It seems positively Orwellian that a private conversation in a bar can be taken down surreptitiously by a third party and used as evidence in a quasi-judicial hearing -- but that is the reality of life in a province that is under increasingly intrusive surveillance.
Readers with long memories may remember that a group of journalists was booted unceremoniously from the popular downtown Ottawa watering hole D'Arcy McGee's on a quiet Monday night last February. There was no warning, no incident -- just no more beer.
It turned out a liquor inspector working for the Alcohol and Gaming Commission of Ontario had satisfied himself that the revellers were intoxicated and told the bar's manager that he was filing a report that would put D'Arcy's liquor license in jeopardy -- hence the beer yanked from the hot, clammy hand of one of my bemused colleagues.
The report was filed in the fall and D'Arcy's decided to contest its findings. As the bar's manager, Kevin Ferby, told me at the time, he felt the inspector was "overzealous" and had "overreacted". "The law is there to protect extremes and there were no extremes here," he said.
I was called as a witness this week at a hearing in front of two members of the board of the Alcohol and Gaming Commission -- and the experience was surreal. The AGCO is a unique organization, in that it decides who gets a liquor license, then enforces their operation through liquor inspectors. If the organization decides to proceed with charges, the AGCO appoints legal counsel and the case is heard by two AGCO board members. Theoretically, each stage of the process is independent of the other, though defendents say the cards are often stacked against them.
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.
In the D'Arcy's case, the prosecuting lawyer cited the Post article, in which I had described members of our band as being "moist and garrulous" , if not quite "tired and emotional", as an admission that we were all intoxicated -- which is an offence under the Liquor License Act. I conceded that we were in high spirits but rejected the notion of intoxication, which according to the Ministry of Government Services' own server training program means the customer is speaking too loudly, slurring, sweating and losing balance.
"You had to repeat yourself several times, did you not?" the lawyer asked.
"Yes but that happens all the time. You might have noticed I have the hint of an accent," I replied, in my strongest west Scotland brogue.
By this time things had proceeded from farce, as the lawyer flailed away in her attempts to make me admit we were all full of loudmouth soup, or something more sinister.
"As regards the subject of your conversation, is it possible the conversation was of a sexual nature?" the lawyer asked.
"Excuse me," I replied, taken aback.
"Is it possible the conversation was of a sexual nature?"
"I have no idea."
"Is it possible?"
"I have no idea. Is this relevant?" I asked.
"Your job here is to answer the questions. I will do the asking," she said, curtly.
So there you have it. It seems that not only was a public servant sitting in the shadows studying us, he was also eavesdropping on our conversation, so that he could include its contents in a report that could become a public document once the board members pronounce on whether D'Arcy's was in breach of its licence.
I have no idea whether I am identified by name or the precise nature of the allegation -- I wasn't allowed to listen to the inspector's testimony.
What is clear is that Ontario's beer police are running amok -- the number of licence suspensions has increased more than 60% in the province over the course of this decade. I was inundated with anecdotes to this effect from readers after the last article. Take the case of the Ottawa bar where a server refused a clearly inebriated customer, only for an inspector to pop up and tell her the man was now her responsibility and she was obliged to either escort him home or sober him up with a free meal.
Bad enough that a public employee, who is apparently unaccountable to the people, can temporarily close down a wealth-creating private business like D'Arcy's, which employs 75 people, on the extremely subjective basis that a couple of 40-something suits "appeared to be intoxicated". 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.