday, July 31, 2011, and the early morning of Monday, August 1, 2011, and had been planned to be held between 10:00 p.m. and 3:30 a.m., and in which 400 to 500 people had been expected to attend the sponsored event.

[17] Officer Degenstein's Attendance

Officer Degenstein had also attended at the banquet hall during his shift that spanned July 31, 2011 and August 1, 2011, on two separate occasions, namely, at 11:12 p.m. on July 31, 2011, and at 3:06 a.m. on August 1, 2011, as part of Project Alert, in order to provide education to liquor sale licence holders and to also check for compliance with provisions of the Liquor License Act and other Ontario regulations.

[18] Crowd at 3:06 a.m.

Moreover, at 3:06 a.m., on August 1, 2011, Officer Degenstein had observed several hundred people still inside the banquet hall for the event sponsored and organized by Tyrone Plummer.

[19] Liquor Sales Hours

Furthermore, in Ontario, alcoholic beverages or liquor are not permitted to be sold or served after 2:00 a.m. by liquor sales licence holders, except on New Year's eve or by mini-bars located in individual hotel rooms or unless special permission and licences have been granted by the A.G.C.O.

[20] Basis for Charges

In addition, based on what Officer Degenstein had observed and personally perceived and detected during his attendance at 3:06 a.m. at the event being held at the Natraj Banquet Hall on the early morning of August 1, 2011, he charged the defendants individually with committing four offences each of the Liquor Licence Act and the Licences To Sell Liquor Regulation.

[21] The Informations Sworn

Consequently, three Part III informations were then sworn on September 7, 2011, charging Carl Rose-Green, Patrick Dolley, and Turntable Restaurant and Lounge individually with committing the same four Liquor Licence Act and the Licences To Sell Liquor Regulation offences, namely, (1) "fail to remove signs of service", contrary to s. 29 of O. Reg. 719/90; (2) "permit use of narcotic on premises", contrary to s. 45(2) of O. Reg. 719/90; (3) "fail to display warning sign (Sandy's Law)", contrary to s. 30.1(1)(a) of the Liquor Licence Act; and (4) "permit removal of liquor from premises", contrary to s. 34 of O. Reg. 719/90.

[22] Trial Proceedings

In addition, summonses were also issued on September 7, 2011, and served on the three defendants on September 30, 2011, requiring each of them to appear in court on November 3, 2011, to answer to the charges. After several more appearances, the defendants' trial commenced on August 13, 2012. The trial was not completed on August 13, 2012, and continued on February 28, 2013 and August 29, 2013. During final submissions, the prosecution had agreed with the defendants' submissions that all three defendants should be acquitted of the offence of "fail to display warning sign (Sandy's Law)" in count #3 on all three informations. As such, acquittals were entered for the defendants on count #3 on all three informations. Then after final submissions were completed on August 29, 2013, judgment was reserved and the matter was adjourned to January 30, 2014, for judgment to be rendered on the three remaining charges.

[23] Witnesses

Furthermore, at the trial of the charges, two witnesses had testified. There had been one witness for the Crown, who was Officer Brent Degenstein, the police officer who had charged the defendants with committing the four liquor licence offences and one witness for the defence, who was Tyrone Plummer, who had been the organizer and sponsor of the event in question.

(a) SUMMARY OF TESTIMONY

[24] Overview

The following is a summary of the testimony given by the two witnesses who had testified at the trial:

(1) Officer Trent Degenstein, Police Officer Who Laid the Charges (Witness for the Prosecution)

[25] Officer's Background and Training

Officer Trent Degenstein testified he has been a police officer since April of 2008. He also said that sometime about June of 2011 he had received formal training for approximately two days from the Alcohol and Gaming Commission of Ontario, as well as from the Peel Regional Police's morality and vice unit, on liquor-licensed establishments under the auspice of Project Alert that was being conducted out of 21 Division of the Peel Regional Police.

[26] Project Alert Involvement

In addition, Officer Degenstein said that he had been part of a team involved in Project Alert in respect to conducting inspections under the Liquor Licence Act from Sunday, July 31, 2011, to Monday, August 1, 2011. He also said he had been operating an unmarked cruiser during that period, but had been in full uniform. Moreover, he said he had been alone and riding solo.

[27] Project Alert Objectives

Furthermore, he said that Project Alert had been designed in the 21 Division area in the City of Brampton and the City of Mississauga and involved providing education and conducting compliance checks on liquor-licensed establishments, as well as banquet halls that support special occasion permits and catering endorsements for liquor licence venues that are holding parties and other events.

(i) Officer Degenstein's Visit to the Natraj Banquet Hall at 11:12 p.m.

[28] Initial Observations

In particular, Officer Degenstein said he had attended the Natraj Banquet Hall located at 7295 Torbram Road in the City of Mississauga at 11:12 p.m. on July 31, 2011. He also said that prior to entering the establishment, he had observed large metal gates set up at the exterior of the banquet hall that were used to funnel patrons into the banquet hall. He also said a security company had been set up for the evening. Moreover, he said that from prior experience he had been aware that large-scale parties of 150 to 1200 persons could attend parties that are held at this particular establishment.

[29] Meeting with Tyrone Plummer

Furthermore, Officer Degenstein said that at 11:12 p.m., he had attended and spoke with the promoter of the event, Tyrone Plummer, who was promoting as well as deejaying the event that was going on that evening. He also said that Plummer had informed him that the Turntable Restaurant, which is located 200 feet south of the banquet hall at the address of 7171 Torbram Road, unit C5, was catering the event. However, when asked if he had attended the Natraj Banquet Hall between 5:00 p.m. to 6:00 p.m. on July 31, 2011, Officer Degenstein replied that he does not believe he had been working at 5 or 6 p.m., but then immediately corrected that statement by disclosing that he had logged onto his cruiser at 17:25 (or at 5:25 p.m.) and then said he had attended a radio call at Freshco and made an arrest at 17:58 (or at 5:58 p.m.) and had still been doing paperwork at 21 Division for that arrest at 19:30 (or at 7:30 p.m.).

[30] Observation of Liquor Licence

In addition, Officer Degenstein said that he had observed a liquor license at that time in the proximity of the bar that had been issued to the Turntable Restaurant, indicating licence number 200246. He also said the licence had been issued to Carl Alexander Rose-Green and Patrick Dolley for Turntable Restaurant and Lounge, located at 7171 Torbram Road, unit C5, in the City of Mississauga, with an expiration date of November 12, 2011.

[31] Purpose of Visit

Officer Degenstein also said that his purpose of being there at this point in time was to educate both the patrons, as well as the staff working the event, on what the role of Project Alert would facilitate and that he would also be back there later to inspect the premises for any liquor licence and other Ontario regulation infractions.

[32] Explanation of Caterer's Endorsement

Moreover, Officer Degenstein explained how the caterer's endorsement would work in conjunction with a special occasions permit and said that a sponsor or patron would first need to attend at the L.C.B.O. in Ontario and apply for a special occasions permit. In addition, he said that a special occasion's permit would enable the sponsor to house and hold an event in either a banquet hall or an open area. He also said that there would be certain criteria that would also have to be met. In addition, he said that they would usually either purchase their own alcohol under the special occasion permit and or hire a caterer to control the service of alcohol at the event.

