For those of you who have ever been to Ottawa, many of you will know of D’Arcy McGees. It’s a pretty popular little pub in a very busy area of downtown.
This article, despite it being mainly a rant by a journalist against the liquor inspectors, does provide for some useful discussion.
Ontario’s system of liquor inspectors is run through the Alcohol and Gaming Commission of Ontario (AGCO), which reviews ‘incidents’ in an administrative tribunal setting.
When an inspector has an issue, he or she makes a report to the AGCO and a panel of two board members hears the complaint. The issue with administrative tribunals, especially those who feed themselves by actively seeking complaints, is one of self-interest. Unlike many other tribunals which respond to complaints issued by the public, the AGCO sends its inspectors to various locations and provides them with significant amounts of discretion.
The article does make a strange quote:
“It gets worse -- unlike a criminal court, where the prosecution has to establish guilt beyond a reasonable doubt, to a high evidentiary standard, at an AGCO hearing, the burden of proof is much lower -- on the balance of probability -- as is an evidentiary standard that allows the use of hearsay.”
Now, perhaps my understanding of the law of evidence is not absolute, but I do not believe that the use of hearsay is always allowed in cases where a balance of probability is used as the standard of proof. It is, however, generally allowed in most (if not all) administrative tribunal proceedings. This is not unusual, yet in a case where the offence hinges on the inspector’s assessment of whether or not a bar patron is intoxicated, this could easily be problematic.
According to the AGCO, an inspector is to look for a patron who is talking too loudly, slurring, sweating and is off balance. It’s a bit subjective, because I do know several people who are like that on a daily basis.
The reporter also harangues the government for, essentially, eavesdropping. The liquor inspector is able to use his or her overhearing of your conversation as evidence against you. The report states that “Much worse that government is encroaching on the rights of the individual to the extent that a supposedly private conversation becomes a matter of public record. The Ministry of Truth would have approved.” Hyperbolic, sure, but no less alarming. With the allowance of hearsay evidence, the inspector can freely supply whatever snippets of conversation he or she believed he overheard, all of which can be used as evidence against the bar in question.
There’s not a lot more to this story except for the apparent rise of incidents coming before the AGCO in the last 10 years. The reporter states that it is a rise of nearly 60%. That is significant, but without context it is difficult to know if this is partially due to the growth of bars in Ontario or some other factor.
Still, I believe the issue to take away from this story is merely that the structure of the AGCO seems to seem support overzealous liquor inspectors. The AGCO is dependent on its inspectors to, in a sense, drum up ‘business’ in order to justify its existence and the current level of staffing. Now, to a certain extent, they are clearly doing a necessary job. However, it’s alarming that there does not appear to be the transparency and accountability expected of publicly funded tribunals.
[Source: National Post]
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