Last week, over six months after the accident, ClubLink Corp., which runs the Lake Joseph club, and many of its staff and directors faced charges under Ontario law that, while not criminal, may result in six figure fines and even jail terms of up to twelve months. Sixteen staff members, managers and executives of the club were charged with serving the victims too much alcohol. The 16 accused - just three of whom were actually working at the restaurant that day - are charged with supplying liquor to people who were apparently intoxicated and for allegedly permitting drunkenness on a licensed premises.
Even ClubLink's vice-president of corporate relations was charged. ClubLink runs several dozen clubs. The Lake Joseph Club was named in 1997 as the best new golf course of the year.
Ontario Provincial Police Inspector Ed Medved, who heads the Bracebridge detachment investigating the crash, said "You can't just go out and sell drinks to people without consequences, the law is quite clear on that. Basically, what [the defendants] have to do is establish that there's no negligence in serving liquor. That is now the test.” Under Ontario law a bar has a positive obligation to ensure it is not serving drunk people. But unlike impaired driving, there is no standard for that.
After the crash, Tim Mulcahy, Tyler's father, campaigned to persuade the Ontario government to tighten laws for young people around speeding and drunk driving. But in reacting to the charges he said I haven't pushed for [charges] in any way, shape or form. I'm not looking for blood, I never really felt that anyone was responsible except Tyler. The liquor licence laws are just asking other people to enforce laws ... who are not police," Mr. Mulcahy put his finger squarely on the problem and dangerous precedent with this prosecution. Or at least half of it.
The other half is even more troubling. How does one commit a tort, to use a civil law term, on voluntary behaviour. We are decriminalizing assisted suicide, and rightly so, yet criiminalziing unassisted living? The ethical and equitable injustices are obvious. So isthe hypocrisy.
To put it another way, sellers of alcohol are engaged in a legal activity when they provide drinks to patrons. But according to the Ontario prosecutors, somewhere in the course of an evening, that legal action can become illegal. With no definition of what the tipping point is. No definition because the courts have already determined that a definition is impossible! So how can 16 people – 13 of whom were not there – be forced to meet a higher standard than even the law has determined possible. Oh if Kafka were only alive to record this!
An Ontario judge has already noted in a 2004 decision that referred to principles explained by an Alberta court, that to be legally intoxicated, someone must be "very drunk", The Ontario Divisional Court noted last year that intoxicated and "drunkenness" are similar concepts. But neither decision determined what “drunk” is.
To complicate matters more, while there is an accepted level of blood alcohol that detemines whether someone is "impaired" for the purposes of operating a vehicle under the law, all jurisprudence has determined that there is no such standard for "intoxicated". Yet it was under the “concept” of serving liquor to “intoxicated” persons that the 16 were charged! The very law they were charged under is contradictory.
"What constitutes drunkenness is very much a subjective assessment," the Ontario Divisional Court said in another case last year involving liquor license charges against a bar.
What makes this case important for Quebecers is that the Ontario Liquor Licence Act, which is similar to the provisions in other provinces, is awash with rules for bar owners, such as a minimum prices for beer or rules on serving food. There was even a special regulation included to permit beer service for spectators at the recent World Junior Hockey Championships in Ottawa, because most of the hockey players in the tournament were under the age of 19. The regulatory system is increasingly trying to turn bar owners into "babysitters" for their customers, suggested Toronto defence lawyer Todd White, who successfully defended a bar owner who was charged criminally in 1999 when an alcoholic customer fell down and died.
And in our politically correct increasingly snitch society, where authorities like to off load their responsibilities to citizens demonizing them at the same time, the poison in the Ontario case may spread across the country.
A free society must allow for freedom of choice. Even if the choice is bad. It must tolerate what has been called the “ voluntary assumption of risk.” What cannot be tolerated is the government making citizens policemen enforcing preventive rule and regulation based on state dictated subjective criteria. Life becomes a prison. There was a country like that once. It was called the Soviet Union. It even had monitors on every floor of every apartment building recording each occupants comings, goings and guests.
Canadians must become grown ups again. # will happen. The Bracebridge prosecution is nothing but prosecutorial political grandstanding. The Crown is playing on Canadians obsession with preventive security. Canadians are really beginning to believe that all harm can be prevented. It can’t, never has and never will.
Look at the draconian anti-smoking laws that spread across Canada like wildfire several years ago. They were thought to be just the thing to reduce smoking. Figures out this past week demonstrated that the numbers didn’t budge at all after falling for five straight years before the enactment of the laws. People don’t like coercion. Many instinctively react against them. We are making a gilded prison out of this country. As Benjamin Franklin said, “Those who would trade permanent liberty for temporary security shall, in the end, have neither liberty nor security.”
When Prime Minister Trudeau said that government has no place in the bedrooms of the nation he also meant that it had no role regulating actions of consenting adults. Not everything is going to be perfect in life. Not every problem can be solved by legislation. No politician should pretend it can and be allowed to put into force straightjacket law that seeks to micro-manage every aspect of our lives. It has been called the “new prohibitionism”. To paraphrase writer Anne Hingston, in this new era we “Restrict first, discuss never.”
The Federal government makes noises about decriminalizing marijuana, but at the same time proposes to give police unlimited powers to stop drivers for random drug checks in their cars. Quebec Premier Jean Charest, in an effort to placate women’s rights groups, legislates sec.143 of the Labour Code permitting workers to sue employers for the novel tort of “psychological harassment”. Ontario’s Consumer Affairs Minister Jim Watson’s friend dies in an inline-skating accident so everyone in Ontario is forced to wear a helmet if they take a bicycle or scooter. Montreal’s Mayor Gerald Tremblay authorizes police cameras at street level in the city’s Latin Quarter ostensibly to curtail drug sales, but that in fact violate the privacy of all citizens by indiscriminately capturing images of the activities of all passersby.
Government’s role must be one of persuasion and education, not compulsion and coercion, no matter how odious a citizen’s personal habit may be. Punishing citizens into virtuous conduct, and worse still forcing them to pre-emptively police it, can never and will never work.