[33] Type of Event

And, in regards to the type of event being held on the night in question, Officer Degenstein had testified initially that it had been a birthday party being held under a special occasions permit with a caterer's endorsement. Furthermore, he said the defendants were the caterers for that special occasions permit.

[34] First Visit Observations

Moreover, Officer Degenstein said that when he had attended at 11:12 p.m. on July 31st, the event had not commenced yet, since there were still people inside decorating the premises, which he said is customary with birthday parties. He also said the promoter had been there at that time and that Degenstein further said he did not see the Sandy's Law warning sign anywhere on the premises at that time. He also said he had conveyed information to the promoter on how to obtain the Sandy's Law warning sign, since it had not been on display. Moreover, he also said he did not see the caterer or any representative of the caterer at that time in the premises.

[35] Liquor Licence Display and Warning Sign Requirements

Officer Degenstein also said he had obtained the caterer's liquor license number and other information about the caterer, who are the defendants, from the liquor license that he had observed sitting on top of the bar on the far right-hand side and encased in what appeared to be a frame. He also said that both pages of the license were also there, but then confirmed that at that point in time, there had been no need to have the liquor license displayed at the bar. However, he said that since the liquor license and alcoholic beverages had been on the premises at that time, then the fetal alcohol warning sign would have been required to be displayed at that time, as liquor sales would have been made available for sale at that point in time and that someone could have chosen to purchase a drink at that time.

[36] Assumption Regarding Alcohol

However, when questioned about seeing any alcohol at that time, Officer Degenstein said the event had not yet started, but assumes there had been alcohol on the premises at that time and assumes the caterers had brought it there, even though he did not see the caterer there at that time.

[37] Recollection of Alcohol Presence

Furthermore, Officer Degenstein said he did not have an independent recollection in respect to that aspect regarding whether the caterer had brought alcohol to the premises. However, he said that his notes do indicate the establishment, the licence number, and that the caterers were not there at that time. Furthermore, he said he does not have an independent recollection of whether there had been alcohol there or not at that time, but said that when the liquor licence was there, then the alcohol is presumed to be there as well.

[38] Special Occasion Permit

In addition, Officer Degenstein said he had first assumed that there had been a special event licence for these premises on July 31st, 2011, and that the special occasions permit would be in attendance with the promoter at this point in time, but did not recall if he had seen the special occasion permit or whether the promoter had showed it to him. However, he subsequently admitted after reviewing his notes that according to his notes, no special occasion permit had been listed in his notes.

[39] Caterer's Responsibility for Alcohol

Officer Degenstein also confirmed that when there is a caterer's endorsement, but no special event permit, then the alcohol is to be brought by the caterer.

[40] No Infractions at First Visit

Moreover, Officer Degenstein agreed that at 11:12 p.m. the event had not really begun and that they were still setting up. Therefore, as of that time and as far as his job had been concerned with, Degenstein said there had been no infraction under the liquor license laws. He also said that he had not found any infractions during this visit at 11:12 p.m.

[41] Interim Activities

Additionally, from the time he had left the premises of the Natraj Banquet Hall after his visit at 11:12 p.m. until he had returned to the banquet hall at 3:06 a.m., Officer Degenstein said he had been doing liquor licence inspections at another banquet hall and at other establishments during the interim.

(ii) Officer Degenstein's Visit to the Natraj Banquet Hall at 3:06 a.m.

[42] Arrival and Initial Observations

Subsequent to his first visit at 11:12 p.m. on July 31, 2011, Officer Degenstein said he re-attended the Natraj Banquet Hall at 7295 Torbram Road in the City of Mississauga, at 3:06 a.m. on August 1, 2011. Upon his arrival, he said he had observed a large amount of people still in line and that security had been still functioning. Then he said that when he had entered the building, he entered an independent lobby that had been set up in the interior of the building. In this lobby, he said he had observed a female with a six-pack containing four full Heinekels with their caps on and that two bottles had been missing from the six-pack. He also said this female had been in the exterior lobby and had been very close to the exterior doors of the building. He also said she appeared to be getting ready to leave the banquet hall. Furthermore, he said that the female had been outside of the area that was covered by the liquor license being used and in contravention of the Liquor License Act.

[43] Explanation of Removal of Liquor Charge

In explaining why he had laid the charge of "permit removal of liquor from premises", Officer Degenstein said that since there had been interior doors blocking off the lobby area from the main banquet room, and since the defendants' liquor license did not contain an endorsement for washrooms or hallways, then the expectation of a "catering endorsement" is to have the liquor consumed in the interior of the banquet hall and not in a common area such as a lobby, which would lead to the exterior of the building and which would permit people attending the event to readily remove the alcohol from the building.

[44] Conducting Inspection

Furthermore, Officer Degenstein said he had been conducting a Liquor License Act inspection of the premises at 3:06 a.m.

[45] Observations Regarding Signs of Service

In addition, Officer Degenstein said that in regards to the "fail to remove signs of service" charge, he had observed various persons drinking in the interior around the dancing area, where a dance floor had been established in the interior of the premises. Furthermore, he said he had observed a large crowd still at the bar. In addition, he said he had observed bottles of Hennessy in buckets on ice, which still appeared to be containing an alcoholic beverage in those bottles. Moreover, he said he had observed in the interior of the premises many patrons holding pink, blue, and yellow cups, which was under the purview of the Liquor License Act, or in this case, the caterer's endorsement that the defendants had for the premises.

[46] Further Observations of Alcohol

Furthermore, Officer Degenstein said he had observed more bottles of Hennessy under a table, as well as Bacardi Breezers that were spread in the proximity of the bar area, as well as in the table areas, which were surrounding the dance floor in the establishment. He also said he had observed people mixing drinks in various areas of the premises. In addition, he said he observed more people drinking from Heineken bottles and that there was six-packs of beer in and around the area. More important, Officer Degenstein said that he had observed these events after 3:06 a.m., and because the sale of liquor ceases at 2:00 a.m., then all signs of service had to be removed by 2:45 a.m., in accordance with the regulations.

[47] Continued Drinking After Cutoff

Moreover, when he had returned to the location at 3:06 a.m., Officer Degenstein said he had observed individuals inside the banquet hall itself still mixing drinks in their hands or drinking alcohol in the interior of Natraj Banquet Hall where the Liquor License Act was relevant. Furthermore, he said they were inside around the dance floor and around the bar area. In addition, he also said he had observed bottles and other signs of alcohol inside the banquet hall, including seeing bottles of Hennessy, in which one was under a table, the six-pack of Heineken that were missing two bottles but contained four bottles with the caps on, and the Bacardi Breezer bottles. In addition, he observed pink, blue, and yellow cups that were being used to mix the drinks in. He also said this had been consistent with promoted parties and from the experience he has had with this type of event.

