Representation for Owners Facing Chages at the Alcohol and Gaming Commission

Citation: 2015canlii9420 Turntable Restaurant

In a legal battle where the odds often seem stacked against small businesses, paralegal Peter Swales showcased the pivotal role of meticulous cross-examination and sharp litigation skills, securing a significant victory for his client, the Turntable Restaurant & Lounge. The case, which centered on an alleged breach of liquor license capacity, ultimately turned on the inconsistencies and lack of credibility in the evidence presented by the authorities—weaknesses masterfully exposed by Swales.

The Allegation: An Overcrowded Establishment

The Turntable Restaurant & Lounge, operated by Carl Alexander Rose-Green and Patrick Dolly, was handed a $2,500 monetary penalty after a police inspection on April 14, 2013. Two officers, Sergeant David Van Allen and Constable Vito Pedano of the Peel Regional Police Service, conducted a manual headcount and concluded the establishment was over its licensed capacity of 90 people. Sgt. Van Allen counted 112 patrons, while Const. Pedano counted 114. Based on these counts, the Registrar of the Alcohol and Gaming Commission of Ontario (AGCO) issued the penalty.

Swales’ Strategy: Unraveling the Prosecution’s Case Through Cross-Examination

Representing the restaurant, Peter Swales faced the task of challenging the testimony of two uniformed police officers. His approach was not to simply offer a competing narrative, but to deconstruct the prosecution’s evidence piece by piece through rigorous cross-examination.

A critical point of contention was the security officer’s mechanical counter. The restaurant’s security officer, Rodney Gill, testified that upon the officers’ arrival, he showed Sgt. Van Allen his counter, which read exactly 90.

Swales’ cross-examination brought a stunning contradiction to light. While Sgt. Van Allen testified he had no recollection of seeing the counter or even speaking with the security guard at the door, his partner, Const. Pedano, testified that he did, in fact, witness the security guard show the counter to Sgt. Van Allen and noted the reading was 90. This glaring inconsistency in the officers’ testimonies was a cornerstone of the defense and significantly damaged their credibility.

Further cracks appeared in the officers’ accounts under Swales’ questioning:

• The Parking Lot: The initial reason for the inspection was Sgt. Van Allen’s suspicion due to a large number of cars in the parking lot. However, he admitted a neighboring restaurant was open. Const. Pedano, conversely, stated the other restaurant would have been closed. The Tribunal noted this inconsistency, which stemmed from the Registrar’s own witness.
• The Count Itself: The officers claimed patrons were “mainly stationary” due to their uniformed presence, making for an easy count. The adjudicator found this to “lacked credibility for a night club which was allegedly crowded and busy”. Swales contrasted this with his client’s testimony that patrons did not change their behavior and the security officer’s statement that a few people left while the police were inside.
• Recollection and Notes: Swales highlighted that Sgt. Van Allen had no notes on how he performed his count and had a poor recollection of key events, like the conversation about the counter.

The Decision: A Win for the Defense

Adjudicator Jacqueline Castel of the Licence Appeal Tribunal was ultimately not satisfied that the Registrar had proven its case. In her decision, she pointed directly to the “significant inconsistencies in the evidence of the two police officers” and the lack of credibility in their testimony.

The Tribunal noted that given the discrepancy between the officers’ manual counts and the security officer’s corroborated counter reading of 90, a more precise exit count could have been conducted, especially as it was near closing time. The ruling emphasized that while manual headcounts can be accepted, the numerous inconsistencies and failures in recollection in this specific case meant the Tribunal was “not prepared to accept the manual head count of the police officers”.

As a result, the Tribunal directed the Registrar to set aside the monetary penalty against Turntable Restaurant & Lounge. This outcome was a direct result of a legal strategy that hinged on detailed preparation and the ability to effectively challenge official testimony. Peter Swales demonstrated that even in the face of what seems like straightforward evidence from law enforcement, a skilled litigator can uncover the truth and ensure justice prevails.

For experienced representation at the AGCO contact SW Legal Services PC 905-235-4567 [email protected]