Decision for Yellowknife pub fighting COVID charge expected Friday morning

What makes a dance floor?

That was part of closing argument from Yellowknife defence lawyer Jay Bran during the trial for the Monkey Tree Pub owners facing a $5,175 fine under the Public Health Act related to COVID-19 health orders.

The charge stemming from a visit from two liquor inspectors from the Northwest Territories who observed a "crowded bar" and "people dancing" during a routine inspection in November 2020. The observations were reported to territorial public health officers who investigated and issued the fine a month later.

But what really constitutes a dance floor, Bran argued during closing arguments.

"If you are waiting for a beer in line at the bar and there is music … and you start dancing, is that a dance floor," Bran asked the judge.

After a day of testimony from four witnesses called by territorial lawyer Roger Shepard, Judge Bernadette Schmaltz will deliver her decision Friday morning.

'It looked like pre-pandemic'

It was a routine inspection, the two liquor inspectors said during their respective testimonies.

Manager of liquor enforcement Suzanne Hanna, normally based out of Hay River, N.W.T., was in Yellowknife tagging along with liquor inspector Vibhesh Tripathi on Nov. 14, 2020.

Hanna said the pair checked out other restaurants and pubs before stopping at the Monkey Tree Pub, but once she got to the pub she observed "no masks, no restrictions and shoulder-to-shoulder dancing."

She described the scene as looking "pre-pandemic" and like "a regular Friday night."

Tripathi painted a similar scene during his testimony, saying he saw people dancing and noted his concern with the "crowding" in the pub.

"Personally I think it could have been minimized," he said on the stand.

Mixed testimony on tables and chairs

Cross examination took up a significant amount of time in the morning as the defence lawyer asked Hanna and Tripathi about each specific duty during the liquor inspection, how long each duty took, and what their walking path was from when they entered to when they left.

During Hanna's cross examination, Bran asked if she raised her public health violation concerns with the staff.

Hanna said enforcement for Public Health Act violations is out of her jurisdiction and she did not talk to staff about the crowding or dancing.

Bran also quizzed Hanna if it was possible there were tables and chairs on the dance floor she wasn't able to see that night. The defence lawyer shared a photo of the dance floor area in question with tables and chairs in the area. The photo was undated. After a heated back and forth, Hanna agreed it was possible she did not notice tables and chairs.

When Bran had the opportunity to cross examine Tripathi, the defence lawyer asked who instructed the liquor inspector to make the health violations an issue.

"It was part of public health guidance," Tripathi said, comparing it to reporting a fire.

"You don't say, 'Hey it's not my problem.'"

Defence also posed the possibility of chairs and tables in the dance floor area being out of sight due to all the patrons in the area, but the liquor inspector disagreed.

"I would have seen [the tables and chairs]," Tripathi testified.

No photos exist of night in question

Public health officers were also called to the stand in the afternoon.

Kevin Stevens spent less than 20 minutes giving testimony, as the accompanying officer who was there when the ticket was issued to business owners Jen Vornbrock and Steve Dinham.

Meanwhile, regional public health officer, at the time, Ian Ellsworth took more time as he explained how he received an email with the liquor inspectors observations, opening an investigation into the public health act violation.

During the cross examination, Bran questioned the training Ellsworth received to conduct investigations in that role. The public health officer, who is now self-employed, noted his prior career as a conservation officer, but admitted he did not get specific training in that role.

There are no photos of the night in question.

Both Tripathi and Hanna said during their testimonies it was not common to take photos during liquor inspections.

But how then did regional public health officer, Ellsworth, at the time investigate the incident, Bran asked Ellsworth during the cross examination in the afternoon.

Ellsworth said he only used eye-witness testimony from Hanna and Tripathi, as it was not the first complaint about the Monkey Tree Pub.

As part of Ellsworth's role, he worked with Protect NWT, a 24-hour enforcement line which took anonymous tips from the public about public health order violations.

"We had numerous complaints about the Monkey Tree … more than any other establishment," Ellsworth said, noting he believed the witness statements to be enough evidence to lay a charge.

Decision expected Friday morning 

In the end, defence called no witnesses.

"This is not a complicated matter," Shepard told the judge — there was a public health emergency, dance floors were not allowed to be open and there was dancing."

"The fact of the matter is, for at least 15 minutes that dance floor was being used as a dance floor."

Bran did not dispute the public health order was in effect, but highlighted the "lack of fulsome investigation" by the public health officers, and said there is no evidence that there "wasn't anything done" in relation to Monkey Tree staff trying to decrease or eliminate risk.

The decision is expected Friday morning in Territorial Court.