[48] Sale and Service Cessation

In addition, Officer Degenstein said the sale and service of liquor had stopped at that point in time, but people had been continuing to drink well past 2:45 a.m.

[49] Observations Regarding Marijuana Use

And, in respect to the charge of "permit use of narcotic on premises", Officer Degenstein said he had noticed a strong odor of marihuana in the building. Moreover, he said that upon entering the premises at 3:06 a.m., he had noticed that the premises in its entirety, including right up to the washroom area, had been filled with the odour of freshly burnt marihuana. In addition, he said that prior to April of 2008, while he was in his qualification phase as a constable at the Ontario Police College in Aylmer, Ontario, he had been subjected to one controlled or burn test of marihuana. So consequently, from that particular test and from his experience as a police officer, he said that he definitely is aware of what marihuana smells like. He also reiterated that there had been a strong smell of marihuana in the interior of the premises. Moreover, Officer Degenstein said he had observed one male party to be openly smoking what appeared to be a marihuana cigarette, since its appearance had definitely not been the appearance of a normal cigarette, and that while he had been observing this male, Degenstein said he could detect the odor of marihuana at that time. Degenstein also said the marihuana cigarette appeared to consist of approximately four to six papers and had been almost in the shape of a cigar. Furthermore, Degenstein said that this person had been smoking this cigar-shaped item in the interior of the premises openly and without care or due consideration for any legal ramification. However, Degenstein said that no arrests had been made under the Controlled Drugs and Substances Act at that time, because of the large crowd of approximately four to five hundred people being in the premises, which raised concerns about his own safety. He also said he did not conduct a formal count of the number of people inside the premises, but had received information from security personnel when he had exited the premises that the estimated count had been between 400 to 500 people in the premises.

[50] Concealment of Marijuana Cigarette

Moreover, Officer Degenstein believes that the person who appeared to be smoking that marihuana cigarette had indeed noticed Degenstein's presence and had attempted to conceal the marihuana cigarette, but Degenstein said that he cannot recall how the person had attempted to conceal it, since this had occurred approximately over a year ago and that he cannot recall the specifics of each exact motion of what the person's hands did in an attempt to conceal a marihuana cigarette inside a very packed area.

[51] Description of Marijuana Cigarette

Officer Degenstein also reasoned that for that particular cigarette it would have had to been comprised of four or five sheets of paper, and because of its length, it clearly could not have been a normal cigarette, since it was obtrusive in nature and similar to the shape of a baseball bat and had been approximately six inches long. Moreover, he stated that it could not have been a cigar, since it had been white in colour.

[52] Description of Person Smoking

Furthermore, Officer Degenstein said the person who he believes had been holding the cigar-shaped marihuana cigarette had been a black male, and possibly Jamaican, since the consistency of the people who had been attending the party had been Jamaican and that the vast majority of the people he had spoken to had a Jamaican accent.

[53] Basis for Narcotic Charge

Moreover, Officer Degenstein said that he could not recall the specifics of the man's attempts to conceal what he had believed to be a marihuana cigarette, but recalls that the man did not continue to smoke it. However, Degenstein said that the grounds to lay the "permit use of narcotics on the premises" charge had been based on the fact of the smell he had detected upon entering the primary establishment, coupled with the grounds of what appeared to be a marihuana cigarette being held by a male person in the licensed area of the premises. Furthermore, in respect to the security personnel that were being employed on the site, Officer Degenstein said he had noticed that they were making no efforts to stop the smoking that had been going on. Degenstein also said there had been smoking going on, but does not believe that just one person smoking a marihuana cigarette alone could have caused the smell to cover the whole area.

[54] Training and Experience with Marijuana Detection

Furthermore, from his experience as a police officer and through the Ontario Police College at Aylmer where he had been subject to a burn test of marihuana, he had been made readily aware what burning marihuana burning smells like. Ergo, upon entering the establishment he had detected a strong odor of what appears to have been freshly burnt marihuana permeating the interior of the premises, and when coupled with his observation in the establishment of what appeared to be a marihuana cigarette in a patron's hand, although not confirmed by him, gave him the grounds to believe that this particular offence had been committed.

[55] Hypothetical Scenario

Officer Degenstein also said that if he had hypothetically observed this person smoking the marihuana cigarette outside, then he would have acted and done something differently, instead of not approaching and investigating the person for being unlawfully in the possession of a controlled substance while he had been in the premises.

[56] Communication with Defendants

In addition, Officer Degenstein said that prior to leaving the establishment, he had attended the bar area between 3:06 a.m. and 3:31 a.m. on August 1, 2011, and spoke with a male party there, who he cannot presently identify, but from what Degenstein had recorded and indicated in his notes, the male he had been speaking to had been one of the owners of the Turntable Restaurant and Lounge, so that he would have been speaking with either Carl Alexander Rose-Green or Patrick Dolley. And, at that time Degenstein noted that he had advised that particular male person that their business would be charged for liquor licence offences. However, Officer Degenstein admitted that at the present time he does not recall if it had been Rose-Green or if it had been Patrick Dolley, who he had advised about the upcoming charges.

[57] Sandy's Law Warning Sign Observations

Moreover, at that time, Officer Degenstein said he had also noted that there had been no Sandy's Law warning sign being displayed in the proximity of the bar, even though he had informed and explained to Tyrone Plummer during his first visit at 11:12 p.m. on how to obtain the Sandy's Law warning sign from the Alcohol and Gaming Commission of Ontario website, and that it is readily accessible and easy to print out. Moreover, Officer Degenstein said he had also observed a computer on the premises, which he surmised could have been used for that purpose. In addition, Degenstein said the Turntable Restaurant is located close to the banquet hall, so that it would have been very easy for a person to attend at that restaurant to obtain a warning sign, where Degenstein knew they had a Sandy's Law warning sign in the proximity of the bar, since he had conducted a liquor license inspection at the Turntable Restaurant premises prior to that evening.

[58] Description of Sandy's Law Warning Sign

Furthermore, Officer Degenstein explained that the warning sign in respect to Sandy's Law is a sign displaying a woman who is approximately eight months pregnant and wearing a red sweater, which also indicates that the consumption of alcohol might cause fetal alcohol syndrome.

[59] Departure from Premises

In addition, Officer Degenstein said he had exited the premises at 3:31 a.m. on August 1, 2011.

[60] Request for Certified Copies and Charges

Officer Degenstein also said he then had put in a request shortly afterwards to the Alcohol and Gaming Commission of Ontario for certified copies of the Liquor Licence, as well as the corporate profile indicating who the owners of the business were. He then said Part III summonses were issued to all three defendants, namely, Carl Alexander Rose-Green, Patrick Dolley, and Turntable Restaurant and Lounge, for the four offences of "fail to remove signs of service"; "permit use of narcotic on premises"; "fail to display warning sign" in respect to the fetal alcohol spectrum disorder in regards to Sandy's Law; and "permit removal of liquor from premises".

[61] Accompanying Officers

In addition, Officer Degenstein said that when he had re-attended the premises at 3:06 a.m., two other police officers, who he named as Constable Shipp and Constable Pascalis, had accompanied him. Degenstein also said he had asked them to attend the Natraj Banquet Hall for officer safety reasons, but cannot recall when he had asked them to attend, if they had already been there, or whether they had arrived first when he had returned to the banquet hall at 3:06 a.m. However, he said that he was able to attest to the fact that when he had entered the establishment at 3:06 a.m., Constable Shipp and Constable Pascalis had entered the establishment with him, as he would not have entered the premises alone at that point for safety reasons.

[62] Officer Safety Concerns

Officer Degenstein then explained that in the situation where there is a large-scaled birthday party going on, in which alcohol is available, and where people attending the party have been consuming alcohol, then there would be an officer safety issue. Degenstein also pointed out that he had been, but one officer amongst approximately four to five hundred people, and that he would not have entered the premises without another officer. That in itself, he said, creates an immediate officer safety issue. Furthermore, he said he would not have entered the premises by himself, nor had he done so throughout the period from June 1st to September 9th, 2011, especially where he would have entered a banquet hall hosting a large-scale party with a liquor license and liquor.

[63] Lighting and Event Status

In addition, Officer Degenstein said that at 3:06 a.m. the interior of the lobby had been very well lit. He further said he believes the lights were on at that point in time. He also agreed with the proposition that observing the lights being on in the establishment would also indicate that the event was either over or winding down. However, he also added that from his experience, these types of events could go on until to six o'clock in the morning where a breakfast would also be provided.

[64] Police Presence Awareness

Furthermore, Officer Degenstein said he had walked through the premises in his uniform and that the other officers would have been with him at that time. In addition, as to whether the people at the event would have been aware that police officers had been in the premises at 3:06 a.m., Officer Degenstein reasoned that there would have been people in his immediate vicinity that would have known that there had been a police officer there, but that not everyone in the premises would necessarily know about the presence of police officers, unless the deejay had made an announcement about their presence.

[65] Security Detail

In addition, before he entered the lobby, Officer Degenstein noted that there had been a security detail situated at the exterior of the lobby. He also said the exterior of the lobby is on the west side of the building, in the southwest corner.

[66] Entry into Premises

Moreover, Officer Degenstein had recalled that a lot of people had still been in line to enter the banquet hall at 3:06 a.m., which necessitated him asking people to move out of his way so that he could enter the banquet hall. He also said that he had tried to physically move people out of his way, but they had been focused on getting into the establishment.

[67] Interior Conditions

In addition, Officer Degenstein said the lights had been on, the music was still playing, and that people were still dancing. And, of the 400 or so people who were in that establishment, he said the bulk of them were in and around the proximity of the dance floor in the main area. He further said there were tables on the edge of the dance floor and that the interior of that room would be approximately six times as large as the interior of this particular courtroom. He also said he had obtained and gained the evidence for the four charges during his walk through the interior of the establishment at that time.

[68] Sandy's Law Sign Search

In addition, Officer Degenstein said he recalls not seeing the fetal alcohol syndrome warning sign displayed at 3:06 a.m. Degenstein also said he does not recall seeing whether the liquor license had been displayed at that time. He also said while checking for the Sandy's Law warning sign he would have looked around the bar area, on the walls, and at any place where the fetal alcohol spectrum disorder sign could have been taped up.

[69] Bar Status

Moreover, Officer Degenstein said he had noticed that the bar had not been open at that point in time, nor had the bar been serving or open for business. He also said he did not see any alcohol behind the bar and that it had been free of alcohol. However, he did observe various persons continuing to mix alcoholic drinks and drink in his presence, as he walked through the premises. He also said people in general were also dancing and swaying back and forth.

[70] Bar Closure and Sign Requirements

In addition, Officer Degenstein agreed that if the bar area is free of alcohol then it would not be surprising that the liquor licence and the fetal alcohol syndrome warning sign would also be gone. He also agreed that the fetal alcohol warning sign should only have to be visible or displayed during the operation of the bar.

[71] Security Presence

Furthermore, Officer Degenstein said there had been security at the exterior, as well as in the interior of the lobby, and in the interior of the premises. In addition, he said the security for the event were identifiable, since he believed that the majority of the security company were wearing black-coloured shirts with the word "security" displayed across the front, as well as the back of those shirts.

[72] Background and Event Details

Tyrone Plummer testified that he is a promoter of events and disc jockey. He also said he has been promoting events for about 20 years. He also said that on July 31, 2011, he had sponsored and organized a cultural event, which he referred to as the "Girl Power" event, which highlighted Caribbean Culture and the natural dishes of Jamaica. He also said Caribbean arts were also being brought in. However, he said he cannot recall the location of the event, but believes it had been at Natraj Hall on Torbram Road, just north of Derry.

[73] Meetings with Officer Degenstein

Moreover, Plummer had pointed to Officer Degenstein as the police officer who he had spoken to. In addition, Plummer said he first spoke to Officer Degenstein at 5:00 p.m. on July 31st, and that Plummer had met with Officer Degenstein two more times at 9:00 o'clock when Degenstein had walked in during the time when Plummer had been finalizing decorations, and then at 2:00 a.m. when Plummer had met with Officer Degenstein again.

[74] First Meeting with Officer Degenstein

For the first occasion of meeting Officer Degenstein, Plummer said he had not yet been set up. Plummer also said he had 10 birthday parties to do at the banquet hall. In addition, Plummer said that when Officer Degenstein had asked him about what was going on, Plummer had replied that an event was being held. Furthermore, Plummer said the officer then asked to see a permit and Plummer responded that the liquor license was not there because they were not ready and that Plummer would have it later. Plummer also said Officer Degenstein had been alone at that time. Plummer then said he finished setting up the sound system and lights for the event. In addition, Plummer said he had been expecting the event to start around 10:00 p.m. and end at about 3:30 a.m.

[75] Second Meeting with Officer Degenstein

And, for the second occasion of meeting Officer Degenstein, Plummer said Officer Degenstein had attended the banquet hall at 9:00 p.m. and that Degenstein had been there for about ten minutes and that he had asked to see the liquor permit. Plummer said the permit had been on the wall and that Officer Degenstein had made notes of it. In addition, Plummer said that Officer Degenstein then asked about the Sandy's Law warning sign that shows a pregnant lady. At that point, Plummer said there had been five to six of those warning signs on the wall and on the pillars and at the front and by the bar. Furthermore, he said the liquor license was at the bar.

[76] Experience with Police Attendance

In addition, Plummer said he has done about 2000 events, and has hired police officers for events held at banquet halls, and that he is aware that police officers will attend events that he organizes.

[77] Expected Police Attendance

Moreover, Plummer said he had expected Officer Degenstein to come around to the banquet hall at 12:00 midnight.

[78] Event Closure and Security

Furthermore, Plummer said the doors for the event would close at 2:00 a.m. He further said the event had been a paid event and estimated that 400 to 500 people would attend and occupy the banquet hall. In addition, he said it was not full early on and that when the doors were closed at 2:00 a.m., there had been approximately 450 people still there. He also said Officer Degenstein had asked for Rose-Green when Plummer had been emptying the back room. He also said there had been security personnel at each door, including at the front door, at the big main door to the banquet hall, and to the door to the office. Furthermore, he said there were five more security persons posted outside. In addition, he said access to the lobby had been controlled by security personnel. He also said that event goers were given wristbands, which would allow them to go outside to smoke. Furthermore, he said people were going in and out of the lobby area after 2:00 a.m. to smoke. In addition, Plummer said they had printed wristbands for that purpose. He also said they had stopped allowing people in at 2:00 a.m.

[79] Contact with Officer Degenstein at 2:00 a.m.

Also, at 2:00 a.m., Plummer said he had contact with Officer Degenstein, who had asked for Rose-Green and then turned around because Plummer had informed Officer Degenstein that Degenstein had just passed Rose-Green in the lobby. Plummer then said that Degenstein then turned around and went to the lobby. Moreover, Plummer said he saw Officer Degenstein outside for approximately 20 minutes to 30 minutes.

[80] Altercation Outside

In addition, Plummer said there had been an argument between another promoter and security personnel because the other promoter had wanted to get into the banquet hall. Plummer also said he had informed the other promoter that if he had come earlier then Plummer would have let him in. Moreover, Plummer said that a police officer had also spoken to that other promoter. In addition, he said that four police officers had come to their aid during that argument with the promoter and that it had been Officer Degenstein and plain-clothes police officers carrying badges around their necks.

[81] Police Departure

Plummer also said Officer Degenstein had been in full uniform from 2:20 to 2:30 a.m. Furthermore, Plummer said that by the time that the officers had approached the situation it had already been diffused. Then, Plummer said the police officers had left through the barricades and that the undercover officers had gone into an unmarked car, while Officer Degenstein had gone into his own car.

[82] Lighting and Cleanup

In addition, Plummer said he had not been in the main area of the banquet hall and could not see anyone or see if there had been smoking going on in the main area. Furthermore, he said the lights were on medium strength and not fully on, but turned on halfway up, in order to be able to see bottles on the floor. And when the bottles were cleared, Plummer said the lights would then be turned a quarter of the way down.

[83] Officer Degenstein's Final Visit

Plummer also said that Officer Degenstein had come to the banquet hall three times and when Officer Degenstein had been leaving the banquet hall on the last occasion, Plummer had asked Degenstein whether he would be getting a ticket, to which Degenstein had replied, "No tonight is your lucky night". In addition, Plummer said that another police officer had told him the same thing. Plummer also said he does not recall having any interaction with the defendant Rose-Green regarding the police and their concerns. Furthermore, Plummer said he did not see Rose-Green and Officer Degenstein talking to each other.

[84] Bar Closure and Cleanup

In addition, Plummer said that there had been 10 of them clearing the floor of bottles and service. This consisted of nine busboys and himself. Also, he said a licensed bartender had been there as well. He further said the bottles were put on the bar and then put in the backroom. He also said the bar had been closed when he spoke with Officer Degenstein. Plummer also said no alcohol was being served at that time. He also said Rose-Green had asked him whether the bar was closed and Plummer responded that the bar had closed at 2:00 a.m.

[85] Sandy's Law Warning Signs

Furthermore, Plummer said he owns a promotion company that prints flyers. He also said he had contact with Officer Degenstein at 5:00 p.m. and at 9:00 p.m. In addition, Plummer said he had put up the Sandy's Law warning signs in the banquet hall before and one sign at the bar. He also said he put the permit up and the owner of the banquet hall had taken a photograph of it. Furthermore, Plummer said he had put up the Sandy's Law warning sign up beside the permit, but did not take pictures of the Sandy's Law warning sign. He also said the warning signs came with the permit. He further said he had put up "No Smoking" and the "Sandy's Law warning signs" mostly on the box pillars in the hall, especially the two pillars to the left and in the front lobby by the wand-in area.

[86] Altercation and Awareness of Interior

Plummer also said the altercation had been outside in the parking lot where the people line up to go inside. He also said the line-up had been across the parking lot. Moreover, he agreed with the suggestion that when he had gone outside to deal with the altercation, then he would not know or be aware of what had been going on inside the banquet hall. He also said the last time he had spoken with Officer Degenstein had been for about 5 seconds after 2:00 a.m. and then he observed Degenstein walk away to speak with Rose-Green. At that point, Plummer said he had stepped out of the banquet hall, and then 20 minutes later, he observed Officer Degenstein when an altercation had been occurring outside. And, then when the altercation occurred and Plummer had gone out to the line–up, he said he observed Officer Degenstein and other police officers then come out of the lobby area.

4. APPLICABLE LAW

[87] Classes of Licences and Endorsements

The classes of liquor licences that may be issued to sell liquor are established under s. 8(1) of the Licences To Sell Liquor Regulation, Ont. Reg. 719/90, while the "caterer's endorsement" is prescribed in s. 8(2) as one of the types of endorsements that can be attached to a liquor licence:

Classes of Licences

8(1) The following classes of licences to sell liquor are established:

A liquor sales licence authorizing the sale and service of liquor for consumption on the premises to which the licence applies.
A mini bar licence authorizing the sale and service of liquor from a dispenser in a room rented as overnight accommodation on the premises to which the licence applies.

(2) The following endorsements to liquor sales licences are established:

A brew pub endorsement authorizing the sale and service, for consumption on the premises to which the licence applies, of beer manufactured by the applicant.
A wine pub endorsement authorizing the sale and service, for consumption on the premises to which the licence applies, of wine manufactured by the applicant.
A caterer's endorsement authorizing the applicant to sell and serve liquor for an event held on premises other than the premises to which the liquor sales licence applies.
A room service endorsement authorizing the applicant to sell and serve liquor to persons registered as guests in a facility that rents overnight accommodation adjacent to the premises to which the licence applies.
A mini bar endorsement authorizing the sale and service of liquor from a dispenser in a room rented as overnight accommodation in a facility adjacent to the premises to which the liquor sales licence applies.
A golf course endorsement authorizing the sale and service of liquor to persons on a golf course for consumption on the playing area of a golf course.
Revoked: O. Reg. 181/11, s. 2.
A bring-your-own wine endorsement authorizing the holder of a liquor sales licence for a restaurant or for a banquet room located in a hotel or motel to permit patrons to bring unopened bottles of commercially-made wine into the restaurant or banquet room to which the licence applies for their own consumption.

(3) A room is considered to be rented as overnight accommodation if it is rented on a short term basis to persons who are not ordinarily resident in it.

[88] Conditions of Liquor Sales Licences

In addition, according to s. 22 of the Licences To Sell Liquor Regulation, Ont. Reg. 719/90, the conditions that apply to liquor sales licences are set out in sections 23 to 56 of that Regulation:

Conditions of Liquor Sales Licences

22. The conditions set out in sections 23 to 56 apply with respect to liquor sales licences.

[89] Hours of Sale and Service

Moreover, under s. 25(1) of the Licences To Sell Liquor Regulation, Ont. Reg. 719/90, one of the conditions that applies to liquor sales licences is that liquor may be sold and served only from 11 a.m. on any day until to 2 a.m. on the following day, except for New Year's eve:

25(1) Except for December 31, liquor may be sold and served only between 11 a.m. on any day and 2 a.m. on the following day. O. Reg. 163/96, s. 5.

(2) On December 31, liquor may be sold and served only between 11 a.m. on any day and 3 a.m. on the following day.

(3) This section does not apply with respect to the sale or service of liquor from a mini bar.

[90] Conditions of Caterer's Endorsements

In addition, under s. 59 of the Licences To Sell Liquor Regulation, Ont. Reg. 719/90, the holders of a valid liquor sales licence containing a "caterer's endorsement" are required to ensure that the conditions of that particular endorsement as set out under sections 60 to 66.1 of that Regulation are complied with:

Conditions of Caterer's Endorsements

59. The holder of a liquor sales licence with a caterer's endorsement shall ensure that the conditions of the endorsement that are set out in sections 60 to 66.1 are met.

[91] Premises Compliance Requirements

Accordingly, the holders of a liquor sales licence with a "caterer's endorsement" are obliged to comply with s. 63(1) of the Licences To Sell Liquor Regulation, Ont. Reg. 719/90, which requires that the premises in which they are catering an event and to which their liquor licence applies must comply with the requirements set out in the Licences To Sell Liquor Regulation:

63(1) The premises at which an event is held must comply with the requirements of this Regulation for premises to which a liquor sales licence applies.

[92] Penalties

Furthermore, the following penalties or fines set out in s. 61 of the Liquor Licence Act, R.S.O. 1990, c. L.19, can be imposed on the defendants if they are convicted of committing any of the four offences they are charged with, which includes a fine of not more than $100,000 or to imprisonment for a term of not more than one year, or to both a fine and imprisonment:

Offences

61(1) A person is guilty of an offence if the person,

Penalties

(3) Upon conviction for an offence under this Act, other than a contravention of subsection 30(1), (2), (3), (4) or (4.1),

(a) a corporation is liable to a fine of not more than $250,000; and

(b) an individual is liable to a fine of not more than $100,000 or to imprisonment for a term of not more than one year or both.

5. DECISION

[93] Standard of Proof – Strict Liability Offences

As the specific sections setting out the four offences do not expressly indicate they are to be treated as mens rea or absolute liability offences, then they are to be considered presumptively as strict liability offences, which requires that the prosecution is only legally required to prove that the defendants had committed the actus reus of each of the four offences beyond a reasonable doubt and does not have to prove any mens rea element for each of the four offences in order for a conviction. And, because these four liquor licence offences are strict liability offences then once the prosecution fulfills that onus of proof, then in order for the defendants to be acquitted of the four offences, they are then required to legally prove, on a balance of probabilities, that they had taken all reasonable steps for the circumstances to avoid the particular event or that they had reasonably believed in a mistaken set of facts which, if true, would render the act or omission innocent: R. v. Sault Ste. Marie (1978), 40 C.C.C. (2d) 353 (S.C.C.).

(1) "Fail to Remove Signs of Service", Contrary to s. 29 of O. Reg. 719/90

[94] Statutory Requirement

In respect to the "fail to remove signs of service" offence, s. 29 of the Licences To Sell Liquor Regulation, Ont. Reg. 719/90, requires that a licence holder shall ensure that evidence of liquor that has been served and consumed on the premises is removed within forty-five minutes after the end of the period during which liquor may be sold and served under the licence:

29. The licence holder shall ensure that evidence of liquor that has been served and consumed on the premises is removed within forty-five minutes after the end of the period during which liquor may be sold and served under the licence.

[95] Application to This Case

For the event in question, s. 25(1) of the Licences To Sell Liquor Regulation only permits alcohol to be sold and served up to 2:00 a.m., and since all signs of service had to be removed within 45 minutes after the legislated period in which liquor can be sold or served under the defendants' liquor license, then the signs of service, such as bottles and alcoholic beverages had to be removed from the licensed area by 2:45 a.m., in accordance with the regulations.

[96] Officer Degenstein's Observations

For this particular charge of "fail to remove signs of service", Officer Degenstein had testified that at 3:06 a.m., which is approximately 21 minutes after the time when the defendants had to ensure that all evidence of liquor that had been served and consumed on the premises had been removed, that he had observed in the interior of the premises, various persons drinking around the dance floor area, people mixing drinks in various areas of the premises, and that a large crowd had still been at the bar. Furthermore, Degenstein said he had observed bottles of Hennessy in buckets on ice, which still appeared to him to be containing an alcoholic beverage in those bottles, more bottles of Hennessy under a table, as well as Bacardi Breezers, and many patrons holding pink, blue, and yellow cups, in the interior of the premises. In addition, he said he had observed more people drinking from Heineken bottles and that there was six-packs of beer in and around the area.

[97] Defendants' Defence

In their defence to this particular charge, the defendants argue that Tyrone Plummer's testimony should be relied upon and not Officer Degenstein's, since Degenstein lacked an independent recollection of some of the particulars on some of the events that occurred during Degenstein's attendance at the Natraj Banquet Hall.

[98] Credibility Assessment

In particular, Plummer had testified that he and 10 busboys had been clearing the main room of bottles and moving them to the backroom. However, I find that for this particular charge, Officer Degenstein's testimony had been credible and specific, while Plummer's overall testimony had lacked a sufficient level of reliability and contained an inadequate degree of accuracy or preciseness. In regards to Plummer's impreciseness, Plummer had testified about organizing over 2000 events and that he had observed Officer Degenstein on three separate occasions at the venue of the event on July 31st and August 1st and that he had conversed with Degenstein at 5:00 p.m., at 9:00 p.m. and at 2:00 a.m. However, Officer Degenstein had testified to having only attended the venue during the event on two occasions, namely at 11:12 p.m. and 3:06 a.m., and that at 5:00 p.m. on July 31, 2011, he had not even started his shift yet. Accordingly, not very much weight can be placed on Plummer's testimony and observations, since his testimony appears to be in reference to another event involving Officer Degenstein, especially when his times appear to be rough estimates and that the number of times he supposedly met and conversed with Officer Degenstein during the event do not coincide with Officer Degenstein's visits, especially when it is considered that Officer Degenstein had testified to recording in his notebook the time of each visit that he had made to that particular event sponsored by Plummer, which had commenced on July 31, 2011.

[99] Finding on Charge 1

Ergo, based on Officer Degenstein's testimony and observations in regards to this particular charge, I find that the prosecution has proven beyond a reasonable doubt that the defendants, as the liquor sales licence holder, did commit the actus reus of the offence of "fail to remove evidence of service", contrary to s. 29 of the Licences To Sell Liquor Regulation, O. Reg. 719/90.

(2) "Permit Use of Narcotic on Premises", Contrary to s. 45(2) of O. Reg. 719/90

[100] Statutory Requirement

In addition, the "permit use of narcotic on premises" offence under s. 45(2) of the Licences To Sell Liquor Regulation, Ont. Reg. 719/90, requires that the licence holder shall not permit a person to hold, offer for sale, sell, distribute or consume a controlled substance as defined in the Controlled Drugs and Substances Act (Canada) on the premises under the exclusive control of the licence holder:

45(1) The licence holder shall not permit drunkenness, unlawful gambling or riotous, quarrelsome, violent or disorderly conduct to occur on the premises or in the adjacent washrooms, liquor and food preparation areas and storage areas under the exclusive control of the licence holder.

(2) The licence holder shall not permit a person to hold, offer for sale, sell, distribute or consume a controlled substance as defined in the Controlled Drugs and Substances Act (Canada) on the premises or in the adjacent washrooms, liquor and food preparation areas and storage areas under the exclusive control of the licence holder.

[101] Officer Degenstein's Observations

In respect to the "permit use of narcotic on premises" charge, Officer Degenstein testified that upon entering the premises at 3:06 a.m., he had noticed that the premises in its entirety, including right up to the washroom area, had been filled with the odour of freshly burnt marihuana. In addition, he said that prior to April of 2008, while he was in his qualification phase as a constable at the Ontario Police College in Aylmer, Ontario, he had been subjected to one controlled or burn test of marihuana. So consequently, from that particular test and from his experience as a police officer, he said that he definitely is aware of what marihuana smells like. He also reiterated that there had been a strong smell of marihuana in the interior of the premises. Moreover, Officer Degenstein said he had observed one male party to be openly smoking what appeared to be a marihuana cigarette, since its appearance had definitely not been the appearance of a normal cigarette, and that while he had been observing this male, Degenstein said he could detect the odor of marihuana at that time. Degenstein also said the marihuana cigarette appeared to consist of approximately four to six papers, be six inches in length, and had been almost in the shape of a cigar. Furthermore, Degenstein said that this person had been smoking this cigar-shaped item in the interior of the premises openly and without care or due consideration for any legal ramification. However, Degenstein said that no arrests had been made under the Controlled Drugs and Substances Act at that time, because of the large crowd of approximately four to five hundred people being in the premises, which raised concerns for his personal safety, even though two other officers had accompanied him.

[102] Defendants' Challenge to Credibility

In their defence to this particular charge, the defendants argue that Officer Degenstein is not credible or that is testimony is reliable, since Officer Degenstein had testified about not having an independent recollection about the particular hand motions of the male person he observed holding the cigar-shaped, white-coloured, six-inch cigarette made up of four to six papers in trying to hide the cigarette after becoming aware of Officer Degenstein's presence, and since Degenstein did not enforce the Controlled Drugs and Substances Act or investigate the person holding the marihuana cigarette for violating that statute, yet testifies to observing an illegal act being committed by that male person.

[103] Security Inaction

Officer Degenstein also said he observed security personnel who were in the premises not make any effort to stop marihuana being smoked or used in the premises.

[104] Sufficiency of Evidence

Moreover, Officer Degenstein had based this particular charge of "permit use of narcotic on premises", in part, on his observations of a man holding a six-inch cigar-shaped, white-coloured, cigarette to corroborate his initial detection or awareness of the use of marihuana in the licensed premises. Degenstein's initial detection of the marihuana use had been from Degenstein personally smelling an odour of freshly-burnt marihuana permeating throughout the licensed establishment, which is a human sense that can be relied upon as proof that marihuana had been lit and used within the licensed premises. And, even though the defendants' challenge of Officer Degenstein's observations of this particular man with the supposed marihuana cigarette would not be sufficient to prove a charge of possession of a controlled substance under the Controlled Drugs and Substances Act, Officer Degenstein's ability to smell the odour of freshly-burnt marihuana that noticeably permeated the licensed premises within the Natraj Banquet Hall at 3:06 a.m. on August 1, 2011, is nevertheless sufficiently reliable as proof that the actus reus of the offence had been committed.

[105] Credibility and Experience

Furthermore, although Officer Degenstein lacked an independent recollection of certain particulars of some events that occurred during the sponsored event, this inability to recall the particulars in respect to certain aspects of an event does not undermine Officer Degenstein's credibility and does not lead to an inference that the totality of his perceptions, observations, and testimony have been fabricated, especially when this lack of recollection of certain particulars is not necessarily germane or essential to proving an element of the offence. Moreover, the use of marihuana is ubiquitous in society and Officer Degenstein's ability to be aware of and detect its use through his sense of smell is not an extraordinary or a difficult skill to acquire. As such, I am satisfied that Officer Degenstein had the training and experience to become aware of or be able to detect the odour of freshly burnt marihuana through his sense of smell.

[106] Finding on Charge 2

Therefore, the prosecution has proven beyond a reasonable doubt that the defendants had committed the actus reus of the offence of "permit use of narcotic on premises", contrary to s. 45(2) of the Licences To Sell Liquor Regulation, O. Reg. 719/90.

(3) "Fail to Display Warning Sign (Sandy's Law)", Contrary to s. 30.1(1)(a) of the Liquor Licence Act

[107] Statutory Requirement

In regards to the "fail to display warning sign (Sandy's Law)" offence, s. 30.1(1)(a) of the Liquor Licence Act, R.S.O. 1990, c. L.19, requires that no person shall sell or offer to sell or supply liquor from prescribed premises, unless a warning sign that cautions women who are pregnant that the consumption of alcohol during a pregnancy is the cause of Fetal Alcohol Spectrum Disorder is posted at the premises in accordance with the prescribed criteria set out s. 26.1 of General Regulation (Liquor Licence Act) O. Reg. 718/90:

Requirement to display sign

30.1(1) No person shall sell or supply liquor or offer to sell or supply liquor from a prescribed premises unless,

(a) the premises prominently displays a warning sign containing the prescribed information that cautions women who are pregnant that the consumption of alcohol during pregnancy is the cause of Fetal Alcohol Spectrum Disorder;

(b) the sign is posted at the premises in accordance with the prescribed criteria; and

[108] Prescribed Criteria

Moreover, the criteria set out in s. 26.1 of General Regulation (Liquor Licence Act) O. Reg. 718/90, for displaying the "Sandy's Law" sign to warn pregnant women about the Fetal Alcohol Spectrum Disorder requires that the warning sign be at least 8 inches by 10 inches in size, that it be displayed in premises to which a licence to sell liquor applies, and that the warning sign shall be prominently displayed and visible to patrons in a location where liquor is sold and served:

Warning Regarding Consumption of Alcohol During Pregnancy

26.1(1) The warning sign referred to in subsection 30.1(1) of the Act shall be in the form posted on the website of the Ministry of Consumer and Business Services (www.cbs.gov.on.ca/mcbs/english/pdf/warningsign.pdf) and bearing the words "WARNING: Drinking alcohol during pregnancy can cause birth defects and brain damage to your baby".

(3) The warning sign shall be at least 8 inches by 10 inches in size.

(4) The following premises are required to display the warning sign:

Premises to which a licence to sell liquor applies.
Premises to which a licence to operate a brew on premise facility applies.
A government store.

(5) The warning sign shall be prominently displayed and visible to patrons, as follows:

On premises with a licence to sell liquor, in a location where liquor is sold and served.
On premises with a licence to operate a brew on premise facility, in a location where persons make beer or wine.
In a government store, in a location where liquor is purchased.

(6) The reference to the warning sign incorporated by reference under subsections (1) and (2) includes amendments made to the sign from time to time after February 1, 2005.

[109] Officer Degenstein's Observations

For this particular charge of fail to display the Sandy's Law warning sign, Officer Degenstein had testified that when he had attended at 3:06 a.m., he did not observe the Sandy Law's warning sign conspicuously posted in the area by the bar where liquor was being sold or dispensed. In addition, he testified that he did not see any of those warning signs posted anywhere in the premises where the sponsored and catered event was being held in the banquet hall at that time.

[110] Plummer's Testimony

On the other hand, Tyrone Plummer testified that he had put up five or six Sandy's Law warning signs on pillars, by the bar, and at the front entrance by the lobby.

[111] Crown's Concession

In addition, Officer Degenstein had acknowledged that if the bar had been closed and that no liquor was being sold or served, then there would be no requirement to have the Sandy's Law signs displayed by the bar. This point had also been conceded by the prosecution that at 11:12 p.m., when Officer Degenstein had made his first visit to the event, that since the event was not yet started then the sign was not needed to be displayed; and that at 3:06 a.m. on Degenstein's second visit, that since the bar had been closed and that no alcohol was being served or sold, then the Sandy's Law warning signs also did not need to be displayed by the bar or on the premises, and invited an acquittal be entered on the charge for all three defendants.

[112] Finding on Charge 3

Ergo, as submitted by both the defendants and the prosecution, the defendants did not have to legally display the Sandy's Law warning sign after the bar had been closed and when liquor was no longer being sold or served at 3:06 a.m.

[113] Acquittal on Charge 3

As such, the prosecution has not proven beyond a reasonable doubt that the defendants, as the liquor sales licence holder, did commit the actus reus of the offence of "fail to display warning signs (Sandy's Law)", as required under s. 30.1(1)(a) of the Liquor Licence Act, R.S.O. 1990, c. L.19, and an acquittal will be entered for all three defendants on this particular charge.

(4) "Permit Removal of Liquor from Premises", Contrary to s. 34 of O. Reg. 719/90

[114] Statutory Requirement

The "permit removal of liquor from premises" offence under s. 34 of the Licences To Sell Liquor Regulation, Ont. Reg. 719/90, requires the licence holder not to permit a patron to remove liquor from the premises, to which the licence applies:

34(1) The licence holder shall not permit a patron to remove liquor from the premises to which the licence applies.

[115] Officer Degenstein's Observations

Finally, in respect to this particular charge of "permit removal of liquor from premises", Officer Degenstein had testified that upon his arrival at 3:06 a.m. on August 1, 2011, at the Natraj Banquet Hall, he had observed, when he had entered the lobby that had been set up in the interior of the building, a female with a six-pack containing four full Heinekels with their caps on and that two bottles had been missing from the six-pack. He also said this female had been in the exterior lobby and had been very close to the exterior doors of the building. He also said she appeared to be getting ready to leave the banquet hall. Furthermore, he said that the female had been outside of the area that was covered by the liquor license being used and in contravention of the Liquor License Act.

[116] Scope of Licensed Premises

In addition, Officer Degenstein had described the main banquet room had been separated from the lobby by interior doors, which block off the lobby area from the main banquet room, and that the defendants' liquor license did not contain an endorsement for washrooms or hallways, and as such, liquor could only be consumed in the interior of the main banquet room and not in a common area such as a lobby, which would lead to the exterior of the building and which would permit people attending the event to readily remove the alcohol from the building.

[117] Contravention of Regulation

Ergo, since the lobby is not an area licensed under the Liquor License Act for the sale or service of alcohol under the defendant's liquor licence, then the female in the possession of the four full Heinekels with their caps on outside of the licenced area contravenes s. 34 of the Licences To Sell Liquor Regulation.

[118] Finding on Charge 4

Therefore, based on Officer Degenstein's observations of liquor being present with the female event goer in the lobby of the banquet hall at 3:06 a.m., which is outside of the licensed premises, the prosecution has proven beyond a reasonable doubt that the defendants, as the liquor sales licence holder, did commit the actus reus of the offence of "permit removal of liquor from premises", contrary to s. 34 of the Licences To Sell Liquor Regulation, O. Reg. 719/90.

(5) Due Diligence Defence

[119] Burden of Proof

In respect to any due diligence defence applicable to these strict liability offences, the defendants have not met their burden of proving on a balance of probabilities that they had taken all reasonable steps for the circumstances to avoid the particular event or that they had reasonably believed in a mistaken set of facts which, if true, would render the act or omission innocent.

[120] Lack of Evidence of Preventive Measures

In that respect, there had been no evidence presented that the defendants had undertaken to properly and adequately instruct and train staff and security personnel about the requirements of the Liquor Licence Act and its regulations or that they had established a sufficient system of control at exit points from the area the event had been held in and to which the liquor licence applied, to ensure that liquor would not be removed from the premises by patrons or event goers; or that they had devised an adequate system or plan to ensure that all signs of service, such as empty bottles, glasses of liquor, opened bottles or glasses of liquor had been completely removed from the licenced premises by 2:45 a.m. on August 1, 2011; or that they had established a system or plan that would ensure that event goers would not use narcotics in the licensed premises of the banquet hall.

[121] Security Inaction

Furthermore, Officer Degenstein had noted and observed that security personnel had not made any effort to prevent marihuana being used in the main banquet room, which had been licenced to sell and serve alcohol.

6. DISPOSITION

[122] Convictions

Ergo, based on the totality of the evidence, I find that the Crown has met their burden of proving beyond a reasonable doubt that the defendants, Carl Rose-Green, Patrick Dolley, and Turntable Restaurant and Lounge, have committed three of the four liquor licence offences that they were individually charged with, namely "fail to remove signs of service", contrary to s. 29 of O. Reg. 719/90; "permit use of narcotic on premises", contrary to s. 45(2) of O. Reg. 719/90; and "permit removal of liquor from premises", contrary to s. 34 of O. Reg. 719/90.

[123] Conviction Order

Accordingly, convictions are entered against the defendants, Carl Rose-Green, Patrick Dolley, and Turntable Restaurant and Lounge for committing these three liquor licence offences.

[124] Acquittal on Count 3

And, to reiterate, all three defendants had been acquitted of the charge contained in count #3 in each information of "fail to display warning sign (Sandy's Law)", under s. 30.1(1)(a) of the Liquor Licence Act, R.S.O. 1990, c. L.19.

Dated at the City of Brampton on January 30, 2014.

QUON J.P.

Ontario Court of Justice